Wickelhausen v. Willett

12 Abb. Pr. 319, 21 How. Pr. 40

Opinion

Bt the Court.

Footnotes

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*—Bosworth, C. J.

—The statutes' and authorities seem to justify these conclusions:

1. Williamson was seized and taken off the limits by authority of law, against his will, and without his consent.

2. At the time he was so seized, his right to the jail-liberties, as between himself and the sheriff, was absolute. The sheriff had no right to confine him in close custody, and had no control over his movements, except to retake him if he escaped. (3 Rev. Stat., 5 ed., 734, § 68, [47]; Ib., 736, § 85, [64].)

3. Williamson did not “ go at large, without the liberties of the county,” within the meaning of those words, as used in section 68 [47], or within the' meaning of the condition of his bond. (Section 63, [42].) His removal was by authority of law, and his being off the jail-liberties by the exercise of such authority, and during the time necessary for his return to the jail-liberties, after having been discharged from the custody of the sergeant-at-arms, was not an escape within the meaning of his bond. Whether, if the sergeant-at-arms had not' returned him to 'the liberties, or he had not voluntarily and immediately returned when set at liberty, his being subsequently on the limits would not be an escape, is a question not presented by this case. He was arrested on the 2d of February, 1858, and taken to Washington, and the case states “ that, as soon as the said Williamson was released from the custody of the said sergeant-at-arms, and on the 9th day of February, 1858, he returned to the said jail.” Holding that his being off the limits, under the circumstances above stated, is not an escape, does not sanction-the conclusion that the sureties in the limits bond would not be liable if Williamson had failed to return within the limits, as soon as practicable, after he was free to do so.

The proposition on which we think the judgment should be affirmed is, that at the time this action was commenced Williamson was off the limits, not by any act or agency of his own, but compulsorily by process and authority of law. That his being so off was no more an escape than if he had been at the time removed and held by 'habeas corpus ad testificandum, as in Hassam a. Griffin (18 Johns., 48), or by force of a valid judicial order, as in Fuller a. Davis (1 Gray, 612).

Judgment affirmed.

Present, Bosworth, C. J., and Woodruff and Hoffman, JJ.