author: By the Court—Bosworth, Ch. J.

text:
    The People of the State of Michigan, Plaintiffs and Respondents, v. The Phœnix Bank of the City of New York, Defendants and Appellants.
    1 The decision of a legally constituted Board of State Auditors, upon a claim preferred by an individual against such State, made under the authority of the Constitution and laws of the State by which such board is created, is alike conclusive upon the State and such claimant, where such Constitution and laws confer on such board power and authority to examine and adjust all claims of the character of that so preferred; and to examine the claimants and witness upon oath; to issue subpoenas to compel the attendance of witnesses before them and to enforce obedience to such subpoena by attachment; to set off any legal or equitable demand of the State against such claimant; to adjourn from time to time; and require such board to keep a record of its proceedings and decide upon competent testimony.
    2. After a claim against such State, within the jurisdiction of such board to examine and adjust, has been heard before such board according to the laws prescribing its powers and duties; and has been determined in favor of such claimant, and has been paid by an officer of such State, (acting in its behalf,) as required by law, it cannot be recovered back, where no fraud has been practised or intended by such claimant, by the means which he employed to assert and establish his claim before such board; merely upon the grounds, that upon the merits nothing was due from the State to the claimant; and that the decision of such board was made in ignorance of facts which, if proved, would have established that nothing was due.
    3. The decisions of such a board upon matters within its jurisdiction, in cases free from fraud, are conclusive; unless an appeal is provided for, or other revision, by some appellate or supervisory tribunal, is prescribed by law.
    A A State is competent to consent to be sued, and may grant such consent . upon such terms as it may think just.

      5. A State which, by the authority of its Constitution, creates by statute a board of its officers of State, with the powers before stated, and by such statute enacts that, when any claim shall be allowed by such board, (such claim being within its jurisdiction,) and the amount due shall have been settled by such board, the claimant “ shall be entitled to a warrant drawn by the Auditor-General upon the State Treasurer therefor forthwith," thereby consents to submit to the investigation and decision of claims against her, before such tribunal; upon the terms prescribed by such Constitution and laws, and can claim no exemption from the rule which, in like cases, is applicable to natural persons.
    6. Although the laws of such State make it the duty of the Attorney-General to appear in behalf of the State before such board, when they shall sit to audit claims against the State; and to that end require the board to give him timely notice of the time and place of their meeting to audit such claims; the fact that he did not appear on the hearing of a claim which such board audited and allowed, and which was. paid by reason of being so audited and allowed; will not give the State the right to recover back the money so paid; nor aid its claim to a restoration of such money, espeially when it is not made to appear that the Attorney-General did not have timely notice of the meeting of the board to audit such claim.

      7. Hotice to him is not essential under such statutes, to confer jurisdiction on such board to audit and settle claims.
    8. It not having been found in the present case, that the defendants (claimants whose, claim had been audited, settled and paid) were guilty in fact or intent of any fraud in their proceedings before the Board of State Auditors of the State of Michigan to establish their claim against that State, it was

      Meld, That a judgment against them in favor of the State, for the amount of a claim made by them against the State, and paid by the State on being audited and settled by such board, was erroneous and must be reversed.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, January 4, 5;
    decided, March 12, 1859
    This action comes before the General Term on an appeal by the defendants from a judgment entered against them at Special Term, in favor of the plaintiffs, on the 3d of July, 1857, for $42,152.97. It was tried in April, 1.857, before Mr. Justice Hoffman, without a jury.
    The action was brought to recover back from the defendants the sum of $35,603.74, paid to them by the plaintiffs on the 4th of December, 1854, and the interest thereon. That sum was so paid to the defendants as owners of a claim against the plaintiffs to that amount, which had been assigned to the defendants by the President and Directors of the Phcenix Bank—an old chartered institution, whose charter expired on the 31st of December, 1853.
    It was so paid in pursuance of a decision or award of the Board of State Auditors of the State of Michigan, to which board the defendants had presented their claim against the State in May, 1854.
    Section 31 of Article 1 of the Constitution of the State of Michigan, which took effect on the 1st of January, 1851, (and is found in the Michigan Revised Laws, of 1857, p. 54,) reads thus: (See Michigan R. Laws of 1857, pp. 83, 80, 81, § 19 of schedule.)
    § 31, Art. 1. “ The Legislature shall not audit nor allow any private claim or account.”
    Article 8, section 4, (p. 63, id.,) reads thus:
    § 4, Art. 8. “ The Secretary of State, State Treasurer, and Commissioner of the State Land Office, shall constitute a Board of State Auditors to examine and adjust all claims against the State, not otherwise provided for by general law.” * * *
    By an act of the Legislature of the State of Michigan, approved April 7, 1851, (Laws of 1851, p. 173,) sections 44, 46 and 47 of the Revised Statutes of 1846, were so amended as to conform to and carry out the constitutional provision for the creation of a Board of State Auditors, and as thus amended sections 44 and 47 read as follows: (See Mich. Revised Laws of 1857, pp. 145 and 146.)
    “§44. The Secretary of State, State Treasurer, and Commissioner of the State Land Office, shall constitute a Board of State Auditors, and as such they shall have power, and it shall be their duty, annually, and at any other time in their discretion, to enter into a full settlement and final adjustment with every officer and agent of this State of all debts, credits, claims and demands of whatsoever description, between such officer or agent and this State, and it shall also be their duty to examine, adjust and settle all other claims and demands against this State, which may be presented by any other person Or persons, the settlement of which is not already provided for by law; but such board shall not allow and audit any claims against the State unless the same shall be established by competent testimony; and said board shall keep a record of its proceedings, which shall contain each claim presented, and its items, an abstract of the evidence taken, and the amount adjusted and settled.in favor of the person or persons presenting the claims, or in favor of the State; and any member of said board shall have power to administer oaths to any person or persons presenting claims, or to witnesses; to examine the person or persons under oath; to issue subpoenas to any part of the State against witnesses, and if any witness or witnesses fail to appear in pursuance thereof, and the fees provided herein shall have been paid or tendered, to issue attachments to compel their attendance; .to set off any legal or equitable claim against such person or persons in favor of the Statfe, upon proof of the same, and to adjourn from time to time.” * * * *
    “ § 47. If, upon the allowance of any claim, or upon any balance being struck upon any settlement made in pursuance of this chapter, it shall appear that the State is indebted to the party with whom the settlement is made, or to whom such claim shall be allowed, he shall be entitled to a warrant drawn by the Auditor-General upon the State Treasurer therefor forthwith.”
    Section 2 of a .statute of that State, approved January 26, 1848, (Laws of 1848, No. 12, § 2, p. 9,) reads thus:
    “ § 2. It shall be the. duty of the Attorney-General to appear in behalf of the State, before the Board of State Auditors, when they shall sit to audit claims against the State, and to that end, said board shall give said Attorney-General timely notice of the time and place of their meeting to audit such claims.” (See I Mich. R. L. of 1857, p. 147, [210,] §2.)
    Section 1 of “Schedule,” in the Constitution of said State, (1 R. L. of Mich., p. 77,) -reads thus:
    “ Schedule,” “ § 1. The common law and the statute laws, now in force, not repugnant to this Constitution, shall remain in force until they expire by'their own limitation, or are altered, or repealed by the Legislature.”
    The evidence tends to show that the claim of the Phoenix Bank was presented to the Board of State Auditors of the State of Michigan, in May, 1854.
    The said Board allowed the claim on the 2d of December, 1854, and on that day entered upon the record of its proceedings, in relation to said claim, the following, to wit:
    “ Claim of the Phoenix Bank, New York, against the State of Michigan, for an advance of $16,400, on State bonds, delivered to John Norton, junior, cashier of the Earmers’ and Mechanics’ Bank, Detroit, by order of Governor Mason, for the use of said State, March 13, 1838, and the interest thereon. The Board decided that, upon the evidence produced, said Phoenix Bank was justly and equitably entitled, for principal and interest on said claim, from March 12, 1838, to December 2, 1854, to the sum of $35,603.74.” ■ ■
    That sum, in pursuance of such decision, the plaintiffs paid to the defendants, on the 4th of said December, and it is to recover back the sum so paid that this action is brought.
    .The Attorney-General did not appear before the said Board of State Auditors, in relation to said claim, while it was pending before said Board: whether he was notified to appear, was not found by the Judge.
    The Judge found a series of facts, (covering some eleven printed pages,) stating in detail the transactions in" which the claim originated, the evidence produced before the said Board of State Auditors, and certain transactions between the defendants and third persons (in relation to said claim, and which third persons are alleged to be the actual debtors, in respect of the matter thereof;) of which latter facts he also .found that .the members of said Board were severally ignorant during the proceedings before the Board, and until after payment of the sum allowed was made, and which latter facts he held were sufficient, of themselves, to extinguish any and all claims of the defendants upon the State, even if they, or their assignors, would otherwise have had any.
    He also held, inter alia, as matter of law, that neither the plaintiffs nor their assignors ever had any just or valid claim against the State. His 14th conclusion of law is as follows, viz.:
    “ 14th. Although the Board of State Auditors had, by the Constitution and laws of Michigan, power to examine and adjust and audit any claim against the State not otherwise provided for by general law; and although said Board did examine and adjust, audit and allow the claim of the Phoenix Bank, and the State did thereupon pay thl money; yet the award" is nothing higher than an adjustment of an account or claim by an agent constituted' to examine it.”
    This decision was excepted to. The other matters of fact found, and conclusions of law stated, it is deemed unnecessary to recapitulate, as it was not found that the claim was-presented in bad faith, or that any fraud or artifice was practised or intended by the defendants, in any of their proceedings before the Board of State Auditors.
    The other facts in the case, and the questions arising upon them, are not stated, as they were not considered, by the Court at General Term.
    The Judge decided that the plaintiffs were entitled to recover back from the defendants the sum so paid as aforesaid by the former to the latter, amounting to $41,959.39. Judgment was entered thereupon in favor of the plaintiffs against the defendants ; and from that judgment the present appeal was taken by the defendants.

