
    Felix W. Renick v. John Orser, Sheriff.
    1. In an action against the Sheriff, for the escape of a person arrested by him upon an execution against the body of such person, it is no defense that such execution was issued before one against the property of such person had been issued and returned unsatisfied. ®
    2. The issuing of a ca. sa. before the return of a fi. fa. unsatisfied, is an irregularity merely, and does not make the ca. sa. void.
    3. Section 140 of the Code, by abolishing “ all the forms of pleading ” theretofore existing, has not affected the measure of a sheriff’s liability for the escape of a person committed on a ca. sa., as declared by 2 R. S., 437, § 66. [Sec. 63.]
    4. In such a case, the sheriff is liable for the debt, damages, or sum of money for which such prisoner was committed, and such debt, damages, or sum of money may be recovered of the sheriff, since the Code, where the complaint states all the facts essential, according to the former practice, to a good declaration in debt; and prays judgment for the amount of the judgment on which such prisoner was committed.
    5. Whether interest on such judgment be recovered in an action brought to enforce the liability declared by 2 R. S., 437, § 66. [sec. 63,] Qucere.
    
    6. In an action for the escape of a prisoner committed on a ca. sa., and duly admitted to the jail liberties; where the escape counted on is alleged and proved to have occurred in August, 1855, it is no defense that in January of that year there was á prior escape; if it appears that the prisoner voluntarily returned into custody and continued there until the second escape, and ii does not appear that the plaintiff had any notice of the first escape before the return of the prisoner into custody; although the action is brought more than a year after the first escape, and the defendant pleads the statute of limitations.
    (Before Bosworth, Ch. J., and Moncrief, J.)
    Heard, February 7;
    decided, March 12, 1859.
    This action comes before the Court at General Term, on a verdict taken subject to the opinion of the Court on questions of law 'arising at the trial, and there ordered to be heard in the first instance at the General Term.
    This action was commenced on the 12th of April, 1856, and was tried before Mr. Justice Hoffman and a jury, January 29, 1858. It appeared on the trial that on the 15th of September, 1854, the plaintiff recovered in this Court a judgment against Solomon Poly for $512.04, in an action to recover the price of goods sold and8 delivered by the plaintiff to Poly. ,
    
      That on or about the 19th day of September, 1854, an execution was issued on said judgment to the defendant, then being Sheriff of the city and county of Hew York, against the body of said Poly.
    On this execution the defendant arrested Poly, and Poly, as the answer in this action alleges, on the 22d of September, 1854, executed to the defendant as such Sheriff a bond, in the form and _ with the condition prescribed by statute, to entitle Poly to go at large within the jail limits in said city and county.
    When said execution was offered in evidence, “the counsel for the defendant objected to the admission of the same in evidence, unless an execution against the-property of said Poly on said judgment should first be produced and read in evidence.
    “ The Court overruled said objection, and admitted the testimony, and thereupon the counsel for defendant then and there excepted to said decision.
    “ The said execution was thereupon read in evidence.
    
      “ The counsel for the plaintiff then offered in evidence an order of arrest in said action of Renick against Poly, together with the original affidavit on which the same was granted.
    “But the counsel for the defendant objected to the .admission in evidence of the said affidavit, and the Court thereupon sustained said objection, and refused to admit said affidavit in evidence ; whereupon the counsel for the plaintiff then and there excepted to said decision.
    “ It was thereupon admitted by the respective counsel of the plaintiff and defendant, that the said Poly was arrested by the defendant under said order of arrest and execution.”
    The plaintiff then proved that Poly sailed from the city of Hew York with his family for California, in August, 1855, and also proved by his relatives residing in the city of Hew York, that they had not seen Poly or heard of his being in that city since.
    When the counsel for the. plaintiff rested his. case, the counsel for the defendant moved to dismiss the plaintiff’s complaint upon the grounds:
    1st That the plaintiff had not shown any right to arrest the said Poly on execution, or that the action was one in which thy said Poly might have been arrested.
    
      2d. That plaintiff had not shown any escape.
    3d, That the action was barred by the statute of limitations.
    4th.' That nó execution against the property of Poly had been issued or returned, before the issuing of the execution against his person.
    The Court overruled the motion upon each and every of the said points so taken, and to the decision of the Court the defendant excepted, and the exception was duly noted.
    The defendant’s counsel then proved that Poly was in Ohio in January and March, 1855, and that he returned to the city; of Hew York in the spring or summer of that year. There was no evidence that the plaintiff or the defendant .knew,.or had,any réasoh to suspect that Poly had been to Ohio, until after his .return within the jail limits of the city and county of Hew York. The defendant.also gave evidence in relation to the property.and pecuniary means of Poly at the time he left for California, and rested.
    The plaintiff then proved that an. execution against the property of Poly had been issued to the defendant as Sheriff of Hew York ¿ounty, on plaintiff’s judgment against Poly, and that the issuing of the execution against Poly’s body, before the actual return of the execution against his property, was in consequence of information given at the office of the Sheriff by his deputy, tó the plaintiff’s attorney^ that the latter execu • tion had been actually returned unsatisfied.
    The evidence tended to show that the deputy was not accu rately understood by the plaintiff’s attorney, or that his answer to the question whether they?, fa. had be,en returned, was calculated to be undérstood in a sense different from that intended by the deputy.
    
