4 Blackf. 190 | Ind. | 1836
Debt by P. G. and J. Frost against Spader, Crane, and Ketcliam, on a bond for the penalty. The defendants craved oyer of the obligation and condition. The former is in the usual form, the latter as follows: “ The condition of the above obligation is this, that if the above-bound Spader, from and after the date of these presents, shall continue a true prisoner in the custody of the jailer or prison-keeper, and within the limits of the prison-bounds in the county and state aforesaid, without attempting any manner of escape, until discharged by law, then this obligation to be void, otherwise to remain in full force and virtue.” The defendants pleaded, first, general performance of the condition; secondly, that although, on, &c., Spader departed without the prison-bounds, he afterwards, and before the commencement of the suit, voluntarily returned within them, and had ever since remained a true prisoner without attempting any manner of escape; and thirdly, Crane and Ketcham, without Spader, pleaded that Spader left the prison-bounds by the consent and license of the plaintiffs previously given, and that he had not made, or attempted to make, any other escape than his departure in pursuance of such consent and license.
To each of the two latter pleas the plaintiffs demurred generally, and had judgment on each demurrer. To the first plea they replied, denying the performance of the condition alleged by the defendants, averring that on, &c., Spader was in the custody of the sheriff of Montgomery county, by virtue of a ca. sa. in favour of the plaintiffs, (setting it out); that being desirous to obtain the benefit of the prison-bounds, he, together with the other defendants, executed the bond, and that in consideration thereof he was admitted to the liberty of the jail-limits. The replication then assigns the breach of the condition of the bond by the escape of Spader from the bounds of
The plaintiffs offered in evidence the record of a judgment in their favour against Spader, rendered in the Montgomery Circuit Court, and also the ca. sa. on which he was imprisoned. To the admission of each of which as evidence, the defendants objected; the objections were overruled, and both were read to the jury. The defendants then offered to prove to the jury, in mitigation of damages, the insolvency of Spader, and that he left the prison-bounds with the consent of the plaintiffs. This evidence was objected to by the plaintiffs, and excluded by the Court. After the testimony was closed, the defendants moved the Court to instruct the jury, that they should assess such damages as the plaintifls had actually sustained by the escape of Spader, and that they were not bound to find the whole amount for which he was imprisoned, unless the real loss of the plaintiffs should be found to equal that sum. This instruction the Court refused to give, but charged the jury, that the sum for which Spader was imprisoned should be the measure of damages to be found, by them. The defendants excepted, severally, to all the decisions of the Court respecting the testimony, and instructions to the jury. The verdict was in accordance with the instructions; and there was a final judgment for the plaintiffs, from which defendants appealed.
Many objections have been urged against the validity of this judgment. Among them are the following, which we shall now consider without regard to the order in which they present themselves upon the record.
1. That the Court erred in sustaining the demurrer to the second plea of the defendants.
That plea alleges the return of Spader into the prison-bounds soon after his escape, and his continuing there a true prisoner until the commencement of this suit. The appellants very properly contend, that such a defence would have been available by the sheriff in an action against him for a negligent escape, but they erroneously suppose, that there is an analogy between the defence to which he would have been entitled, and their rights as defendants in this case. When a debtor is committed to the custody of the sheriff, for the purpose of
2. It is contended that the bond is invalid' because it does not conform to the statute under which it was given.
3. Another cause of demurrer to the replication is, that the bond on its face shows a want of consideration.
This objection is predicated upon the fact, that the condition of the bond contains no recital of the matters which led to its execution, or which show a connection between it and the plaintiffs, -and must have prevailed had not the bond been aided by the averments in the replication. It has already been seen that these averments set forth a good consideration for the obligation. They are explanatory of the circumstances under which it was executed, and show the propriety of the condition. Chitty says, “ where a variety of facts preceded the contract, and are so connected with it that the statement of
4. It is urged that the instruction of the Court to the jury,, that the sum for which Spader was committed on the execution, was the legal measure of damages and should be the amount of the verdict, was wrong.