      Edgar S. Van Winkle and Francis B. Cutting, for defendants and appellants.
    I. Ho authority of the State of Michigan for beginning and prosecuting this action has been shown.
    II. These defendants are not liable at all. If any party is liable, if is the trustees of the old Phoenix Bank. The defendants here were purchasers, in good faith, of a claim against the State of Michigan. The State paid it to them without any act on their part, and the money cannot be recovered back from the defendants.
    The defendants had no existence until the 1st January, 1854.
    They could not, therefore, have been participants in any acts or proceedings of any person or body prior to that time.
    HI. Even if the old Phoenix Bank were defendants, the award of the Board of State Auditors could not be reexamined in this Court.
    1. Because the matter is res adjudícala, only impeachable for fraud in obtaining the judgment. (Kingsland v. Spalding, 3 Barb. Ch., 341; Vail v. Vail, 7 Barb., 226; Hopkins v. Lee, 6 Wheat., 109;) and;
    2. Because being a judgment, and the money collected under it, no action will lie to recover it back. (White v. Merritt et al, 3 Seld., 352; 2 Smith’s Leading Cases, 237, and note on 239.)
    3. Because there is no valid proof of fraud.
    The prayer of the complaint is,

      a. That defendants may be compelled to refund to plaintiffs the amount paid to them by Board of State Auditors.

      b. That the allowance of said claim by said Board of State Auditors, and the entry thereof by said Board, may be declared to be fraudulent and void as against the plaintiffs, and that the same may be annulled and set aside.
    The first part of the prayer can only be granted in case the second is allowed.
    , The second cannot be granted unless fraud, as alleged, has been proved.
    The complaint does not proceed on the ground of mistake for relief, but of fraud. For error the only relief is to falsify and surcharge, not to set aside. It can be avoided only upon the ground of fraud. (2 Danl. P., 764; Bruen v. Hone, 2 Barb., 592.)
    The judgment of the Board of Auditors could be set aside only for fraud. (Consequa v. Fanning, 3 Johns. Ch., 595.)
    The Board of State Auditors, consisting of the Secretary of State, Treasurer, and Commissioner of State Land Office, constituted a special tribunal having jurisdiction of this claim. (See Laws of 1846, p. , and of 1851, p. 473; Const. of Mich., art. 8, § 4, p. 60.)
    The Board was a quasi-judicial body, with power to hear and determine claims against the State. (Ex parte Rogers, 7 Cow., 526; Van Steenbergh v. Bigelow, 3 Wend., 42; Martin v. Mott, 12 Wheat., 19; Walker v. Deveraux, 4 Paige, 229, 250; 3 Barn. & Ad., 271.)
    Their power and duty is to examine, adjust and settle claims and demands against the State which may be presented by any person, the settlement of which is not otherwise provided for by law. They shall require competent testimony, keep a record of its proceedings, which shall contain, &c. May administer oath; can examine the claimant and other persons under oath; issue subpoenas and attachments; set off legal or equitable claims in favor of the State, and their allowance of a claim entitled a party to payment. (See act of April 7, 1851.)
    This is a complete judgment after trial. Mo appeal lies from the board.
    Its decision of the claim of the Phoenix Bank - is final and cannot be impeached collaterally, except upon proof by the State that a valid and equitable defense existed, which it was prevented from setting up by the fraud of the defendants, without negligence or other fault on the part of the State. (Vilas v. Jones, 1 Comst., 282.)
    Its adjudication is more conclusive than an award by private arbitrators, because the Board is appointed by the State, without any selection by the Phœnix Bank. (Ex parte Rogers, 7 Cow., 526.)
    But even treated as of equal and no greater effect than an ordinary award, the merits of the claim cannot be reexamined; it can only be impeached by reason of partiality or corruption of the arbitrators. (Butler v. Mayor of New York, 1 Hill, 489; McKinney v. Newcomb, 5 Cow., 425.)
    Whether this is called an award or a judgment, matters but little, as neither is impeachable except for fraud. This claim was within their jurisdiction, and is therefore not triable again here. It was a claim.
    Webster defines a claim to be “a demand of a right or a supposed right; a calling on another for something due or supposed to be due, as a claim of wages for services. A claim implies a right or supposed right in the claimant to something which is in another’s possession or power. A claim may be made in words, by suit, or by other means.”
    Richardson says, “ It is to challenge, demand or pretend a title to.”
    It was argued in the Court below that the jurisdiction can only relate to claims on contracts to which the State is bound legally. That was the very question to be tried by the Board of Auditors, whether the State was bound. That was the very foundation of the jurisdiction. (Britain v. Kinnaird, 1 Brod. & Bing., 432; Rankin v. Hoyt, 4 How. U. S. R., 327; 12 Pick., 572, 583.)
    The assent of the Legislature may be signified in various ways. They may do it directly, or they may delegate the power to the Board of Auditors, or any single officer, Governor, Attorney-General or Auditor
    Whether the alleged contract was one to which the State was a party, was the very question presented and argued before the auditors. (Ex. 1 and 2 in commission; see the 2 Consts. of Mich. and the 2 laws of Board of State Auditors; Laws of Mich., vol. , p. .)

      The Courts of New York calinot overhaul and reexamine the question whether the law authorized the acts of Mason—whether the Phoenix Bank dealt with him on the faith of the law, or of the bonds—whether the money actually went into the State treasury. The board having jurisdiction of the subject has adjudicated upon and allowed the claim.
    If this claim had been acknowledged by a law—the highest act of a State—then by the Constitution, the Board of State Auditors could have had no jurisdiction. (See Const, of Mich., art. 8, §4.)
    The action of the Board of State Auditors was a judicial act, final and conclusive.
    The State of Michigan being plaintiffs, seeking equitable relief, is subject to the same rules and equities as ordinary suitors, is bound to use the same diligence, and is chargeable with like notice, and affected by laches to the same extent as private suitors. (United States v. Barker, 4 Wash. C. C. R., 464; S. C., 12 Wheat., 559; Bank of United States v. The United States, 2 How., 711; United States v. Bank of the Metropolis, 15 Peters, 377; Dixon v. United States, 1 Brock. R., 177; United States v. Wilder, 3 Sum., 308; New Orleans v. The United States, 10 Peters, 662, 917; Darnington v. Bank of Alabama, 13 How., 12; Briscoe v. Bank of the Commonwealth, 11 Peters, 257.)
    It cannot be avoided for error of law, for there is no appeal; none from the Board of State Auditors to the Superior Court of New York. The decision, if erroneous, is nevertheless the law of the case. (Mowatt et al. v. Wright, 1 Wend., 355; Mitchell v. Bush, 7 Cow., 185; McKinney v. Newcomb, 5 id., 425.)
    Neither error of law nor of fact will avoid an award unless the error is apparent on the face of the award. (Watson on Awards, 159.)
    It cannot be avoided for error of fact; a decision of a competent tribunal where the facts were in issue, or might have been in issue, is not reviewable elsewhere. (Kingsland v. Spalding, 3 Barb. Ch., 341; Vail v. Vail, 7 Barb., 226; Bruen v. Hone, 2 Barb., 586; Hopkins v. Lee, 6 Wheat., 109; United States v. Nourse, 9 Peters, 8; Voorhees v. The Bank of United States, 10 Peters, 473, 449; Embury v. Conner, 3 Comst., 511; See also United States v. Arredondo, 6 Peters, 691.)

      A decree of a competent Court of the highest jurisdiction is final and conclusive. (Penhallow v. Doane's Administrators, 3 Dallas, 54, 85.)
    The debt itself cannot be inquirecLinto, but only fraud in procuring the judgment. It cannot be tried over again by this Court. It will, at the utmost, only receive proof of fraud affecting the defendants, which, if proved, would be sufficient to overturn the award.
    That the proofs given before the Board of Auditors were sufficient, is beyond review.
    That the testimony before them was competent, is beyond review here.
    Neither of the arbitrators or Judges has sworn, that if he had known the new facts now proved it would have altered his award. (See Kyd on Awards; Ives v. Metcalfe, 1 Atk., 64; Tittenson v. Peat, July 1, 1747, 3 Atkyns, 529.)
    This proceeding was in invitum. It was no compromise or bargain, it was a suit. The Attorney-General represented the State; if not present, it was the plaintiff’s fault or misfortune.
    The Bank of River Raisin and Bank of State of Michigan were both within the jurisdiction. The deed of 1840 was on record.
    The fraud to avoid must be an active and positive fraud not constructive, that is, if based on an adverse proceeding.
    There must be circumvention. (See Brinckerhoff v. Lansing, 4 J. C. R., 70.)
    Mere silence in regard to a fact within the knowledge or reach of both parties is not a fraud.
    A Court of Equity will never be called into activity to remedy the consequences of laches or neglect, or the want of reasonable diligence. (Creath v. Sims, 5 How. U. S. R., 192.)
    Money paid under a judgment cannot be recovered back in a new action. (White v. Merritt & Wheaton, 3 Seld., 352; Marriot v. Hampton, 7 T. R., 269; S. C., in 2d Smith’s Leading Cases, 237, and note on page 239; White v. Ward & Aylesworth, 9 Johns., 232; Loompis v. Pulver, id., 244; Loring v. Mansfield, 17 Mass. R, 394; Homer v. Fish et al, 1 Pick., 435; Carter v. Canterbury, 3 Conn., 456.)
    Equity will not grant relief in such a case. (Le Guen v. Gouverneur, 1 Johns. C., 436; Smith & Mead v. Lowry, 1 Johns. Ch., 320; Campbell v. Morrison, 7 Paige, 157; Clarke v. Dutcher, 9 Cow., 674.)
    “ Money paid with the full knowledge of facts or the means of knowledge cannot be recovered back, on the ground that the party supposed he was bound in law to pay it, when in truth he was not.” (Mowatt et al. v. Wright, 1 Wend., 355; Elliott v. Swartwout, 10 Peters, 138, 153.)
    For fraud which the party litigant knew of or could have known of, or ought to have known of, even a Court of Equity will not open a judgment or award. (Le Guen v. Gouverneur, 1 Johns. C., 496, and cases there cited.)
    There is nothing new in this case, nothing that the State could not have known at the time.
    The mere taking of the deed from Stewart alters no rights. The trustee is changed—that is all; everything else the State knew.
    A bill of review will lie, it is true, on newly discovered evidence, but only in cases and upon grounds where a new trial at law will be allowed.
    The judgment at Special Term should be reversed, with costs.

