Hughes v. Hally ( 1904 )

Hooker, J.

In June, 1897, plaintiff recovered a $500 judgment in Wayne circuit court against a newspaper called the Catholic Witness and Patrick °J. M. Hally. Costs were taxed at $80.95. On September" 20, 1897, an execution was returned unsatisfied. On December 30th plaintiff caused a capias ad satisfaciendum to be issued against Hally, and he was arrested by the sheriff on December 31st. On the same day Hally gave a bond for the liberty of jail limits to Chipman, sheriff, with Sheeran and Thompson sureties. The bond was for $1,162. This bond was afterwards given by Chipman to G-. Duffield Stewart, his successor in office, and while he was sheriff the sureties surrendered Hally in exoneration of bail. On December 28, 1900, the sheriff took another bond for jail limits, Kennedy being surety, for $1,162. Afterwards Hally, as assistant corporation counsel, attended the Supreme Court at Lansing upon official business, and while there Hughes procured an assignment of the bond, and began suit against the defendants upon the same. A verdict was directed in favor of the plaintiff, and defendants have appealed.

The questions involved in the case were:

1. Was the assignment of the bond a valid assignment, “being made by “Henry A. Dickson, sheriff, by L. W. Hines, deputy sheriff.”

2. Was the leaving of Wayne county, under the circumstances, a breach of the bond ?

3. Should the damages have been limited to nominal damages ?

3 Comp. Laws, § 10520, provides that the plaintiff shall “be entitled to an assignment, and specifies that a sheriff: or his successor in office, or, in case of a vacancy, his under-, sheriff, shall make it by indorsement thereon. We think that this is not a mandatory provision to the extent of pro-i hibiting a sheriff from assigning by his deputy. The plain-: tiff had a right to demand it, and the sheriff no right to refuse it. See Wilcox v. Ismon, 34 Mich. 268.

The second point rests upon section 1117 of the Compiled Laws, which provides:

“ All officers of the several courts of record shall be lia-' ble to arrest, and may be held to bail, in the same manner as other persons, except during the actual sitting of any court of which they are officers,” etc.

This statute exempts counsel from arrest on process and being held to bail, during the actual sitting, etc. Hally was not so arrested. He was arrested before, and had given bail. He now contends, in substance, that this statute permits him to violate the condition of his bond, and, in effect, that jail limits are to be extended, in the case of a lawyer, beyond the confines of the county, when professional engagements call for his presence at the Supreme Court. No authority in point is cited, and we think the claim should not be sustained.

3 Comp. Laws, § 10521, provides for a suit upon the bond, and that damages shall be as follows:

“ If the prisoner escaping was confined by virtue of an execution, or by virtue of an attachment for nonpayment of costs, the measure of the plaintiff’s damages shall be-the amount directed to be levied by such execution or attachment with interest thereon to the time of such recovery. If such prisoner was confined by virtue of a capias ad respondendum, or upon a surrender in exoneration of his bail, made before or after judgment rendered against him, the plaintiff shall recover only the actual damages, sustained by him.”

It is now contended that defendant was confined upon; a surrender in exoneration of bail, and actual damages, only, and not the amount of the judgment, are recoverable. We think not. He was confined by virtue of a ca. sa., and this was extended to jail limits by his bond. The damages are fixed by paragraph 1 of the section quoted.

The judgment is affirmed.

The other Justices concurred.