632

ESCAPE.
Escape.

the limits of the jail, and not depart therefrom," arcta custodia. Steere v. Field, 2 Mason's C. C. &c., is not broken, by the escape of the prisoner, R. 486. while in a state of insanity. Hazard v. Hazard et al., 1 Paine, 295.

4. The liability of the sureties in a prison bounds bond, for an escape, is not coextensive with that of the sheriff. As it regards the latter, the prisoner, on the limits, is supposed to be in his immediate custody; and the escape of an insane prisoner, therefore, is as much a negligent escape as any other; and he is not allowed to excuse himself, when he might so easily collude, or be imposed upon. But there is no analogy, in these respects, between a sheriff and the sureties. Ibid.

5. Under the act of congress of January 6th, 1800, ch. 158, the sheriff of a county is bound to take a bond for the limits, as provided by the state laws, from a prisoner confined on process from the courts of the United States; and false imprisonment would lie on his refusal. Such a bond has, in all respects, the same incidents, and the like legal effect with a bond taken under the state laws. It is assignable; and an assignment discharges the sheriff from liability for a subsequent escape. The United States v. Noah, 1 Paine, 368.

6. The United States are expressly named in the act, and bound by it; and an assignment of the bond to them, when they are plaintiffs, is valid. Ibid.

7. The secretary of the treasury having accepted such an assignment, will be presumed to be authorized; and the United States are bound by such acceptance. Ibid.

8. The term "process," includes executions as well as mesne process. Ibid.

9. After a prisoner has been enlarged upon a limit bond, the sheriff can confine him again only on the bail's becoming insufficient: he cannot accept a surrender of him; at all events, not after an assignment of the bond. Ibid.

10. If a debtor, committed to the state jail, under process from the courts of the United States, escape, the marshal is not liable. Randolph v. Donaldson, Cranch, 76; 3 Cond. Rep.

280.

14. It is an escape, in the gaoler, to make a with the keys of the outer doors, as well as inprisoner for debt a turnkey; and to entrust him ner doors, at all times by night and by day. Ibid.

goal, on execution by the sheriff, and no new 15. If the gaoler be committed to his own keeper is appointed, it is an escape of the gaoler, for which the sheriff is answerable; but it is not an escape of the other prisoners, if they are in fact kept in custody, under the authority of the gaoler or his agents. Ibid.

is the same as at common law; and the statutes 16. In Rhode Island, the doctrine as to escapes giving the liberty of the limit to prisoners, on giving bonds not to escape, &c. have not altered the common law. In Rhode Island, an action of debt for an escape, is a legal remedy; that action being incorporated into the laws by implication, by the adoption of the laws of England. Ibid.

jail limits in Rhode Island, required the party 17. Where the conditions of a bond for the to remain a true prisoner in the custody of the the prison, "until he shall be lawfully diskeeper of the prison, and within the limits of charged, without committing any manner of escape or escapes, during the time of restraint, in full force and virtue:" Held, that a discharge then this obligation to be void, or else to remain under the insolvent laws of the state, obtained from the proper court, in pursuance of a resolufrom all his debts, &c. and "from all imprisontion of the legislature, and discharging the party for," was a lawful discharge; and that his going ment, arrest, and restraint of his person there at large under it, was no breach of the condition of the bond. Mason v. Haile, 12 Wheat. 370; 6 Cond. Rep. 535.

court of the United States against the drawer 18. After judgment obtained in the circuit of a note, a capias ad satisfaciendum was issued against him by the holder, and he was put in prison. Two justices of the peace ordered his discharge, claiming to proceed according to the

ors; and the jailor permitted him to leave the prison. The jailor made himself and his securities liable for an escape, by permitting the prisoner to leave the prison. Bank of the United States v. Tyler, 4 Peters, 366.

