Lockwood a. Mercereau.

vict went about the lands connected with the jail, went to an adjacent barn connected with it to feed cattle, &c., all with permission of the jailer. He then left the State, and was held guilty of a criminal escape.

The rule in Massachusetts appears to be very rigorous as against the sheriff. (3 Mass., 86; 7 Ib., 200; 10 Ib., 373.) Yet in one case it was decided that going into the jail-yard in the night-time, for purposes indispensably necessary, when there were no accommodations in the jail, does not constitute an escape. (Pattridge v. Emerson, 9 Mass., 122.) The case of McClellan v. Dalton (10 Пb., 190) appears to throw some doubt on this.

In Pennsylvania the yard of a jail is within the rules; and it is no escape to allow a prisoner to use it. (Green v. Hern, 2 Penn., 107.) And in Jones v. Able (1 Rowl., 285), the escape of one who had the liberty of the yard was considered a negligent escape.

The actual intent to acquiesce in an escape, to characterize it as voluntary, is shown in the case of Wilkes v. Slaughter (3 Hawks, 211), where the sheriff gave the prisoner the keys of the prison. It was held an escape, although he did not go beyond the walls.

If the case rested upon general principles and authorities merely, I should feel unable, satisfactorily, to say that the escape in this instance could be deemed a voluntary one, so as to prohibit a recapture.

But it seems to me the statutory provisions in our State afford a decisive answer. By chapter 32 of the Laws of 1846, all the city and county of New York shall be the jail liberties of such city and county.

By the Revised Statutes (2 Rev. Stats., 433, § 40), every person in custody, by virtue of an execution in a civil action, shall be entitled to be admitted to the liberties of the jail, upon executing a bond as prescribed in the succeeding section. Then by section 67, an escape is defined, first, by declaring that the going at large, within the limits, of any prisoner who has executed such bond, or of any prisoner who would be entitled to the liberties upon executing such bond, shall not be an escape; and next, that the going at large without the liberties shall be such. It then proceeds:-The sheriff, in whose custody such

VOL. VI-14

Lockwood a. Mercereau.

prisoner shall have been, shall have the same authority to pursue and retake such prisoner, as if the escape had been made from the jail.

And so by section 63, as modified by the act of 1847 (Laws of 1847, ch. 390, § 2), if a prisoner committed to any jail in execution in a civil action shall go or be at large without the boundaries of the limits of such jail, without assent of the party, the same shall be deemed an escape, and the sheriff be answerable. (See further, Peters v. Henry, 6 Johns., 121; and Jansen v. Hilton, 10 Johns., 549; Lampson v. Lawson, 5 Day, 506.)

It seems to me very clear that the escape in this case was purely a negligent one, and the right to retake is undeniable.

2. It is next objected that the arrest in the State of Illinois was wholly illegal and void, and that the defendant is entitled to his discharge on that ground.

The case cited of Nichols v. Ingersoll (7 Johns., 145) settled that bail might depute another person to take and surrender the principal, and that they could make the capture in another State. The court, in the opinion, support the right by assimilating it to that of the sheriff to recapture a prisoner escaped in a neighboring State. They treat this as undeniable. How far the government of such State might consider its peace disturbed, or its jurisdiction violated, and relieve on habeas corpus, was a question not before the court. This authority is decisive.

3. It is insisted that the sheriff is violating the provisions of the statute in the mode in which he is confining the defendant. If so, the statute has pointed out the punishment to which he is subject, by damages to the party aggrieved and indictment for a misdemeanor, as well as the loss of his office. (2 Rev. Stats., 428, § 11.)

The application must be denied.

Pudney a. Griffiths.

PUDNEY a. GRIFFITHS.

Supreme Court, First District; Special Term, April, 1858.

SUPPLEMENTARY PROCEEDINGS. RETURN OF EXECUTION.

Before supplementary proceedings can be instituted, the creditor's remedy by execution must be really exhausted.

Where it appeared that the execution had been returned by the sheriff unsatisfied, pursuant to the instructions of the plaintiff's attorney, and without any real attempt to effect a levy,-Held, that the order for the examination of the defendant must be set aside.

