Tracy & Van Rensselaer v. Whipple

New York Supreme Court

Tracy & Van Rensselaer v. Whipple

8 Johns. 379

DecidedOctober 15, 1811

StatusPublished

This text of 8 Johns. 379 (Tracy & Van Rensselaer v. Whipple) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tracy & Van Rensselaer v. Whipple, 8 Johns. 379 (N.Y. Super. Ct. 1811).

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Opinion

Per Curiam.

Without considering the question whether the bond taken upon the surrender would operate after the prisoner was charged in execution, the court are of opinion, that the prisoner could not be considered, at the time of the escape, as charged in execution, so as to make the sheriff responsible for that escape, as of a prisoner in execution. The mere delivery of the execu-. tion to the sheriff, was not, ipso facto, and, eo instanti, an arrest, so as to place the prisoner in custody under the execution, by judgment of law. The doctrine in Frost’s case (5 Co. 89.) does not apply, when the prisoner is not in close custody, but at large upon, the liberties of the gaol. These liberties are, in many instances, very spacious, and it might be hours before the sheriff could find" the prisoner, so as to secure himself against the increased, responsibility which the escape of a prisoner in execution might create. The doctrine in Frost’s case is founded on the fact, that it would be a useless and idle act t® arrest a person already in the close custody of the officer. But a prisoner on the limits is not in such custody, and the sheriff can, on a new arrest, essentially change his [383]*383condition, by requiring new security, or by confining llim.

The only question of fact, is, whether there was an actual arrest, or any ' act amounting to one, between the time of the delivery of the execution in the evening, and the prisoner’s escape the next morning. The case does not furnish any evidence of such an arrest. The presumption is rather the contrary, considering the situation of the sheriff’s family at the time, and the conversation which passed between the sheriff and the agent who delivered the writ. There would be no use, then, in granting a new trial, in order to have a jury pass upon that fact ; and though the cause was placed upon a different ground at the trial, yet when, upon the view of the whole case, the verdict appears to be correct, the motion for a new ferial ought to be denied.

Motion denied.

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Per Curiam.

Without considering the question whether the bond taken upon the surrender would operate after the prisoner was charged in execution, the court are of opinion, that the prisoner could not be considered, at the time of the escape, as charged in execution, so as to make the sheriff responsible for that escape, as of a prisoner in execution. The mere delivery of the execu-. tion to the sheriff, was not, ipso facto, and, eo instanti, an arrest, so as to place the prisoner in custody under the execution, by judgment of law. The doctrine in Frost’s case (5 Co. 89.) does not apply, when the prisoner is not in close custody, but at large upon, the liberties of the gaol. These liberties are, in many instances, very spacious, and it might be hours before the sheriff could find" the prisoner, so as to secure himself against the increased, responsibility which the escape of a prisoner in execution might create. The doctrine in Frost’s case is founded on the fact, that it would be a useless and idle act t® arrest a person already in the close custody of the officer. But a prisoner on the limits is not in such custody, and the sheriff can, on a new arrest, essentially change his [383]*383condition, by requiring new security, or by confining llim.

The only question of fact, is, whether there was an actual arrest, or any ' act amounting to one, between the time of the delivery of the execution in the evening, and the prisoner’s escape the next morning. The case does not furnish any evidence of such an arrest. The presumption is rather the contrary, considering the situation of the sheriff’s family at the time, and the conversation which passed between the sheriff and the agent who delivered the writ. There would be no use, then, in granting a new trial, in order to have a jury pass upon that fact ; and though the cause was placed upon a different ground at the trial, yet when, upon the view of the whole case, the verdict appears to be correct, the motion for a new ferial ought to be denied.

Motion denied.

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Bluebook (online)

8 Johns. 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracy-van-rensselaer-v-whipple-nysupct-1811.