By the common law, in an action on a penal bond, the
Our statute authorising prison-bounds-bends, is silent as to the damages which are to be awarded upon a breach of their conditions. But it gives the creditor a right of action upon them, upon the escape of the prisoner, whether he be confined upon mesne process or execution; and it takes away the remedy which would otherwise have existed against the sheriff, holding him only responsible for the sufficiency of the sureties. In
It has been urged in argument that there is better reason for holding the sheriff thus liable, than there is for imposing the same liability on the escaping debtor and his sureties, because the sheriff has the right of recaption, and the bail has not. We draw a different conclusion from these premises. If the liability of the sheriff is the consequence of-his right to re-commit, it would follow, that in voluntary escapes he would not be liable at all, for in such escapes he has ‘ no right to retake.’ , The truth is, as has been already observed, that the privilege of the sheriff to re-capture after a negligent escape, is a more mitigation of the rigorous responsibility which the policy of the law has thrown upon him, to insure his vigilance and honesty in the discharge of his trust, and excuses him only when without any fault of his in the escape, he shall restore to the creditor the means of enforcing the payment of the debt, by his hold
We think, too, that the construction of the statute contended for by.the appellants—which is, that such damages only as might appear to have been sustained by the escape, taking into view the insolvency of the debtor, (if such be the fact,) would be of dangerous tendency, by holding out temptation to fraud and collusion between the prisoner and his friends. Without possessing visible property, he might have the means of paying his debts. In such cases, it would be easy for a dishonest debtor to procure bail for the prison-bounds, effect his escape, and his sureties be able to reduce the damages to a nominal sum by seeming proof of his insolvency. Such a construction of this statute would be almost tantamount to abolishing imprisonment for debt. If such a result be desirable, the power to produce it lies in other hands than ours. As the law is, we consider the body of a debtor in execution in the character of a pledge for the debt, and therefore conclude that the instructions which the Court gave to the jury were right, and might also have embraced the interest and cost. '
In accordance with this opinion are the decisions of several of the states, and we know none to the contrary. It is true, that in North-Carolina and Kentucky the rule of damages has been held to be different, in actions upon sheriffs’ and jailers’ official bonds, for the escape of an imprisoned debtor. We
; 5. Another position assumed by the appellants turns us back again to the replication. Among the causes of special-demurrer to that branch of the pleading is, that it contains no avexment of the existence o’f a judgment in favour of the plaintiffs against Spader. This point has already been settled by this Court in the case of Marlin et al. v. Kennard, 3 Blackf. 430. This objection to the replication should have been sustained, and the Court erred in overruling it.
6. There is still another cause of demuri-er to the replication assigned, and that is, that it concludes to the country, whereas it should conclude with a verification.
There have been more legal i'efinement and subtilty than good sexxse, in settling the rules of pleading as to the con
The demurrer to the replication was well taken, and the Court erred in overruling it.
7. We think the Court committed another error in sustaining the demurrer to the third plea;—which is, that Spader, the debtor in execution, departed from the prison-bounds by the previous consent and license of the plaintiffs.
Whether a parol license is sufficient to destroy the effect of a covenant, or whether it can be such a waiver by one party to a specialty of something contracted to be done or not done by
Yarious other objections to the proceedings of the Circuit Court were urged, which it is now unnecessary to notice as they do not affect the merits of the cause, and may be easily obviated by attention to the future pleadings in the Court below.
The judgment is reversed with costs. Cause remanded, &c.
It is a general rule in pleading, “ that upon a negative and affirmative, the pleading shall conclude to the country; but otherwise, with a verification.
To this rule there is the following exception": that when new matter is introduced, the pleading should always conclude with a verification. 1 Saund. 103, n. (3,) and the authorities there cited. Whitehead v. Buckland, Stile, 401.— Cornwallis v. Savery, 2 Burr. 772.—Vere v. Smith, 2 Lev. 5.—Vent. 121, S. C.— Sayre v. Minns, Cowp. 575.—Henderson v. Withy, 2 T. R. 576.—Calvert v. Gordon, 7 Barn. & Cress. 809.
A traverse may sometimes involve the allegation of new matter; and in such instances the conclusion must be with a verification and not to the country.
An illustration of this is afforded by a case of very ordinary occurrence, viz. where the action is in debt on a bond conditioned for performance of cove
So, in another common case, in an action of debt on a bond conditioned to indemnify the plaintiff against the consequences of a certain act, if the defendant pleads non damnificatus, and the plaintiff replies alleging a damnification, he must, on the principle just explained, set forth the circumstances, and the new matter thus introduced will make a verification necessary. Richards v. Hodges, 2 Saund. 82.
To these it may be useful to add another example. The plaintiff declared in debt, on a bond conditioned for the performance of certain covenants by the defendant, in his capacity of clerk to the plaintiff; one of which covenants was, to account for all the money that he should receive. The defendant pleaded performance. The plaintiff replied, that on such a day such a sum came to his hands, which he had not accounted for. The defendant rejoined that he did account, and in the following manner; that thieves broke" into the counting-house and stole the money, and that he acquainted the plaintiff with the fact; and he concluded with a verification. The Court hold, that though there was an express affirmative that he did account, in contradiction to the statement in the replication, that he did not account, yet that the conclusion with a verification was right; for that new matter being alleged in the rejoinder, the plaintiff ought to have liberty to come in with a surrejoinder, and answer it by traversing the robbery. Vere v. Smith, 2 Lev. 5. Vent. 121, S. C.”— Stephen on Pl. 233 to 235.