      J. L. Jernegan, for respondents, (the plaintiffs,) argued (among other points) that,
    I. The payment of the claim by the State, after its allowance by the Board, does not bar its recovery in this action.
    I. The payment was made by the State in ignorance of material facts, and the money can therefore be recovered back. (Connecticut v. Jackson, 1 Johns. Ch., 13; Stoughton v. Lynch, 2 id., 209; Mowry v. Bishop, 5 Paige, 98; Boyer v. Pack, 2 Denio, 107.)
    II. The Board of Auditors had no adequate means of discovering these facts, and their ignorance of them was not the result of negligence.
    1. But whether they had adequate means of knowledge or not, it is' sufficient, especially in view of the fact that they were acting as officers of State, that they had no actual knowledge of these facts.
    (a.) According to the rule, as now established, the question is, whether the party had actual knowledge of the facts; and the possession of means of knowledge is to be regarded only as evidence to be left to the jury, bearing on the question of actual knowledge. (Bell v. Gardiner, 4 M. & G., 11, 21, per Tindal, Ch. J.)
    (6.) Such means of knowlege in the possession of an. officer of government, while acting in his official capacity, is not permitted to have the same weight as in the case of an individual acting in his own right. In Hunter v. United States, (5 Pet., 173,) it was shown, that a paper showing the claim of the government, was in the possession of the government when the money was paid. Yet the Court held that that fact could not prejudice the government, and say: “ It might be dangerous to give the same effect to a voluntary payment by an agent of the government, as if made by an individual in his own right. The concerns of the government are so complicated and extensive, that no head of any branch of it can have the same personal knowledge of the details of business, which may be presumed in private affairs.”
    2. These propositions apply with still greater force to any presumption of knowledge in the State, founded on communications made to any other of its officers, beside those composing the Board of Auditors.
    8. The money can be recovered back on the ground that its payment was obtained by fraud.
    III. Even should it be held that the proceedings of the Board of Auditors, were judicial in their character, they would not bar a recovery in this action.
    1. The action of the Board was ex parte, and cannot be therefore pleaded as an estoppel to the State.
    The act defining the duties of the Board, contains no provision for making the State a party to-the proceedings; it provides for no process against the State, or notice to any officer of the State, and it does not make it the duty of any officer to attend on the part of the State, or protect the rights of the State. Such a proceeding, where one of the parties only is represented, and no notice, actual or constructive, is given to the other, is ex parte, and can in no case estop the party against whom it is. This doctrine is elementary. (Woodruff v. Taylor, 20 Verm., 65; Bradstreet v. Neptune Ins. Co., 3 Sumn., 607; People v. Kingston and Middletown Turnpike Co., 23 Wend., 193, 210.) In the first of these cases, the Court say: “ A proceeding professing to determine the right of property, where no notice, actual or constructive, is given, whatever else it might be called, would not be entitled to be dignified with the name of a judicial proceeding. It would be a mere arbitrary edict, not to be regarded any where as the judgment of a Court.” In the case in Wendell, which was aguo warranto, claiming a forfeiture of the defendants’ charter, for a non-compliance with its provisions in relation to the mode of constructing their road, the defendants insisted that the State was estopped by the report of the commissioners appointed by the Governor to view the road and report whether the same was completed according to the requisitions of the charter. A report by these commissioners that the road had been thus constructed, was made by the charter a condition precedent to the issuing of a license by the Governor authorizing the Company to take toll. Such a report had been made to the Governor, and the license issued; But the Court held that these proceedings did not operate as an estoppel; “the proceeding,” say the Court, “is ex parte in respect to the people; it does not contemplate a contested trial, where the whole matter would be brought out for discussion and adjudication.”
    2. As the State was not represented in the proceedings before the Board, it was the duty of the defendants to state all material facts within their knowledge, necessary to inform the judgment of the Board; and their omission to do so, and their concealment of material facts within their knowledge, was a fraud, and renders the decision thus fraudulently obtained, a nullity. (Loomer v. Wheelwright, 3 Sandf. Ch., 135; Borden v. Fitch, 15 Johns., 121; Andrews v. Montgomery, 19 Johns., 164.)
    The case of Loomer v. Wheelwright, was a bill filed to set aside a decree of foreclosure. The mortgagee had obtained the decree by default, against an infant by default, after the mortgage had been satisfied with the knowledge of the mortgagee. The mortgagee withheld from the defendant, and from the Court, all information in relation to the satisfaction of the mortgage, and the Vice-Chancellor held that for this reason, the decree was obtained by fraud, and should not be permitted to stand.
    3. Even admitting all the defendants claim, that the decision of the Board of Auditors is clothed with all the attributes of the judgment of a Court of competent jurisdiction, this case combines

      2. The cases in this State holding that the decisions of the Canal Appraisers are conclusive, are justified by the statute, which all the elements which are necessary, according to the long established principles of Courts of Equity, to entitle the plaintiff to be relieved against it; it being contrary to good conscience that the defendants should reap the fruits of it, and the plaintiffs having been prevented from availing themselves of a good defense by the fraud of the defendants, and by ignorance on the part of the plaintiffs of the facts, at the time of the trial and the payment of the money, without fault or negligence on their part. (Marine Ins. Co. v. Hodgson, 7 Cran., 332; Countess of Gainsborough v. Gifford, 2 Peere Williams, 424; Williams v. Lee, 3 Atk., 223; 2 Story’s Eq., § 887, and authorities there cited; Reigal v. Wood, 1 J. C. R., 402; McDonald v. Neilson, 2 Cow. R., 139; Duncan v. Lyon, 3 J. C. R., 351; Shottenkirk v. Wheeler, id., 275; Dobson v. Pearce, 2 Kern., 156.) And the fact that the proceedings against which relief is sought, took place in another State, is immaterial. (Dobson v. Pearce, ubi supra, 169.)
    IY. The authorities cited in opposition to our view of the effect of the allowance by the Board, have, we submit, no application in this case.
    1. The general principle stated by one of the learned Justices in United States v. Arredondo, (6 Peters, 691,) “ that where power or jurisdiction is delegated to any public officer, or tribunal, over a subject matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject matter; and individual rights will not be disturbed collaterally for anything done in the exercise of that discretion within the authority and power conferred,” need not be controverted. The important limitation of this principle is stated in the next sentence : “ The only questions that can arise between an individual claiming a right under the act done and the public or any person denying its validity are, power in the officer, and fraud in the party.” The very question to be determined here, is a question of power in the Board. Was that power ministerial or judicial, a mere power to settle, adjust and pay accounts, or a power to render a final and conclusive judgment against the State ? And even were the question of power determined against us, the other question still remains, was there fraud in the party ?

      makes the State a party to all the proceedings by requiring one of the Canal Commissioners to attend in person or by agent on behalf of the State, and employ counsel and procure the attendance of witnesses, if necessary, (Laws of 1836, ch. 287, § 5,) provides for an appeal from the decision of the appraisers, (Laws of 1829, ch. 368, § 3,) and expressly provides that the decision on that appeal “ shall in all cases be final and conclusive.” (Id.)
    3. In the case of Rankin et al. v. Hoyt, (4 How. U. S., 327,) no question was made as to the conclusiveness of the appraisement, and the case is, in other respects, easily distinguishable on the ground, that the importer had a right to be present and appeal from the decision.
    Y. The defendants, having become assignees of this claim in 1854, took it cum onere, subject to all the equities which existed at the time of the assignment, and to all the defenses which existed against the assignor. (1 Parsons on Contracts, 195, and authorities there cited.)
   By the Court—Bosworth, Ch. J.

The important questions arising on this appeal, are:

' 1. What is the force and effect of a decision by the “ Board of State Auditors of the State of Michigan,” upon a claim within their jurisdiction; that it is just, and that a sum which they specify is justly due from that State to the claimant; and of actual payment, by the proper officer of the State, in pursuance of such decision, of the sum so decidec( to be due?

2. Can the money so paid be recovered back on the mere grounds that, upon the merits, no sum was due, and that the Board made their decision ignorant of certain facts, upon which, if they had been proved, their decision would or should have been that nothing was due from the State; no fraud having been practised by the claimants, by the means which they employed to assert and establish their claim before such Board ?

It was conceded, on the argument of this appeal, not only that the Board of State Auditors had jurisdiction to entertain, examine into and determine this claim, but also, that under the Constitution and statutes of the State of Michigan, this Board had the sole and exclusive jurisdiction to examine into and decide it.

By the act of April 7, 1851, amending sections 44, 46 and 47 of chapter 12 of the Revised Statutes of 1846, this Board was clothed with the “ power,” and it was made its duty,” “ to adjust and settle all claims ” (other than those otherwise provided for by law,) “ against this State which may be presented.”

By this statute, the Board is required to act, in allowing £ claim, upon “ competent testimony ;” and to “ keep a record of its proceedings.” Power is given “ to administer oaths to any person or persons presenting claims, or to witnesses; to examine the person or persons under oath; to issue subpoenas to any part of the State against witnesses, and if any witness or witnesses fail to appear in pursuance thereof, and the fees provided herein shall have been paid or tendered, to issue attachments to compel their attendance; to set off any legal or equitable claim against such person or persons in favor of the State, upon proof of the same, and to adjourn from time to time.” * * *

It also declares that the claimant, whose claim shall be allowed by the Board, “shall be entitled to a warrant, drawn by the Auditor-General upon the State Treasurer therefor, forthwith.” Another statute makes it the duty of the Attorney-General to appear before the said Board, in behalf of the State, and represent the State and its interests on such proceeding.

It is quite obvious that this Board was vested with powers, in their nature judicial. It was authorized to hear and determine certain civil controversies between the State and individuals. Power was given to it to compel the attendance of witnesses, to administer oaths to them, to adjourn from time to time, and it was required to act upon competent testimony, and to keep a record of its proceedings. The law provides for carrying its decisions into effect. A determination against the State, that it justly owes to the claimant a specified sum, is to be followed by a “ warrant ” for that sum upon the “ State Treasurer,” (one of the members of such Board,) drawn by another State officer, viz.: the Attorney-General, and to be drawn forthwith.

The creation of this Board is authorized by the Constitution of the State of Michigan. There is, therefore, no question as to the validity of the statute which defines its powers and duties.

Its proceedings and decisions are as truly judicial in their nature as those of any special tribunal constituted by competent authority to hear and decide controversies between the adverse parties thereto, and not proceeding according to the course of the common law, or in the mode usual in Courts of Chancery possessing original and general equity jurisdiction.