11. The act of congress has limited the re-law of Kentucky, in the case of insolvent debtsponsibility of the marshal to his own acts, and the acts of his deputies. The keeper of a state jail is, neither in fact nor in law, the deputy of the marshal; he is not appointed by, nor removable at the will of the marshal. When a prisoner is regularly committed to a state jail by the marshal, he is no longer in the custody of the marshal, or controllable by him. Ibid.

12. Under the laws of Rhode Island, a discharge according to the act for the relief of poor prisoners for debt, although obtained by fraud and perjury, is a lawful discharge, and not an escape; and upon such a discharge, no action can be maintained upon a bond for the liberty of the prison limits. Ammidon v. Smith et al., 1 Wheat. 447; 3 Cond. Rep. 619.

a

13. At common law, it is not an escape for gaoler to allow prisoners, confined for debt, the liberty of all the apartments within the jail wall; for confinement within the walls, is salva et

Madison county, Mississippi, he having received 19. Action for an escape against the sheriff of an action in the circuit court of Mississippi, into his custody, as a prisoner, the defendant in taken under execution, and having suffered and permitted him to escape. The declaration set out the judgment obtained by the plaintiffs against Scott, the defendant in the circuit court, the execution, the arrest of Scott, and his delivery to Long as the sheriff, who received him tained him until, without leave or license of the into his custody under the execution, and deplaintiffs in the execution, and against their will, he suffered and permitted him to escape and go at large, &c., &c. To this declaration the de

Escrow.-Estates of Decedents.—Estoppel.

4. A bond cannot be delivered to one of the obligees as an escrow. Moss v. Riddle, 5 Cranch, 351; 2 Cond. Rep. 277.

fendant pleaded, that he does not owe the sum 3. If one of the obligors, at the time of exeof money demanded in the declaration, "in cuting the bond in the presence of some one manner and form as complained against him;" of the other obligors, say, "we acknowledge and the jury found that the defendant Long this instrument, but others are to sign it," this "doth owe the debt in the declaration men- is evidence from which the jury may infer a tioned, in manner and form as therein alleged," delivery as an escrow by all the obligors who and assessed damages for the detention thereof, were then present. Ibid. at one thousand and sixteen dollars and ninetysix cents; upon which the court gave judgment for six thousand three hundred and fifty-six dollars, and one thousand and sixteen dollars and ninety-six cents damages and costs. Held, the judgment of the circuit court is correct, under the provision of the statute of Mississippi of 7th June, 1822. The jury were not required in the action to find specially that the prisoner escaped with the consent, and through the negligence of the sheriff. The plea alleged that the defend-it ant did not owe the sum of money demanded, "in manner and form as the plaintiff alleged against him." This plea put in issue every

material averment in the declaration. On this issue, on the most strict and rigid construction the jury have expressly found all that is required to be found by the requirements of the act. Long v. Palmer, Smith and Co., 16 Peters, 65.

20. If the sheriff suffer or permit a prisoner to escape, this, both in common parlance and legal intendment, is an escape with the consent

of the sheriff. Ibid.

21. The object of the act is to make the sheriff responsible for a voluntary or negligent escape, and that this shall be found by the jury; and if this appears from the record by express finding, or by the necessary conclusion of the law, it is sufficient. Ibid.

22. A debt was recovered by a citizen of the state of Ohio, in the circuit court of Pennsyl vania; and the defendant was arrested by a capias ad satisfaciendum issued on the judgment, and, after his arrest by the marshal, was delivered into the custody of the sheriff of York county, and by him was imprisoned. He applied to an associate judge of the court of common pleas of the county, and gave a bond with security to take the benefit of the insolvent laws of Pennsylvania. The sheriff discharged him from prison. Held, that the sheriff was liable to the plaintiff in the execution for an escape. Duncan v. Darst et al., 17 Peters, 204.

See STATE INSOLVENT LAWS.

ESCROW.

1. A bond may be delivered as an escrow, by the surety, to the principal obligor. Pawling et al. v. The United States, 4 Cranch, 219; 2 Cond. Rep. 92.

