
    *William Johnston, Surviving Partner of Johnston & Tinsley, v. William Macon, Late High Sheriff of Hanover.
    [December, 1790.]
    New Trial — Misdirection—To What Court Motion Made. — A motion, to the same judge who tried the cause, for a new trial, upon the ground of his own misdirection to the jury, and an exception to his refusal of it, instead of an exception to his original opinion, is improper.
    Same — Same—Same.—But still, if the whole matter is stated in the record, the court of error will pass over the form, and look at the substance of the direction.
    Escape — Act of Assembly. — The fixing an escape from the sheriff by legal deductions, according to the practice in England, is done away by our act of assembly.
    Same — Proof of Actual Escape — What Sheriff Must Prove. — And, in an action against the sheriff in such a case an actual escape must be proved by the plaintiff; but the sheriff, on the other hand, ought to prove, that there was no negligence on his part, and that due means were used to retake the prisoner.
    New Trial — Misdirection—Bill of Exceptions. — If the first part of a bill of exceptions, to the opinion of the judge, for refusing a new trial on the ground of his misdirection, will justify the direction given, although the residue of the direction, as to the proof necessary to be produced by either party, be defective, the court of error will consider the residue as surplusage.
    Escape — Witness—Succeeding Sheriff. — The succeeding sheriff is not a proper witness to prove that the prisoner was not turned over to him, as it goes to exonerate himself.
    The appellant had instituted an action on the case in the general court against the appellee to recover from him the amount of a judgment obtained by the plaintiff against a certain Parke Smith. Smith, when taken on mesne process, could not give bail; and the return of the sheriff was, “Executed January 23d, 1775, and committed to the gaol of this county.” The judgment was by- default, and the declaration charged the hig-h sheriff with a negligent escape. The plea was, not guilty. This cause, with many others, was transferred, by act of assembly, from the general to the district court, and came on to be tried in September 1789, before the hon-ourable St. George Tucker, when there was a verdict and judgment for the defendant. The next day there was a motion for a new trial; which being overruled, the following bill of exceptions was taken:
    “And afterwards at the same time, to wit, the 8th day of September, 1789, the plaintiff moved the court to set aside the verdict and judgment aforesaid, and to grant him a new *trial, because the court, on the trial of the cause, had directed the jury to find a verdict for the defendant; which motion was overruled, the court being of opinion that, in the said action, it was incumbent on the plaintiff to prove an actual escape, by the said Parke Smith, in the declaration mentioned, from the custody, and by the consent or negligence of the defendant or his deputy, and the whole evidence, on the •part of the plaintiff, being a record from the court of Hanover county, in these words: ‘George the third bj' the grace of God of Great Britain, France and Ireland, king, defender of the faith, &c. to the sheriff of Hanover county, greeting: We command you that you take Parke Smith if he be found within your bailiwick, and him safely keep, so that you have his body before the justices of our county court of Hanover, at the courthouse of the said county, on the first Thursday in the next month, to answer William Johnston, surviving partner of Johnston & Tinsley, of a plea of debt for one hundred and sixty seven pounds twelve shillings snd five pence, damage twenty pounds, and have then there this writ. Witness, William Pollard, clerk of our said court this 23d day of January, 1775, in the 15th year of our reign. William Pollard. A copy. William Pollard, jr. C. H. C. ‘Executed January 23d, 1775, and committed to the jail of this county. Wm. Bentley, .S. Sheriff.’ A copy. William Pollard, C. H. C. At a court held for Hanover county, on Thursday, the 2d day of Eebruary, 1775, on the motion of William Macon, gentleman sheriff of this county, informing the court that the prison is much out of repair, John Starke, Francis Smith and Thomas Garland, gentlemen, are appointed to let the repairing thereof as they think necessary. A copy. William Pollard, jr. C. H. C. At a court continued and held for Hanover county'on Friday, the 5th day of June, 1778,
    
      
    
    This day came the plaintiff, by Peter Hyons his attorney, *and the defendant being arrested, and remaining in custody of the sheriff, and yTel failing to appear, on the motion of the plaintiff, judgment is granted him against the defendant for what shall appear to be due to him the plaintiff, and costs, unless the said defendant shall appear, at the next court, and answer this suit. A copy. William Pollard, jr. C. H. C. Hanover county, on Friday, the 2d day of June, 1780,
    
      
    
