9 Gratt. 167 | Va. | 1852
after stating the case, proceeded r
Several errors are assigned by the plaintiffs in errors in the proceedings and judgment, which I will proceed to notice in the order in which they are assigned.
The first is, that “ the court erred in overruling the demurrer to the declaration; because a joint bond cannot by law be taken, as each judgment debtor ought to enter into a separate bond with security.” I can see no reason and know of no authority why joint debtors, against whom judgment has been obtained and execution issued jointly, and who have been jointly arrested and committed to prison, may not jointly enter into a prison bounds bond. Indeed, the statute authorizing the bond to be given, plainly contemplates such a case, for its language is, “ If any person or persons, taken or charged in execution, shall enter ' into bond, &c., that he, she or they shall not depart or go out of the rules or bounds of the prison,” &c.
In support of this assignment of error, the counsel for the plaintiffs in error cited and relied on several cases in the Hew York reports ; which, with some other cases, and the course of legislation in that state in regard to escapes, it may be proper to notice somewhat in detail. When those cases were decided, the common law on the subject of escapes was the law of Hew York, except in some respects in which it had been altered by statute. Formerly it would seem that persons in custody on civil process in that state, had no right to go at large within the limits of the prison, without the permission of the sheriff, though they might do so with such permission. But by an act passed in 1801, (which appears to have been but a re-enactment of a law which was passed in 1793,) it was made the duty of sheriffs to permit all prisoners in custody on civil process to go at large within the limits, on their giving bond with security to keep the same; and the sheriff was authorized, in case he should discover the security to be insufficient, to confine the prisoner until other sufficient security was offered. 4 John. 49 ; 10 John. 577. After the passage of this act, it was decided that a sheriff might still permit a prisoner in execution to go within the liberties of the prison without taking security; and if the prisoner, without his knowledge, went beyond the limits, but returned again before suit brought, he was not liable for an escape : the limits of the liberties of the prison being considered as an extension of the walls of the prison, and a return within the limits of the same as a return within the prison ; and where no bond or security is taken by the sheriff, his right of recaption remaining in full force ,• and a voluntary return before suit brought being equivalent to a recaption, which will purge a negligent escape. Peters v.
Thus stands the law of New York on all the cases referred to; and there can be no doubt but that the pleas rejected in this case, or some of them, would present good defences to the action, if the decision of the Court of errors, in the case last cited, were a binding authority and a correct exposition of the law
In the case of Crump v. Bennett, 2 Litt. R. 209, it was held that if a debtor committed to the prison rules depart thence, however innocently, from ignorance of the real boundaries, however short the distance and sudden his return, his bond is forfeited. That case was . decided in 1822, and is entitled to great weight, be
The third error assigned is, that “the court erred in permitting the prison bounds bond to be assigned upon the trial of the cause after the jury were sworn, as the assignment of the instrument is an essential part of the plaintiff’s case, to enable him to institute and maintain the action.”
If an obligee of a bond or payee of a note endorse his name in blank thereon, and deliver it to another person for the purpose of assigning or endorsing it to him, the blank endorsement imports an authority to any Iona fide holder to write over the same a full assignment or endorsement to him, and in fact, without being filled up, may be regarded, for all purposes of pleading and evidence, as a full assignment or endorsement. Courts will consider that as done which may be done, and will not even require the formality of
The fourth error assigned is, that “ the court erred in permitting the boundaries of the prison bounds to be given in evidence, without having been recorded as the statute directs.”
The statute referred to by the counsel of the plaintiff in error, 1 Rev. Code 1819, p. 251, § 18, requires the marks and bounds of the prison rules, directed to be laid out by the justices of every county and corporation, to be recorded, but does not prescribe the particular book in which they are to be recorded. The marks and bounds in this case were entered only on the order book of Wood county court, but having been entered therein as part of one of the regular orders of the court, and the order book being certainly a record book, they were recorded within the meaning of the statute.
The fifth error is, that “ the court erred in admitting the deposition taken before A. Samuels, Esq. to be read, inasmuch as a commissioner in chancery has no authority to take a deposition in a law cause.”
It perhaps would be a sufficient answer to this objection to say that the said deposition was taken “ in
The sixth and last error is, that “ the court erred in instructing the jury that under the circumstances of this case the true measure of damages was the debt and interest; and consequently erred in refusing to give the instruction asked for by the defendants’ counsel.”
The prison bounds bond in Virginia is, as we have seen, not a mere bond of indemnity to the sheriff, but, when it is assigned to the creditor according to law, becomes a substantial security for the debt: That was evidently contemplated by the statute. The imprisoned debtor having availed himself of the liberties of the prison on the terms prescribed by the statute, and having departed from the said liberties and broken his bond, the creditor has his election to pursue and retake the debtor, or to abandon his execution as having become abortive by the act of the debtor, and resort to an action on the bond “ for the recovery of his debt.” The amount of the debt seems to be recognized by the very language of the statute as the measure of the recovery- on the bond. To depart from that certain standard would be unreasonable and embarrassing. The
For the foregoing reasons, I am for affirming the judgment.
The other judges concurred in the opinion of Moncure, J.
Judgment affirmed.