Hopkinson v. Leeds

Mr. Justice Williams

delivered the opinion of the court, October 18th 1875.

This was an action of debt, for an escape of the plaintiffs’ debtor, after his arrest by the sheriff upon a writ of capias ad satisfaciendum. On the trial, a judgment of non-suit was entered against the plaintiffs, and the court in banc refused to set it aside. If there was no sufficient evidence to maintain the action, the judgment of non-suit was rightly entered; otherwise the case should have been submitted to the jury with the proper instructions. It appeared from the debtor’s own testimony, that he was permitted by the sheriff’s deputies, upon presenting himself at the sheriff’s office every morning, to go at large until the next day from the time of his arrest until he gave bond for his discharge under the insolvent laws, and that for this indulgence he and his nephew paid them the sum of seventy dollars. This was clearly a permissive escape, for which the defendant was answerable. It is true, that under the Act of 14th of February 1729-30, § 14, 1 Sm. Laws 186, the sheriff was not bound to commit the prisoner to jail immediately upon his arrest, but it was his duty to keep him in safe and strict custody, and if he allowed him to go at large for the shortest time, either before or after the return day of the writ, without the consent of the plaintiffs, it was an escape for which he was liable. It is no answer to the escape that the prisoner voluntarily returned and surrendered himself to the custody of the sheriff, or that he was subsequently discharged under the insolvent laws. But it is insisted that he was allowed to go at large after his arrest, with the consent of the plaintiff’s attorney. Undoubtedly the attorney had authority to consent to his discharge from the arrest, and if he did, the sheriff is not responsible for an escape. But to warrant the judgment of non-suit, the evidence of such consent should be clear, direct and positive, and a part of the plaintiff’s case. The only evidence, tending to show the alleged consent, is the testimony of the sheriff’s clerk, who was called by the plaintiffs to prove the time the writ came to the sheriff’s hands. On his cross-examination, under exception by the plaintiffs, he said : “ After the writ had been in our hands a day or two, I had a conversation with Mr. Hart (the plaintiffs’ attorney) on the subject. I asked Mr. Hart in the vestibule, between our office and the register’s, what we should do with Mr. Cooper; whether we should send him to prison or not ? Cooper was then in the sheriff’s office in custody. He said there was no necessity of that, but if the deputy would press him, he or his friends would find the money or pay the money.” It cannot be pretended that there is anything in this language showing an express consent by Mr. Hart that the prisoner might go at large; and if not, is there anything from which such permission may be fairly implied ? If he said there was no necessity of sending Cooper to prison, in answer to the inquiry of the sheriff’s clerk, does it follow that he intended to consent to his discharge from the arrest ? If so, why did he say in the same breath, and as a part of his answer, that if the deputy would press him he or his friends would find or pay the money? How could the deputy “press him” if he was allowed to go at large ? But whether he could or not, it is clear that the proper meaning and interpretation of the language was a question for the jury, and not a matter of law for the court. Besides, the .evidence shows that the prisoner was permitted to go at large before the conversation took place, and if so, the subsequent assent of the plaintiffs’ attorney to his being and remaining at large, even if it had been expressly given, would not release the defendant from his liability to the plaintiffs in this action: Scott v. Seiler, 5 Watts 235. But the testimony as to the conversation was no part of the plaintiffs’ case, and it was improperly admitted in evidence on the cross-examination of the plaintiffs’ witness. The rule is well settled that the cross-examination should be confined to matters in regard to which the witness has been examined in chief, and to such questions as may tend to show the bias and interest of the witness. To permit the defendant, under the guise of a cross-examination, to give evidence in chief, is not only disorderly, but unfair to the plaintiffs. Here the defendant was allowed, on the cross-examination of the plaintiffs’ witness, to give evidence upon which he relied to defeat the action, before the plaintiffs had given any evidence tending to show that the prisoner had been permitted to escape after his arrest. Doubtless the defendant had a right to ask the witness on his cross-examination, what instructions were given by the plaintiffs’ attorney at the time the writ of ca. sa. was placed in his hands, for if any instructions were given, they were part of the res gestee ; but he had no right to examine him in regard to conversations which he had with the plaintiffs’ attorney after the debtor’s arrest under the ca. sa., for they were no part of the matters in regard to which he was examined in chief. But whether they were proper subjects of cross-examination or not, the judgment of non-suit was clearly erroneous.

Judgment reversed, and a procedendo awarded.