#### *Gordon vs. Ryan.*

Case.

Case 19.

Appeal from the Henry Circuit; Henry Davidg®, Judge.

*Sheriff. Capias ad satisfaciendum. Special bail. Surrender. Statute. Schedule. Justice of the Peace. Insolvent debtor’s oath. Discharge. JVezo -trial. Bill of exceptions. Practice.*

January 22.

■Action on the case against sheriff, for permitting the escape of a debtor surrendered-by special bail, and ordered into custody-by the court. Sufficiency of the declaration examined.

The averments show a good cause of action.

Special bail not responsible since the act abolishing theca:sa?

Judge Underwood

delivered the opinion of the Court.

Ryan brought an action on the case, in the Henry circuit court, against Gordon, the sheriff of Henry county, for permitting Griffith (against whom Ryan had recovered a judgment,) to escape from the custody of the sheriff, after he had been surrendered by his special bail, and prayed in' custody. Ryan succeeded in the court below, and Gordon has appealed to this court. The first error assigned, questions the sufficiency of the declaration. We perceive n® fatal defect in the declaration, especially in the last count. The averments set out with sufficient clearness, the institution of the suit by Ryan against Griffith, the holding him to bail, his surrender in open court by the bail in discharge of'the. undertaking of the bail, his being prayed in custody by the counsel for Ryan, his being ordered into the custody of the sheriff by the court or judge, the obtention of the judgment against him, and his escape permitted and suffered by the officer, in consequence whereof, Ryan, the plaintiff, alleged his debt was lost. These averments, we think, shew a good cause of action.

Since the abolition of imprisonment for debt by the legislature, in 1821, see 1 Digest, 503, it has been decided in the case of Peteet vs. Owsley, 7 Monroe, 130, by this court, that special bail was not responsible to the plaintiff in the-action, because no *capias ad satisfaciendum*could issue againt the defendant. The third section of the act abolishing the *ca. sa.*authorizes a single justice of the peace to discharge a prisoner *for*debt, when *“committed*upon order requiring bail, or upon any, *capias ad*satisfaciendum,” and such dfschage is not made to depend upon the prisoners surrendering a schedule of his estate, and taking the oath of an insolvent debtor, as the law was before. The fourth section of the same act provides, that the *56discharge of prisoners *“arrested*under orders requiring bail, or a writ of *ne exeat?*Those provided for in the fourth section, are required to render a schedule of their property, and to take the oath of an insolvent debtor, as prescribed by the act of 1796; see 1 Lit-tell’s Laws, 547. We believe the *commitments*intended in the third section, are such as should take plo.ee under final process of execution, or by order of the court, when the debtor is surrendered by his bail. The *arrests*spoken of in the fourth section, allude to those which take place on *mesne*process. Griffith was committed, if ever in custody, by order of the court, and therefore his situation was provided for by the third section. , Now* considering the operation of the decision of this court’ia. the case cited, if the principle settled therein, should be permanently adhered to, and reflecting on the consequences of said third section, under which a justice of the peace could have discharged Griffith, without securing a schedule of his property for the benefit of Ryan; we* upon first impression, were inclined to say, that the sheriff should be irresponsible likewise, not perceiving apy satisfactory reason on which to base his liability for suffering the escape of a prisoner, who may obtain his discharge on application to a justice of the peace, without the semblance of benefit to his creditor.- But, knowing it to be our duty to observe the maxim, *ita lex scripla esl,*rather than to act from considerations of policy, we feel ourselves constrained to regard the sheriff, as responsible as heretofore, for the safe keeping of debtors committed to his custody, and that if he suffers an escape, he must take the consequences, no matter how unavailing the commitment of the debtor may be, and notwithstanding his discharge is so easily had. It is the sheriff’s duty to leave the discharge with the justice of the peace, where the law has placed it, and to guard against an escape.

That act examined, discussed and *f*construed.

This case provided for by the 3d section of the act; and the debtor might have been discharged by a single justice of the peace, without surren-' dering a schedule and tailing the oath of an insolvent debtor. Nevertheless the sheriff is responsible. *Ita lex scripla f.sl.*

instructions asknsel>^orhe the defendant and overruled by the court.

