Albany, October, 1840.-Higgins v. Whitney.

think the evidence offered should have been received in mitigation of the damages. Although the assignment was rejected by the court below-it is evident that the defendant took the property under the honest belief that he had a title to it. It was not a wanton trespass, nor was the property removed for the purpose of subjecting it to the landlord's warrant. Without any agency on his part, the property has since been taken from the defendant by legal process, and applied to the plaintiff's use, by paying the debt which he owed to a third person.

There is, I think, a difference in principle between the *cases on [ *381 ] which the plaintiff relies, and the one at bar. One who has wrongfully taken property cannot mitigate damages by showing that he has himself applied the property to the owner's use without his consent. But when the property has been so applied, by the act of a third person and the operation of law, that fact should be taken into the account in estimating the 'plaintiff's damages.

Judgment reversed.

FAIRCHILD & BACON vs. CASE, late sheriff of Oswego.

In an action against a sheriff for the escape of a prisoner, he cannot object as a bar to the recovery, that the plaintiffs in the original action declared against the defendant generally as in custody, instead of declaring specially that he was in close custody.

The act for more easy pleuding in certain suits, does not extend to cases of non-feazance by public officers; a sheriff sued for a negligent escape cannot therefore avail himself of the statute of limitations without pleading it. Even when sued for a voluntary escape, whether the sheriff can avail himself of the statute of limitations without pleading it, quere.

A new trial will not le granted, because the judge refused to permit a question to be put to a witness in this form: "By what means and in what manner did the prisoner break jail ?" on account of the generality of the question. To entitle a party to such an inquiry, he should apprize the judge of his intention to show such a state of facts as would excuse the sheriff. Nothing but the act of God, or of the enemies of the country, will excuse the sheriff. General reputation of the insolvency of the prisoner, is inadmissible in an action against the sheriff for an escape.

THIS was an action on the case tried at the Oswego circuit, in June, 1839, before the Hon. PHILO GRIDLEY, one of the circuit judges.

The plaintiffs declared for the voluntary escape of one Gerlack, from confinement in the jail of Oswego, on an arrest in an action of assumpsit, at the suit of the plaintiffs by virtue of a capias ad respondendum. The plaintiffs proved the capias with a return by the defendant of cepi corpus in custodia. They also produced an exemplification of the judg ment against Gerlack, from which it appeared that the plaintiffs [*382] in the action against him, declared against him generally, as in

Albany, October, 1840.-Fairchild v. Case.

custody of the sheriff of the county of Oswego, and that judgment was rendered against him for $2044,44; the plaintiffs then proved a negligent escape of Gerlack. Evidence was given on both sides upon the question whether Gerlack was, at the time, liable to arrest as a non resident of the state; and also on the question of his ability to pay the debt. The jury found a verdict for the plaintiffs, with $2304,39 damages, and six cents

costs.

The defendant's counsel, on a case made, moved for a new trial.

B. Davis Noxon, for the defendant, insisted on the following points among others: 1. That the evidence did not show that Gerlack was liable to arrest. 2. That the plaintiffs, by declaring in chief against Gerlack and proceeding to judgment, had thereby discharged the defendant in this cause from all liability, by reason of his return of cepi corpus in custodia. 3. That the suit was not commenced within a year after the escape; and this defence was available under the general issue, yet the judge held the statute of limitations must be pleaded. 4. That a question to a witness, "by what means and in what manner did Gerlack break jail?" was overruled. 5. That general reputation that Gerlack was insolvent was rejected by the judge. 6. That the judge charged that the rule laid down in Huffman v. Hulbert, 13 Wendell, 377, was inapplicable in this cause.

By the Court, COWEN, J. 1. All the questions of fact in this case, properly belonging to the jury, were submitted to and disposed of by them; and among these was the question of Gerlack's non-residence and consequent liability to arrest and imprisonment.

2. If the form of declaring had entitled Gerlack to a discharge, he alone could take advantage of the slip-not the sheriff.