In The United States v. Arredondo and others, (6 Peters, 691-729,) Mr. Justice Story declares it to be “ an universal principle, that, where power or jurisdiction is delegated to any public officer or tribunal over a subject matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject matter, and individual rights will not be disturbed collaterally for anything done in the exercise of that discretion within the authority and power conferred. The only questions which can arise between an individual claiming a right under the acts done and the public, or any person denying its validity, are power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer, whether executive, (1 Cr., 170, 171,)— legislative, (4 Wh., 423; 2 Peters, 412; 4 id., 563,)—-judicial, (11 Mass., 227; 11 S. & R., 429, adopted in 2d Peters, 167, 168,)—or special, (20 J. R., 739, 740; 2 Dow. P. Gas., 521, &c.,) unless an appeal is provided for; or other revision, by some appellate or supervisory tribunal, is prescribed by law.”

In the case before us, no question is made as to the power - of the Board to determine upon the claim in question, and how much, if anything, was due from the State of Michigan to the claimants. Although fraud in the defendants is alleged in the complaint, as a ground for setting aside the decision of the Board, and recovering back the money which the plaintiffs have paid to the defendants in pursuance of such decision, yet it is not found as a fact that any fraud was practised or intended by the defendants.

On the contrary, the learned Judge before whom the action was tried at Special Term, in the opinion accompanying his decision, says: “I am gratified in being able to arrive at my conclusions, without any imputation upon the integrity of the officers of the Phoenix Bank. They acted with fidelity to their principals, and without criminality towards the State. They were acting under an honest but gross delusion as to their rights and the responsibility of the State.” (Opinion, p. 31.)

If the rule stated by Mr. Justice Stoby be a well settled rule of law, and if it be true that the powers and duties of the Board are in their nature judicial, and that no fraud was practised by the defendants in their proceedings before the Board; then it necessarily follows (it being conceded that the Board had full jurisdiction of the subject matter,) that its decision is conclusive, although erroneous, and that the money paid cannot be recovered back in this action, upon the facts established on the trial of it.

The decisions involving the proposition asserted by Mr. Justice Story, are uniform in its support.

In Brittain v. Kinnaird et al., (1 Brod. & Bing., 432,) it was asserted as a general principle, established by all the ancient and recognized by all the modern decisions, “ that a conviction by a magistrate, who has jurisdiction over the subject matter, is, if no defects appear upon the face of it, conclusive evidence of the facts stated in it.”

In that case, the defendants had authority, under an act of Parliament, on seizure and search, to condemn and direct to be burnt or sold any boat on the Thames suspected of carrying articles stolen, or unlawfully procured from any vessel. Under this act, the plaintiff’s decked and registered vessel of 15 tons burden, had been seized by police officers, and condemned by the defendants, who were sued as trespassers.

Chief Justice Dallas said, it is urged “ that, in order to give the magistrate jurisdiction, the subject matter of his conviction must be a boat; and that it is competent to the party to impeach the conviction, by showing that this was not a boat.” * * “ The magistrate, it is urged, could not give himself jurisdiction, by find ing that to be a fact which did not exist.” To these views Ohiet Justice Dallas answered: “ But he is bound to inquire as to the fact, and when he has inquired, his conviction is conclusive of it.” -x- -x- * “Much has been said about the danger of magistrates giving themselves jurisdiction, and extreme cases have been put, as of a magistrate seizing a ship of seventy-four guns, and calling it a boat. Suppose such a thing done, the conviction is still conclusive, and we cannot look out of it.”

Similar in principle to the above, are Henderson v. Brown, (1 Caines., 92,) The People v Collins, (19 Wend., 56,) Willis v. Havemeyer, (5 Duer, 447, 459,) and numerous others, too familiar to make it necessary to cite them.

In The Supervisors of Onondaga v. Briggs, (2 Denio, 26-33,) Bronson, Ch. J., in delivering the opinion of the Court, and speaking of the effect of the act of an officer appointed to tax costs, says : “It is of the same general nature as are the decisions made by a judge or commissioner in proceedings under the insolvent laws; the act to punish fraudulent debtors; between landlord and tenant; and the many other cases that might be enumerated. They are all judicial determinations which are conclusive upon the parties, until they have been reversed, vacated or set aside in the forms prescribed by law. They cannot be attacked in a collateral action, save where the Legislature has so expressly provided. This is a principle of universal application. It extends alike to the decisions of the highest court, and the humblest officer in the State who has been entrusted with the exercise of judicial powers. However desirable it may seem, in a particular case, to disregard the rule, it cannot be broken down without doing a great wrong to the community.” * * *

“A power to hear and determine, necessarily includes and carries with it a power which makes the judgment or determination obligatory, without any reference to the question whether it was wrong.” (Id., p. 34.)

If alleged to be erroneous, that question must be investigated and determined in the mode and by the tribunal prescribed by law. If no mode of reviewing the determination is prescribed by law, it is absolutely conclusive upon the parties to the proceeding. It can only be set aside on the ground of fraud of the party, in the proceeding in which such determination was made.

The Board of State Auditors of the State of Michigan, in exercising the powers vested in them, and in performing the duties cast upon them, act under the authority of law: their acts are public, and affect the rights of individuals as well as those of the State Government.' The law under which they thus act is a statute of that State, and that Board is a tribunal created by and under its Constitution and laws. The decision of such tribunal, in pursuance of the law by which it is created and which prescribes its powers and duties, upon any matters within its j urisdiction, is as conclusive upon the State as upon the individuals who are parties to the controversy which it has decided. The State cannot, in such a case, claim any exemption from the operation of the rule which is applicable to natural persons. (United States v. Jones, 8 Peters, 375-385.)

The State of Michigan, by the statutes which define the powers and duties of her Board of State Auditors; and by her Constitution which provides for the creation of such a tribunal to hear and determine all controversies of a specified character between the State and individuals; and by the proceedings which those statutes prescribe for the determination of such controversies; and by the necessary import of the provisions of such Constitution and statutes, consent and agree to be bound by the decision, and undertake, with every person who may be a party to any such controversy between him and the State, to pay, forthwith, any claim which, upon investigation by such tribunal, it shall determine to be just, and the amount it shall decide to be due. (United States v. Jones, supra, and Murray's Lessee et al. v. Hoboken Land and Improvement Co., 18 How. U. S. R., 281-286.)

“ Though, generally, both public and private wrongs are redressed through judicial action, there are more summary extrajudicial remedies for both.” * * “ It is competent for the United States” (or a State Government) “ to sue any of its debtors in a court of law. It is equally clear that the. United States” (or a State Government) may consent to be sued, and may yield this consent upon such terms as it may think just.” (18 How. U. S. R., 283.) x

When the' State of Michigan, under her Constitution and statutes, created the tribunal called the Board of State Auditors of the State of Michigan, to investigate claims against the'State, and declared, by one of these statutes, that any sum, found by such Board to be due to a claimant, should be paid forthwith, she pledged herself to be bound by the decision, and, in so doing,' was as competent to submit to an investigation of claims against her, upon such terms, as individuals are- to submit a real matter in controversy to a court, without action, in á manner prescribed "by law.

When a claim against the' State has been submitted in good faith to a-tribunal thus created, and in the manner prescribed by the laws creating it, and confessedly’ within its jurisdiction, and that tribunal has decided it, and the State has, in pursuance of such decision, paid the sum decided to he due, the money cannot be recovered back, merely because the Court in which a suit may be brought for that purpose is of the opinion that such tribunal was clearly wrong in the conclusion to which it came, or thatfacts existed which, if proved, would have led to an adverse decision.

The complaint, in speaking of the proceedings on the part of the defendants before said Board, alleges “that said defendants intending, as aforesaid, to cheat and defraud the State of Michigan,” made-various representations, which it enumerates and which it avers were false and known to the defendants to be so, and concludes with a prayer “ that said allowance of said claim by said Board • of. State Auditors, and the entry thereof by said Board, be declared to be fraudulent and void as against said plaintiffs, and that the same may be annulled and sét aside.”

Being of the opinion that the decision of the Board of State Auditors is conclusive, until it is found to have been procured by the fraud or by the fraudulent practices of the defendants, I deem" it out of place to enter upon the inquiry whether the defendants, upon the evidence contained in this case in relation thereto, "ever. had any just claim' upon the'" State, or, if it had, whether it forfeited or extinguished such claim by its subsequent transactions with the banks named in the complaint and proceedings in this action.

To whatever conclusion the Judge, at Special Term, might have properly come upon the evidence before him, it is enough to make it necessary to grant a new trial, that he has not found the defendants guilty of any fraud in fact or intent.

Although neither the Attorney-General nor any other person appeared as attorney for the State before said Board, on the auditing of said claim, that fact does not affect the question of the jurisdiction of said Board, nor impair the force of its decision.

It is not found by the Judge that the Board did not notify the Attorney-General. Mo such fact being found, the legal presumption is, that the Board did its duty,' and gave to him the notice required by law.

- For these reasons, I think the judgment should be reversed, and a new- trial granted, the costs of "the former" trial and of this appeal to be costs in the cause, and abide the event.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Felix W. Renick v. John Orser, Sheriff.
    1. In an action against the Sheriff, for the escape of a person arrested by him upon an execution against the body of such person, it is no defense that such execution was issued before one against the property of such person had been issued and returned unsatisfied. ®
    2. The issuing of a ca. sa. before the return of a fi. fa. unsatisfied, is an irregularity merely, and does not make the ca. sa. void.
    3. Section 140 of the Code, by abolishing “ all the forms of pleading ” theretofore existing, has not affected the measure of a sheriff’s liability for the escape of a person committed on a ca. sa., as declared by 2 R. S., 437, § 66. [Sec. 63.]
    4. In such a case, the sheriff is liable for the debt, damages, or sum of money for which such prisoner was committed, and such debt, damages, or sum of money may be recovered of the sheriff, since the Code, where the complaint states all the facts essential, according to the former practice, to a good declaration in debt; and prays judgment for the amount of the judgment on which such prisoner was committed.
    5. Whether interest on such judgment be recovered in an action brought to enforce the liability declared by 2 R. S., 437, § 66. [sec. 63,] Qucere.

