Bissell v. Kip

5 Johns. 89 | N.Y. Sup. Ct. | 1809

[Kent, Ch. J.

There can be no doubt that the going beyond the limits, under the pretence of avoiding the show, on the walk, was an escape.]

This is not a hard case on the defendant; or such as claims any peculiar favour or indulgence from the court.

The sheriff is not bound to enlarge the prisoner from the gaol, or to give him the privilege of the liberties, until .he has received the most satisfactory security, for his faithful continuance within the limits. If he does not possess that security, it is his own negligence or folly.

As to the variance between the execution produced, and the one stated in the declaration, it may be observed, that the process is not void, but voidable, and might be amended. Now, is there a case to be found, in which sheriff has been allowed to take advantage of a mistak e in process to which he is not a party ? In England, the ca. sa. is merely to take the defendant and bring him before the court; and when brought upy he is committed until he pays the judgment; and the committitur is entered on the roll. So here the return of the sheriff, that he had the defendant in his custody, might be entered on the roll; and a committitur awarded. Having returned that he had the party in his custody, he cannot allege' that the process Was erroneous. It does not lie in his mouth to object a variance. The error is no injury to him. Suppose a- wrong teste to the execution, it can be amended only, at the instance of the party. The defendant in the execution may have released the error, or' waived it, or he may have estopped himself, by some act,, from making the objection. No man can take advantage-of an error in the proceedings, but a party or privy; or one that is competent to release errors.

Kent, Ch. J.

delivered the opinion of the court, 1. The question respecting the fact of the escape was truly settled by the verdict. The point was expressly submitted to the jury, whether the prisoner knowingly escaped from the liberties of the gaol; and by their verdict,. they have found that he did. This is not a finding against evidence the prisoner did, on the evening of the 8th of February., 1809, voluntarily and wilfully depart from the liberties ; and the only excuse offered was, that it was inconvenient to walk within the path prescribed by the liberties, by reason of snow.. This was no excuse ;. there was no necessity to justify the departure, for it is stated, that notwithstanding the snow, he might still have walked within his limits. It would be most inconvenient, and liable to every imposition, and go in a great degree to defeat the law of imprisonment for debt, if a question of convenience merely, might determine whether a voluniary and wilful departure from the liberties, was, or was not an escape. The going into the office of Leavenworth, was also an escape. This was without the limits of the gaol liberties, as designated by the court of common pleas. If the liberties were vaguely defined, without the “ posts or other visible marks,” prescribed by the statute, this would not justify the escape. The sheriff was not bound to take a bond, until the limits were defined according to law ; and if he did, and suffered the prisoner to go at large, it was at his peril. The creditor has nothing to do with the liberties, in making out his action. It is enough for him to show the judgment and execution, and the prisoner taken, and then at large, without the four walls of the prison. It lies with the defendant to justify his being at large, by showing liberties established and defined according to law ; and if he does not, he fails in making out his defence. Here the defence on this point has totally failed. The office of Leavenworth was not within the liberties, according to any construction of the survey made at the instance of the court of C. P. and by them adopted and recorded. The other escape into the middle of the highway, was even without the colour of a pretext of its being within the reputed liberties of the gaol.

2. The question on the special demurrer to the seventh plea, and which, by agreement, was argued in connection with the motion for a new trial, admits of no difficulty. The prisoner, it is stated, did inadvertently, and without any intention to escape, go into an office, sixteen feet beyond the liberties, and returned within one hour after; and that the liberties were commonly deemed to include the office. This plea is palpably bad, for not averring the return to be before suit brought. It admits the escape without any justification; and we may intend, that the plaintiff had commenced his suit pending the escape, and before the return.

3. The only point that seemed worthy of much disr cussion, was that respecting the variance between the judgment and the execution.

What would be the effect of the variance, if the objection had been raised by the debtor himself, is a question not now before us. Here the objection is raised-by the defendant, who is not a party to the judgment and execution, and who has acted upon the execution, and to which the debtor himself submitted without objection. This variance between the judgment and execution, by inserting of a cent too much in the latter, was clearly amendable, at the instance of the plaintiff. The case of Laroche v. Wasbrough and Marland (2 Term Rep. 737.) is in point. The amendment there was of a ca. sa. which had too large a sum inserted by mistake; and the court said there was something to amend by, viz. the judgment, and that the justice of the case required the amendment. The cases referred to, upon the argument in that case, show that the amendment of mistakes in executions, had been carried much further, by allowing it in much stronger instances of mistake. The ca. sa. therefore was not void, but only avoidable and erroneous; and in all such cases the pule appears to be settled, by a uniform series of decisions, that the sheriff who is sued for an escape, cannot take advantage of error in the process, to deliver himself from the action for the escape. The erroneous process was a sufficient warrant for him; he cannot take advantage of the defect in this collateral action ; the process stands good until the party avoids it by error; and no person can bring a writ of error, but he who is party or privy to the record, and competent to release it. (Gold v. Strode, Carth. 148. Bull v. Steward, l.Wils. 255. Ognell v. Paston, Cro. Eliz. 165. Burton v. Eyre., Cro. Jac. 288. 2 Saund. 46. n. 6. 101. y. n. 2.) There are cases in which if a party will set out in his pleading immaterial matter, he shall be bound to prove it as laid j but here the plaintiff did not set out the execution, in hcec , . . , i •verba, so as to produce a variance between the execution set out, and the execution produced. The declaration only stated the substance of the ca. sa. and that it was to satisfy the plaintiff, the damages and costs stated in £he judgment. The ea. sa. produced was therefore admissible under the pleadings; and upon every view of the case, we are of opinion, that the plaintiff is entitled to judgment, upon the demurrer, and upon the verdict.

Judgment for the plaintiff.