
    The People against Dole.
    The court will not grant a rule against a sheriff to show cause why an information should not be filed against him, for false swearing in an affidavit annexed to a plea of recaption on fresh pursuit, if the plaintiff, at whose suit the prisoner was in custody, be then "proceeding against the sheriff for the escape.
    The Attorney-General moved for a rule on James Dole, late sheriff of Rensselaer, to show cause why an information, should not be filed against him for false swearing The motion was founded on two affidavits, and certain records on file in this court, from which it appeared- that Dole, while sheriff of Rensselaer, had in his custody one Isaac Bull, charged in execution at the suit of one Edward Raw-son. That Bull having escaped from custody, a suit was thereupon instituted by Rawson against the sheriff, who pleaded a retaking on fresh pursuit, and pursuant to the act in such case, (March 20th, 1801, s. 22,) &c., accompanied his plea with anaffidavit, (see ante, 2, n.,) that the escape was without his consent, knowledge or privity; which suit is still pending.
    The affidavits on which the applicatiqp was made, were by Bull and another, who was in prison with him during his confinement. They stated that Dole repeatedly declared to Bull that he had broken his bonds, (bonds entitling to liberties,) was no longer his prisoner, and could go where he pleased. That Bull at length quitted the prison, and went to his own house, where he remained, until replaced in gaol, under process in another suit.
   Per Guriam.

The object of the application is to render Dole liable for the penalty of 1,250 dollars imposed by the statute on every sheriff, whose affidavit accompanying such plea, shall at any time afterwards appear to be false.

There are two objections to granting this motion. The one, that neither of the affidavits state that Bull had not, as charged by the sheriff, previously forfeited his bonds by an escape, involuntary on the part of that officer. If such was the fact, the sheriff’s *affidavit is not [*182] falsified, though we admit every thing stated in the affidavits, in support of the application, to be true.

The other, and the more important objection is, that a suit is now pending between Rawson and Dole, in the prosecution of which all the facts and circumstances, relating to the escape, will be fully developed and examined, and every object attained, for which the information is intended.

Rule denied.  