Scott against Seiler, 5 Watts 235

The opinion of the Court was delivered by Kennedy, J. Though the errors assigned are numerous, they may all be resolved into three questions. First, did the court below err in permitting the defendant, who is sued here in debt, as the sheriff of Dauphin county, for having permitted Isaac M'Cord to escape from his custody, after being arrested upon a capias ad satisfaciendum, sued out of the court of the common pleas of the same county upon a judgment thereon obtained against M’Cord at the suit of the plaintiff in this action, for upwards of 300 dollars, including costs of suit, to amend his return?

Second, had the attorney at law, who, as the attorney of the plaintiff, commenced the suit, prosecuted it to judgment, and sued out the capias ad satisfaciendum thereon, power or authority, in virtue of his being so employed by the plaintiff to collect his debt, to discharge the defendant in the judgment from arrest made under the execution, and from the custody of the sheriff, without the amount thereof being paid? And third, were Isaac M’Cord and John Wise, each, competent witnesses for the defendant?

In respect to the first question, it is certainly true that sheriffs, upon application made to the court within a reasonable time, have been permitted frequently to amend their returns to writs, where it has been shown clearly that they were made through mistake in regard to some matter of fact, which, from its nature, might not be within their own knowledge. As, for instance, where there are other persons, beside the defendant in the writ, of the same name, residing within the bailiwick of the sheriff, and he arrests one of those other persons instead of the real defendant, and returns the arrest of the latter.

The court, in such case, upon application being made, as soon as the mistake is discovered and the fact ascertained, that the wrong person has been arrested, would doubtless permit the sheriff to correct his mistake, by amending his return to the writ. And it is not perceived that such amendment could tend to prejudice the rights of any one; but, on the contrary, if not allowed, it is easy to conceive that it might be the cause of great injustice being done.

In the present ease, however, it is proper to notice, in the first place, that the application by the defendant, as sheriff, for leave to amend his return, was not made for more than a year after his return; nor until after a suit was brought against him, founded upon it, that suit put to issue and upon trial before a jury. After so great a lapse of time, and under such peculiar circumstances, it, is difficult, perhaps impossible, to imagine any thing that would justify a court’s interfering to relieve' a sheriff from the legal effect of his return to the prejudice of the plaintiff’s rights.

But here, so far from there having been any thing shown by the defendant, to warrant the interposition of the court, under the circumstances of the case, to allow him to alter his return, that it rather appears, even from his own affidavit, that he ought never to have been permitted to do so at any previous period. According to his affidavit, which seems to have been made the basis of granting him leave to amend, it does not appear that the first return of the writ of capias ad satisfaciendum, was made by him through mistake or misapprehension of any fact whatever.

He, it would seem, knew all the facts and circumstances connected with his return, as well then as at the time he applied for leave to amend.

He admits by his affidavit that after he received the writ of capias ad satisfaciendum against Isaac M’Cord, and before the return day thereof came around, he saw M’Cord, had him in his office, conversed with him in relation to the writ, requested his attention to it, and accompanied him from his own office to that of Mr M’Clure fM’ Cord’s attorney) for the purpose of having it arranged, by preparing an insolvent bond, which the defendant actually filled up, himself for M’Cord, and after delivering it to M’Cord that he might get it executed by sureties, parted with him upon an understanding that M’Cord was to have the insolvent bond executed and returned to him the next day, or. get a discharge from Mr Rawn (the plaintiff’s attorney in the capias ad satisfaciendum.) But because he (the defendant) did not actually touch the person of M’Cord, or offer forcibly to restrain his person, or say to him, while in his company, “ I arrest you,” he is now given to understand (the correctness of which may be well questioned) that all that was done by him, did not amount to an arrest of M’Cord’s person in law, and, therefore, he wishes the court to grant him leave to change his return to the writ, by striking out “ C.

