
    Nathaniel Griffin versus Henry C. Brown.
    A debtor arrested in this State upon mesne process, escaped into New York, and being retaken upon fresh pursuit, he was rescued by virtue of legal process in that Stale. Heldf that this was no defence in an action against the sheriff for the escape.
    As between the parties in such action, the fact that the debtor was lured into this State for the purpose of subjecting him to our laws is immaterial.
    in such action the debtor cannot be.a witness to show his inability to pay the debt for which he was arrested, because he is answerable to the sheriff to the amount of the damages and costs recovered of the sheriff. Consequently the wife of the debtor cannot be a witness for that purpose.
    A deponent stated, that from his knowledge of the debtor’s circumstances the debtor was able to pay a debt of a certain amount; that during a certain period after his escape he must have spent a very large sum of money, from 800 to 1000 dollars, as the deponent verily believed. It seems that this testimony was admissible, not being opinions merely, but reasons given for a fact stated by the deponent, or explanations of his testimony.
    Whether evidence that the debtor had relations who were reputed to be wealthy, was admissible on the subject of damages, qucere.
    
    This was an action on the case against the defendant, as sheriff of this county, for the neglect of Ralph Deming, one of his deputies, in suffering an escape of one Platt Herrick, whom he had arrested on the 3d of October 1821, on a writ of attachment sued out by the plaintiff.
    On the part of the defendant it was proved, agreeably to a brief statement filed in the case according to the statute, that Deming immediately pursued Herrick, and that he after-wards found and arrested him at Albany, in the State of New York, and that Herrick was taken out of his custody by a sheriff of Albany county, by virtue of a writ of execution, and also by virtue of a writ of capias ad respondendum issued out of the Supreme Court of the State of New York; and that on the 9th day of the same month Herrick was car ried by force of a writ of habeas corpus, sued out by Deming, before one of the justices of that court, by whom he was remanded to prison for the cause above mentioned.
    The defendant also proved, that on the 11th of November 1821, the body of Herrick was discharged from arrest for any debt personally contracted, by force of a law of New York to abolish imprisonment for debt in certain cases, and that the plaintiff and Herrick were both citizens of that State, and that the note on which the plaintiff’s writ against Herrick was brought was executed there.
    It was determined by Wilde J., before whom the cause was tried, that this recaption was no defence to the action.
    The defendant then contended, that the plaintiff was entitled to nominal damages only ; and to prove the inability of Herrick to pay any part of the note to the plaintiff, he offered the deposition of Herrick’s wife ; but the judge rejected it, on the ground of a supposed interest in Herrick in the suit, by reason, of his being responsible to the sheriff.
    The defendant also offered the deposition of one Adams, to prove that Herrick lived in a profligate and expensive manner at Albany for some time after the escape, and he contended that the jury ought thence to infer that he had the means of paying his debt to the plaintiff. Adams stated in his deposition, that from the knowledge which he had of the circumstances of Herrick in October 1821, he was abundantly able to pay a debt of 600 dollars, and that he bad relations who were reputed to be wealthy. This statement was struck out of the deposition by the Court of Common Pleas, but the judge ordered it to be read to the jury, although objected to by the defendant’s counsel. Adams also stated, that Herrick, “ during his stay in Albany, must have spent a very large sum of money,” and men added, “ from eight to ten hundred dollars, as he verily believes ; ” which last words had been erased. But the plaintiff’s counsel said that they were erased by order of the Court of Common Pleas, and they were allowed to be read to the jury, although objected to on the other side.
    In summing up the cause the judge stated to the jury, as a reason why the defendant should be charged to damages, that the deputy sheriff who made the arrest had a right to command any assistance that he wished for.
    The jury returned a verdict for the plaintiff for 482 dollars, 66 cents, damages ; whereupon the defendant filed his exceptions to the foregoing opinions and directions of the judge.
    