Motion to set aside order of supplementary proceedings for the examination of the defendant.

The plaintiffs in this action having recovered judgment, issued execution against the property of the defendant. This being returned unsatisfied, they obtained an order for the examination of the defendant under section 292 of the Code. The affidavit and order were in the usual form. Upon the return-day of the order, the defendant moved to adjourn the hearing and examination, for time to put in and serve affidavits. On the adjourned day, the defendant's counsel read an affidavit stating that the execution was returned by the direction of the plaintiffs, and without any attempt on the part of the sheriff to make a levy, or to find property, out of which the judgment might be satisfied.

Anderson & Wyatt, for the defendant, moved on this affidavit that the order be set aside.

Cooper & Rice, opposed.

CLERKE, J.-It is asserted, and for the purpose of this motion admitted, that the plaintiffs directed the sheriff to return the execution, issued in this action, before the expiration of the sixty days, and before any effort was made to levy upon property subject to execution.

Now, supplementary proceedings under the first part of sec

Hunt a. Enoch.

tion 292 of the Code, were evidently designed as a remedy, not concurrent or simultaneous with an execution, but, as the adjective designating these proceedings imports, to supply its place where it has failed to be effectual; and, in all cases, the execution must precede the resort to the supplementary remedy—it must be issued with a bona fide attempt to find and attach property, which it can reach. Otherwise, the intention of the law requiring the issuing of the execution, would be an idle ceremony; and it would save much trouble,-it would in every respect be more convenient and proper, to allow the commencement of what we now call supplementary proceedings, immediately on the rendition of the judgment, and without the intervention of an execution. We all know that the creditor's bill, for which these proceedings are a substitute to a certain extent, could not have been filed until what was called the legal remedy should be exhausted.

There is nothing under the present system superseding this requirement. The remedy by execution must still be exhausted: it must be really exhausted-it must not be a sham attempt to do so; but the proper officer must be allowed to take the usual course to effectuate the object which the process was designed to serve.

This, certainly, is not done when the plaintiffs in an action interpose and prevent the sheriff from even searching for property, by prematurely directing him to return the execution, for the express purpose of enabling them to commence these proceedings.

The order must be set aside, with $5 costs.

HUNT a. ENOCH.

New York Common Pleas; Special Term, February, 1858.

SUPPLEMENTARY PROCEEDINGS.-QUESTIONS NOT ALLOWABLE.

On examination in supplementary proceedings, the debtor cannot be required to answer any questions which do not tend to show whether he is in the possession of, or entitled to, any property which a judge of the court might order to be applied towards the satisfaction of the judgment.

Billings a. Baker.

Motion for an attachment.

On an examination of the defendant before a referee, under an order supplementary to execution, certain questions were put to him, and allowed by the referee, but which he declined answering.

The plaintiff, on notice, applied to the court for an attachment against the defendant for contempt in refusing to answer as directed by the referee.

HILTON, J.-As the inquiry sought by the questions objected to would not tend to show that the defendant was in the possession of, or entitled to, any property which a judge of this court might order or direct to be applied towards the satisfaction of the judgment (Code, §§ 297, 299), the objections are sustained, and the defendant discharged from further examination under this proceeding.

Motion denied.

BILLINGS a. BAKER.

Supreme Court, Fourth District; Special Term, January, 1858. AMENDMENT.-POWER OF REFEREE.

The provisions of section 272 of the Code, as amended in 1857,-clothing referees with power to allow amendments to any pleading,—do not authorize a referee to strike out the name of a party.

An alteration in the parties of an action is not an amendment of the pleadings. A referee having allowed the name of a party to be struck out,-Held, that the error might be corrected on motion as well as by appeal.

Motion to set aside an order made by the sole referee, striking out the name of a party defendant on the trial.

The action was brought by one Amy Billings, a married woman, by her next friend, against Claudius Baker, Perry P. Billings, and others. The object of the action was a partition of real estate. The defendant Billings was the husband of the plaintiff. The action was referred, and on the trial, the plaintiff was