Buckminster vs. Applebee and al., 8 N.H. 546

Upham, J., delivered the opinion of the court. There is a difference betwixt an arrest on mesne process and on execution. If a defendant, after arrest on mesne process, and before commitment, is rescued, the only remedy which the plaintiff has, is by an action against the rescuers. A return of an arrest on mesne process, and of a rescue, is, therefore, a good return. But such a return on execution would not protect the sheriff from an action, because in such case it is his duty to raise the posse to aid him, which he is not required to do in service of mesne process. 6 Com.

Dig., Rescous, D, 2 and 4; 3 Lev. 46, Gorges vs. Gore; 8 D. & E. 127, Bently vs. Donelly; 10 Mass. 207, Car- gill vs. Taylor; 2 Pick. 304, Griffin vs. Brown; 2 Wheaton’s Selwyn 931; 2 Chit. Pl. 297. The return of a rescue in this case was, then, properly-made ; and the question arises as to its effect in evidence. The sheriffs return of a rescue was formerly holden of itself as a conviction of the offence ; and process of attachment immediately issued from the court against the rescuer, and he was not permitted to traverse the return. 6 Com. Dig. Rescous, D, 4; Yel. 34, Arundel vs.

Arundel; 12 Mod. 247; 4 Burr. 2129, Rex vs. Elkin; 1 Holt 537, Fermor vs. Phillips. In this case, the officer returns merely a rescue of the debtor from him by a mob of seven or eight persons, without naming the individuals who were guilty of the offence. The return, so far as it goes, is conclusive evidence of the rescue, 6 Com. Dig. 242, Return, G; but it furnishes no evidence that the defendants were guilty of the offence. To show this fact, the officer was introduced as a witness, and testified in the case, though objected to on the ground of interest in the event of the suit.

It seems clear that no right of the officer can be settled by this action, to which he is a stranger. A judgment against the plaintiff in this case cannot be used by the plaintiff in a subsequent suit brought against the officer for an escape, for the purpose of proving that there was no rescue, because the officer is no party to this action ; and a verdict in favor of the plaintiff in this case could not be used by the officer to prove there was a rescue, as a verdict cannot be evidence for a man, where an opposite verdict would not be evidence against him. 1 Stark. Ev. 195.

The interest, therefore, is not such as to exclude the witness. He is not interested in the event of the suit, so as to gain or lose by the same ; neither is he interested in the record as a means of evidence. It is said, however, that a recovery against these defendants, and payment, would be a bar to a suit by the plaintiff against the officer. 4 Bac. Ab. 399, Rescous, C; Cro. Car. 109. But it is often the case that a witness is placed in a similar situation, where such a result will not debar him from testifying. The exception goes to the credit of the witness merely.

He is not excluded unless he is to gain or lose by the event of the suit, or the verdict will be evidence for or against him ; and this gain or loss must be a direct gain or loss, and not an indirect one. Were a different rule to prevail, the officer would seem to be admissible as a witness in case of rescue, from necessity. The cases cited, as to the liability of master and servant, and the incompetency of the servant to testify where the case depends on a question of the servant’s negligence, differ essentially from this case.

We are of opinion the witness was properly admitted, and there must be Judgment on the verdict against the defendants.