17 Wend. 543 | N.Y. Sup. Ct. | 1837
By the Court,
It was said by the defendant’s counsel on the argument of this case, that no escape was proved at the trial. The evidence was truly very slight; but the judge and parties assumed it as sufficient, and no such point was made at nisi prius. Had it been, farther proof would doubtless have been given; perhaps indeed it was given, but omitted in making up the case, because there was no objection on account of the defect; a thing which often happens. It is enough, therefore, to say that the point was not made, but the cause proceeded on entirely different questions, taking the escape for granted.
The more difficult question is, whether the onus prohandi in respect to the damages sustained lay with the plaintiffs, after they had proved the escape and the judgment against Kelly: or in other words, were not the plaintiffs, prima facie, entitled to recover against the sheriff the amount of their judgment, until he gave evidence to show that the injury sustained by them in consequence of the escape was short of the §10,000? I think we are to intend in favor of the sheriff that the escape was not voluntary, but negligent, and there can be no dispute as to the true rule of damages. I will only refer for this to Brooks v. Hoyt (6 Pick 468), which holds that in an action on the case, even for a voluntary escape, the actual damage [546] sustained, not the debt or judgment recovered against the original debtor, shall form the measure of damages. In that case, however, after the plaintiff had made out his case, the defendant gave evidence in mitigation that the debtor was poor, &c. The circumstances came from the defendant; and such was the course in the following cases, where the same rule of damages was also agreed to, at least in respect to a negligent, escape, and to like acts of neglect (Potter v. Lansing, 1 Johns. R. 215; Russell v. Turner, 7 id. 189: Smith v. Hart, 2 Bay 395; Bunnell v. Lithgow, 2 Mass. R. 526; Weld v. Bartlett, 10 id. 470; Nye v. Smith, id. 188; Shackford v. Goodwin, 13 id. 187; Rich v. Bell, 16 id. 294; Eaton v. Ogier, 2 Greenl. 46; Clark v. Smith, 9 Conn. R. 379; The State Treasurer v. Weeks, 4 Verm. R. 215). In Doe, ex. dem. (Ham v. Martin, 1 Hawks 423), the same course was taken even as to a voluntary escape. See also Duncan v. Klinefelter (5 Watts, 141, 144), All this, however, is but pursuing the general rule, which nobody disputes, especially where the escape is negligent.
The question still recurs, on whom does the onus lie? The more recent books on evidence, Phillips, Starkie and Roscoe, I presume give us no direction. None has been cited from them by counsel, and on the best search I can make, I find none. Starkie, 2 vol. ed. of 1837, 740, merely says, “If the plaintiff has not in fact been injured by the sheriff’s laches, the damages will be merely nominal.” He cites Tempest v. Linley, (Clayt. 34). Clayton is, I believe, the first systematic nisi prius reporter. All his cases were" decided at the York assizes. Tempest v. Linley was a case before Damport, chief baron, in August, 1633, and there the plaintiff took the onus, and the reporter holds that it belonged to him. The whole of the report is thus: “An action upon the case against a sheriff upon an escape suffered by his baily upon a mean process; and it was in evidence, as is necessary to make this case, that there was such a debt, that such a process and warrant was, and a due debt; and lastly that the party arrested was be•come insolvent, otherwise he should not have recovered damages to the
In respect to the insolvent proceedings, the offer of compromise [549} and a letter, the object in offering them is not stated in the case. If they are to be taken as the declarations of Kelly, to prove facts against the sheriff, they struck me at first as objectionable on the general ground that they were hearsay evidence of a third person. Mr. Starkie, however, (2 vol. ed. of 1837 p. 740), advocates the receipt of such declarations, even without regard to the time when they are made, and this although he admits there is no privity between the prisoner and the sheriff. The cases which he cites will hardly bear him out to this extent, but should rather, perhaps, be confined to a time before the escape, according to what Bayley, J., said in Rogers v. Jones (9 Dowl. & Ryl. 878). According to this, the offer of compromise was improperly overruled; but not the letter from New Orleans, unless, as is now professed, they were offered to prove where Kelly was. Showing him to have escaped and gone beyond the sheriff's reach was admissible. The offer, therefore, to show ineffectual search, would seem to be admissible within the rule which I have cited from Norris’ Peake, 608, though that is not now made a point.
It is now said that the insolvent discharge should per se be received as legitimating the escape and defeating the action. This point was not made on the trial, nor probably could it have been, on the materials there, for the time of the escape, as whether before or after the discharge, was not ascertained. Neither party was willing, it seems, to await the jailer’s return from his errand of search, to ascertain the time. It is quite obvious, however, from the face of the discharge, as well as the act to abolish imprisonment, under which it professes to be granted (1 R. S. new ed. 807, et seq.), that the discharge has no connection with, and can have no effect upon the suit in which Kelly was imprisoned. He was committed as a non-resident. The application for a discharge was not made in respect to this suit, but another, assuming to be a suit within the act, in which one Morrison was plaintiff, in the common pleas of New York.
New trial granted; costs to abide the event.