      Th.tdfi. ~fa. was not in fact returned until three days after the ca, sa, was issued to the Sheriff.
    When the" testimony was closed on both sides, the defendant’s counsel moved that the complaint be dismissed on the follpwing grounds: •
    1. By reason of the escape to Ohio, the cause of action accrued more than one year before the commencement of the suit.
    2. The plaintiff did not show that the execution agains,t.the person was preceded by an execution against property, .and that no execution against property had been returned before the execution against the person had been issued.
    3. The execution against property was returned unsatisfied by the direction of the plaintiff.
    4. There was no proof that the case was one in which the defendant could have been legally arrested.
    The jury, in answer to certain questions specially submitted> found, 1st. That Solomon Poly, on the 12th of August, 1856, was out of and beyond the jail limits of the city and county of New York.
    2d. That the principal of plaintiff’s judgment against Poly was §512.04, and that the interest on it to the day of trial was $12(189.
    3d. In answer to the question, “ What was the value of Solomon Poly’s property on the 6th day of August, 1855 ?’’ the jury answered that “the property in'his possession, to wit, his furniture, which realized §80 cash, is all that is proven."
    4th. In answer to the question, “What was the value of Solomon Poly’s property on the 12th day of August, 1856?” the jury answered, “ Not shown.”
    The court thereupon directed a general verdict to be entered for the plaintiff, subject to the opinion of the Court at General Term, upon a motion, to be made by the plaintiff for judgment founded upon a case and exceptions; the defendant’s exceptions to be inserted and to be heard in the first instance at General Term at the same time, with liberty to the Court to adjust the verdict, or to enter judgment for the defendant, or for a dismissal of the complaint.
    At the February General Term, 1859, the defendant moved that the verdict be set aside and a new trial ordered, and the plaintiff at the same time moved for judgment on the verdict.
    
      William Stanley, for plaintiff.
    
      David Dudley Field, for defendant.
   By the Court—Bosworth, Ch. J.

On the argument before us, the counsel for the defendant submitted the following points, (and neither argued nor suggested any other,) viz.:

“I. The execution against the person of Poly was void; no execution against his property having been previously issued and returned. (Code, §§ 178, 288, 283; 3 Abbott, 229.)
“II. If Poly had been legally arrested his escape took place as early as March, 1855. This action was not commenced until April, 1856. It should have been brought within the year. (Code, §94.)
“ If it is stated that Poly returned into custody after the escape to Ohio, the answer is, that there is no proof of such return. All the proof is of his being afterwards in the city of Hew York.
“ III. The plaintiff sustained' no damage by Poly’s escape; he had no property beyond what was exempt from execution. This action is for damages. (17 Wend., 543; 3 Seld., 195, 550.)”

On the argument, the defendant’s counsel stated that he should argue the first point only, and did not argue any other, at the same time stating that he did not intend to thereby waive either of the other of said two points, or to concede the plaintiff’s right to recover interest on his judgment, if entitled to recover at all, or that in the latter event, he was entitled to recover mote than he had actually lost by reason of the escape of Poly.

The points made by the defendant’s printed points, will be considered in their order.

By the 7th section of “ An act concerning judgments and executions,” passed April 2, 1813, (1 R. L., 502,) it was provided that “ho execution shall hereafter issue upon any judgment rendered as aforesaid, in any action in which special bail shall have been filed, against the body of any defendant” .* * “until an execution against the goods and chattels, lands and tenements of such defendant shall have been issued upon such judgment,” &c., and shall have been returned, no property, &c.

2 Revised Statutes, (p. 363, § 4,) contains a provision of the same import, though in not exactly the same words.

Section 288 of the Code is not, like the two statutes last cited, prohibitory in its terms, but merely declares, that if the action be one in which the defendant might have been arrested, as provided in section 179 and section 181, an execution may be issued against the body, after the return of an execution against his property has been returned unsatisfied, in whole or in part.

