| S.C. Ct. App. | Nov 15, 1827
Gubia per
The grounds taken in support of this motion present but'two questions for the considerations of this Court:
1st. Whether the entry of the Clerk, of the order for a nonsuit in the case of Baker against Stazinsky, was admissible as evidence of the termination of the cause?
2nd. ' Whether the presiding Judge did not err in charging the Jury, that the plaintiff, by - suffering a nonsuit,, virtually discharged Stazinsky from imprisonment, and that that fact proved that he had sustained no injury.
1st. There can be no question, that out of the Court in which the proceedings are had, a regular judgment is the only legitimate evidence of the termination of a cause, for the obvious reason that the non production of the judgment would furnish a presumption that an intermediate or interlocutory order had been reversed or set aside; but this reason does not apply in cases where the proceedings are had in the same Court in which they are offered in evidence; for in legal contemplation, the whole record is before the Court, and in reality are always at the command of the Court, and for that reason, it is not necessary in pleading to make proferí of a record of the same Court. Í should apprehend, therefore, that whatever was calculated to prove that the plaintiff could not have proceeded in his cause against Stazinsky was admissible as evidence of its termination. Had the plaintiff
2nd. In connection with the second question, it will be necessary to premise that Stazinsky was arrested by the defendant on mesne process, at the suit of the plaintiff, on the 20th December, 1820. That he filed a petition praying for the benefit of the Prison Bounds Act, accompanied by a schedule of his estate and effects, and upon the trial of an issue made up on a suggestion of fraud, he was found guilty in having kept back $1500 which he had in cash, and that subsequently to these proceedings, to wit, on the 15th April, 1821, he made his escape from the prison. The plaintiff also proved on this trial, that Sta-zinsky was indebted to him the amount for which he was arrested, $812, besides interest. The order for a nonsuit was entered on the 11th June, 1823, more than two years after Stazinsky had escaped. There is no question, and, indeed, it is not controverted, that on the escape' of Sta-zinsky, the plaintiff was entitled to an action against the defendant, and that he was not bound to prosecute that action further, and although he might do so if he had been delayed, or suffered any other loss in consequence of it, he was still entitled to recover from the defendant to that extent (see the cases cited, 1 Saunders, 331; 2nd Wilson, 294; 5th Johnson’s Rep. 182;) and in all these eases the question necessarily is, what damage has the plaintiff
A question not necessarily involved in the preceding view is raised in the third ground of the brief. It is for the supposed misdirection of the J udge in charging the Jury, that a defendant, on mesne process, is entitled to be discharged on a nonsuit ordered, although he has been convicted of rendering a fraudulent schedule on an application for the benefit of the act. About this, I think,, there can be no question. The object of his confinement was, that his body might answer the plaintiff’s suit; when that was atan end, the Sheriff had no authority to detain, him longer. ■ ■ Motion granted.