Gray v. Thornber
New York Supreme Court
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
- Minturn v. PhelpsNew York Supreme Court · 1808