Phelps v. Barton
New York Supreme Court
Error from the Rensselaer common pleas. Phelps sued Barton, sheriff of the county of Rensselaer, in ajutice’s court, for the escape of one Van Dyck from the jail of the county, Tan Dyck having been arrested on a ca. sa. sued out by Phelps, on a judgment for costs rendered by the Rensselaer common pleas, on reversing a justice’s judgment in favor of Tan Dyck against Phelps. The judgment in favor of Tan Dyck was in an action of assumpsit on contract.
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Error from the Rensselaer common pleas. Phelps sued Barton, sheriff of the county of Rensselaer, in ajutice’s court, for the escape of one Van Dyck from the jail of the county, Tan Dyck having been arrested on a ca. sa. sued out by Phelps, on a judgment for costs rendered by the Rensselaer common pleas, on reversing a justice’s judgment in favor of Tan Dyck against Phelps. The judgment in favor of Tan Dyck was in an action of assumpsit on contract. The judgment of reversal was signed in February, 1832, on which a ca. sa. was issued, by virtue whereof Tan Dyck was arrested in March following,…
1Opinion of the Court
By the Court,
Savage, Ch. J.
The only questions are whether Van Dyck could be imprisoned for the costs of the judgment on certiorari ; and if he could not, whether the sheriff, in the action for the escape, can avail himself of such exemption. It was decided in Ray v. Hogeboom, 11 Johns. R. 433, that an officer who had process against a person who was privileged from arrest, might execute it or not; he is not bound to take notice of the privilege, but if he chooses to do so, and neglects to execute it, the fact that the person was privileged from arrest is a good defence in an action against…
2Cited by8 opinions
- Goodwin v. . GriffisNew York Court of Appeals · 1882
- Miller & Becker v. ScherderNew York Court of Appeals · 1849
- Carpentier v. WilletNew York Court of Appeals · 1864
- Ginochio v. OrserNew York Court of Common Pleas · 1855
- Carpentier v. WilletNew York Court of Appeals · 1864
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