
    
      John Simonton v. A. W. Yongue, late sheriff.
    
    In an action against the sheriff for official neglect in not arresting a party as in duty bound, the plaintiff’s attorney was held, a competent witness to disprove that the sheriff suspended proceedings on tire order for bail by his (the attorney’s) instructions.
    
      Before Withers, J. at Fairfield, Fall Term, 1847.
    In this action the plaintiff, sought to make the defendant liable for official misconduct while sheriff, in relation to a process for bail, lodged by the present plaintiff, during the pendency of a cause instituted by him against Elisha and Henry Owens — the charge being, either, that defendant did, not. arrest the said parties, as in duty bound, or suffered them to escape after, arrest. The recovery of the plaintiff in the action against Elisha and Henry Owens, was had in November, 1843, for $1,719 45 — interest on $1,377 87 from $1843. —costs, $63 72. For such debt, interest, and costs, the present action was brought. Part of said sum of costs was du,e and payable to C. & M. H. Clarke, the plaintiff’s attorneys, in the action against the O wens’s. After the return term of the plaintiff’s writ against the Owens’s, to wit: on the 26th of November, 1841, the plaintiff made his affidavit, with a view to hold them to bail, in pursuance of the Act of 1827 on that subject.. To this affidavit was attached an order for bail, by a competent authority, without date affixed. On the 11th December, 1841, these papers (the affidavit and order for bail,) were lodged in the office of defendant, who- was then sheriff. Where the original was did- not appear; nor did it appear that the papers mentioned had been attached to it, or that it had been re-lodged with the sheriff for the arrest of the de-. fendants in the pending action. This difficulty, howeyer, was resolved in favor of the present plaintiff. On this order for bail were entered (according to Mr. Caleb Clarice’s testimony) when he first saw it, in the defendant, Yongue’s hand, writing, items as follows: “ To arrests, $3; mileage, 35c.; two bonds, $2; entry, 25c,” and, he thought, also, the costs for the service of the original writ; at any rate, he said, the items so entered on the back of the order for bail, were made to amount, in addition, to $8 40. The sheriff’s costs in the case of John Simonton v. Elisha and Henry Owens, as entered in his execution book, were $8 40. Upon this state of things, the plaintiff’s counsel strenuously urged upon the jury, that Yongue had, in fact, arrested the Owens’s, inasmuch as the items above specified indicated that service and no other. To explain how the sheriff’s costs actually taxed, in the case of Simonton v. Elisha and Henry Owens, arose, and that the services indicated by the items on the bail piece did not enter into the taxation, the defendant’s writ book was introduced on his part, to establish, and it did establish, that he had a sum of costs amounting to $6 85c., appearing in that book, and arising from the service of the original writ, 2 sub. writs and the entry of the order for bail. The introduction of this book the defendant objected to, and insisted that the sub. writs themselves should be produced. The book itself was held admissible for the purpose in view. The appellant’s counsel quoted sundry cases decided, as establishing that certain description of entries by a sheriff, were conclusive, as he contends, not only against him, but in some instances against his sureties; and, hence, he insisted that the entries in question, being official acts, ought to operate against the defendant in this case. The Court did not determine whether the entries now in view, were official entries or memoranda, made with a view to services intended to be, but not in fact, performed, leaving the interpretation of them to the jury; but merely informed them that such entries did not constitute that formal return on a bail process which was prescribed by the Act of 1839, and read the clause of it, embracing that subject, to the jury. The erasure of those entries, after their endorsement at first, (which Mr. Clarke testified had been perpetrated,) and their restoration at his instance by Yongue, were matters much argued at the bar, but left without prejudice to the jury. The defence was, that after the lodgment of the order for bail a few days, to wit: sometime between the 10th and 20th of December, 1841, M. H. Clarke, one of plaintiff’s attorneys, suspended action upon it, by instructing Yongue to wait further orders; and the fact was sworn to by Henry Owens, one of the defendants in the former case. Henry Owens was held a competent witness in this case between Simonton and Yongue, when called by the latter, for, if success of either party would affect his liability on the execution obtained against him and Elisha, his interest lay against Yongue, who called him, and was to be seen in the success of Simonton in getting satisfaction for the witness’ debt out of any body else whomsoever.
    This case had been once before tried between these parties, in the life time of M. H. Clarke, who has since died, and on that occasion he was examined by the plaintiff, to contradict the testimony on the subject of the instructions given by him to Yongue, to suspend proceedings on the order for bail. On the present occasion, it was proposed to prove what he, M. H. Clarke, then swore. It was insisted on behalf of Yongue, that M. H. Clarke was an incompetent witness, because there was such liability on his part to Simonton, arising from his act in stopping the progress of the sherifFtoward securing the person of Elisha Owens, (who left the country in Nov. 1842, carrying with him property enough to pay the debt in question) as to make it the clear and strong interest of M. H. Clarke to contribute in this action towards condemning Yongue, from whom the plaintiff might get satisfaction m exoneration of the witness. The Court helcfhim to be incompetent — at least to aid in the recovery of his costs. Then it was insisted that his instructions, if ever given to Yongue, were not binding on his client, the present plaintiff; or if they would be in any form, they should have been in writing; which proposition was overruled, because pending the action, the attorney was the representative of his client in the matter in question ; and whether his directions were verbal or in writing, was a matter rather affecting the convenience of proof than the legality of the authority.
    The plaintiff moved the Court of Appeals for a new trial, on several grounds. The first of which only was argued, viz:
    Because the Circuit Court rejected the evidence of plaintiff’s attorneys, in the case of the plaintiff against Henry Owens and Elisha Owens, on the ground that they were incompetent witnesses for the plaintiff in the present case; as they might be liable to the plaintiff in case he failed in recovering a verdict in the present case, and that they were interested in the costs of the suit in the first case.
    Pope, for the motion.
    