    6. In an action for the escape of a prisoner committed on a ca. sa., and duly admitted to the jail liberties; where the escape counted on is alleged and proved to have occurred in August, 1855, it is no defense that in January of that year there was á prior escape; if it appears that the prisoner voluntarily returned into custody and continued there until the second escape, and ii does not appear that the plaintiff had any notice of the first escape before the return of the prisoner into custody; although the action is brought more than a year after the first escape, and the defendant pleads the statute of limitations.
    (Before Bosworth, Ch. J., and Moncrief, J.)
    Heard, February 7;
    decided, March 12, 1859.
    This action comes before the Court at General Term, on a verdict taken subject to the opinion of the Court on questions of law 'arising at the trial, and there ordered to be heard in the first instance at the General Term.
    This action was commenced on the 12th of April, 1856, and was tried before Mr. Justice Hoffman and a jury, January 29, 1858. It appeared on the trial that on the 15th of September, 1854, the plaintiff recovered in this Court a judgment against Solomon Poly for $512.04, in an action to recover the price of goods sold and8 delivered by the plaintiff to Poly. ,

      That on or about the 19th day of September, 1854, an execution was issued on said judgment to the defendant, then being Sheriff of the city and county of Hew York, against the body of said Poly.
    On this execution the defendant arrested Poly, and Poly, as the answer in this action alleges, on the 22d of September, 1854, executed to the defendant as such Sheriff a bond, in the form and _ with the condition prescribed by statute, to entitle Poly to go at large within the jail limits in said city and county.
    When said execution was offered in evidence, “the counsel for the defendant objected to the admission of the same in evidence, unless an execution against the-property of said Poly on said judgment should first be produced and read in evidence.
    “ The Court overruled said objection, and admitted the testimony, and thereupon the counsel for defendant then and there excepted to said decision.
    “ The said execution was thereupon read in evidence.

      “ The counsel for the plaintiff then offered in evidence an order of arrest in said action of Renick against Poly, together with the original affidavit on which the same was granted.
    “But the counsel for the defendant objected to the .admission in evidence of the said affidavit, and the Court thereupon sustained said objection, and refused to admit said affidavit in evidence ; whereupon the counsel for the plaintiff then and there excepted to said decision.
    “ It was thereupon admitted by the respective counsel of the plaintiff and defendant, that the said Poly was arrested by the defendant under said order of arrest and execution.”
    The plaintiff then proved that Poly sailed from the city of Hew York with his family for California, in August, 1855, and also proved by his relatives residing in the city of Hew York, that they had not seen Poly or heard of his being in that city since.
    When the counsel for the. plaintiff rested his. case, the counsel for the defendant moved to dismiss the plaintiff’s complaint upon the grounds:
    1st That the plaintiff had not shown any right to arrest the said Poly on execution, or that the action was one in which thy said Poly might have been arrested.

      2d. That plaintiff had not shown any escape.
    3d, That the action was barred by the statute of limitations.
    4th.' That nó execution against the property of Poly had been issued or returned, before the issuing of the execution against his person.
    The Court overruled the motion upon each and every of the said points so taken, and to the decision of the Court the defendant excepted, and the exception was duly noted.
    The defendant’s counsel then proved that Poly was in Ohio in January and March, 1855, and that he returned to the city; of Hew York in the spring or summer of that year. There was no evidence that the plaintiff or the defendant .knew,.or had,any réasoh to suspect that Poly had been to Ohio, until after his .return within the jail limits of the city and county of Hew York. The defendant.also gave evidence in relation to the property.and pecuniary means of Poly at the time he left for California, and rested.
    The plaintiff then proved that an. execution against the property of Poly had been issued to the defendant as Sheriff of Hew York ¿ounty, on plaintiff’s judgment against Poly, and that the issuing of the execution against Poly’s body, before the actual return of the execution against his property, was in consequence of information given at the office of the Sheriff by his deputy, tó the plaintiff’s attorney^ that the latter execu • tion had been actually returned unsatisfied.
    The evidence tended to show that the deputy was not accu rately understood by the plaintiff’s attorney, or that his answer to the question whether they?, fa. had be,en returned, was calculated to be undérstood in a sense different from that intended by the deputy.

      Th.tdfi. ~fa. was not in fact returned until three days after the ca, sa, was issued to the Sheriff.
    When the" testimony was closed on both sides, the defendant’s counsel moved that the complaint be dismissed on the follpwing grounds: •
    1. By reason of the escape to Ohio, the cause of action accrued more than one year before the commencement of the suit.
    2. The plaintiff did not show that the execution agains,t.the person was preceded by an execution against property, .and that no execution against property had been returned before the execution against the person had been issued.
    3. The execution against property was returned unsatisfied by the direction of the plaintiff.
    4. There was no proof that the case was one in which the defendant could have been legally arrested.
    The jury, in answer to certain questions specially submitted> found, 1st. That Solomon Poly, on the 12th of August, 1856, was out of and beyond the jail limits of the city and county of New York.
    2d. That the principal of plaintiff’s judgment against Poly was §512.04, and that the interest on it to the day of trial was $12(189.
    3d. In answer to the question, “ What was the value of Solomon Poly’s property on the 6th day of August, 1855 ?’’ the jury answered that “the property in'his possession, to wit, his furniture, which realized §80 cash, is all that is proven."
    4th. In answer to the question, “What was the value of Solomon Poly’s property on the 12th day of August, 1856?” the jury answered, “ Not shown.”
    The court thereupon directed a general verdict to be entered for the plaintiff, subject to the opinion of the Court at General Term, upon a motion, to be made by the plaintiff for judgment founded upon a case and exceptions; the defendant’s exceptions to be inserted and to be heard in the first instance at General Term at the same time, with liberty to the Court to adjust the verdict, or to enter judgment for the defendant, or for a dismissal of the complaint.
    At the February General Term, 1859, the defendant moved that the verdict be set aside and a new trial ordered, and the plaintiff at the same time moved for judgment on the verdict.

      William Stanley, for plaintiff.

      David Dudley Field, for defendant.
   By the Court—Bosworth, Ch. J.

On the argument before us, the counsel for the defendant submitted the following points, (and neither argued nor suggested any other,) viz.:

“I. The execution against the person of Poly was void; no execution against his property having been previously issued and returned. (Code, §§ 178, 288, 283; 3 Abbott, 229.)
“II. If Poly had been legally arrested his escape took place as early as March, 1855. This action was not commenced until April, 1856. It should have been brought within the year. (Code, §94.)
“ If it is stated that Poly returned into custody after the escape to Ohio, the answer is, that there is no proof of such return. All the proof is of his being afterwards in the city of Hew York.
“ III. The plaintiff sustained' no damage by Poly’s escape; he had no property beyond what was exempt from execution. This action is for damages. (17 Wend., 543; 3 Seld., 195, 550.)”

On the argument, the defendant’s counsel stated that he should argue the first point only, and did not argue any other, at the same time stating that he did not intend to thereby waive either of the other of said two points, or to concede the plaintiff’s right to recover interest on his judgment, if entitled to recover at all, or that in the latter event, he was entitled to recover mote than he had actually lost by reason of the escape of Poly.

The points made by the defendant’s printed points, will be considered in their order.

By the 7th section of “ An act concerning judgments and executions,” passed April 2, 1813, (1 R. L., 502,) it was provided that “ho execution shall hereafter issue upon any judgment rendered as aforesaid, in any action in which special bail shall have been filed, against the body of any defendant” .* * “until an execution against the goods and chattels, lands and tenements of such defendant shall have been issued upon such judgment,” &c., and shall have been returned, no property, &c.

2 Revised Statutes, (p. 363, § 4,) contains a provision of the same import, though in not exactly the same words.

Section 288 of the Code is not, like the two statutes last cited, prohibitory in its terms, but merely declares, that if the action be one in which the defendant might have been arrested, as provided in section 179 and section 181, an execution may be issued against the body, after the return of an execution against his property has been returned unsatisfied, in whole or in part.

Under the act of 1813, it was expressly adjudged, that the Sheriff, when sued for the escape of a judgment debtor, who was in custody on a ca. sa., could not set up as a defense, that the debtor had been held to bail in such action, and had actually filed special bail, and that no execution against his property had been issued and returned unsatisfied. (Hinman v. Beers, Sheriff, 13 J. R., 529.) The Court held that, at most, it was an irregularity, and the only remedy was a motion to set the execution aside, that it was not void, but was merely voidable. Scott v. Shaw, (13 J. R., 378,) is to the same effect. These cases were decided in 1816, more than 40 years ago.

In 1828, in the case of the Ontario Bank v. Hallett, (8 Cow., 192,) the Court decided that, in such an action, it was no defense to the Sheriff that the ca.sa. was issued after a year and a day from the perfecting of the judgment, without the previous issuing of a sci. fa., and cited the two cases in 13 J. R., supra, as an authority for the proposition. (See Ames et al. v. Webbers, Sheriff, 8 Wend., 545; Anonymous, 2 Hill, 378; Commercial Bank of Oswego v. Ives, 2 Hill, 354; Graham’s Practice, 2d ed., 364, 365; 6 How. Pr. R., 73.)

We cannot hold the execution against the body in this case void, without disregarding a long series of express adjudications. If it is irregular merely, and not absolutely void, the deféndant’s counsel does not contend that the Sheriff can defend on the ground that an execution against property had not been previously issued and returned unsatisfied. His argument is, that the ca. sa. is void, and that the Sheriff, therefore, is not bound to execute it, and that the fact of its being void is a defense to this action.

We consider ourselves required by the decisions to which we have referred to hold, that the ca. sa. was irregular merely, and not void, and that the irregularity in issuing it is no defense to this action.

The escape was a negligent and not a voluntary escape. The return of Poly within the jail limits, after he had been in Ohio, would be an answer and a defense to an action brought aftei such return and while he continued within the limits, for an escape based on his absence from the limits while in Ohio. (Howland v. Squier, 9 Cow., 91; Vanhoesen v. Holley, 9 Wend., 209; 2 R. S., 435, § 51, [sec. 48;] id., 437, sec. 64.) There is, therefore, no defense proved arising out of the statute of limitations.

