Hutchinson v. Brand

Action against a sheriff for the escape of a prisoner from his custody after an arrest on execution against the person. The defendant had voluntarily discharged the prisoner, on the ground that the execution was defective and void. It recited the judgment, as prescribed in sec. 289 of the Code, and the command to the sheriff corresponded with the terms of subdivision 3 of that section, except that in the following clause the words included in brackets were erased, viz.: “And commit him to the jail of said county of Madison, until he shall pay the said judgment [or be discharged], according to law.” [202] Held, that the execution was valid, and that the sheriff discharged the prisoner without cause. That the effect of the execution was the same, with or without the omitted words. In either case the sheriff would be bound to liberate the prisoner when discharged according to law. That it was not necessary to recite in the execution the facts which authorized the arrest, to wit, the nature of the action, and the return of an execution against property unsatisfied (see Code, sec. 288); but it was sufficient if those facts existed. (S. C., 6 How. Pr. 73; 9 N. Y. 208.)