The next errors assigned, questions the legality of the decisions of the court below, in refusing instruc^'ons asked by defendant’s counsel.- The defendant by his counsel, asked the court to give two instructions to the jury. 1st, That one of Griffith’s bail could not be released by surrendering him without the consent *57of the other. And 2d; That one of the bail was still liable to the plaintiff, and that as plaintiff might pursue him and collect the money; if he was good for it, being no evidence to the contrary,) it should mitigate the damages. Both these instructions were refused by the court, and we think properly. Upon the surrender of the principal, before the return day of the first *scire facias*returned executed, or the second fefcurned *nihil,*all the bail is discharged. The 14th section of the act of 1796, 1 Littell’s Laws, 495, will admit of no other construction; and this principle, we think, remains untouched, notwithstanding the mutations the law on this subject may have undergone in regard to the responsibility of the bail. The first instruction asked, was therefore rightly refused, and the second being predicated on the first, properly suffered the same fate.

14th section of the act óf 1796¡ I. LitwgV^ter. prated,

^g°e correct when a new ’ trial is asked refuse(b the^pfnion0 of the court overruling yet^fthT’* evidence be-spread upon by^m^rfex ception, if it appear from ^a^ane1 trial ought to have been 4ae take exception to the 0Pjm.on refusing the new trial, is ¿ourts'have a discretion, as to. time be allowed to *58prepare *A*bill of exceptions, os well as to the time when any point may be ruled,or question determined. The bill of exceptions not being signed in the same term at which verdict is rendered, does not vitiate. The points presented in the progress of a cause must be noted, and the right to except reserved.

*57The last error assigned is, that the court refused a new trial. The evidence is all taken down and made part of the record; but there is no formal exception to the opinion of the court overruling the motion for a new trial. This we do not believfe to be indispensibly necessary, although it is the most usual and approved course. The new trial is asked for, and that shews an unwillingness to acquiesce in the verdict and judgment. The evidence being all put down, enables this court to determine, whether the court below decided erroneously, in refusing a new trial. All things are exhibited on the record, and if error is apparent, we believe it our duty to correct it; and that we shpuld not stop our ears and refuse to listen to a well founded complaint, because the party moving for the new trial, did not, when his motion was overruled, tender a formal bill of exceptions. It is enough, if the record shews the motion was made and overruled, provided, when all the evidence is put down, (which must be done,) it appears to us a new trial ought to have been granted.

But it is urged in this case, that the bill ’of exceptions containing the evidence, should be altogether disregarded, because it was not signed, sealed, and made part of the record, at the term the judgment was rendered. After the jury found their verdict, the *58court took until the next term to consider *of*the judgment; and at the term when judgment was rendered, the court gave the defendant leave until the next term, thereafter, to file exceptions. It is argued, that exceptions so filed, are void, and should not be regarded. This we do not concede. It is the duty of the court below, to allow the party exceptions as matter of right; and if lime should be given from term to term, to prepare them, and that be erroneous, it would be making the errors of the court close ihe door against all redress to the injured party. It may often happen, and sometimes does, that important causes are not decided until the last hour of the term by the jury. In such cases, from necessity, the court must often take time to consider until the next term, and also give time to prepare exceptions. These things must be left to the sound discretion of the inferior courts. The points put down in the exceptions thus! be made and reserved in the progress of the cause, and if nol, the party may waive the objection; but when the points are so made and reserved, they may be reduced to writing and placed-in the record thereafter, .at the discretion *of*the court. We will not say, that the' inferior courts may not so abuse their discretion as to make it error; but in this case we see ño such abuse. The court below seems to have been in much difficulty in relation to the, proper disposition of the cause. Regarding the bill of exceptions and the evidence, therefore, as properly before us, it only remains for us to decide, whether the evidence justified the finding of the jury. To make an officer liable for an escape, it is necessary that the person escaping, should have been in the custody of the officer. The person must be taken, before it is possible that he can escape. Now, there is not a particle of proof to shew, that Gordon or any of his deputies, had taken or arrested Griffith, after he had been prayed in custody; nor is there any proof to shew, that Gordon and his deputies were in court at the time that the entry was made on the record, that Griffith had been prayed in custody. If they had been present, we are of opinion, that they were not bound to take notice *of*such an entry, and then to lay hands forthwith on Griffith, and hold him as a prisoner. Wc think the sheriff was not bound to do *59this, until directed by the court, It does not appear, that any such direction or order was ever given the sheriff or his deputy, by the court, nor does it ■that Griffith ever was in custody of the sheriff, after he was surrendered by the bail. He might, by order of the court, have been committed to the jailor, as well as to the sheriff. It does not-appear that he was ■in the custody of either. He could not therefore have escaped, unless he wa* actually in custody, and as there is no evidence proving his arrest, or that he was actually in custody, or conducing to establish that fact, we think a new trial ought to have been awarded. We cannot indulge the presumption, that Griffith was in custody of the sheriff, from the single fact of the counsel of Ryan asking the court to commit him, when he was surrendered by the bail, even when that fact is connected with the official station of the sheriff. Such a presumption is too rash to justify or support a verdict.- The whole case, as presented in the proof, seems to us father to have shewn, that the sheriff did not take Griffith .into custody. If he failed to do that, he is not answerable in this action. We were doubting whether fhe declaration was not defective, because it failed to aver that the sheriff had taken Griffith into his custody; but we settled down, that the averment that he- suffered him to escape, necessarily included the idea, that he was in the custody of the sheriff. Both should be made out in proof; first the capture, then the escape. In this it has not been done.

