2 Rob. 448 | The Superior Court of New York City | 1864
By the Court,
This case was tried before a justice of this court and a jury, on the 15th of March, 1864. A verdict was found for the plaintiffs for the sum of $7000, under the direction of the court, to which the defendant duly excepted. The plaintiff claimed to recover of the defendant, alleging in his complaint: That one Phin White was arrested hy him, and that bail was- not given, nor was a deposit made, whereby the sheriff had made himself liable as bail.
It appeared upon the trial that on the 16th of September, 1862, an order was made by a justice of this court to arrest Phin White and hold him to bail in the sum of $7000 at the suit of William P. Bensel, and directed to the sheriff, James Lynch, which order was made upon affidavits showing that the said White fraudulently contracted the debt for which the action was brought. That at the time the money was obtained from the plaintiff, White represented himself to be a man of property, but was in fact utterly insolvent, making a case under the 4th subdivision of section 179 of the Code. That the sheriff arrested" White under and by virtue of the order; the bail did not justify and no deposit was made instead thereof.
The defendant moved to dismiss the complaint on the grounds,
1st. That the affidavit did not authorize the granting of the order of arrest, and that the sheriff was not liable.
2d. That the plaintiff was bound, to show affirmatively that White had actually escajoed at the time of the commencement of this action. The motion was denied, and the defendant excepted.
, The defendant offered to show, in mitigation of damages, ■ that at the time of the commencement of this action, Phin White was and still is utterly insolvent, and without any property, real or personal, or any means whatever, out of which any thing could have been collected. This evidence was objected to and excluded; to which ruling the defendant excepted. >
A verdict was ordered for the plaintiffs, and the exceptions directed to be heard in the first instance at the general term. It appears from the sheriff’s certificate that on the 20th of September, 1862, he arrested and had in custody Phin White by virtue of an order of arrest. He was bound to keep him funtil he was legally discharged by due course of law, or permitted to go' at large on bail, or by making such deposit as the statute requires. The sheriff is not allowed to allege error in the judgment or process as an excuse for an escape, where the process is regular upon its face. This was held as early as the case of Cable v. Cooper, (15 John. 152,) and has been reaffirmed in numerous cases, since. This fully disposes of the first ground taken for the 'dismissal of the complaint. The second ground there taken is ,so allied with
The important question arising in the case is that arising upon admissibility of the evidence offered to show the insolvency of White at the time of the commencement of this action against the sheriff, and ever since.
There can be no question whatever that the sheriff is himself liable as bail. The defendant White was- arrested; he did not give bail, nor was a deposit made instead thereof; whereupon the 201st section of the Code declares “the sheriff shall himself he liable as hail.” These are the precise words of the statute. It would- be a very violent presumption for us to assume that the legislature did not mean, by language so plain, precise, clear and definite, exactly what they have expressed.
It has been decided in the Court of Appeals, in the case of Gallarati v. Orser, (27 N. Y. Rep. 324,) that if the sheriff should discharge the defendant without his compliance with § 201, after arrest, he would himself he liable, precisely as the sureties would have been liable, if a proper undertaking had been given. The same principle was held in this court in the same case in 4 Bosw. Rep. 94, which principle was affirmed in the Court of Appeals. Before the Code, White could have been arrested upon a capias ad respondendum and held to bail, if he had escaped. It would have been called escape upon mesne process. It is therefore contended, on the part of the defendant, that inasmuch as by the 2 R. S. § 62, the sheriff would only have been liable for the damages sustained by the plaintiff, the same rule should still prevail. It is true, that the sheriff would then only have been liable “ to the extent of the damages sustained by him.” (2 R. S. §62.) But a careful examination of the Code, and the several sections contained in chapter 1, of title 7, clearly shows that the provisions embraced in § 201, were intended to apply to a case which prior to the Code would have been termed an escape on mesne process, and to make the sheriff liable to the same extent as if he were himself bail, thus changing the rule of damages.