
    Olmstead against Raymond.
    NEW-YORK,
    May, 1810.
    Where a constable having arrested a defendant on a warrant issued by a justice of peace, left the defendant, on his promising to follow him; and after-wards went back with a deputy-sheriff, who also arrestedrthe defendant, and detained him in his custody, and afterwards took him to prison, on a criminal action so that the constable could not take him before the justice on the warrant, it was held, that by the constable’s leaving the defendant, after the arrest,there was a voluntary escape ; and not being able, afterwards, to retake the defendant, the constable was liable for such escape.
    IN error, on certiorari. Olmstead sued Raymond,, before the justice, by warrant, and declared against him, as a constable, for the escape of David C. Mlnstry, whom he had arrested on a warrant, in favour of the plaintiff.
    At the trial, before the justice, the plaintiff proved, that the defendant confessed he had taken Mlnstry,. on the warrant, in a place called the Sap Bush, and had left him there; that Mlnstry had promised to come on ? that on his way home, about three miles from the Sap Bush, he met the deputy-sheriff, and went back with him, and at Sap Bush the deputy-sheriff took M Instry, on an advertisement, and brought him to a tavern ; and both the defendant and deputy-sheriff claimed him as a prisoner. The defendant directed two persons to retain Ml Instry, while he could go and notify the plaintiff to attend the trial. MI Instry, accordingly, went into a private room with the keepers, and the deputy-sheriff went with them. Before the defendant returned, the sheriff came, with the original bench warrant, on the escape from which the advertisement was founded, and took Mlnstry, and carried him to gaol, on a charge of felony, and told the defendant, afterwards, that he would not give up the prisoner to him.
    The justice decided, that Raymond had suffered a voluntary escape at the Sap Bush, and gave judgment for the plaintiff.
    
      y. Gephard, for the plaintiff in error.
    
      Adams, contra.
   Per Curiam.

The constable suffered a voluntary ©scape of Ml Ins try, at the Sap Busk ; and while the prisoner was at large, he was arrested by the deputy-sheriff, on a bench warrant, in the hands of the sheriff; this arrest deprived the constable of the power of reclaiming him.

The decision of the court below was correct, and the judgment must be affirmed.

Judgment affirmed.  