*58Sufficiency of the evidence examined.

What requisite to create liability, in an officer for an escape. That the principa i was prayed in custody by bis bail, insufficient. The capture, or the actual custody of ihe person, by the officer should be pro*59vedin order, escape^no'1'1 such proof,

Judgment-&. mandate of e 00urt'

Petition for are-hearing,

C. *S. Bibb,*for appellant; *Monroe,*for appellee.

Mr. Monroe, *counsel for appellee, moved a*re-hearing.

The judgment of the court below must be reversed,. and the cause remanded with'directions to grant a new trial. The appellant must recover his costs.

PETITION FOR A RE-HEARING.

It is suggested with great deference, that the question of the authority, to revise here, the decision of the circuit court, overruling the motion for a new trial, when no exception was taken to the decision there, deserves farther consideration, before the power is exercised, and a precedent made. There- is no such precedent in this court, nor elsewhere, know» to the counsel.

*60Petition for a re-h earing.

It is stated in the opinion delivered, that there is no *formal*exception to the opinion of the court, overruling the motion, And on this recognition of the state of the record, the question might be discussed; but there is, in fact, no exception upon this matter, *what-’ ever.*The only bill of exceptions found in the transcript of the record, is the one filed at the term succeeding the final judgment, and in that the appellant complains of nothing, but the refusal of the court* to instruct the jury as he had moved; no mention is made of the new trial, nor is the motion alluded to.

The court goes on the ground, that the new trial having been asked, the unwillingness of the appellant to acquiesce in the verdict and judgment, is sufficiently shewn, and therefore, no exception to the decision, refusing to grant the new trial, was necessary, that the whole of the evidence having been stated in the bill of exceptions, taken to the decisions, in the progress of the trial, this court can judicially notice the error of the jury.

These positions seem to be reasonable at first view, but it is respectfully insisted, they do not consist with the rules of law, as they are written.

The motion for the new trial, did shew the unwillingness of the mover at that time, to acquiesce in the *verdict,*but it could not have shewn the unwillingness of the party, to submit to the *judgment*of the *court*overruling the motion, because no such judgment was then rendered, and it could not have been known, vyhat judgment thp court would give. An unwillingness of the party, to acquiesce in the decision of the court, to amount to an exception to the decision, must be always manifested *after*the opinion has been pronounced; and, as the counsel would contend, this dissatisfaction with the judgment of the court, must be in the form of an exception to it. A ipotion to the courtis one thing; an objection to a motiqn, or opposition to a motion is another thing: these come *before*the decision of . the court; and an exception to the decision, is anothe'r thing: *it*comes afterwards, and is taken to the judgment of the court, by the party overruled, Now, if these views be correct, and if this *61unwillingness or opposition of the party,,evinced by his motion for a new trial, *can*be taken as equivalent to an *exception*to *any*thing, it must be taken for his exception to the *verdict*which *had*been rendered, and not to the judgment of the court, overruling the motion for the new trial, pronounced one full term *afterwards.*

Petition for a re"hearin°'

In other words, if shewing an unwillingness. to acquiesce in the verdict, by asking for a new trial, be equal to an exception, still the *judgment*of the court, overruling the motion for the new trial, escapes by full three full months: and there is nothing on the record, shewing an unwillingness to acquiesce in that judgment. There is, indeed, no other entry on the record, at that or any other preceding term; but the prayer for an appeal, (which can, no more than can a writ of error, supply the place of a bill of exceptions,) and the bill of exceptions taken and filed *nunc pro tunc*to the decisions of the court, given on the trial, *before*the *verdict*was rendered, which, therefore, is no exception to even that, and much less to the refusal of the court, to set it aside three months afterwards. Indeed, the profound silence of this bill of exceptions, as to the motion. for the new trial, filed the term after it was overruled, argues strongly that the party had acquiesced in that"decision. But it is needless to rely on grounds of this sort. There is nothing in all the record, except it be the assignment of error made in this court, which brings into question the decision of the court, overruling the application for a new trial of the cause.

