delivered the opinion of the Court. If it is meant that the defendant’s counsel, by objecting to the verdict being taken, subject to the opinion of the Court, insisted on his right to address the jury, and on their right to deliberate on the evidence, (which I think is fairly implied in the objection,) then it becomes necessary to inquire, what is, and ought to he, the course of proceeding at the circuit. If the facts in a cause are indisputable, and the Judge either has doubts on the point of law, or wishes to have it considered more deliberately, I can see no objection to his advising the jury to find a verdict for the plaintiff, or defendant, subject to the opinion of the Court. In such a case, if either party refused consent, I should consider it advisable to decide the point of law, giving the party against whom.the decision was made, an opportunity to make a case. If the facts were disputable, or if there was any thing within the province of the jury to consider of, the course would be, if either party objected to a case subject to the opinion of the Court, toxsubmit the case to the jury, with such remarks on the law and facts, as were called for by the circumstances of the case.
In this case, the facts relied on by the plaintiffs, to prove an escape, were not disputed. The validity of the defence was in question only; and if it depended merely on the writing given by H. Ely, whether he authorized the deputy to let White go at large for a limited period, the construction of the object and intent of the paper writing, would be matter of law for the decision of the Judge at the Circuit, and, ultimately, for the -Court; but if the antecedent and accompanying facts were to be taken into consideration, in deciding the import and meaning of the writing, I should then consider it a matter proper to be submitted to the jury. I should, however, distinguish between cases in which a right to property arising ex contractu, was in dispute, and cases where *317a penalty was sought to be recovered, ex delicto; in the latter cases, I should refer the whole matter, with my opinion on the law and facts, to the jury. The present is a case of the latter description ; and 1 should not, therefore, have directed a verdict subject to the opinion of the Court, against the expressed wishes of the defendant’s counsel. My reasons for the distinction to which I have referred, proceeds on the ground that it is a case slricli juris; and should the defendant obtain a verdict, and the action appear to be a hard and unconscientious one, the Court would scarcely grant a new trial, though it might be against evidence.
The first inquiry on the merits of the case, depends on the competency of the parol evidence, as explanatory of the circumstances under which the writing was given by Ely to the deputy, Close.
It appears to be good law, that though an ambiguity is apparent on the face of a written instrument, it cannot be explained by extrinsic evidence ; yet, where a question arises as to the general intention of the parties, concerning which the instrument is not decisive, proof of independent facts, collateral to the instrument, may be properly admitted. (Phillips on Evid. 443, 444.) In the case of the King v. The Inhabitants of Laindon, (8 Term Rep. 379.) by the opinion of all the Judges, parol evidence was held admissible, to show the intention of the parties to a contract, by the ascertainment of a fact collateral to the written instrument, it being in some measure equivocal. Peake (on Evid. 116.) says, no evidence of an expressed intention can be received to explain an ambiguity on the face of the instrument, and thereby to make that valid, which, of itself, would not avail; yet, that, in other cases, both species of ambiguity are open to explanation by parol evidence ; and that, even in the case of a will, where the testator makes use of terms of equivocal import, though his declarations are not admissible, yet the circumstances of his family and fortune may be proved and taken into consideration, in order the better to enable .a Court of justice to put a construction upon his words. In Cole v. Wendel, (8 Johns. Rep. 118.) where the written contract was to pay five per cent, advance on sixty shares in the Hudson Bank, the doubt was, *318whether this advance was on ten dollars then paid in upon the shares, or on the nominal amount of the shares, they being 50 dollars each. It was held, that the terms of the contract were equivocal, and that, on the strictest principles, the circumstances of the case might be proved, and taken into consideration, in determining how the five per cent, advance was to be calculated. The same principle was recognized by the Supreme Court of the United States, in The Mechanics’ Bank v. Bank of Columbia, (5 Wheat. Rep. 326.)
I have no doubt, that the writing in this case is, per se, of equivocal import. It certainly does mean, that the deputy should grant indulgence to White. What kind of indulgence, is the only doubt. It was to be of that nature, that should not hazard the plaintiffs’ debt; for any indulgence of that kind, they would consider the deputy responsible. Now, to ascertain the kind of indulgence with respect to which the writing is equivocal, and that might be shown" by the deputy to White, on the principles of the cases referred to, we have a right, in order to ascertain the intention of the parties to the writing, to inquire into collateral and extraneous facts. These facts are, that White was arrested on the ca. sa., forty miles from Batavia, where the gaol is, and that he waited two or three days, on account of the state of his family, to prepare to go to gaol. These facts do not contradict the writing, but are essential to a right understanding of its import and meaning. The wish expressed, that as much indulgence might be shown to White, as could be done with safety to the sheriff) without hazarding, in any way, the debt, is susceptible of but one construction ; that the sheriff should guard himsélf against Whitens absconding, and that the plaintiff’s situation, in relation to their debt, should not be hazarded by any act of White, in disposing of his property. It is fairly inferrable from the case, that H. Ely was present, and fully knew, that in consequence of the writing he gave, the deputy entered into the arrangement with White, that he should appear on the ensuing Monday, at Batavia. It appeal's that the plaintiffs’ debt was not in the least impaired by the indulgence given to White; that he remained in gaol for eigh*319teen months, on the plaintiffs’ execution; and that they never thought of suing the sheriff until almost a year after-wards. Under these circumstances, the case ought to have been submitted to the jury on the facts, for them to decide on the effect and import of the writing connected with these collateral facts, and whether greater indulgence was shown to White than was intended by the writing. There must be a new trial, with costs to abide the event of the suit.
New trial granted.