2. The bond upon its face purports to be delivered absolutely; and it is not to be doubted the obligees would be more secure against fraud, if the evidence that the writing was delivered as an escrow appeared upon its face, than by admitting parol testimony of that fact. But the law is settled otherwise, and is not to be disturbed by the supreme court. Ibid.

ESTATES OF DECEDENTS.

1. On the death of the ancestor, the land

owned by him descends to his heirs. They hold subject to the payment of the debt of the ancestor, in those states where it is liable to the prejudice of creditors. In fact, and in law, they have no right to the real estate of their creditors shall be paid. Watkins v. Holman, 16 ancestors, except that of possession, until the Peters, 25.

such debts. The heirs cannot alien the land to

The

2. No objection is perceived to the power of ceased person to the payment of his debts, to the legislature to subjecting the lands of a dethe exclusion of the personal property. legislature regulates descents and the conveydebtor and creditor is their common duty; the ance of real estate. To define the rights of whole range of remedies lies within their province. Ibid.

ESTOPPEL.

1. The principle of estoppel originates in the relation between lessor and lessee; and, so far as respects them, is well established, and ought to be maintained. The title of the lessee is in fact the title of the lessor. He comes in by virtue of it, holds by virtue of it, and rests upon it to maintain and justify his possession. It is a part of the very essence of the contract under which he claims, that the paramount ownership of the lessor shall be acknowledged during the continuance of the lease, and possession shall be surrendered at its expiration. He cannot be allowed to controvert the title of the lessor, without disparaging his own; and he cannot set up the title of another without violating the contract by which he obtained and holds possession, and breaking that faith which he has pledged, and the obligation of which is still continuing in full operation. Blight's Lessee v. Rochester, 7 Wheat. 535; 5 Cond. Rep. 335.

2. The propriety of applying the doctrines between lessor and lessee to vendor and vendee, may well be doubted. The vendee acquires the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title, unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become by sale the property of the

General Principles.

vendee, he has a right to fortify the title, by the purchase of any other which may protect him in the quiet enjoyment of the premises. Ibid.

3. The recital of a previous lease in a deed of marriage settlement, is conclusive evidence between the parties to the settlement, of the original existence of the lease, and superseded the necessity of introducing any other evidence to establish it. Carver v. Jackson et al., 4 Peters, 83.

4. To what extent, and between what parties, the recital of a deed in a release is evidence, is a matter not laid down with much accuracy or precision, in some of the elementary treatises on the subject of evidence. It is laid down, generally, that a recital of one deed in another binds the parties, and those who claim under them. Technically speaking, it operates as an estoppel, and binds parties and privies; privies in blood, privies in estate, and privies in law. But it does not bind mere strangers, and those who claim by title paramount of the deed. It does not bind persons claiming by an adverse title, or persons claiming by title anterior to the date of the reciting deed. Ibid.

5. The government is not ordinarily bound by an estoppel. Johnson in Error v. The United States, 5 Mason's C. C. R. 593.

1. A witness interested to diminish certain admitted items in the plaintiff's account, is still a competent witness to disprove other items. Smith and others v. Carrington and others, 4 Cranch, 62; 2 Cond. Rep. 26.

6. Although the church-wardens of a parish are not capable of holding lands, and a deed to them and their successors in office, for ever, 2. To introduce into a cause the copy of any cannot operate by way of grant, yet, where it paper, the truth of that paper must be estabcontains a covenant of general warranty, bind-lished, and sufficient reasons for the non-produc ing the grantors and their heirs for ever, it may tion of the original must be given. Ibid. operate by way of estoppel, to confirm to the church and its privies the perpetual and beneficial estate in the land. Mason v. Muncaster, 9 Wheat. 445; 5 Cond. Rep. 644.

7. The parties to a deed are estopped to deny the consideration stated in it. But it seems another auxiliary consideration may be proved. Powell v. Monson and Brimfield Manufacturing Co., 3 Mason's C. C. R. 347.