Section MO of the Code, by abolishing “ all the forms of pleading ” theretofore existing, has not changed the liability of a sheriff as declared by 2 Revised Statutes, 437, section, 66, [sec. 63.] By the latter section, the sheriff, in case of the escape of a prisoner .committed to the jail of his county, in execution in a civil action, is liable to the plaintiff in such execution “for the debt, damages, or sum of money for- which such prisoner was committed.” That section prescribed the action of debt, as the-one in-which such liability for that sum was to be enforced. ■

The Code has abolished a capias ad respondendum, and a “ declaration,” as a process or proceeding by the service of which an action may be commenced. It requires a plaintiff to state in his complaint the facts constituting his cause of action. The plaintiff in the present-action has done that, and alleged in -his complaint all that was requisite to be stated, in an action of debt; and his complaint concludes with demanding “judgment against the defendant for five hundred and twelve dollars and four cents,”- (the face of the judgment,) “with interest -from the 15th of September, 1854,” (the date' of the judgment,) “ and the costs of this action.”

This is hot an action for the recovery of damages, as such, but is an action to “ recover the sum- of money for which such prisoner ” (Poly) “ was committed ” in execution to the jail of defendant’s .county, at the time of .the alleged-escape.

The Sheriff is liable,, at all-events, for $512.04, the amount of the judgment.

The only decisions to which wé-were-referred, or which have fallen under our observation, hold that, in. an- action'of debt "for the escape of a defendant in custody on-a ca. sa., only- the -face of the judgment, without interest, is recoverable. ■ •

Rawson v. Dole. (2 J. R., 454.) This case arose prior to the passage of the statute allowing interest upon the amount of - the judgment-to be collected or demanded ripon the execution-issued thereon.

Van Slyck v. Hogeboom, (6 J. R., 270 and note d,) Thomas v. Weed, (14 Id., 255,) Hutchinson v. Brand. (6 How. Pr. R., 73.) The point of these cases seems to be, that the action of- -debt is in the nature of a penalty, and, by resorting to that action,' the plaintiff,- on the one hand, is not permitted to recover inore than the amount of the judgment, and, on the other, is- not exposed to the hazard of having his recovery reduced below that sum, by proof of the pecuniary irresponsibility of the judgment debtor.

If he chooses to sue in ease, as he may do, he may recover more than the face of the judgment if his actual damages are shown to exceed it, and will be exposed to the recovery of nominal damages only, if the debtor shall be proved to be utterly insolvent.

We think that the plaintiff should have judgment for $512.04, and for that sum only.

Judgment accordingly.


text:
    Charles F. Loosey, Receiver, et al., Plaintiffs and Appellants, v. John Orser, Sheriff Defendant and Respondent.
    1. A Sheriff, who suffers and permits a person, whom he has arrested upon a process for contempt, to escape and go at large, by which process such person is to stand committed until a fine that has been imposed upon him and specified therein is paid, is liable to the party aggrieved for his damages sustained thereby.

      % In such a case, the true measure of damages is the value of the custody of such person, at the time of his escape.
    3: An answer to a complaint in an action for such an escape, which alleges that such person, from the time of his arrest on such process down to the time of putting in such answer, has been utterly insolvent and irresponsible, and has possessed no property of any kind out of which any part of the sum directed to be collected by such process could be made, is, under the Code, sufficient as a pleading.
    4. Such allegations, if true, show that only nominal damages can be recovered.
    5. Pacts constituting a partial, though not a full defense, make an answer, sufficient as a pleading, according to the Code.
    6. A complaint, in an action against a Sheriff for the escape from his custody of a person arrested by him upon a process for contempt, which alleges that the Sheriff “ suffered and permitted such person to escape and go at large,” states a voluntary and not a negligent escape.
    7. An answer (to such a complaint) which, in terms, is stated to be “a further separate and distinct defense,” and which avers that such person “may have wrongfully and privily, and without the knowledge, permission, or consent of this defendant, escaped,” &c., and that, “ if he did so escape, he afterwards” returned into custody, &c., is insufficient as a pleading, as it does not deny, either generally or specifically, the allegation that the Sheriff permitted the prisoner to escape.
    8. The statute requires, as essential to the sufficiency of an answer to such a . complaint, that it contain averments, whatever may be the words used,
    amounting to a clear and distinct - allegation that the alleged escape “was made without the consent of the defendant.”
    9. Each defense in an answer which, by its terms, is declared to be “ a further separate and distinct defense,” must be complete in itself; and cannot be aided by a resort to other .parts of the answer to which it contains no reference in terms, or by necessary implication.
    (Before Bosworth, Ch. J., and Slosson, Woodruff, Pierrepont and Moncrief, J. J.)
    Heard, February 19;
    decided, March 12, 1859.
    This is an appeal by the plaintiffs,'from an order at Special Term, made by Mr. Justice Slosson,- on the 22d of October, 1858, overruling plaintiffs’ demurer to the second and third defenses, stated in the defendant’s answer. ' The action is brought against the Sheriff for the escape of one Stephani from his custody as such Sheriff. Stephani was in custody upon a process for contempt. He had violated an injunction issued in an action, to which he was a party, pending in the Supreme Court, had been duly adjudged guilty of a contempt of Court, and fined on the 24th of' November,. 1855, $8,937.70, and was ordered to stand committed until that fine was paid, which fine, by the terms of the conviction, was to be paid to the plaintiffs. The complaint states all the proceedings prior to and resulting in such adjudication, the adjudication itself, the process issued to the defendant, as Sheriff, thereupon; the arrest by him of Stephani on such process, on or before the 12th of December, 1855, and then alleges that the Sheriff so having Stephani in his custody, “ after-wards, to wit, on the day and year last aforesaid, and on divers days and times between that day and the first day of January, in the year one thousand eight hundred and fifty-six, at the said City and County of New York, without the leave or license, and against the will of the said plaintiffs, suffered and permitted the said Charles L. Stephani to escape and go at large; and the said Charles L. Stephani did then and there escape and go at large wheresoever he would, out of the custody of the said defendant, he, the said defendant, so then being Sheriff as aforesaid, and the said sum of money so mentioned in the said writ as aforesaid being then and still wholly unpaid and unsatisfied, whereby an action hath accrued to the said plaintiffs to demand and have, and they do demand judgment against the said defendant for the said sum of eight thousand nine hundred and thirty-seven dollars and seventy cents, with interest thereon from the twenty-fourth day of November, one thousand eight hundred and fifty-five, and the costs of' this action.”
    The answer, first, denied each and every allegation of the complaint, except it admitted the receipt by the defendant of the warrant of commitment, on the 12th of December, 1855, the arrest of Stephani thereupon; that the defendant was then Sheriff, and continued to be until the 1st of January, 1856, and some other allegations having no connection with the questions raised by the appeal. The answer then proceeds, and concludes as follows, viz.:
    “ And as a further and separate and distinct defense, (the second defense,) this defendant alleges, that after the arrest of the said Stephani, the said Stephani may have wrongfully and privily, and without the knowledge, permission or consent of this defendant, escaped from out of the custody of this defendant, to places to this defendant unknown; but this defendant alleges, that if the said Stephani did so escape, he afterwards, and before the commencement of this action against this defendant, voluntarily, and of his own accord, returned back within the walls of the jail of the said city and county, into the custody of this defendant, and that this defendant did then and there closely keep and detain the said Stephani until the first day of January, 1856, on which day this defendant’s term of office as such Sheriff, expired, when he assigned and delivered over the said Stephani to James 0. Willett, who had been duly elected to the office of Sheriff of the City and County of New York, and who duly qualified and gave the security on that day required by law, in such case made and provided, and duly entered upon his duties as such Sheriff on that day.
    “ And this defendant, as a • further, separate and distinct defense, (the- third defense,) or by way of mitigation of damages, upon his information and belief, alleges and insists that the said Stephani was, at the time of his alleged arrest, and down to the first day of January, 1856, and hath ever since been utterly insolvent and irresponsible, and did not possess at the time the said alleged arrest was made, nor at any time down to the 1st of January, 1856, nor has he since been possessed of any real or personal property of any name or nature, or of any means whatever, out of which the said amount mentioned in said writ, or any part therfeof, could have been collected or satisfied; and the defendant alleges that the plaintiffs have not sustained' any damage, or any other than nominal damage, by reason of the alleged escape of the said Stephani.
    “ Wherefore, the defendant demands and insists that the said complaint be dismissed", with costs and disbursements of action.”
    “ The plaintiffs demurred to the second defense stated in the answer of the above named defendant, to the complaint in this action, for insufficiency, on the following grounds:

      “ 1. The allegation in said defense, setting up the voluntary return of the prisoner into custody before suit brought, that he may have wrongfully, privily and without the knowledge, permission or consent of the defendant, escape, is not well pleaded, the complaint being for a voluntary escape only.
    “ 2. The commitment under which the prisoner was held was final process, and his voluntary return into custody after an escape, did not deprive the plaintiffs of their right to sue the Sheriff for an escape.
    “ 3. The commitment was not criminal process within the meaning of the rule, that the Sheriff can retake a prisoner whom he has voluntarily permitted to escape from imprisonment, on final criminal process.
    “ 4. That the said second alleged defense is insufficient in other respects.
    “ The plaintiffs also demurred to the third defense stated in the answer of the defendant to the complaint in this action for insufficiency, on the following grounds:
    “ 1. This being the action of debt for an escape on final process, the plaintiffs, if entitled to recover at all, are absolutely entitled to recover the amount, to enforce the payment of which the prisoner was committed; and the part of the answer setting up facts in bar or mitigation of damages, is therefore no defense to the action.

      “2. That said third defense stated in said answer is in other respects insufficient.”
    Both demurrers were overruled, and from the order overriding them, the plaintiffs appealed to the General Term.

      Jeremiah Larocque, for appellants (the plaintiffs).
    I. The statutes regulating the action for an escape, in this case are 2 Revised Statutes, (p. 437, marginal paging, original §§ 61 to 66.)
    II. The voluntary return into custody, before suit brought, is therefore no excuse to the Sheriff, because section 64 in express terms allows that defense only where it is coupled with the averment that “ such escape was made without the consent of such defendant.”
    HI. The general denial of the allegations of the complaint, contained in a preceding part of the answer, is not a compliance with this requirement of the statute.
    1. That part of the answer containing that general traverse is pleaded as a separate defense by itself; and the subsequent defense setting up the voluntary return into custody, contains no reference whatever to the former. (Xenia Branch Bank v. Lee, 7 Abb., 372; S. C., 2 Bosw., 694.)
    2. But if that general traverse were actually incorporated into this defense it would not suffice. The object of the requirement in the statute is to probe the conscience of the defendant by making him expressly affirm the absence of consent on his part to the escape, not to allow him to slur it over, by claiming that it is embraced in a denial in the form of a mere general issue. (Ford v. Babcock, 2 Sandf., at p. 523, and cases cited.)
    TV". It is substantially conceded by the learned Judge, in his opinion at Special Term,' that the clause in this defense to the effect that after the arrest of the said Stephani, he “ may have wrongfully and privily, and without the knowledge, permission or consent of this defendant, escaped from out of the custody of this defendant, to places to this defendant unknown,” is not, as required by the statute, pleading “that such escape was made without the consent of such defendant.” This is manifestly so, as alleging that a man may have done one thing is never an averment that he has not done another.