3. The statute concerning venues, and for more easy pleading in certain suits, 2 R. S. 277, 2d ed. § 28, 29, is in terms corfined to acts [*383] done by officers virtute officii; and "does not extend to mere non

feasance, such as a negligent escape. Elliot v. Cronk's adm'rs, 13 Wendell, 35. Hopkins v. Haywood, id. 265. The statute of limitations should therefore have been pleaded. Independently of the statute for more easy pleading, the form by which a sheriff or other officer must avail himself of the statute limiting actions for escapes, is the same as in other actions. Vid. 2 R. S. 224, 2d ed.

It was said the declaration is for a voluntary escape, which implies a posi tive act of the sheriff. Without deciding whether he might, in such a case, avail himself of the limitation without plea, it is sufficient to say that the declaration was in effect also for a negligent escape. This may always be proved, and in fact was so here, under a count for a voluntery escape.

Albany, October, 1840.-Fairchild v. Case.

Where two matters may be given in evidence under the same count, one requiring a defence to be pleaded and the other not, there can be no doubt that the defendant must plead, or he will lose his right of defence as to the former. It is by no means clear, however, that you are not obliged to plead the limitation in answer to a voluntary escape.

4. The question put and overruled, as to the means or manner of escape, is not shown to have been relevant. It might have been answered by saying that the escape was effected by means and in a manner which took from the charge of negligence in the sheriff, without showing any real excuse, as that it was by the act of God, or the enemies of the country. The latter seem to be the only excuses as to manner and means which the sheriff can set up. He stands in this respect on the same ground with a common carrier. That may be seen by 1 Rolle's Abr. tit. Escape, D. pl. 5, 6, 7, p. 808. It is said in several books, citing Rolle, that the sheriff would be excused by a sudden fire. But Rolle puts it on the ground that the fire is kindled by the act of God. In Green v. Hern, 2 Penn. R. 167, 169, Gibson, Ch. J. says, that according to the common law since the day of Rolle's Abridgement, the jailer can avail himself of nothing as matter of defence, but an act of God or the common enemy. The same rule was stated by him in Wheeler v. Hambright, 6 Serg. & Rawle, 390, 396. *He there says the liability of a sheriff is, in like that of a common carrier. See also Sleemaker v. Marriott,

this respect, [ *384 ]

5 Gill. & Johns. 406, 410. To warrant the quesion, counsel should at least have apprized the judge of his object, and shown that the means and manner inquired for were such as the sheriff might lawfully allege in his excuse.

5. It is not necessary to say that common reputation as to the state of a man's property, and whether he be solvent or not, should in all cases be excluded. In behalf of a prisoner indicted, and on trial for passing counterfeit bills, the reputation of his neighborhood was held receivable by the su preme court of North Carolina, to show that he was a moneyed man. The State v. Cochran, 2 Dev. 63. Here it was offered in behalf of a prisoner in close custody for debt, to prove that he was insolvent. It is quite obvious what the answer would always be under such circumstances; and yet how fallible, as the ground of conclusion by a jury. It would seem at all times to come within the spirit of the rule which rejects hearsay evidence to support a particular fact; and when offered in connection with circumstances directly calculated to establish insolvency of themselves, and raise a general rumor of it in the neighborhood, reputation would be, at best, but a very poor item of proof. Suppose a merchant to sue for words charging him with bankruptcy, was it ever thought the defendant could aid his plea of truth in justification, by proving the plaintiff to be a reputed bankrupt? 6. The rule of Huffman v. Hulbert, 13 Wendell, 377, which the judge

Albany, October, 1840.-Fairchild v. Case.

refused to apply, was this: A request made by a surety to the creditor that he should sue the principal, and a refusal, will not discharge the surety, though the principal finally turn out to be insolvent, unless it be made clear by proof that he was solvent at the time of the request, and the debt lost by the delay. It is barely necessary to state the point resolved in that case to see that the judge was right here.

There is no reason for interfering on the ground that the damages found by the jury were excessive.

New trial denied.

[*385] BLOODGOOD vs. FAXON & BARNES, impleaded, &c.

