Legal Opinion

Gray v. Thornber

New York Supreme Court

Decided February 15, 1826Published

The defendant having been surrendered, in discharge of his bail, to the sheriff of New York, on the 29th of October ; on the 7th March, the Recorder of New-York made an order upon the plaintiff, to show cause on the 11th, why a supersedeas should not issue upon the statute, (1 R. L. 353, s. 12.) On showing cause it appeared that a ca. sa. had been delivered to the sheriff, on the 4th of March, returnable that day; but the defendant was not actually arrested upon it; and the…

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The defendant having been surrendered, in discharge of his bail, to the sheriff of New York, on the 29th of October ; on the 7th March, the Recorder of New-York made an order upon the plaintiff, to show cause on the 11th, why a supersedeas should not issue upon the statute, (1 R. L. 353, s. 12.) On showing cause it appeared that a ca. sa. had been delivered to the sheriff, on the 4th of March, returnable that day; but the defendant was not actually arrested upon it; and the sheriff returned it non est inventus ; though the defendant had continued in his custody on the limits, after the…

1Opinion of the Court

Curia.

Tracy v. Whipple is decisive that the mere delivery of a ca. sa. to the sheriff, against a person on the limits, is not per se et eo instanti, an arrest, so as to charge the sheriff for an escape; but is that material to the present question ? The plaintiff has made an ineffectual attempt to charge the defendant. The execution was returned non est; and he might have issued an alias ca. sa. on the 11th. That would have been good cause, under the authorities cited for the motion. He did not do so; but seems to rely on the sheriff’s liability. In Minturn v. Phelps, (3 John. 446,) had it…

2Cases cited1 opinion

  1. Minturn v. PhelpsNew York Supreme Court · 1808

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