      V. The statute having regulated the whole subject, the question whether the commitment is to be regarded as civil or criminal process, or what, before the statute, would have been the different shades of liability, or rights of the Sheriff under the one or the other, is of no importance except in so far as it may afford light to the Court in construing the statute itself.
    VI. Before the statute, and treating this as criminal process, and admitting that it was the right and duty of the Sheriff to retake the prisoner, even after a voluntary escape, all this would not have excused the Sheriff from his common law liability to the parties interested in the safe custody of the prisoner, incurred by reason of the previous escape. (Hawkins’ Pleas of the Crown, b. 2, ch. 19, § 13; Ridgeway's Case, 3 R., 52; 1 Hale’s Pleas of the Crown, p. 602; 1 Rolle’s Abridg., 810, Escape G., 1, 2; Minton v. Woodworth, 11 Johns., 474; Lansing v. Easton, 7 Paige, 364; Wheeler v. Bailey, 13 Johns., 366; Pulver v. McIntyre, 13 Johns., 503; Thompson v. Lockwood, 15 Johns., 256; Brown v. Littlefield, 1 Wend., 898; Lansing v. Fleet, 2 Johns. Cas., at pp. 14, 15, opinion of Benson, J.)
    VII. The plaintiffs are entitled to recover in this case the whole amount of the fine, to enforce the payment of which Stephani was committed, and interest, and his inability to pay is no defense either in bar or in mitigation.
    1. This is the invariable rule in the form of action where the plaintiff’s claim had become liquidated and reduced to a certainty by a judgment, and when the process is in the nature of final process to collect a certain liquidated amount. (Van Slyck v. Hogeboom, 6 Johns. R., 270; Thomas v. Weed, 14 id., 255; Rawson v. Dole, 2 id., 454.)
    2. This is so, because the imprisonment of the body in such a case is, while it continues, satisfaction of the debt. The plaintiff, by suing the Sheriff, elects tó consider the defendant out of custody.
    3. The reason why the 61st section, in reference to the measure of the Sheriff’s liability, provides.that “he shall be liable to the party aggrieved for his damages sustained thereby,’’ is that the process of contempt from which the defendant escapes, may be either the'attachment, corresponding to the mesne process in a civil action, or the final commitment, corresponding to the execution; and even where it is the latter, the commitment may include both a fine, payable to the party for his damages sustained by the contempt, and a fine payable to the people for the criminal contempt, and the same commitment may include different fines, payable to different aggrieved parties. The language of the statute is therefore to- be taken distributively, as applicable to these different cases. It did not intend to alter the rule of damages, as applicable to mesne or final process.
    4. The case provided for by the 63d section, on the contrary, is the single one where there is a single sum recovered by judgment, payable to the plaintiff in the suit, or what is equivalent, as hereinafter shown, by attachment for costs, and the imprisonment is in execution on that judgment or attachment; and that section, therefore, uses language applicable only to that-one specific case.
    5. The policy of the law would be entirely defeated if the Sheriff were allowed to speculate as to the amount of liability that he w.ould probably incur by permitting the party committed to go at large.
    6. The very nature of the process supposes that the party committed is a fraudulent debtor, whose means are kept concealed, and from whom payment can only be enforced by actual bodily restraint. If, therefore, the Sheriff were at liberty, after suffering a voluntary escape, to reduce the recovery against him to nominal damages, by calling his accomplice to' swear that he had not means to pay the fine, the process of commitment would be but an idle ceremony.
    VIII. This construction is still further fortified by comparison of sections 61, 62 and 63.
    1. In section 61, where mesne and final process of contempt are included in one section, the form of action is not prescribed, but the plaintiff is left at liberty to bring either case or debt, as' the escape may have been from mesne or final process, and the language declaring . that the Sheriff shall be liable to the party aggrieved for “his damages sustained thereby,” is likewise distributive.
    2. In section 62, on the other hand, providing only for the case of mesne process in civil actions, trespass on the case is expressly prescribed as the form of action, and the recovery expressly limited to the “ extent of the damages .sustained by him while
    8. In section 68, providing exclusively for the case of final process in civil actions, debt is expressly prescribed, as the form of action, and the “ debt, damages or sum of money for which such prisoner was committed” as the amount of the recovery.
    IX. • The learned Judge, at Special Term, as is evident from the whole tenor of his opinion, lost sight of the controlling consideration in this case; that as the Revised Statutes have now regulated the whole-subject of the Sheriff’s liability, in an action for an escape, and have made no distinction for that purpose, except such as is to.be drawn from the language of the sections themselves, between civil- and criminal process,-whether the commitment-in.this case is to be regarded as the one or the other, is of no importance whatever. Thus, a voluntary return in case of a mere negligent escape, is as good a defense to the Sheriff, under the statute, in case of an execution, as in that of process of contempt, and is- -no better, defense in case of a voluntary escape, under the statute,, where the process is for contempt, than where it.is an execution.
    X. The -learned Judge also manifestly drew an inference unfavorable to the construction of the statute, contended for on the part -of the plaintiffs,-from the fact of the attachment for costs being grouped in. the same section, and made subject to .the same rules as an- execution upon a judgment. It -is respectfully submitted that the inference should be directly the contrary.
    1. The attachment' for non-payment of costs is peremptory and final in the -first instance, following immediately upon the order of the court for the payment of the costs, as the execution does upon the judgment. (2 R. S., marg. p. 586, § 4.)
    2. It is, .therefore, the only case where the process of contempt to,.enforce civil rights and remedies must inevitably be final as distinguished from mesne process.
    3...The Legislature, by coupling it with the execution in regulating. the action for, escape, thus evidenced the-intention of assimilating the remedies in that action, in cases of civil actions and: of. process of contempt, in all respects.
    XI. - -The use of the word “ damages,”- in the 61st and 62d sections, in place of,the wcrds “debt,-damages, or "sum of money, for which such prisoner was committed,!’ in the 63d section, affords no presumption against the construction contended for.
    1. The word “ damages ”.is a word of known legal signification, applicable as well when the measure or rule of damages is a fixed and certain amount, as when the damages are unliquidated and uncertain.
    2. It was, therefore, the most appropriate word to use in a distributive sense, where both classes of cases were to be provided for, as in section 61.
    3. The Legislature, by the change of phraseology from the words “ for his damages sustained thereby,” in the 61st section, to the words “to the extent of the damages sustained by him,” in the 62d section, gave further evidence that this distinction was constantly and carefully kept in view, and the word “ damages ” employed in its proper distributive sense. The judgment of the Special Term, overruling the demurrers to the answer, should, therefore, be reversed, and judgment rendered for the plaintiffs, upon those demurrers.
    Wm. Curtis Noyes and A. J. Vanderpoel, for respondent (the defendant).
    I. The commitment of Stephani was upon process for a con- . tempt, and in the nature of, if not actually as a punishment for, a criminal offense. No act, therefore, could be done or suffered by the Sheriff which would deprive him of the right to re-arrest Stephani, and commit him to prison, or keep him in prison, if he voluntarily returned into custody under such process. (Lansing v. Easton, 7 Paige, 364, 7; People v. Stone, 10 Paige, 606; People v. Spalding, id., 286; S. C., 7 Hill, 301; S. C., 4 How. U. S. R, 21; Clark v. Cleveland, 6 Hill, 344.)
    II. Conceding, for the sake of the argument only, that an action for an escape will lie in such a case as this, at'the suit of the party to whom the -fine imposed for the contempt may be payable, still a retaking on fresh pursuit; or (as in this case) a voluntary return to custody, before suit brought, may be pleaded, and constitutes a good defense. (Bacon Abr., Escape, “H;” 2 R. S., 437, § 62.)
    HI. The defense of such voluntary return is properly pleaded.

      1. The answer denies the permissive escape, as shown by J edge Slossow in his opinion.
    • 2. The answer upon that subject, though in the subjunctive, is in accordance with all the ancient precedents. (3 Chitty’s PL, 5 Am. ed, 958, 959; West v. Myles, 2 W. Black. R., 1059.) '
    IV. If this/ is a case in which the plaintiffs can sustain any action, still they can only recover the actual damages sustained by means of the escape, and therefore the last branch of the defense, that Stephani was utterly insolvent, and that, consequently, nothing could be recovered of him by means of the imprisonment, was properly pleaded in mitigation of damages. (Bacon’s Abr., Escape, “F;” Stat., Westm. 2, chap. 11; 2 R. S., 437, §§ 62, 63; Laws 1847, ch. 390, §2; 2 R. S., 4th ed., 681; Sedg. on Damages, 2d ed., 508; Ledyard v. Jones, 3 Seld., 550.)
    The order overruling the demurrer should be affirmed, with costs.
   By the Court—Bosworth, Ch. J.

Section 8 of the act of the 19th of March, 1787, (Laws of N. Y., Greenl. ed., vol. 1, p. 410,) and section 21 of the act of April 6, 1813, (1 R. L., p. 426,) ’ so far as they relate to a prisoner committed to prison “ upon contempt,” are, in substance, the same as section 64 [section 61] of 2 Revised Statutes, 437, except that the latter section declares the sheriff, in case he suffers or permits any prisoner so committed “to go or be at large out of his prison,” “shall be liable to the party aggrieved for his damages sustained thereby, and shall be deemed guilty of a misdemeanor.” The two statutes first cited contain no provision in respect to the extent of the Sheriff’s liability for such an escape.

Section 8 of the act first cited, and sections 19 and 21 of the act of 1813, provided for the case of the escape of a prisoner committed “ upon mesne process, or in execution,” as well as “upon contempt.”