In a joint action against the maker and endorser of a promissory note, which by the evidence of of the maker, called as a witness for the endorser, is proved to be usurious, the plaintiff, although he cannot recover against both defendants, is entitled to a verdict against the maker whose evidence cannot benefit himself.

Nor can he recover against both defendants, or either of them, where the declaration contains only the money counts, upon a promissory note, the consideration of the usurious note, where one of the defendants is maker and the other endorser of the former note, if a copy of such former note be not appended to the declaration.

THIS was an action of assumpsit, tried at the Erie circuit in July, 1839, before the Hon. NATHAN DAYTON, one of the circuit judges.

The suit was commenced against C. Faxon, R. T. Kelly and J. Barnes. The declaration not having been served on Kelly, the plaintiff elected to sever the suit and to proceed against Faxon and Barnes alone. The declaration contained only the money counts, but appended to it was the copy of a promissory note bearing date 21st February, 1837, made by Faxon, for $871,03, payable three months after date to the order of Kelly, at the Mechanic's and Farmers' Bank, Albany. On the trial of the cause the note, of which a copy was given, was produced. It was signed by Faxon as maker, and endorsed by Kelly and by Barnes, and at maturity was protested for non-payment and notice of protest given. On the part of the defence it was proved that the note produced was given in renewal of a former note, dated 19th November, 1836, for the same amount, made by Faxon and endorsed by Kelly and Barnes. Faxon, called as a witness for Barnes, proved that the note of 21st February was accepted by the plaintiff on an usurious consideration. The plaintiff requested the judge to charge the jury, that though they should be of opinion that the note of 21st February was usurious, still the plaintiff was entitled to recover against Faxon and Barnes the amount of the note of 19th November, which was given on a good consider[*386] ation, and "that at all events he was entitled to recover on such note against Faxon, the mager thereof. The judge ruled that

Albany, October, 1840.-Bloodgood v. Faxon.

the plaintiff was not entitled to recover against either of the defendants on that note. To which decision the plaintiff excepted. The jury found a verdict for the defendants. The plaintiff moved for a new trial.

J. Van Buren, for the plaintiff

for the defendants.

By the Court, NELSON, Ch. J. The learned judge was right in refusing a recovery against either of the defendants on the note of 19th November. Under the statute allowing a joint suit against the maker and endorser, the recovery may be joint, or several, but in either case it must be confined to the bill of exchange or note of which a copy was given with the declaration. The suit is a creature of the statute, which expressly restricts the proceedings to such instrument. 2 R. S. 274, § 6, 7. Without it, the plaintiff would be bound to prove a joint indebtedness against all the defendants. He must rocover against all or none. The act has qualified this rule in suits against maker and endorser, but only in cases where that relation exists between the defendants in respect to the subject matter of the suit, and a copy of the instrument given. Beyond such a case the plaintiff cannot sever the defendants. He would conflict with the familiar rule above stated.

I agree, he may recover against all independently of the statute, upon his common counts, if he prove a joint indebtedness. But he must stand upon the statute if he expects to succeed only against a part of the defendants.

In this case, however, the judge should have directed a verdict against Faxon. There was no valid defence to the note declared on as to him. He proved the usury as a witness for Barnes. His testimony cannot benefit himself.

New trial granted as to Faxon; costs to abide the event.

THE BOARD OF SUPERVISORS OF THE COUNTY OF DUTCHESS [387]

vs. SISSON.

Where a road was laid out through the lands of an inhabitant of a town, and the supervisors of the county made out a tax list and warrant so as to collect the sum allowed as damages to the owner, and to have the same paid over to him, and subsequently altered the warrant, directing the collector to pay over the amount allowed to the supervisor of the town instead of to the commissioners of highways, and the money was paid over to the supervisor; and at the next annual meeting of the supervisors they directed the supervisor to whom the money was paid to pay over a portion of it to the owner of the land, and the residue to the county treasurer to the credit of the town in which the money was collected, and instead of comply. VOL. XXIV. 37