Visscher v. Gansevoort , 18 Johns. 496 ( 1821 )

_ _ . Fer Curiam.

, . ... 1 he only question in this case is, whether, the suit was commenced when Mounsey, for whose escape the defendant is sued, was off the gaol limits..

^ was decided, in Burdick v. Green, that if a writ was actua^y made out, and sent to the sheriff or his deputy, by mail or otherwise, with a bona fide and absolute intention of 7 ° having it served, it would be a good commencement of the . ° ... suit; but, we held, that such intention must be positive and unequivocal. Here the writ was made out, and delivered to a messenger, as we construe the facts, conditionally; that is, he was directed to go and see Mounsey off the limits, and then deliver the writ to the coroner; but, if he went, and did not see him off the limits, or if he saw him on the limits, then, it is implied, that he was not to deliver the writ to the coroner. When, therefore, the attorney issued the writ, the intention to commence the suit was not absolute, positive, and unequivocal; and we cannot admit, that the messenger or bearer of the writ, shall have it in his power to decide whether the suit shall be commenced, by any event subsequent to the delivery of the writ to him, short of its being actually put into the hands, or left at the office of the coroner.

The evidence is not very satisfactory whether Mounsey was on the limits, or not, when the writ was, in point of fact, received by the coroner. We rather infer, that he was then on the limits; but the plaintiff should have shown, affirmatively, that he was then off the limits. For, in such an action, we cannot intend, or infer any thing, unless it be plain and irresistible, to charge the sheriff.

Judgment for the defendant.