Tallmadge v. Richmond

Kent, Ch. J. delivered the opinion of the court. This is a motion for a new trial, for the admission of improper testimony, and for misdirection of the judge. That Brockway escaped after the defendant took charge of the county and of the prisoner, was proved by several witnesses. The only question that can arise upon the case, is, shall the defendant be chargeable for that escape ? Whether he had given the liberties of the gaol to Brockway, with or without taking security, was not a material fact; for in no respect, or in any view, is the defendant entitled to avail himself of a return or recaption before suit brought, since he has not accompanied his plea with the affidavit required by the statute, that the escape was without his privity or knowledge. (Laws, vol. 1. p. 213. sess. 24. c. 28. s. 22.) The single point is, was Brockway, when he escaped, the defendant’s prisoner at the suit of the plaintiffs. He had been assigned over by the former sheriff by indenture, and the suit of the present plaintiffs ivas specified under the title of Tallmadge, Smith & Co. v. Edward Brockway. This title of the cause was well enough, as it necessarily imported that the names of the plaintiffs to the ca. sa. were not given at large, and it does nbt appear that the defendant made any objection. It was notice that Brockway was in execution in a suit in which such a firm were plaintiffs, and it answered the purpose intended by the rule of law. All that the books say is, that the old sheriff when he delivers over the prisoner, must give notice of all the executions against him. The rule does not require that this notice should contain the accuracy and precision requisite in special pleading. It must be construed according to the reason of the thing. If the indenture had said that Brockway was a prisoner on an execution issued at the suit of Benjamin Tallmadge and others, it would have been sufficient. It let the new sheriff know the fact of such an execution on which he was to hold the prisoner. If every particular was to be required, then the test and return of the execution, the sum endorsed, and the interest that was to be collected, and the attorney who issued it, ought all to be mentioned. To require such a nicely in these cases, would be productive of great public inconvenience. In Westby’s Case, (3 Co. 71. b. Cro. Elis, 365. Moore, 688.) the old sheriff in assigning over a prisoner, against whom he had two executions, omitted to mention one of them, and the prisoner having escaped, the court held that the old, and not the new sheriff was responsible for the escape, as to [90] the omitted execution. But in that case it was agreed at the bar, and according to the report of the case in Moore, the judges also agreed, that if the old sheriff had given notice, by word, of the omitted execution, it would have been sufficient to have charged the new sheriff, notwithstanding the omission in the indenture. Dalton (p. 16.) lays down the same rule. So liberally did the judges, at that day, construe the rule, that the new sheriff must have notice of the executions; and it is to be observed, that this is. not a statute provision, but an equitable rule of practice, for the security of the sheriff. The statute, by the writ of discharge, only requires, in general, that the old sheriff shall, by indenture, deliver over the county, together with the rolls, memorandums, &c. The title of the cause mentioned in the indenture was sufficient to have enabled the sheriff to take a bond for the liberties. The statute prescribing the bond does not require the title of the cause to be precisely mentioned. It says nothing about it; the title of the cause need not form any substantive part of the penalty or of the condition of the obligation, and if mentioned in the recital to the condition, it is mentioned only as inducement, and any words which would make the title of the cause certain, by reference, would be sufficient. It is, a Settled rule that even a mistake in a recital to a bond does not vitiate, for it is no direct affirmation, and is not an essential part. (St. John v. Diggs, Hob. 130. Co. Litt. 352. b. 3 Ch. Cas. 101. But it is said that the true sum for which the prisoner was held was not mentioned, and that a much smaller sum was specified. In examining the original indenture, produced upon the argument, it was very equivocal and uncertain, whether the sum really intends ed, was 260 dollars and 40 cents, or 2640 dollars. Whatever doubt there might be upon this point, there is conclusive evidence that the defendant was afterwards informed of the true sum, as the bond taken by him on the 31st March, 1809, for the liberties for Brockway, mentioned the true sum for which he was holden at the suit of the plaintiffs; That bond was produced at the trial, by the defendant himself, and it concludes him, as to the fact of notice at that time of the true sum. That bond also specified the names of all the plaintiffs to the execution, except one, so that the .. defendant must have accepted Brockway in execution under the indenture, at the suit of the plaintiffs, and have made subsequent inquiries as to the names of the house of Tallmadge, Smith & Co. [91] If the recital to this bond omitted one of their names, still that would not have impaired its security for the purpose it was taken; for a recital in a bond of a particular fact, estops the obligor from denying that fact. (Willes’s Rep. 9. 12.) But this point is now immaterial in this suit, and the only answer to this fact of notice of the true sum is, that the escape was prior to the date of this bond. But this answer is not sufficient, for considering the uncertainty whether the true sum was really mistaken in the indenture, the defendant ought to have shown the time when further information was given to him than what appeared in the indenture. The presumption is, that the defendant knew the true sum before the date of the bond of the 31st of March, 1809, for he had before taken another bond for the liberties, with other securities, and that bond he refused to show upon the trial. The inference is, then, irresistible, that that bond would have disclosed the fact of the true sum being known to the defendant before the escape. This whole defence, of a want of notice of the true sum for which Brockway was charged in execution, was probably a thought which suddenly arose at the trial, and I think it extremely ill supported. The question on the credibility of the testimony of Dewitt, the late sheriff, does not appear even to have been raised at the trial, nor was his testimony essential, as every requisite fact was proved without it. His character was not attacked, nor was there any just cause for impeaching his testimony on any essential point. If the jury had found a verdict for the defendant upon this case, the court would have been obliged to have set it aside as against law, and why should we grant a new trial when we see from the case, that the plaintiffs would again be entitled to a verdict ? There is no suggestion that any further evidence is behind to alter the state of the case. The suggestion of the judge at the close of the trial was no more than what is usual and proper, when the case presents no material facts involved in doubt, and when the conclusion of law upon those facts appears dear to the judge. It was only a suggestbn to save time, and one which still left it open to the judgment and election of the counsel, to address the jury. For these reasons, the court are of opinion that the motion for a new trial must be denied. Spencer, J. dissented. Rule refused.