1 Wend. 143 | N.Y. Sup. Ct. | 1828
By the Court,
The plaintiffs in error executed a bond to Seymour, sheriff of Monroe, conditioned that Wright, who had been committed on a justice’s execution, should remain a faithful prisoner. Seymour commenced an action in a justice’s court on the bond, alleging an escape. Plea, that Wright remained a faithful prisoner, upon which issue was taken, and judgment for plaintiff. The cause was removed by appeal, and tried in the common pleas, Where judgment was again rendered for the plaintiff. The bill of exceptions states, that the plaintiff below produced and proved the docket of a judgment rendered before J. Wheeler, a justice, in favor of Ashley against Seymour, for the escape of Wright. It appeared that the summons was returned Nov. 30, 1826, at which time the plaintiff) Ashley, declared. The cause was adjourned to Dec. 5, and judgment rendered for the plaintiff. On the return day of the summons no person appeared for Seymour, and no plea or defence was set up. On the adjourned day, Wright appeared to defend, answered to the suit when it was called, and cross-examined the plaintiff’s witnesses, but made no request to
The counsel for the defendant in error then called a witness, who testified that he had occasionally given notice to the bail of the sheriff; that after the adjournment of the cause of Ashley vs. Seymour, he met Rilejr, the bail of Wright, and informed him of the situation of the suit against the sheriff; that previous to the day of the trial, but after the adjournment, Wright called at the office of the justice, and examined the docket, or it was read over to him. The counsel for the defendants below contended that the evidence did not maintain the issue. The court decided that it did maintain the issue ; that although the notice to the defendants was not sufficient, yet'by appearing on such notice, and in endeavoring to defend, they had waived the want of notice, and were liable.
The counsel then offered to prove that Wright had continually remained a true and lawful prisoner according to the condition of the bond ; this was overruled on the ground that the recovery against the sheriff estopped the defendants from so doing. Exceptions were taken to these opinions, and a verdict found for the plaintiff for the amount recovered against the sheriff) with interest and costs.
The judgment against the sheriff having been acquiesced in, although erroneous, it is ^conclusive until reversed; the sheriff is bound by it. It is also conclusive against the plaintiffs in error, both as to the fact of escape, and as to the amount the sheriff has been damnified, provided due notice has been given of the pendency of that suit. (6 Johns. R. 158.)
It is evident there was no legal ground for making the sheriff liable. If he had been permitted to show that the escape relied on by Ashley was no other than this, that Wright was released from the walls of the prison on giving a bond
The justice testified that Wright did not offer to plead; it was competent for him so to do, on his appearance at the adjourned day, (8 Cowen, 87, Lowther v. Crummie,) although by previous adjudication that question was not free from doubt. It does not appear, that had a request to plead been made, it would have been denied. After the cause proceeded in the examination of testimony, the defendant offers the limit bond, and that he was removed from the prison to the limits in consequence of having given it. This evidence would have supported a plea, that Wright was committed to the prison and there remained until a bond for the limits was given, when he left the prison, went on the limits, and remained on the same ever since, averring that his leaving the prison in this manner is the escape charged by the plaintiff As, however, no plea was interposed, I do not perceive that the justice erred in excluding the testimony. Whether he erred or not is immaterial at this time; his errors cannot be corrected in a collateral action. The preceding remarks are made to show, that if the plaintiffs in error have become liable, they cannot justly complain of the severity of the law; but may impute their liability rather to negligence in not defending the cause in the manner they might have done; that is to say, by pleading at the adjourned day in such manner as under the plea to have admitted the evidence offered; and in the event that the justice had then precluded the defence, to have reversed the judgment in a superior court. Under the circumstances, the question is, was the notice sufficient ? No particular time can be laid down as a rule; it must depend on the reason of the thing; did it afford a fair opportunity to interpose the defence? If the plaintiffs in error had not appeared, I think this court would consider the notice too short; but where a party does appear, and that in season to make a defence, and when it manifestly appears that the defence could not have been legally excluded, had the defendants availed themselves of the protection the law afforded, it seems to be going too far to say, that not
The judgment of the court below must be affirmed.