Hart v. Stevenson

Storrs, C. J.

It is well settled, as a general rule, that in an action against an officer for an escape on mesne process, in which it is held to be necessary to prove the cause of action against the defendant in the original suit, the admissions of the latter are admissible to prove such cause of action. Kempland v. Macauley, Peake’s Ca., 65. S. C., 4 T. R., 436. Sloman v. Herne, 2 Esp. R., 695. Williams v. Bridges, 2 Stark., 42. This is not denied by the defendant; but he insists that the rule should be qualified so as to embrace only such admissions as were made before the arrest, or, at least, before the escape of the original debtor. We do not accede to this claim. The reason on which such testimony is received, has no reference to the particular time when the admissions were made, but embraces all admissions which would be evidence against the debtor if the question was one between him and the plaintiff, and therefore applies to those made at any time. In the eases reported where such testimony has been considered, with the exception of Rogers v. Jones, 7 Barn. & Cres., 86, in which the declarations of the debtor after the arrest and before the escape were received, it does not appear at what time the admissions were made; but the general rule laid down by the eminent judges in those cases, and under which they were held to be admissible, excludes any qualification depending on that circumstance. The decision in those cases was placed on the broadest ground. In Sloman v. Herne, which was an action for an escape, Lord Kenyon says : “ Whatever evidence would be sufficient to charge the original defendants, would do to charge a sheriff in such an action as the present; ” and in Williams v. Bridges et al., which was a similar action, Abbott, J., said, in nearly the same terms, that he understood the rule to be, that an admission which would be evidence against the defendant in the original suit, would also be evidence against the sheriff. This is the rule as understood by Mr. Btarkie and Mr. Green-leaf, who apply it unrestrictedly to admissions like those we are considering, irrespective of the time when they were made. Judge Bwift recognizes the same rule. 2 Stark. Ev., 48. 3 ib., 1343. 1 Greenl. Ev., sec. 181. 2 ib., secs. 196, 527, 589 1 Sw. Dig., 543. 2 Phill. Ev., (Cow. & Hill,) 561.

The uniform practice here has been to admit such evidence in an action for an escape, for the purpose of proving the indebtedness of the original defendant, to the same extent as if the suit were against him; and we are not satisfied with the reasons which have been urged for qualifying the rule as it has hitherto been understood and acted on, which is plain, intelligible, and in our opinion just, so as to make the admissibility of such evidence to depend on the time of the declarations or acts of the debtor; although that circumstance may be proper to be considered, in determining the weight to which they are entitled. The declarations of Ruperts, and the record of the judgment against him, which constituted admissions of an indebtedness to the plaintiff were therefore properly received.

The defendant next claims that the original writ against Ruperts, in his hands, was void, because it did not show that the city court had jurisdiction of the cause of action. ‘If that process was void, it would constitute a defence in this suit; if, however, it was only erroneous, the defendant could take no advantage of it. 1 Sw. Dig., 543, and cases cited.

The only averment on this subject is the one in the conclusion of the declaration, that “ the said cause of action arose in the limits of said city since its incorporation.” It is insisted that it is not sufficient that it may be inferred, from this allegation, that all of the facts constituting the cause of action took place within the limits of the city, but that it should appear, by express averment, that such was the case. Although the technical rules of pleading would require the mode of averment suggested by the defendant, and the statement in this case was so loose and inartificial that it would not have been sustained on a special demurrer, we are of the opinion that it substantially imports what the defendant claims should have been alleged in terms; that it is a defective statement only, rather than the entire omission of a material fact, and would therefore be good on general demurrer; and hence that it is sufficient to show jurisdiction. The averment that the cause of action arose in the limits of the city, is only a very informal and comprehensive statement of the fact that all of the facts constituting such cause of action, took place there. That fact could not be true if they occurred elsewhere. We can not, moreover, doubt that this averment was amendable, and that conclusively shows that the writ was at most erroneous, and not void.

We do not think that the defendant has any just ground of exception to the charge given in this case. Without inquiring whether, in an action against an officer for an escape on mesne process, he is entitled to the same indulgence, in regard to the course required of the officer having the original execution, as the law extends to bail, the former certainly can not complain if he was placed on as favorable ground as the latter; and that was the case in the present instance. It is clear that the principles laid down in the charge as to the conduct of such officer, are those upon which it is settled that the liability of bail in an action against him would depend, and that bail would have been subjected on the facts found by the jury under that charge. Fitch v. Loveland, Kirb., 380. Collins et al. v. Cook, 4 Day, 1. Edwards v. Gunn, 3 Conn., 316.

The claims of the defendant, that a demand should have been made with the execution on the defendant, and that he should have known that the execution was in the hands of the officer, are plainly without foundation. Nor is there any ground for the claim, that upon the facts stated in the indorsement of the officer on the execution, and in the certificate of the clerk of the court of its return, the court should have instructed the jury that the conduct of the officer was fraudulent toward the defendant, and deprived the latter of an opportunity to surrender the body of Ruperts. Whether the officer conducted fairly and used due diligence to arrest Ruperts, and returned the execution within a reasonable time, were questions of fact, to be determined by the jury, and not by the court, and were properly treated as such. Edwards v. Gunn, supra.

There was, moreover, no proof or claim that the defendant had ever made, or attempted to make, any surrender of Ruperts ; and no tender of him having been made, the defendant is not in a situation to complain that the execution was prematurely returned.

We do not, therefore, advise a new trial.

In this opinion the other judges, Hinman and Ellsworth, concurred.

New trial not advised.