Carruth v. Church
New York Supreme Court
Motion for a new trial. The action was debt against a sheriff, for an escape. The plaintiff proved, upon the trial, the issuing, but not the service, of the capias against the sheriff, while the debtor was off the jail limits. The judge decided that it was necessary to prove not only the issuing of the writ, but the service thereof upon the sheriff, during the debtor’s absence from the limits; and nonsuited the plaintiff. The plaintiff excepted, and now moved for a new trial.
1Opinion of the Court
By the Court, Mason, J.
The first question which I propose to consider in this case, is whether the judge ruled correctly in holding that the capias ad respondendum should actually have *505been served on the sheriff while the debtor Ecclestone was off the jail limits. The rule was well settled, before the revised statutes, by a long series of adjudications, that the issuing of the capias was, for every material purpose, the commencement of the action. (1 Caines, 69. 2 John. 346. 3 Id. 42; 3 Caines, 77. 3 John. Ch. 145. 10 John. 119. 4 Cowen, 158. 8 Id. 203. 4 Id. 161. 18 John. 496. 17 Id. 63.)…
2Cases cited8 opinions
- Bird v. CaritatNew York Supreme Court · 1807
- Adams v. Stevens & CaggerNew York Supreme Court · 1841
- Brown v. FergusonNew York Supreme Court · 1846
- Edmondstone v. ThomsonNew York Supreme Court · 1836
- Lowry v. LawrenceNew York Supreme Court · 1803
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3Cited by2 opinions
- Milanese v. SuretyNew York Supreme Court · 1933
- Singer v. KnottAppellate Division of the Supreme Court of the State of New York · 1922