C.,” that is, “ cepi corpus,” and instead thereof, to return that before he executed the writ of capias ad satisfaciendum, the plaintiff’s attorney directed him to stay it, or not to do so. From the defendant’s own showing, by his affidavit, it is evident that there was no mistake, in any matter of fact, in regard to the arrest of M’Cord, and that if there ivas a mistake of any kind, it was, at most, only a mistake in law, as to what was thereby required in order to effect an arrest.

But surely it was never before heard of, when it became the duty of the sheriff, under a writ in his hands, to make an arrest, and he had it fully in his power to do all that was requisite to accomplish it, and did do all that he believed necessary for that purpose; and, in short, considered that he had effected it completely, and accordingly made a return upon the writ to that effect, that the court could interpose and permit him to alter his return so as to release him from a liability that he would have incurred if he had done his duty. Yet this is nothing more nor less than the case before us.

It was the bounden duty of the defendant when he had M’Cord in his office, to have arrested him. There was nothing to prevent his doing it in the most formal manner that can possibty be required by law; and that he thought he had done it, and had M’Cord in his custody, is plainly inferrible from what he says was the understanding between M’Cord and him, when they separated at M’Clure’s office, to wit, that M’Cord was to get the insolvent bond executed, or otherwise procure a discharge from Mr Rawn, and to return with the one or the other the next day.

Now, why get a discharge from Mr Rawn if he was not considered as in custody? An order merely to stay the execution of the writ until a further order to proceed therein, given to the defendant, would have been what ought to have been obtained, and all that was requisite, if M’Cord had not been considered as being under arrest by the defendant. But this, connected with the fact of his having thereupon made the return of “ cepi corpus,” proves conclusively that the defendant considered M’Cord as being in his custody under arrest.

Then, under the most favourable aspect in which the conduct of the defendant can be viewed, according even to his own showing, what does it amount to? Certainly to nothing more nor less than this, that when it was his duty,- to have made the arrest, and having it fully in his power to do so, he either neglected or refused to do it. Thus he asks to be relieved from the effect of a return made by him, which, if he had done his duty, he was bound to have made, by alleging his own wilful and culpable neglect of his duty. Nemo, allegans suam turpitudinem, audien>dus est.

This case may be illustrated further, by supposing a sheriff to have a fieri facias in his hands, directed to him against A. B. who has personal property at the time sufficient to satisfy the amount thereof, which is accessible to the sheriff, who calls upon A. B. and makes known to him the fact of his having the fieri facias. A. B. promises to pay it by the return of the writ; and the sheriff without seizing any personal property, or making a

schedule of any, returns upon the fieri facias, u Goods seized to the value of the debt, damages, and costs herein mentioned. But A. B. fails to pay the amount of the execution to the sheriff at the return of the writ, and during the interim sells and parts with all his personal property; the sheriff after being called on by the plaintiff in the execution to pay the amount thereof, but failing to do so, is sued by the plaintiff for it; and upon the trial of the suit, he applies to the court for leave to amend his return, grounding his application upon his affidavit showing that he could have seized goods of A.

B. sufficient to have satisfied the execution, but had neglected it, trusting to his promise that he would pay him the amount at the return of the writ. But A.'B. not having done so, he, therefore, asks leave of the court to alter his return by striking it out and substituting “ nulla bona” for it. It cannot, 1 think, be contended, that, in such case as the one put, the court could interfere so far with the plaintiff’s rights as to grant leave to make the amendment asked for; yet, in principle, it is the very case under consideration.

Sound policy and. honesty both unite in requiring that the sheriff should be bound by his return in every such case. It is not made under any mistake in regard to a matter of fact, and as to the law, so far as it lays down and points out what his-duty is in each case wherein he is required to act, he is bound to know it, arid ignorance of it forms no excuse whatever for him. To permit him to alter his return, in such case, would, in effect, be depriving the plaintiff of the right which the law has secured to him. And it does not lie within the discretion of the court to do

an act, which is calculated to defeat or to deprive a party of his right; so that when the amendment asked for is likely to have that effect, it cannot be granted. In conformity to these principles I think it may be seen that in Rex v. Ward, Bunb. 323, where the sheriff made the same return to two different writs of extent against the same defendant, in short making himself liable twice for the value of the same property, the court refused him leave to amend his return. And in Ibbotson v. Tindal, 1 Bing. 150, S.C., 8 Eng. Com.

