Rawson v. Turner

Van Ness, J. delivered the opinion of the court. If a new sheriff regularly receives a prisoner from his predecessor, he is bound to detain him, and is answerable for his escape, although a voluntary escape may have existed in the time of his predecessor. The cases of Lenthal v. Lenthal, (2 Lev. 109.) of James v. Pierce, (2 Lev. 132. and 1 Ventris, 269.) and of Grant v. Louthers, (6 Mod. 183.) have so fully established this rule of law, that on this ground, if no other difficulty intervened, the plaintiff would be entitled to a new trial. But it appears that the plaintiff elected to prosecute Dole, the former sheriff, to judgment, for the escape in his time; and a question arises, whether this does not bar the plaintiff of all right of action, against the present sheriff, for the escape of the prisoner, since he was committed to his custody. In the case of James v. Pierce, [474] the court held, “ that notwithstanding the first voluntary escape, when the prisoner was in prison again, he was so far in custody, that the plaintiff had an election, either to take him as now in execution, and so charge the new warden for the last escape, or to admit him out of execution, and charge the old warden.” The plaintiff here, then, had his election, either to consider the prisoner, after his recaption, as in the custody of Dole, or not; and it becomes necessary to decide, whether the plaintiff has made his election, and if he has, then, what is the effect of it. The case states, that after the escape, in the time of Dole, in 1806, the plaintiff, so, far from affirming Bull to be in Dole's custody, charged Dole with the escape, and obtained judgment against him, for the whole amount of his debt. This appears to me to be a sufficient determination of the plaintiff’s election, not to consider Bull in Dole's custody; and the prosecuting Dole to judgment determines the election finally and irrevocably. Thus, “ if A. grant to B. for life, an annuity, or a robe at the feast of Easter, and both are behind, the grantee ought to bring his writ of annuity, in the disjunctive, for if the grantee bring his writ of annuity for the one only, and recover, the judgment,” says Lord Coke, “ shall determine his election for ever. Again, if the grantee bring a writ of annuity, and after the return thereof doth appear and count, this is a determination of his election in a writ of record; albeit, he never proceeded! any further.” (See Sir Rowland Heyward's case, 2 Co. Rep. 36.) The plaintiff having made his election, he is concluded by it. This is reasonable. He ought not to be allowed to proceed against the sheriff for the escape, and at the same time hold the prisoner in execution. It is true, there are cases where the party has concurrent remedies for the same cause of action, against several persons. [475] Such, for instance, are suits by the holder against the . . . drawer and indorsers of a bill of exchange, against the maker and indorsers of a promissory note, against several obligors in the same bond, against trespassers, severally, j for the same trespass. In these instances, the proceedings may be carried on to judgment, though the plaintiff is limited to a single satisfaction. It will be observed, that in the cases which I have enumerated, the cause of action is the same, that it accrues against all, at the same time, and that the concurrent remedies are perfectly consistent and compatible with each other, and this distinguishes them from the present case. The plaintiff here might have considered Bull, as being in Dole’s custody, or not, at his election. The right of election has been exercised, by the suit commenced, and the judgment recovered against Dole. Bull, therefore, in judgment of law, cannot be considered as in Dole’s custody, upon the plaintiff’s execution after the first escape, and he, of course, was never legally in the custody of Dole’s successors. The plaintiff elected to disaffirm the recaption and subsequent in sonment of Bull; and hehce, it is evident, that to give him a remedy against the present sheriff, is inconsistent and incompatible with the former remedy actually pursued against Dole. This point goes to the merits of the cause; and being of opinion that the plaintiff cannot waive the election which he has once made, and of course, that he can never recover against the present sheriff, it is unnecessary to consider the other questions submitted in the argument. Motion denied.