      Buchanan & Thompson, contra.
   O’Neall, J.

delivered the opinion of the Court.

In this case the judgment of the Court will be given altogether on the first ground of appeal — all the others, not being argued, are considered as virtually abandoned.

It seems that the Judge below decided that the witness, M. H. Clarke (whose testimony was proposed to be proved, as given on the former trial, he having since died,) was incompetent, on the ground that his costs might be recovered in this very case. It is true the plaintiff may recover them as part of his damages, on the ground either that he had paid them, or that he is liable to pay them. But that creates no interest in the witness. For after the recovery, he would have no more right to receive his costs, part of the damages found, than he would the rest of the verdict. The whole is found for the plaintiff, and belongs to him. The plaintiff was, and is, liable to him for his costs; and it is to him perfectly immaterial whether he recovers in this case or not.

x Rich 30_

x Greenleafon Evidence, sec. 394.’

x Bail. 308.

It is very true, in Scharlock v. Oland, it was ruled that the costs of an attorney, taxed on a judgment, entered up, could not be released by the party in whose favor it was entered. But it was never intended to rule and hold, that they could not be recovered by the plaintiff, as his damages, in a case like this, or that he might not recover them in an action of debt on the judgment, — or that they could not be by him set off. This last matter was ruled in the case of Law v. Duncan, decided last December, at this place. In legal intendment, as between the plaintiff and defendant, and persons other than the attorney himself, the costs recovered are the costs of the plaintiff. To secure the attorney from loss, the plaintiff or defendant recovering is not allowed to release or even receive his costs against his wishes. But this is a mere regulation applicable to the collection of the costs against or under th.eji.fa. It reaches no further. For when the matter becomes the subject of future action, on the record, or to be recovered by virtue thereof, then it is in the name and interest of the party; and the attorney’s rights are merged in his, and the attorney has no other redress than to look for his costs to his client.

In this point of view, therefore, there was no objection to the competency of the witness; but it is supposed the attorney, if he gave the directions to suspend the proceedings on the order for bail, would be liable over to the plaintiff. The various cases cited for the defendant do not sustain this proposition. It is very true, whenever an agent does an act whereby his principal is sought to be charged, for his, the agent’s neglect, or unskilfulness, in such a case the agent would be an incompetent witness, — for then his interest would be direct, and the record might be evidence to charge or discharge him.

But the same rule does not hold, where his interest is possible, and collateral to the issue. In such a case, he is admitted from necessity to testify. In this case this would be enough, and is fully sustained by Marshall v. Nagel & Thompson.

But it is not at all clear that the attorney is under any liability. It must be assumed, to give a coloring to his interest, that he did give the instruction; if he did, it does not follow he would be liable to his client. He might have had his orders to do so; if he had not, it might have been the exercise of just such a prudent discretion as that with which an attorney at law is always invested, in the management of a case at law. These suggestions shew how utterly vain it is to talk about there being any direct interest in the event. This record could not be evidence for or against him. For it is, in every sense, res inter alios acta. His (the attorney’s) act is not the gravamen of the action, — it is the sheriff's neglect, for which the plaintiff sues, — and he undertakes to defend himself by shewing that the plaintiff’s attorney authorized him to do the act. This is outside of the record, and it would therefore be no evidence for or against him on the issue whether he had acted right or wrong. It is true, he could give it in evidence, as a fact, that the plaintiff, if he should recover, had recovered his debt from the sheriff, but that does not arise out of his relation to the case. Any one, even the greatest stranger, to whom it might be important to shew such a fact, might give the record in evidence.

The motion is granted.

Richardson, J. — Evans, J. — Wardlaw, J. — and Frost, J. — concurred.

Motion granted,  