It must here be kept in view, that it is points of law, ruled by the *judgment*that the court can revise, and not’decisions of the jury; and, therefore, the exceptions taken must be to his decisions. Or if a manifestation of unwillingness to acquiesce, shall be taken as equal to an exception, it must be an unwillingness to submit to the decision of the judgment, evinced *after*he has decided. These ideas are fully supported by the case of Walton vs. U. States, 9 Wheaton, 657-8; and, indeed, that case proves that the *formal*exception is indispensable. There the supreme court, in speaking of an objection taken by the government, to a bill of exceptions taken by Walton, after the verdict *62was rendered, use these words: “It is true the bill of exceptions states, that the evidence was *objected*to, at the trial, but it is not said that any *exception*was then taken to the decision of the court, so that, in fact, it might be true, that the *objection*was made, and yet not *insisted*on by way of exception.” Here the difference between an objection to an apprehended decision of the court, and the insisting upon that objection, after the decision is given, by way of exception, is manifest. Walton’s objection was probably mudé immediately before the court admitted the evidence, and, because he did not, *after*the decision, *insist on*bis objection, *by way of*exception, the supreme court (wlio have never been charged with technicality) closed their ears to his complaints. In our case, the court was moved by the appellant, to set aside the verdict; and after one vacation of consideration, overruled, the motion and the appellant omitted, to even allege an objection to the decision, much less did he insist on his objection, by way of exception.

Petition for re-hearing. »

It makes no difference, that our case is of a motion for a new trial, and the case cited, was of an objection to testimony. The case of Goodridge vs. Goodridge 2 Marshall, 269, taken in connection with Walton’s case, makes a case running upon all fours with the case at bar. In the case of Goodridge, a bill of exceptions was taken by the defendant on the trial, to the decisions given by the court, on points of instruction, as in our case; and in that bill, all the evidence was stated, and after the verdict was rendered, a new trial was moved and granted; but, as in our case, no bill of exceptions was taken to that decision. On the second trial, the jury found otherwise, and the plaintiff, for whom the first verdict had been given, brought the case here, and assigned for error, that the circuit court had erred in granting the new trial. But the court said, we do not think it necessary to decide on the question, whether the court below did right or not; for the plaintiff having acquiesced in the decision of the court, awarding the new trial, cannot be presented afterwards, to question its correctness. That the acquiesence here, means nothing more than the omission to insist on the objection to the new trial, by way of exception, is manifest from Walton’s case.

*63Petition for a re-hearing,

There *is*something imposing at first view, in the circumstance of all the evidence being found on the record, and that not sufficient to support the and a new trial refused, and an assignment of error in that decision of the judge; and if the court were left *at large,*it ought, doubtless, to revise the decision; but *Ha lex scripta est.*Anciently no new trial could be granted by even the judge, who tried the cause. Afterwards, the judges presiding, exercised this power; but no writ of error lay to revise the decisions, granting or refusing the new trial, on any grounds whatever, even for errors upon questions of testimony, or instructions to the juryq until the statute of 'Westminster, 2, (spoken of by the supreme court, in the case cited, re-enacted in Virginia, in 1789, and here in 1798; 1 Digest, 188,) by which aet the judges were required, whenever a party alleged an *exception,*to sign and seal it, and have it enrolled. Now, it is by this means and this only, alleging the exception (not merely making a motion, or making an objection, and after the decision, failing to insist on it,) and having that exception allowed, sealed and enrolled, that the decision of the courts of original jurisdiction, on motions for new trial and the like questions, can be revised by writ of error, or *an*appeal in the nature of it. It is adjudged, and precedents must be followed, that objections are not enough; the party must insist on his point by an exception. This is an act in the nature of a protest, challenging the error, and warning .the adversary party, that it is reserved for revision. As to the error that may appear in the acts of the court and parties, by the *regular*parts of the record; I mean such as constituted the record before bills of exceptions were introduced; i/iese.shall be corrected without having been challenged when they occurred. Though advantages may be lost, we know in even this part of the case, by the party’s omission to insist on the error in proper time and form.

Petition overruled by the court.