Ames v. Webbers

By the Court, Nelson, J. It is objected that the action of debt will not lie against the sheriff in this case, on the ground that the declaration does not shew that the defendant, against whom the attachment issued, was committed to any jail, 2 R. S. 437, § 63, when thé escape was permitted. In the declaration it is stated that the defendant arrested Blunt, and had and detained him in his custody until he permitted him to escape and go at large. This is a sufficient averment within the meaning of the statute, for in judgment of law the prisoner is committed to jail when in the custody of the sheriff. [547] The plea affords the defendant no protection. It has been repeatedly determined that unless the process is void upon which the sheriff has arrested the prisoner, he is bound to detain him in custody, and is responsible in an action for an escape, if he permits him to go at large. The distinction is between void and voidable process ; the latter is a justification to the officer to detain the prisoner until it is set aside by the party. One strong reason why the sheriff shall not take advantage of the error in issuing the process is, for aught that appears, the party does not wish to avail himself of it. 1 Cro. Eliz. 165. 2 Saund. 101, y, (n. 2.) 1 Cowen, 309. The following cases shew not only the above distinction, but that the process, according to the plea, is only voidable. Sears v. Wilkins, 1 Ves. sen. 195, Jackson, ex dem. Saunders, v. Cadwell, 1 Cowen, 644. Ontario Bank v. Hallett, 8 id. 192. Judgment for the plaintiffs upon demurrer, with leave to the defendant to amend on payment of costs.