      Dwight, Jones and Bryant argued for the defendant.
    An immediate pursuit and retaking are in general an excuse for an escape. After the recaption, Herrick was taken out of the hands of the officer by force of proceedings in the State of New York, which the officer had no power to resist; and he is to be excused as in the cáse of a rescue by the commonwealth’s enemies, to which this case may be compared. An officer is not to surround a person, arrested on mesne process, with a posse comitatus, while there is no attempt to rescue or escape, and a return of a rescue will be a good return. May v. Proby & al., Cro. Jac. 419 ; Crompton v. Ward, 1 Str. 429 ; Hill v. Mountague, 2 Lev. 144 ; Gorges v. Gore, 3 Lev. 46.
    The deposition of Herrick’s wife ought not to have been rejected. The husband was not interested in the event of this suit. The action of the sheriff against him is local, and cannot be brought in New York. Gilbert v. Martin, 1 Lev. 114. Or if Herrick was interested, his interest was equal in respect to both parties in this action, and if the plaintiff recovers, Herrick will merely change his creditor. A party escaping may be a witness for the officer. Waters v. Burnet, 14 Johns. R. 362; Cass v. Cameron, Peake’s Rep. 124 ; Bull. N. P. 67. It will be said, that Herrick’s body being privileged by the laws of New York from arrest for his debt to the plaintiff, it would be for his benefit to prevent such recovery. But this is only a contingent benefit. If he should have property enough to satisfy the debt, he would have no interest in fávor of either in preference to the other. To exclude a witness the benefit must be certain ; Carter v. Pearce 1 T. R. 163; Phillipps on Evidence, (Am. ed.) 39, and note; and the interest must be of a pecuniary nature. A wish to escape imprisonment is not sufficient. If Herrick had any interest, it was created by his own act after the defendant had a right to his testimony; he could not in this way deprive the defendant of the benefit of it. Bent v. Baker, 3 T. R. 27. The cases in which a wife’s testimony is excluded are those in which the husband is a party to the action. In actions between third persons her testimony is admissible, notwithstanding it may affect her husband’s interest. Williams v. Johnson, 1 Str. 504 ; Rudd’s case, 1 Leach, (3d ed.) 151.
    The clauses struck out of Adams’s deposition by the Court of Common Pleas were improperly admitted, as they were merely the expression of an opinion as to the amount of Herrick’s property, without enumerating the appearances of wealth on which the opinion was founded.
    Another point made by the defendant’s counsel was, that evidence offered by them, to show that Herrick had, during the course of proceedings under the insolvent laws of New York, by which his body was to be exempted from arrest on the note due to the plaintiff, been improperly decoyed into this State in order that he might be arrested, ought to have been admitted to go to the jury in mitigation of damages They contended that such an artifice was a fraud upon the laws of that State, which this Court would not sanction. If Herrick had given bail when he was arrested, the bail could not have been fixed until after the 11th of November, when he became exempted from arrest, and the discharge of the principal would be a discharge of the bail. Highmore on Bail, c. 9, § 1 ; Trinder v. Shirley, 1 Doug. 45 ; Champion v. Noyes, 2 Mass. R. 481 ; Woolley v. Cobbe, 1 Burr. 244.
    
      H. Hubbard and Bush, for the plaintiff,
    contended that the fresh pursuit and recaption were of no avail, as Herrick was not brought back into this State, so as to be held on the original process on which be was arrested. Herrick was interested in the event of this suit, and his wife’s deposition of course properly rejected ; for if the plaintiff should not recover against the sheriff, the sheriff could not bring an action against Herrick. In an action by the sheriff his body would be subject to arrest, and he would be liable for the damages and costs recovered in the present action. Graves v. Delaplaine, 14 Johns. R. 146 ; 2 Esp. N. P. (Gould’s ed.) 351 ; Phillipps on Evidence, (2d ed.) 55. The case of Williams v. Johnson was adverted to by the Court in Fitch v. Hill, 11 Mass. R. 286, as settling the point, that the wife’s testimony was admissible where her husband’s liability was only contingent Here it was certain ; and it was created at the moment of the escape. The action for an escape is not local. Bac. Abr. Escape, F.
    
    The opinion of the Court was read at May term 1824, as drawn up by
   Parker C. J.

