5 Watts 235 | Pa. | 1836
The opinion of the Court was delivered by
Though the errors assigned are numerous, they may all be resolved into three questions. First, did the court below err in permitting the defendant, who is sued here in debt, as the sheriff of Dauphin county, for having permitted Isaac M'Cord to escape from his custody, after being arrested upon a capias ad satisfaciendum, sued out of the court of the common pleas of the same county upon a judgment thereon obtained against M’Cord at the suit of the plaintiff in this action, for upwards of 300 dollars, including costs of suit, to amend his return? Second, had the attorney at law, who, as the attorney of the plaintiff, commenced the suit, prosecuted it to judgment, and sued out the capias ad satisfaciendum thereon, power or authority, in virtue of his being so employed by the plaintiff to collect his debt, to discharge the defendant in the judgment from arrest made under the execution, and from the custody of the sheriff, without the amount thereof being paid? And third, were Isaac M’Cord and John Wise, each, competent witnesses for the defendant?
In respect to the first question, it is certainly true that sheriffs,
In conformity to these principles I think it may be seen that in Rex v. Ward, Bunb. 323, where the sheriff made the same return to two different writs of extent against the same defendant, in short making himself liable twice for the value of the same property, the court refused him leave to amend his return. And in Ibbotson v. Tindal, 1 Bing. 150, S.C., 8 Eng. Com. L. 281, the sheriff having returned to a capias, “ I have taken the within named defendant, whose body remains in the prison of our lord the king under my custody,” the court refused to permit him to amend his return, by striking out the return on the writ and returning according to the fact “ that on the receipt of the writ by the sheriff, the defendant was in custody at the suit of other persons, and from
It is also a general rule that judicial proceedings shall not be amended, except there be something to amend by, lest instead of correcting an error by doing so, it should only be making one. And perhaps there is quite as much reason for applying this rule to the returns of a sheriff, as to things- for the most part transacted in a court: For, like the record of a court, the return of a sheriff is of such high regard, that generally no averment shall be admitted against it: As if A. be returned to be outlawed, he cannot say, that he was only quarto or quinto exactus. Kit. of Courts 562, (Ed. in English 1675;) Dalt. Sheriff 189, cap. 42; Com. Dig. Tit. Return (6) 235 (Rose Ed.)
And again what could be more dangerous to the rights and interests of suitors, as well as to that of other persons, than to permit a sheriff to release himself from a responsibility created by his return, under the plea of correcting an error, by his making an affidavit contradicting the truth of his return? Might he not as well be permitted to set aside his recognizance in the same way? In principle, perhaps, there is but little difference between the two cases. It can seldom, if ever happen, that a sheriff will be so indifferent to his own interest as to make a return rendering himself liable beyond what he would and ought to be, if he were to perform his duty vigilantly and faithfully; or if he ever does, it is upon the faith of some promise or assurance made by the party against whom he has the process : and if deceived or disappointed by him, it forms no apology for his neglect of duty: and still less a ground upon .which to ask relief from the liability to which he has subjected himself by his return.
But further, even upon the common principles of evidence, having made a return by which he admits his liability to the plaintiff, counter declarations by him, though made upon oath, cannot be received in evidence to disprove the truth of such admission of liability. Such is the nature of man,- and so mindful is he of his own interest at all times, that it has never been considered that he could make such admission unless it were true. And upon this ground, it is received as evidence against him of the very best and highest nature: and is therefore admissible to establish a charge against him that may affect his life as well as his property. But when he has deliberate!}7 put his admission upon record as in the case of a return made to the court upon a writ, is it not reasonable that it should still be entitled to greater credit, if possible, and be held to be conclusive upon him? And would it not be directly contrary to every principle of analogy, as regards the rules of evidence, even where this admission is by parol, to have it set aside by his own subsequent counter declaration, though made on oath, that it was not true? For having become interested, he cannot be admitted, according to the established rules of evidence, to testify thus in
We, therefore, think the court, below erred in permitting the defendant to amend his return first made on the capias ad satisfaciendum-, and afterwards in admitting evidence to disprove the fact of his having arrested the body of Isaac M’Cord by virtue of it.
