#### M'Elroy *against*Mancius, *late Sheriff of Albany.*

Where a plaintiffbriDgs aD action against a sheriff for the escape of a prisoner in execution, the plaintiff’s election,to consider him as *out of*custody, is thereby determined. and he cannotresort to a remedy which would be an acknowledgment of bis being *in*custody.

Therefore, after bringing^ an action against the sheriff for *an*escape, he canDOt oppose the discharge of the prisoner under the act for the relief of debtors, with respect to the imprisonment of their person.

The sheriff cannot avail himself, as a dei actsofthepiamt<ftbéUraitqcomtV prisoner to be still ¡n custody such $ff*u'í¡?sthdVte?‘ ®‘n’ed his ®le®'

*It*seems, that the mayor’s court of *Alk&np*has no jurisdiction, under the act for the relief of debtors, with respect to the imprisonment of their persons, iQ «ase of a debtor imprisoned in the county of Albany, under an execution out of the supreme court: but that tho common pleas of *Albany*county have jurisdiction in such case.

THIS was an action of *debt,*for the escape of one *Amos Hubble,*a prisoner in execution, brought against the defendant, the late sheriff of the city and county of *Albany.*The cause was tried at the *Albany*circuit, in *October,*1815.

The declaration stated the judgment and *ca.*sa., in this court, against *Hubble,*and that he escaped on the 11th of *March,*\815. The defendant pleaded the general issue, with an affidavit annexed, that the escape, if any, was involuntary, and without his knowledge, and *notice*of special matter to be given in evidence.

The plaintiff, at the trial, having proved the case on his part, the defendant offered to prove that, after the escape of *Hubble,*he voluntarily returned to the custody of the defendant, and remained a prisoner in execution, at the suit of the plaintiff, until the 22d day of *March,*1815; that he then was assigned and delivered to *Isaac*Hemstead, the present sheriff; that, while remaining in his custody at the suit of the plaintiff, on the 6th of *April,*1815, *Hubble*having applied, after due notice given to the plaintiff, for his discharge, pursuant to the act for the relief of debtors, with respect to the imprisonment of their persons, was , discharged accordingly; and that the piamtiii appeared on that notice, and opposed the discharge, thereby acknowledging him to be still in custody and execution, by virtue of the ca. sa; but the testimony was overruled by the judge, who declared *122that it'did not form a sufficient ground of defence, and-directed the. jury to find a verdict for the plaintiff, which they did according-ly. _ . - .

The cause .was submitted-.to-the-court without argument.

*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 the'former 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, which'was rightfully, commenced, and which *determine ed*the plaintiff’s'election. 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,

*123Besides, 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.