Gray v. Thornber

Curia. Tracy v. Whipple is decisive that the mere delivery of a ca. sa. to the sheriff, against a person on the limits, is not per se et eo instanti, an arrest, so as to charge the sheriff for an escape; but is that material to the present question ? The plaintiff has made an ineffectual attempt to charge the defendant. The execution was returned non est; and he might have issued an alias ca. sa. on the 11th. That would have been good cause, under the authorities cited for the motion. He did not do so; but seems to rely on the sheriff’s liability. In Minturn v. Phelps, (3 John. 446,) had it been shown to the court that the ca. sa. had miscarried, or had not been executed, or not received by the sheriff, till after the return day, is there a doubt that a .supersedeas would have followed ? We think the recorder decided correctly. Hopkins, said there had been a misapprehension of the practice on the part of the plaintiff’s attorney; and moved for a stay of proceedings until he should be able to communicate with him ; so that he might yet charge the defendant in execution. He said that in a case so circumstanced, this might be done, as he was confident he could show upon authority, if time should be allowed. As to this, Cur adv vult. Time was afterwards allowed accordingly.