majority">Hosmer, Ch. J.

The plaintiff brought an action of debt against the defendants, declaring on the penal part of a bond. Having prayed oyer of the obligation, the defendants recite the condition, from which it appears, that Lyman Downs was confined in gaol, by virtue of an execution for the sum of 68 dollars, 46 cents, in favour of George Monson, and against the said Lyman; and that the bond was given to secure the plaintiff in the event of the debtor's escape. They then plead performance of the condition. In his replication to this plea, the plaintiff alleges the facts requisite to show a breach of the preceding condition, and particularly, that Lyman Downs was confined in gaol upon the execution described in it; and that having escaped, a suit was brought for this cause, and a recovery had against the plaintiff. The defendants traversed this replication entirely; and to support the averment made by him, the plaintiff offered in evidence the record of the county court in the action against him, and the execution which issued upon it. The testimony, thus offered, was held inadmissible, and on the ground, that it materially varied from the plaintiff's allegations.

The pleadings aver, that the execution in favour of George Monson against Lyman Downs was for the sum of 68 dollars, 46 cents; and the record offered, describes the judgment in favour of Monson against Downs as having been for the sum of 58 dollars, 29 cents, and the execution for the sum of 58 dollars, 46 cents. The execution offered in evidence is also for 58 dollars, 46 cents. The defendants insisted, in their defence, that no suit had been brought against the plaintiff for the escape of L. Downs from his confinement, on the execution described in the condition of the bond; and that the offered testimony, had no relevancy to prove the plaintiff's averments. It is impossible to entertain a doubt on this subject. Between the sum of the judgment and execution as averred, and the evidence offered, the variance was precisely ten dollars; and these respective sums were as distant from identity, as if the judgment had been for a million. So far from conducing to prove the facts averred, the testimony offered disproved the averments, necessarily and conclusively. One of the most salutary and indispensible rules of evidence requires, that no evidence be admitted, except it bear on the disputed facts or points in issue. 1 Phill. Evid. 126. The parties, by their pleadings, mark out the ground of controversy, and come prepared, and only prepared, to ascertain the *296truth of the facts disputed. Cases of hardship sometimes arise, which greatly interest the feelings; but looking at the general benefit, and disregarding the pressure of a particular mischief, it is the duty of the court to adhere inflexibly to the rule.

The record offered in evidence, undoubtedly, evinced an escape of Lyman Downs, and the subjection of the sheriff on this account; but unfortunately for the plaintiff, it was not an escape from that imprisonment, for which the defendants agreed to indemnify the sheriff. The case of Bissell v. Kip, 5 Johns. Rep. 89. and those referred to in 2 Wms. Saund. 101. n. 2. have no bearing on the point of controversy. It is true, that the sheriff cannot take advantage of any error in the process of a court, of which the debtor might avail himself. It is sufficient, that the latter has been duly imprisoned on an execution for too great a sum, emanating erroneously, because the process is not thereby rendered void, but voidable only, and amendable at the plaintiff’s instance. Hence, it was correctly decided, that the imprisonment of a person on an execution, which issued for too much, was valid, and the sheriff responsible for an escape. But that is not the question before the court, which is precisely this; whether if the plaintiff aver a judgment and execution to have been for one sum, the averment can be proved, by a record showing that they were for a different sum.

If the execution mentioned in the condition of the bond was mistakenly described, as the plaintiff has insisted, it can make no difference in this case. In his replication, he has averred, that a recovery was had against him for a definite sum; and having thought proper to suspend his cause on the proof of this allegation, he must abide the issue. The mistake suggested, is not presented by the record; and if it had been, it merits consideration, whether the powers of this court are sufficiently extensive, to correct the difficulty.

Peters, Chapman and Brainard, Js. were of the same opinion.Bristol, J. having been of counsel in a former suit connected with this, declined giving any opinion.

New trial not to be granted.

Citation profile

How this case has been treated — in progress