Loosey v. Orser — 17 N.Y. Super. Ct. 391

Majority

p. 391

Charles F. Loosey, Receiver, et al., Plaintiffs and Appellants, v. John Orser, Sheriff Defendant and Respondent.

Headnote

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

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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

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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

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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.

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“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.

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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 execu

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tion; 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 ex

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pressly 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,

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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.

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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.

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.

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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.

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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,

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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.

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'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

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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.