But, after the passage of the act of April 5, 1798, (Sess. 24, chap. 91,) regulating the liberties of jails, (and see 1 R. L., 427, chap. 69, § 6,) the Sheriff was at liberty to allow the prisoner, committed on mesne process or in execution, to go at large within the liberties of the jail, without being liable for an escape, provided such prisoner did not go without such liberties.

In the revision of 1830, the Revisors intended, by section 64 [section 61,] (2 R. S., 437,) to provide for .those cases only where a prisoner was required to be kept m close confinement. That section, and the three which immediately succeed it, were regarded as declaratory of the then existing law, and not as introducing any new rule of liability on the part of Sheriffs for the escape from their custody of any prisoner named in either of those sections. (Rev. Rep. and Notes, 3 R. S., p. 747, art. 4: “Of escapes, and the liability of Sheriffs therefor.”)

It was also perfectly well settled, that a Sheriff could be sued only in case for any escape, prior to the statutes which authorized an action of debt, for the escape, of a party committed upon an execution from a court of record, on a judgment in a civil action.

The statute has not authorized an action of debt for the escape of a prisoner committed “upon contempt,” or “ upon process for contempt,” nor declared that when such a prisoner is required^ by the terms of the process on which he is committed, to be kept in close custody until he pays a sum certain, as a fine imposed upon him, the Sheriff shall be liable, if an escape occurs, for such sum, absolutely and at all events. On the contrary, it declares that he shall be liable for such damages as the aggrieved party shall have'sustained thereby. (2 R. S., 437, § 64, [sec. 61.])

Where the statute has not provided a different form of remedy, case is the only form of action which can be brought against the Sheriff for the escape of a party committed to his custody. And where the statute has not prescribed a different rule of liability, only the actual damages sustained by reason of the escape can be recovered.

And although the statute authorized, in the case of an escape of a party committed on a ca. sa.] the recovery from the Sheriff, in an action of debt, of the “debt or damages” for which the prisoner escaping “was committed,” yet that remedy has uniformly been held to be cumulative to the remedies at common law. By resorting to that remedy, the plaintiff can recover the amount of his execution, and only that; whereas, if he brings case, as he may do, he will be entitled, on some states of facts, to recover interest on the amount of his judgment, and, on others, may have his recovery reduced to nominal damages.

That case alone will lie, unless the statute has otherwise provided, and that, in an action on the case, only actual damages are-recoverable, is settled by Rawson v. Dole, (2 J. R., 454,) Van Slyck v. Hogeboom, (6 id., 270, and cases cited in note d,) Spafford v. Goodell, (3 McLean, 97,) Lash v. Ziglar, (5 Iredell Law R., 702,) Patterson v. Westervelt, (17 Wend., 543,) Fairchild v. Case, (24 id., 381,) and Smith v. Hart, (1 Brev., 146, and note.) (See Robinson’s Pr., vol. 2, p. 581, title 5, chap. 61, §§ 4, 5, and 6.)

Some of these cases also determine that when debt is brought for the escape of a party committed in-execution, only the principal ; of the execution, without interest, is recoverable under a statute fixing the debt or damages for which the prisoner wás committed, as the sum to be recovered.

The section of the Revised Statutes applicable to the present case, (2 R. S., 437, § 64, [sec. 61,]) makes the Sheriff “liable to the party aggrieved for his damages "sustained thereby,” that is, by the escape. It is, therefore, only the actual damages sustained by the aggrieved party that can be recovered. The true measure of damages is the value of the custody of- the debtor at the moment of -the escape. That value must depend upon the circumstances of each particular case.

If the -party in- custody, upon process for contempt, is to be held in custody only until he pay a pecuniary fine -imposed upon him, and if-he is utterly insolvent, the damages must necessarily be nominal. - If he is ordered to stand committed until he perform a specified act which he has the power to perform, (2 R. S., 538, § 23,) 4he value of his custody must depend upon the nature of the act, and the consequences to the aggrieved party of a failure to secure its performance.

Since the act of 5th and 6th Victoria, (c. 98, § 31,)" by which the only action against a Sheriff for an escape on final process is an action- on the case-for such damages as the plaintiff-may have sustained by reason of such escape j it has been decided that the measure of damages is-the value of the custody of the debtor at the "moment of" the 'escape. (Arden v. Goodacre, 5 Eng. L. & Eq. R., 436.)

By the-"statutes-of Massachusetts, the action of debt for an escape on final process has been abolished. The rule established by the Supreme Court of that State, since that change was-made, is, that “ the creditor may have an action on the case against the officer, to recover such damages as he shall have suffered by the escape.” (Chase v. Keyes, 2 Gray, 214.)

The rule applied in these cases is, substantially, the rule of damages prescribed by 2 Revised Statutes, 437, section 64. [Sec. 61.] And we think it quite clear, that although the plaintiff is, prima facie, entitled to recover the amount of the fine, yet the statute has not prescribed that sum as a fixed rule of damages; but, on the contrary, the defendant is at liberty to plead and prove, if he can, that at the time of the escape the prisoner was wholly destitute of property.

The following cases are also pertinent to many of the propositions already stated, and are authorities which sustain them: Stone v. Wilson, (10 Gratt., Va., 529,) Howard v. Crawford, (15 Geo., 423,) The State v. Halford, (6 Rich., 58,) Hodges v. State, (8 Ala., 55,) Prather v. Clarke, (3 Brev., 393,) The State v. Johnson, (1 Cart., In., 158,) Wheeler v. Pettes, (6 Washb., 398.)

The matter stated in the answer as a separate and third defense, makes it sufficient as a pleading under the Code, which requires matters to be pleaded which constitute only a partial defense, as well as those which constitute a full defense. (McKyring v. Bull, 16 N. Y. R., 297.)

In this view of the rights and liabilities of the parties, it is immaterial whether the escape described in the complaint is to be regarded, on an admission (by reason of demurring,) of the truth of the allegations as stated in it, as a voluntary or as a negligent escape. The Sheriff is at liberty to allege and prove-the insolvency of the prisoner in reduction of the damages which might otherwise be recovered against him, whether the escape was voluntary or negligent. It follows that the demurrer to the third separate defense was properly overruled.

The only remaining question relates to the sufficiency of the second separate defense stated in the answer.

The complaint avers that the Sheriff “suffered and permitted the said Charles L. Stephani to escape and go at large." The words of the statute are, that “if any sheriff or keeper of a jail shall permit or suffer any prisoner so committed to such jail to go or be at large out of his prison,” &c., “ he shall be liable,” &c. (2 R. S., 437, § 64, [sec. 61.]) The complaint uses the words of the statute—suffer, permit, and uses them conjunctively.

'Asa voluntary return, or fresh pursuit and recapture of tho prisoner before suit brought, is a full defense in case of a negligent escape, it would seem to be illogical to require a sheriff to state, as essential to a sufficient plea to a declaration charging only a negligent escape, that the “escape was made without the consent of such .defendant,” (id., § 67, [sec. 64,]) in addition to averring fresh pursuit and recapture, or a voluntary feturn into custody before suit brought against the Sheriff. “Permit” implies consent given or leave granted.

When it is admitted on the record, or has been found by a jury, that the Sheriff permitted a prisoner in his custody to escape, it must be understdod to be an escape by consent. It was so deliberately 'held in 1802, in Holmes v. Lansing, (3 J. Cas., 73,) and we have not been referred to any subsequent adjudication which questions its accuracy.

The second defense states that Stephani “ may have wrongfully and privily, and without the knowledge, permission or consent of this defendant, escaped,” &c., “ but this defendant alleges, that if the said Stephani did so escape,” he returned into custody, &c.

It does not deny that the Sheriff permitted him to escape, nor allege, as a fact, that he escaped without the Sheriff’s consent. It merely says, that if he ever did escape without the Sheriff’s consent, he voluntarily returned into custody before suit brought and has been since kept in custody.

The allegation that the Sheriff permitted him to escape is not denied either generally or specifically, (Code, § 149,) or by the insertion of an averment in the answer, which, if true, would be inconsistent, or in conflict with such allegation.

The statute requires an averment, whatever may be its words, which amounts in substance to a clear and distinct allegation that the escape stated in the complaint “ was made without the con sent of. the defendant.” The second separate defense contained in the defendant’s answer has no such averment, either in form or in substance.

The form of this part of the answer is not justified by the precedents for special pleas, in such actions, to which we were referred and found in Chitty’s Pleadings. (7 Am. ed., vol. 3, pp. 958, 959.)

They allege, in absolute terms, that the escape was without the knowledge or consent of the defendant; a voluntary return or recapture before suit brought; the continuance of the prisoner in custody; and that such escape and that alleged in the declaration, are one and the same escape.

The proper form of a replication to such a plea is found in the same volume, p. 1170.

Section 168 of the Code gives to a plaintiff the same rights upon a trial as if he had put in a sufficient replication in proper form.

We think this defense, as the part of the answer containing it now reads, wholly insufficient.

It cannot be aided by a reference made by counsel on the argument, and not made by the defense itself, to another and separate defense contained in the same answer, and by assuming to incorporate some allegations found in the latter into the former.

By permitting such a practice, any one and each of several defenses, all of which, as being insufficient, are separately bad and demurrable, would be severally good if the same answer, in -a distinct and independent part of it, denied some allegation of the complaint, without proving which the plaintiff could not recover.

Each defense in an answer, which, by the very words of-such defense, is declared to be “a further, separate and distinct defense,” must be complete in itself, and must contain all that is necessary to answer the whole cause of action, or that part of it which it professes to answer. (The Xenia Branch Bank v. Lee, 7 Abb. Pr. R., 373; S. C., 2 Bosw., 694.)

It cannot be made good by a resort to other distinct parts of the answer to which such defense contains no reference, either in terms or by necessary and just construction.

So much of the order appealed from as overrules the demurrer to the second defense is erroneous and should be reversed, and judgment given for the plaintiff thereon, but with liberty to the defendant to amend so much of the answer as contains such defense, and the order should, in other respects, be affirmed, but with liberty to the plaintiff to withdraw his demurrerto the third defense.

Neither party is to have costs of this appeal, and either party availing himself of the liberty hereby granted, will do so upon the condition of waiving the costs of the demurrer, and of the proceedings had upon it at Special Term.

Ordered accordingly.