Tanner v. Hallenbeck , 4 How. Pr. 297 ( 1849 )

Willard, Justice.

As the escape in this case was without the consent of the plaintiffs, their cause of action was complete the moment the escape occurred; hable, however, to be defeated by the voluntary return of the prisoner, or by his re-captnre by the sheriff before suit brought. The rule is laid down in Bacon’s Abridgement, 529, tit. Execution, that if a prisoner in execution escape, without the assent of the sheriff, and he make fresh pursuit, and re-take him before action brought, it shall excuse the sheriff; and that a voluntary return of the prisoner, before action, is equal to are-taking on fresh pursuit. This doctrine has been repeatedly sanctioned by this court, (6 Cowen 782 ; Tillman v. Lansing, 4 J. R 45 ; Barry v. Mandell, 10 J. R. 563.) As the re-caption of the prisoner, or his voluntary return are matters of defence for the sheriff, he necessarily takes the risk of the death of the defendant in the execution, before suit, re-caption or return. The cause of action occurred the moment the escape took place, (See Sweet v. Palmer, 16 J. R. 181; Scott v. Peacock, 1 Salk. 271.) ISTothing short of a release or an accord and satisfaction could discharge it. The death of the original defendant had no other effect than to prevent the sheriff from re-taking him before suit brought. It did not prejudice the plaintiffs’ right of recovery.

There must, therefore, be judgment for the plaintiffs against the defendant for the amount of the judgment, together with the costs, &c.