Van Slyck v. Hogeboom , 6 Johns. 270 ( 1810 )

Per Curiam.

The action here was misconceived. Unprisoner is in execution; (Laws, vol. 1. sess. 24. c. 28. s. 18. p. 212.) and under our law, a prisoner is not in execution, until a writ of execution against the body has been issued and delivered to the sheriff» We have never adopted the English practice of charging the defendant in execution, without the issuing of a ca. sa. (1 Salk. 272. Watson v. Sutton, 2 Burr. 1050.) The provision in the statute (Laws, vol. 1. sess. 24. c. 66. s. 13. p. 266.) requiring a prisoner to be charged in execution, within three months next after a surrender of his bail, subsequent to judgment, is conclusive, to show that a defendant is not in execution by virtue of the surrender. The action, therefore, for the escape, in this case, ought to have been an action upon the case, in which the measure of damages is open to the investigation of the jury, and not an action of debt, in which the whole judgment is to be recovered, or nothing. (2 Term Rep. 126. 2 Black. Rep. 1048.) But, as the defendant was here permitted to avail himself of every defence, equally as if the action had been case, and not debt, and as only nominal damages have been recovered, it is unnecessary to set aside the verdict, merely for the sake of giving the defendant an opportunity of getting rid of the suit; for, as the verdict stands, the defendant will recover costs. For that reason only, we allow the plaintiff to retain his verdict, and the motion, on the part of the plaintiff, for a new trial, is denied. der the statute, debt for an escape lies only when the

Motion denied