8. The general rule of law is, that a recital of one deed in another binds the parties, and those who claim under them, by matters subsequent. Technically speaking, such a recital operates as an estoppel, which works on the interest in the land, and binds parties and privies; privies in blood, privies in estate, and privies in law. Crane v. Morris' Lessee, 6 Peters, 598.

9. If the recital of a lease in a deed of release be admitted to be good evidence of the execution of the lease, it must be good evidence of the very lease stated in the recital, and of the contents, so far as they are stated therein; for they constitute its identity. Ibid.

10. Where certain persons bind themselves in an instrument under seal as principals, they are estopped at law to deny that they are principals. Bank of Mount Pleasant v. Sprigg, 1

M'Lean's C. C. R. 181.

3. However conclusive the sentence of a foreign court of admiralty may be as to the facts which it alleges, those facts not amounting to a justifiable cause of condemnation, the court will look into the facts of the case, and draw from them such conclusions as they will authorize. 4 Cranch, 185; 2 Cond. Rep. 78.

4. The supreme court, in a question of jurisdiction, will permit viva voce testimony to be given of the value of the matter in dispute. United States v. The Brig Union, &c., 4 Cranch, 216; 2 Cond. Rep. 91.

5. An appraisement of the property in dispute, made by order of the district judge, by three sworn appraisers, is not conclusive evidence of the value; but it is better evidence than the opinion of a single witness examined viva voce in open court. Ibid.

6. When words are to be proved by witnesses who depend on the memory alone, the precise terms employed by the parties will seldom be recollected; and courts and juries must form their opinions upon the substance, and upon all the circumstances. 4 Cranch, 219; 2 Cond. Rep. 92.

7. Upon a demurrer to evidence, the testi mony is to be taken most strongly against him who demurs; and such conclusions as a jury might justifiably draw, the court ought to draw. Ibid.

8. The sentence of a foreign court of admi ralty, condemning a vessel for breach of block ade, is conclusive evidence of that fact, in a

EVIDENCE.

General Principles.

action on the policy of insurance. Croudson et
al. v. Leonard, 4 Cranch, 434; 2 Cond. Rep. 162.
9. Upon the plea of payment to an action of
debt upon a bond conditioned to pay five hun-
dred dollars; evidence may be received of the
payment of a smaller sum, with an acknow-
ledgment by the plaintiff that it was in full of
all demands; and from such evidence, if un-
contradicted, the jury may and ought to infer
payment of the whole. 5 Cranch, 11; 2 Cond.
Rep. 172.

10. Due diligence must be used to obtain the testimony of the subscribing witness. If inquiry be made at the place where the witness was last heard of, and he cannot be found, evidence of his hand-writing may be admitted. Cook et al. v. Woodrow, 5 Cranch, 13; 2 Cond. Rep. 173. 11. After a long possession in severalty, a deed of partition may be presumed. Hepburn and Dundas v. Colin Auld, 5 Cranch, 262; 2 Cond. Rep. 247.

12. The certificate of survey is sufficient evidence that the warrant was in the hands of the Taylor and Quarles v. Brown, 5 surveyors.

Cranch, 234; 2 Cond. Rep. 235.

Brig James Wells v. The United States, 7 Cranch,
22; 2 Cond. Rep. 402.

22. A plat referred to in the deed, as being
annexed to it, but which was never, in fact, an-
nexed, and was not recorded with the deed,
affords no evidence in aid of the description of
the property mentioned in the deed. Shirras et
al. v. Craig et al., 7 Cranch, 34; 2 Cond. Rep.
407.

23. An answer responsive to the bill is evi dence in favour of the defendant. Russell v. Clark's Executors, 7 Cranch, 69; 2 Cond. Rep. 417.

24. A recital in a deed is good evidence to take a case out of the statute of limitations. King v. Riddle, 7 Cranch, 168; 2 Cond. Rep. 459.