L. 281, the sheriff having returned to a capias, “ I have taken the within named defendant, whose body remains in the prison of our lord the king under my custody,” the court refused to permit him to amend his return, by striking out the return on the writ and returning according to the fact “ that on the receipt of the writ by the sheriff, the defendant was in custody at the suit of other persons, and from thence until and at the return of the writ at the suit of other persons and the plaintiffs.” It is also a general rule that judicial proceedings shall not be amended, except there be something to amend by, lest instead of correcting an error by doing so, it should only be making one.

And perhaps there is quite as much reason for applying this rule to the returns of a sheriff, as to things- for the most part transacted in a court: For, like the record of a court, the return of a sheriff is of such high regard, that generally no averment shall be admitted against it: As if A. be returned to be outlawed, he cannot say, that he was only quarto or quinto exactus. Kit. of Courts 562, (Ed. in English 1675;) Dalt. Sheriff 189, cap. 42; Com. Dig. Tit.

Return (6) 235 (Rose Ed.) And again what could be more dangerous to the rights and interests of suitors, as well as to that of other persons, than to permit a sheriff to release himself from a responsibility created by his return, under the plea of correcting an error, by his making an affidavit contradicting the truth of his return? Might he not as well be permitted to set aside his recognizance in the same way? In principle, perhaps, there is but little difference between the two cases.

It can seldom, if ever happen, that a sheriff will be so indifferent to his own interest as to make a return rendering himself liable beyond what he would and ought to be, if he were to perform his duty vigilantly and faithfully; or if he ever does, it is upon the faith of some promise or assurance made by the party against whom he has the process : and if deceived or disappointed by him, it forms no apology for his neglect of duty: and still less a ground upon .which to ask relief from the liability to which he has subjected himself by his return.

But further, even upon the common principles of evidence, having made a return by which he admits his liability to the plaintiff, counter declarations by him, though made upon oath, cannot be received in evidence to disprove the truth of such admission of liability. Such is the nature of man,- and so mindful is he of his own interest at all times, that it has never been considered that he could make such admission unless it were true.

And upon this ground, it is received as evidence against him of the very best and highest nature: and is therefore admissible to establish a charge against him that may affect his life as well as his property. But when he has deliberate!}7 put his admission upon record as in the case of a return made to the court upon a writ, is it not reasonable that it should still be entitled to greater credit, if possible, and be held to be conclusive upon him?

And would it not be directly contrary to every principle of analogy, as regards the rules of evidence, even where this admission is by parol, to have it set aside by his own subsequent counter declaration, though made on oath, that it was not true? For having become interested, he cannot be admitted, according to the established rules of evidence, to testify thus in his own favour. He is not considered as entitled to any credit in such case; the temptation to deviate from the truth is too strong for him to be trusted.

In every view, then, that can be taken of the question, whether upon authority, principles of reason or policy, it is perfectly right that the defendant in this case should not only be bound, but conclusively so, by the official stamp, which he first gave to his return on the capias ad satisfaciendum. And in the language of the late Chief Justice Parker, i‘it is better for the public and for the officers themselves, that they should be dealt with strictly, for mistakes will increase with the indulgence that is used towards them.” Emerson v. Upton, 9 Pick. 170.

We, therefore, think the court, below erred in permitting the defendant to amend his return first made on the capias ad satisfaciendum-, and afterwards in admitting evidence to disprove the fact of his having arrested the body of Isaac M’Cord by virtue of it. As to the second question, we think that the attorney of the plaintifi in the capias ad satisfaciendum had full power and authority to discharge the defendant therein from the arrest under it, without having received,or the amount of money thereon endorsed being paid.

