Sherrill v. Campbell

21 Wend. 287

• Court: New York Supreme Court
• Decided: May 15, 1839
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

The sheriff having taken Rowan into custody on the ca. sa. before the service of the order to stay execution, the question is whether the subsequent service operated to discharge him from the commitment. A writ of error and putting in bail clearly would not have had that effect before the statute, Willes, 271, 280; and the decision therefore must depend upon the interpretation of the statute. It provides, 2 R. S. 569, § 30, if no execution shall have been issued, the service of the order shall stay the issuing thereof; if one shall have been issued, it shall stay the further execution thereof. The execution of the ca. sa. is by arresting the defendant and committing him to jail—indeed his arrest is, per se, a complete execution, as he is then, in the contemplation of the law, in its custody, Willes, 280, and the commitment to the jail is merely for the purpose of safe-keeping. An escape before is attended with all the consequences of one after commitment. 8 Wendell, 545.

The giving of bail for the limits is no part of the execution of the process ; it is but the means of relaxation from the rigor of execution. 3 Johns. Cas. 73. Much less is the receipt of the debt; that is in the way of discharge from execution.

Judgment affirmed.