The objection to the proceedings at the trial which we consider of most weight, relates to the rejection by the judge, of the deposition of Patience Herrick, the wife of Platt Herrick, the debtor for whose escape the action is brought. The object of her testimony was to prove the inability of her husband to pay the debt for which he was arrested, and thus to reduce the damages in this action against the sheriff for the escape. It is conceded that if Platt Herrick himself is not competent as a witness, neither can his wife be, for their interest in law is one and the same. We think it clear that he would not be competent, because in an action by the sheriff against him, the verdict in this action would be conclusive of the amount of damages to be recovered, so that in fact he would be testifying in his own cause. The cases cited by counsel to support the competency of Patience Herrick, though when read at the argument they appeared to favor the opinion, yet upon examination are found not to come up to the point in question. They establish this principle, that the wife may be a witness to excuse a party sued from a supposed liability, although the effect of her testimony is to charge her husband upon the same debt in an action afterwards to be brought against him. This is the whole extent of the principle stated ; and the reason is, that the verdict in the action in which she testifies cannot be used in the action against her husband ; so that although her testimony goes to show that he is chargeable, yet he cannot be prejudiced by it. And it may be observed, that in these very cases the husband himself would be a competent witness, it he were willing to testify, for his evidence would be a confession against' himself. Williams v. Johnson, 1 Str. 504 ; Phillipps on Ev. (Am. ed.) 70 ; Fitch v. Hill, 11 Mass. R. 286 ; Peake’s Ev. (3d ed.) 183.* The case before us is widely different, for the testimony of the wife tends to discharge, not to charge the husband ; neither could he be a witness if he were to offer to testify. It was argued that he stood indifferent, as whatever effect his testimony might have in reducing the damages against the sheriff, it would leave so much of the judgment against him by the present plaintiff unsatisfied ; however this may be in regard to the damages, it is evident he is interested to prevent the plaintiff from recovering in this suit at all, because thereby he will be discharged of the costs of this suit, which the sheriff would have a right to recover against him.

As to objections to parts of the depositions which had been struck out by the judge of the Court of Common Pleas on the trial there, we think they were properly restored at the trial in this Court, not being opinions merely, but reasons given for a fact which the witness had sworn to, or mere explanations of his testimony. In one case, after the witness had stated that Herrick lived extravagantly and spent a good deal of money, he adds, “ from eight to ten hundred dollars as he verily believes.” This is necessarily a matter of conjecture, and the fact that he lived expensively, could only be illustrated by stating a sum which the witness thought the debtor spent. At any rate this is not a matter of sufficient importance to justify us in setting aside the verdict.

The statement in one of the depositions, that Herrick had relations who were reputed to be wealthy, the Court do not determine was proper evidence on the subject of damages, but there is not a majority of the Court of the contrary opinion ; so that the verdict cannot be set aside on this ground.

We are all of opinion, that there is no defence on the ground of recaption and a rescue by virtue of the proceedings in the State of New York. A mere recaption, without holding the debtor so as to have him forthcoming to respond the demand sued, or taking bail, is no excuse for the escape ; for although the sheriff could not resist the laws of New York within that State, yet the fault was in suffering him to go where he had lost the control of his person. If the debtor had been rescued within this commonwealth, and the rescue had been returned on the writ, being mesne process, it seems by the common law no action would lie against the sheriff for an escape, for though he may, he is not obliged to raise the posse comitatüs for the execution of mesne process. May v. Probie, 1 Roll. Rep. 388; Gorges v. Gore, 3 Lev. 46. But such a return on execution would not protect the sheriff from an action, because in such case it is his duty to raise the posse. The facts contained in the additional statement, to wit, that the debtor was lured within this State for the purpose of subjecting him to our laws, are immaterial in this action, whatever ground of action they might form for the debtor against the present plaintiff.

Judgment according to the verdict. 
      
       Bull. N. P. 287. See also Baring v. Reeder, 1 Hen. & Munf. 154 ; Wallis v. Britton, 1 Har. & Johns. 478 ; Beatty v.-, 1 Taylor, 9. Wherever the husband may be compelled to testify against his interest in civil matters, the wife may be made a witness. 2 Stark. Ev. (4 Am. ed.) 708, 709.
     
      
       See Tiley v. Cowling, Ld. Ray. 744; King v. Frederick, Str. 1095. It has been held, that the husband cannot testify, where the effect of his testimony may be to give his wife a benefit in case she should survive him Per Tilghman C. J. in Snyder v. Snyder, 6 Binn. 487, Yeates J. dissenting. The husband cannot testify, where his wife’s separate estate is concerned. Wyndham v. Chetwynd, 1 Burr. 424; Davis v. Dinwoody, 4 T. R. 678; Richardson v. Learned, 10 Pick. 262.
      But the interest, to disqualify, must be certain and immediate. Ante, 243, note (1); per Yeates J. in Snyder v. Snyder, ubi supra. See also Baring v. Reeder, 1 Hen. & Munf. 154 ; Wilmot v. Talbot, 3 Harr. & M‘Hen. 2 ; Boltz v. Ballman, 1 Yeates, 534 ; Gallagher v. Rogers, 1 Yeates, 390; Rex v. Rudd, Leach, 133.
     