MElroy against Mancius, late Sheriff of Albany

New York Supreme Court of Judicature1816-01

13 Johns. 121

Summary · law.co

Holding. The plaintiff's opposition to the prisoner's discharge in a later proceeding did not waive his right to sue the former sheriff for escape, because the plaintiff had already commenced his suit and thereby elected his remedy before the discharge proceeding occurred. The judgment for the plaintiff was affirmed.

The plaintiff brought suit against a former sheriff for the escape of a prisoner held on execution. The defendant argued that the plaintiff had waived his right to sue by opposing the prisoner's discharge application in a subsequent proceeding. The court rejected this defense, finding that the plaintiff's opposition came after he had already commenced this suit, which constituted an election of remedies. By suing first, the plaintiff had determined his choice to treat the prisoner as out of execution and to hold the former sheriff liable, and any subsequent action could not undo that prior election.

Additionally, the court questioned whether the proceeding for discharge was even valid. The mayor's court of Albany, where the discharge application was heard, likely lacked jurisdiction under the debtor relief statute. That statute limits discharge authority to the court of common pleas in the county, and Albany's mayor's court could not exercise power that belonged exclusively to the separate county court of common pleas.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a plaintiff's opposition to a prisoner's discharge application constitutes a waiver of the plaintiff's right to sue for escape
Whether a prior election of remedy by commencing suit precludes a subsequent action affecting that remedy
Whether the mayor's court of Albany possessed jurisdiction to hear prisoner discharge applications under the debtor relief statute

Procedural posture

The court reviewed whether evidence offered by the defendant should have been admitted at trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Per Curiam.

The Only question is, whether the plaintiff’s opposition to the, discharge of Hubble was such a recognition of him, as a prisoner under.plaintiff rs ca. sa., as would amount to a legal defence in this suit ? ; -

- In- the case of Rawson v. Turner, (4 Johns. Rep. 469.,). it was-decided, that if “ there, has been an escape, both in the time of the former, and of the nezo sheriff, the plaintiff has an election-,.-either -to- consider the.prisoner -in execution, and so charge the-new sheriff for (he last escape, dr as out of execution, and charge the old sheriff.” And that “ the bringing a suit against the one,, or the other, is a determination of his elcct-ion.”

In the case of Dash v. Van Kleeck, (7 Johns. Rep. 477.,) Where* after an escape of a prisoner on execution, and return into custody, the sheriff went out .of office, and assigned the prisoner to his. successor and while in his custody the prisoner applied for his discharge, under the act for the relief of debtors, &c., and 1 the plaintiff, not knoming of the escape-, opposed the application, in. consequence of which the prisoner remained in custody; if was held, that this Was not such an election to affirm the debtor in custody, as amounted to a waiver of the plaintiff’s remedy, against theformer sheriff for the-escape. These eases show that the plaintiff may lose his former right of action, by resorts ing to another remedy. " .. ...■

But. this ease is distinguishable from those above cited, in. this essential feature.; viz. that.the act of affirming the prisoner in Execution, was. done after- the plaintiff (by. this suit) had made his election to consider him Out of execution, • -

A subsequent attempt to obtain another remedy, is no bar tq this suit, whichwas rightfully, commenced, and which determine ed the plaintiff’selection. Here it appears that the- plaintiff failed in his,opposition to -the discharge of the. prisoner; and Such failure may have been on the, very ground that, he had elected another remedy by suing for the escape, and,therefore, had no right to object to the discharge of the prisoner,

Besides, it may well be doubted whether the whole proceeding, relating to the discharge of Hubble, was not coram non judice. We incline to the opinion, that the mayor’s court of the city of Albany is not a “ court of common pleas,’’ within the fifth section of the act for the relief of debtors, &c. (1 R. L. 351.) The general rule, under this act, (sect. 4.,) is, that each court of record can afford the relief only to prisoners confined under its own process; but the fifth section authorizes 4‘ the court of common pleas in the county’’ in which, &c., to execute this law in regard to prisoners confined upon executions issued from this court. Such a jurisdiction cannot be vested without express authority ; and, in this case, I think there is no just ground even to imply such authority ; because, in the county of Albany, there is a“ court of common pleas,” as in the other counties, entirely independent of the mayor’s court.

The order of the mayor’s court of Albany, for discharging, or refusing to discharge, Hubble, would, therefore, have been equally a nullity.

We are of opinion, that the evidence offered on the part of the defendant was properly overruled; and that the plaintiff is entitled to judgment.