As to the second question, we think that the attorney of the plaintifi in the capias ad satisfaciendum had full power and authority to discharge the defendant therein from the arrest under it, without having received,or the amount of money thereon endorsed being paid. This authority has been exercised by attorneys throughout the slate from time immemorial almost; and especially where the plaintiff, as in this case, resided out of the county in which the judgment was obtained, and the defendant therein named resided, at the distance of nearly one hundred miles; and did not, from any thing that was shown on the trial, appear to have attended at all in person to the prosecution of his suit, and the execution of the judgment therein obtained, for the purpose of looking after the collection of his debt. It seems to have been entrusted, as is usual in such cases, entirely to the discretion and management of Mr Rawn, his attorney, with full power, implied at least if not expressed, to do whatever he, under the circumstances, for the time being, might think best, in order to secure the payment of the debt as speedily as possible. The attorney employed to collect the debt in such cases does not act merely in the character of what may be considered strictly an attorney at law, or of the court in which the action is brought, but also in the character of an agent of the plaintifi'or the creditor, invested with implied power, at least, to deal with the defendant, especially if his circumstances be considered doubtful, and to direct the sheriff to execute process, sued out against him or not, just as he shall think the one course or the other the most likely to secure the payment of the debt ultimately ; and, as regards the sheriff, he is bound to receive and to obey the instructions of the attorney, the same as he would those of the plaintiff himself were he present giving them. The attorney represents the plaintiff as well after the body of the defendant is taken in execution, as before in obtaining the judgment; and may release the debtor from his confinement either upon or without payment of the debt. For his trouble and agency in such cases he is entitled to receive a reasonable compensation. Gray v. Brackenridge, 2 Penns.
But whether any order of discharge from the arrest was given by the attorney for the plaintiff to the sheriff, while the defendant named in the capias ad satisfaciendum was in custody after the arrest, is a fact that ought to be distinctly proved to the conviction of the jury; for the allegation of the defendant here, that it was so, is not to be regarded, and amounts to nothing. Indeed, any evidence that was given on the trial of the cause, tending to show that the attorney for the plaintiff had given any direction to the sheriff, other than that of executing the writ immediately, would rather seem to have been on the day after ihe defendant in the capias ad sutisfaciendum most likely had been arrested, and suffered by the sheriff to go again at large. If this be so, then the defendant here permitted the defendant in the capias ad satisfaciendum to escape and to go at large-without any direction from the plaintiff’s attorney authorising it; and he would therefore be liable in this action to the plaintiff, for the whole amount of the judgment, whereupon the capias ad satisfaciendum was sued out; and the subsequent assent of the plaintiff’s attorney, even if it were given, to the escape of the defendant in the capias ad satisfaciendum afterwards, and to his being and remaining at large, would not release the defendant here from his liability to the plaintiff in this action.
Then, as regard's the third question, were M’Cord and Wise competent witnesses for the defendant? We can see no substantial objection to their competency. They do not appear to have been interested in the event of this suit. Even if there should be a recovery here against the defendant, M’Cord would be subjected to no more liability by it; nor would he have to pay a cent more on account of it. And, as to Wise, there does not seem to be any colour for saying that he is interested, or that his rights or liability will be affected in any way by a recovery here. But so far as the evidence given by either of them tended to show that there was no arrest of M’Cord under the capias ad satisfaciendum, it was clearly incompetent, because it went to contradict the sheriff’s return thereon as originally made, and was therefore inadmissible; and, likewise, so far as it went to prove that the order, which they speak of being given by the plaintiff’s attorney to the sheriff, to stay further proceedings in the writ of capias ad satisfaciendum was given after the defendant therein had been arrested and permitted to go at large by the defendant here, it was irrelevant, and therefore ought not to have been admitted.
The judgment is reversed, and a venire de novo awarded.