Van Hoesen v. Holley

By the Court, Sutherland, J. The charge of the judge was correct. The suit was not commenced—the writ was not in judgment of law issued until it was delivered by Jordan, the attorney, to Poultney, the cartman, to be carried by him to the coroner. It was sent to the coroner wil/i the absolute and bona fide intention of having it served. The agent Poultney was vested with no discretion; his instructions were absolute and unconditional, to deliver the writ immediately to the coroner. When the writ was put in the hands of Poultney with such instructions, the suit was commenced, and not before. The jury have found that the prisoner was at that time off of the limits. As long as the writ remained in the hands of Jordan, the attorney, without any absolute and unqualified intention of delivering it to the sheriff, it had no more efficacy than though it had not been filled up. When Jordan left his office with the writ he had no absolute intention of delivering it to the coroner; it depended upon the contingency of his ascertaining that the prisoner had escaped, and was then off the limits. The writ was not on its way to the coroner, in judgment of law, until it was delivered to Poultney. The cases of Burdick v. Green, 18 Johns. R. 14, and Visscher v. Gansevoort, 18 Johns. R. 496, are precisely in point, and perfectly decisive of this case. The same doctrine has been held in many subsequent cases. Motion for new trial denied.