25. The principal obligor in a bond, is not a competent witness for the surety, in an action upon the bond; the principal being liable to the surety for costs in case the judgment should be against him. Riddle v. Moss, 7 Cranch, 206; 2 Cond. Rep. 473.

26. Under the intestate laws of Maryland, a final account settled by an administrator with the orphan's court, is not conclusive evidence in his favour, upon the issue of devastavit vel non. Beatty v. The State of Maryland, 7 Cranch, 281;

13. The answer of one defendant to a bill in chancery, is evidence against other defendants, claiming through him. Field and others v. Holland and others, 6 Cranch, 8; 2 Cond. Rep. 285.2 Cond. Rep. 492. 14. The answer of a defendant is evidence against the plaintiff, although it be doubtful whether a decree can be made against such defendant. Ibid.

27. Hearsay evidence is incompetent to establish any specific fact, which is, in its nature, susceptible of being proved by witnesses who speak from their own knowledge. Claims to freedom in Maryland are not exempt from that general rule. Mima Queen and Child v. Hepbur Cranch, 290; 2 Cond. Rep. 496.

15. The plaintiffs cannot avail themselves of the answer of a defendant, who is substantially a plaintiff; it is not evidence against a co-de-7 fendant. Ibid.

28. There are some exceptions to the general 16. In an action upon a policy on property rule excluding hearsay testimony, which are warranted neutral, "proof of which to be re- said to be as old as the rule itself. These are, quired in the United States only," a sentence of cases of pedigree, of prescription, of custom, and, condemnation in a foreign court of admiralty, in some cases, of boundary. There are also upon the ground of breach of blockade, is not matters of general and public history, which conclusive evidence of a violation of the war-may be received without that full proof which ranty. The Maryland Ins. Co. v. Wood, 7 Cranch, is necessary for the establishment of a private fact. Ibid. 402; 2 Cond. Rep. 548.

17. In an action of covenant on a policy under seal, all special matter of defence must be pleaded. Under the plea of covenants performed, the defendant cannot give evidence which goes to vacate the policy. The Marine Ins. Co. of Alexandria v. Hodgson, 6 Cranch, 206; 2 Cond. Rep. 347.

18. It is a useless practice to read the proceedings in a foreign court of admiralty, condemning a vessel at length.. The depositions stated in such proceedings are not evidence in an action upon the policy of insurance. Ibid.

19. In order to prove the condemnation of a vessel, it is only necessary to produce the libel and sentence. Ibid.

20. If foreign laws and regulations of trade be not proved to have been in writing as public edicts, they may be proved by parol. Living ston and Gilchrist v. The Maryland Ins. Co., 6 Cranch, 274; 2 Cond. Rep. 370.

21. In cases of admiralty jurisdiction, new evidence will be admitted in the supreme court; and for this purpose a commission may issue.

29. Upon general counts in a declaration, a special agreement executed may be given in Bank of Columbia v. Patterson's Adevidence. ministrators, 7 Cranch, 299; 2 Cond. Rep. 501. 30. In a case of warranty and indemnity, a judgment against the person to be indemnified, if fairly obtained; especially if obtained on notice to the warrantor; is admissible evidence in a suit against him on his bond of indemnity. Clarke's Ex'rs v. Carrington, 7 Cranch, 308; 2 Cond. Rep. 507.

31. In a suit on a judgment obtained in a state court, the judgment may be proved in the manner prescribed by the act of congress; and such proof is of as high a nature as an inspection by the court of its own record, or as an exemplification would be in any other court of the same state. Mills v. Duryee, 7 Cranch, 481; 2 Cond. Rep. 578.

32. If one defendant produce in evidence a letter from his co-defendant to the plaintiff, the latter may give in evidence the written declarations of that co-defendant to discredit the latter.

General Principles.

43. The interest of a copartnership cannot be given in evidence on an averment of individual interest; nor an averment of the interest of a company be supported by a special contract relating to the interest of an individual. Graves | Rep. 303.