This authority has been exercised by attorneys throughout the slate from time immemorial almost; and especially where the plaintiff, as in this case, resided out of the county in which the judgment was obtained, and the defendant therein named resided, at the distance of nearly one hundred miles; and did not, from any thing that was shown on the trial, appear to have attended at all in person to the prosecution of his suit, and the execution of the judgment therein obtained, for the purpose of looking after the collection of his debt.

It seems to have been entrusted, as is usual in such cases, entirely to the discretion and management of Mr Rawn, his attorney, with full power, implied at least if not expressed, to do whatever he, under the circumstances, for the time being, might think best, in order to secure the payment of the debt as speedily as possible.

The attorney employed to collect the debt in such cases does not act merely in the character of what may be considered strictly an attorney at law, or of the court in which the action is brought, but also in the character of an agent of the plaintifi'or the creditor, invested with implied power, at least, to deal with the defendant, especially if his circumstances be considered doubtful, and to direct the sheriff to execute process, sued out against him or not, just as he shall think the one course or the other the most likely to secure the payment of the debt ultimately ; and, as regards the sheriff, he is bound to receive and to obey the instructions of the attorney, the same as he would those of the plaintiff himself were he present giving them.

The attorney represents the plaintiff as well after the body of the defendant is taken in execution, as before in obtaining the judgment; and may release the debtor from his confinement either upon or without payment of the debt. For his trouble and agency in such cases he is entitled to receive a reasonable compensation. Gray v. Brackenridge, 2 Penns. Rep. 75; Foster v. Jack, 4 Watts 334. But, as attorney at law strictly, his fees may be said to be fixed by statute.

That he is invested, however, with powers beyond those which appertain to him in-his character as attorney at law is fully recognised and laid down in Lynch v. Wolverton, 16 Serg. & Rawle 368, as well as in the cases cited above. But whether any order of discharge from the arrest was given by the attorney for the plaintiff to the sheriff, while the defendant named in the capias ad satisfaciendum was in custody after the arrest, is a fact that ought to be distinctly proved to the conviction of the jury; for the allegation of the defendant here, that it was so, is not to be regarded, and amounts to nothing.

Indeed, any evidence that was given on the trial of the cause, tending to show that the attorney for the plaintiff had given any direction to the sheriff, other than that of executing the writ immediately, would rather seem to have been on the day after ihe defendant in the capias ad sutisfaciendum most likely had been arrested, and suffered by the sheriff to go again at large.

If this be so, then the defendant here permitted the defendant in the capias ad satisfaciendum to escape and to go at large-without any direction from the plaintiff’s attorney authorising it; and he would therefore be liable in this action to the plaintiff, for the whole amount of the judgment, whereupon the capias ad satisfaciendum was sued out; and the subsequent assent of the plaintiff’s attorney, even if it were given, to the escape of the defendant in the capias ad satisfaciendum afterwards, and to his being and remaining at large, would not release the defendant here from his liability to the plaintiff in this action.

Then, as regard's the third question, were M’Cord and Wise competent witnesses for the defendant? We can see no substantial objection to their competency. They do not appear to have been interested in the event of this suit. Even if there should be a recovery here against the defendant, M’Cord would be subjected to no more liability by it; nor would he have to pay a cent more on account of it. And, as to Wise, there does not seem to be any colour for saying that he is interested, or that his rights or liability will be affected in any way by a recovery here.

But so far as the evidence given by either of them tended to show that there was no arrest of M’Cord under the capias ad satisfaciendum, it was clearly incompetent, because it went to contradict the sheriff’s return thereon as originally made, and was therefore inadmissible; and, likewise, so far as it went to prove that the order, which they speak of being given by the plaintiff’s attorney to the sheriff, to stay further proceedings in the writ of capias ad satisfaciendum was given after the defendant therein had been arrested and permitted to go at large by the defendant here, it was irrelevant, and therefore ought not to have been admitted.

The judgment is reversed, and a venire de novo awarded.