Under the act of 1813, it was expressly adjudged, that the Sheriff, when sued for the escape of a judgment debtor, who was in custody on a ca. sa., could not set up as a defense, that the debtor had been held to bail in such action, and had actually filed special bail, and that no execution against his property had been issued and returned unsatisfied. (Hinman v. Beers, Sheriff, 13 J. R., 529.) The Court held that, at most, it was an irregularity, and the only remedy was a motion to set the execution aside, that it was not void, but was merely voidable. Scott v. Shaw, (13 J. R., 378,) is to the same effect. These cases were decided in 1816, more than 40 years ago.

In 1828, in the case of the Ontario Bank v. Hallett, (8 Cow., 192,) the Court decided that, in such an action, it was no defense to the Sheriff that the ca.sa. was issued after a year and a day from the perfecting of the judgment, without the previous issuing of a sci. fa., and cited the two cases in 13 J. R., supra, as an authority for the proposition. (See Ames et al. v. Webbers, Sheriff, 8 Wend., 545; Anonymous, 2 Hill, 378; Commercial Bank of Oswego v. Ives, 2 Hill, 354; Graham’s Practice, 2d ed., 364, 365; 6 How. Pr. R., 73.)

We cannot hold the execution against the body in this case void, without disregarding a long series of express adjudications. If it is irregular merely, and not absolutely void, the deféndant’s counsel does not contend that the Sheriff can defend on the ground that an execution against property had not been previously issued and returned unsatisfied. His argument is, that the ca. sa. is void, and that the Sheriff, therefore, is not bound to execute it, and that the fact of its being void is a defense to this action.

We consider ourselves required by the decisions to which we have referred to hold, that the ca. sa. was irregular merely, and not void, and that the irregularity in issuing it is no defense to this action.

The escape was a negligent and not a voluntary escape. The return of Poly within the jail limits, after he had been in Ohio, would be an answer and a defense to an action brought aftei such return and while he continued within the limits, for an escape based on his absence from the limits while in Ohio. (Howland v. Squier, 9 Cow., 91; Vanhoesen v. Holley, 9 Wend., 209; 2 R. S., 435, § 51, [sec. 48;] id., 437, sec. 64.) There is, therefore, no defense proved arising out of the statute of limitations.

Section MO of the Code, by abolishing “ all the forms of pleading ” theretofore existing, has not changed the liability of a sheriff as declared by 2 Revised Statutes, 437, section, 66, [sec. 63.] By the latter section, the sheriff, in case of the escape of a prisoner .committed to the jail of his county, in execution in a civil action, is liable to the plaintiff in such execution “for the debt, damages, or sum of money for- which such prisoner was committed.” That section prescribed the action of debt, as the-one in-which such liability for that sum was to be enforced. ■

The Code has abolished a capias ad respondendum, and a “ declaration,” as a process or proceeding by the service of which an action may be commenced. It requires a plaintiff to state in his complaint the facts constituting his cause of action. The plaintiff in the present-action has done that, and alleged in -his complaint all that was requisite to be stated, in an action of debt; and his complaint concludes with demanding “judgment against the defendant for five hundred and twelve dollars and four cents,”- (the face of the judgment,) “with interest -from the 15th of September, 1854,” (the date' of the judgment,) “ and the costs of this action.”

This is hot an action for the recovery of damages, as such, but is an action to “ recover the sum- of money for which such prisoner ” (Poly) “ was committed ” in execution to the jail of defendant’s .county, at the time of .the alleged-escape.

The Sheriff is liable,, at all-events, for $512.04, the amount of the judgment.

The only decisions to which wé-were-referred, or which have fallen under our observation, hold that, in. an- action'of debt "for the escape of a defendant in custody on-a ca. sa., only- the -face of the judgment, without interest, is recoverable. ■ •

Rawson v. Dole. (2 J. R., 454.) This case arose prior to the passage of the statute allowing interest upon the amount of - the judgment-to be collected or demanded ripon the execution-issued thereon.

Van Slyck v. Hogeboom, (6 J. R., 270 and note d,) Thomas v. Weed, (14 Id., 255,) Hutchinson v. Brand. (6 How. Pr. R., 73.) The point of these cases seems to be, that the action of- -debt is in the nature of a penalty, and, by resorting to that action,' the plaintiff,- on the one hand, is not permitted to recover inore than the amount of the judgment, and, on the other, is- not exposed to the hazard of having his recovery reduced below that sum, by proof of the pecuniary irresponsibility of the judgment debtor.

If he chooses to sue in ease, as he may do, he may recover more than the face of the judgment if his actual damages are shown to exceed it, and will be exposed to the recovery of nominal damages only, if the debtor shall be proved to be utterly insolvent.

We think that the plaintiff should have judgment for $512.04, and for that sum only.

Judgment accordingly.  