    This day came the plaintiff by his attorney, and the defendant being solemnly called and failing to appear, it is considered by the court that the plaintiff recover against the defendant and William Macon, gent, late sheriff of this county, ;£167. 12. 5. the debt in the declaration mentioned, and also his costs in this behalf expended. But this judgment, except as to the costs, is to be discharged by the payment of ,£83. 16. 2%. with legal interest thereon from the 15th day of April, 1774, till payment. A copy. William Pollard, jr. C. H. C. A copy — Teste, John Brown, C. G. C.’ And the oath of William Anderson, the present high sheriff, that the said Smith was not at any time turned over to his custody, by assignment from any former sheriff, together with the admission of the defendant, that the said defendant at the time of the arrest of the said Parke Smith, was high sheriff of the said county, and that the said Smith resided in Charleston some years after. To which opinion the plaintiff, by his attorney, excepted, &c. and prayed an appeal.”
    This cause was argued by Duval for the appellant, and Marshall for the appellee.
    
      
      New Trial — Misdirection—To What Court Motion Made. — The proposition in the principal case, that a motion for a new trial on the ground of a misdirection is never made before the same judge, but before the appellate court, upon an exception taken in the court below, was subsequently disapproved by the court of appeals in Guerrant v. Tinder, Gilm. 41. The court, in reference to that proposition in the principal case, said: “We are of opinion that this ground is quite too narrow. 'The same judge may upon a deliberate motion for a new trial supported by argument and authority, retract a hasty opinion expressed by him in the progress of the trial. That course, too, would save the expense and delay of appealing to a superior court for that purpose.”
      The principal case is cited in this connection, in Danks v. Rodeheaver, 26 W. Va. 290.
      Same — Same—Same—Effect of Statute. — Bnt whatever diversity of opinion may have once existed on this point, there can be no question raised on it at present, as the statutes in Virginia and west Virginia now provide that, “in any civil case, the court before which a trial by jury is had, may grant a new trial, unless it be otherwise specially provided.” (Va. Code, 1887, sec. 3392; W. Va. Code, ch. 131, sec. 15.)
      The principal case is cited in Danville Bank v. Waddill, 31 Gratt. 478. See monographic note on “New Trial.”
    
    
      
       Escape — Verdict and Judgment — Special Finding under Statute. — where the statute provides that no judgment shall be entered in an action against a sheriff for an escape, unless the jury expressly find that the escape was with the consent or through the negligence of the sheriff, or that he might have been retaken, and the sheriff neglected to make pursuit, such express.finding by the jury, according to the statute, is absolutely necessary. Theprinci-.pal case is cited, in support of this proposition, in Hooe v. Tebbs. 1 Munf. 506, 509; Stone v. Wilson, 10 Gratt. 540, 546. See Vanmeter v. Giles, 1 Rob. 329.
      The principal case is reported in 1 Wash. 4.
    
   The president, who delivered the opinion of the court, after stating the case, said, that the exception in the district court was very irregularly taken. A motion to the same judge for a new trial on his own misdirection to the jury, *and an exception to his refusal, instead of an exception to his original opinion, when given, was new and improper. But, since the whole is stated on the record, the court will pass over form, and look at the substance of the direction.

So far as relates to the necessity of the plaintiff’s proving an actual escape while the defendant was sheriff, the opinion of the district court is perfectly right; but the court think it incumbent on the sheriff to prove that there was no negligence on his part, and that due means were used to retake the prisoner, and in this respect the district court erred; but as the first part of the opinion will justify the direction, the court consider the residue as surplusage. The record does not prove the actual escape, nor does the residence of Smith long af-terwards in Charleston, prove it.

Anderson is not a proper witness. His testimony goes to exonerate himself. At any rate he may not be (and in fact is not) the immediate successor of Macon; and therefore, although the said Smith was not turned over to him, he might have escaped, if he did escape, after the shrievalty of Macon, and before that of Anderson.

The fixing an escape on sheriffs by legal deductions, seems to be done away by our act of assembly, which declares that judgment shall not be rendered in such an action, unless the jury expressly find that such debtor or prisoner did escape with the consent, or through the negligence of such sheriff, or his officer; or that such prisoner might have been retaken, and that the sheriff and his officers neglected to make immediate pursuit.

To avoid any misunderstanding, the court directed this special entry:

“The court is of opinion, that the direction of the judge at the trial, so far.as.it imported it to be incumbent on the plaintiff to prove the escape to have been with the consent, or through the negligence of the sheriff, was a mistake; since those circumstances, tending to excuse the sheriff, ought to be proved on his part; nevertheless, as the direction was right in requiring the appellant to prove an actual ^escape from the appellee, or his deputy; and the proof, as to that, was wholly defective, that there is no substantial error in the verdict or judgment: Therefore it is considered that the judgment aforesaid be affirmed, and that the appellee recover, against the appellant, his costs, by him, about his defence in this behalf expended.”  