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.