
    Pruitt v. Miller.
    A reward was offered, by Franklin county, for tbe apprehension and delivery to the sheriff of said county, of one E., who was charged with the crime of murder. One M. thereupon went to New Orleans in pursuit of E., and arrested him and brought him back to the vicinity of said county. Here, by the negligence of Hi., E. escaped. On the morning afterwards, Hf., with others in his employ, watched a house where E. was supposed to be secreted, but did not find him. On the next morning, Hi. called on one P., related to him the circumstances of his journey, his expenses, the arrest of E. and his escape, and requested the aid of P. to re-take E., and promised P. to compensate him if he, P., should arrest him. P. agreed to watch at said house for E., take him if he should come there, and give Hf. notice of the arrest. P. said Hf. ought to have the reward. Meanwhile, Hf. continued his search for E. in the vicinity. P. arrested E. at said house, on the day after the conversation with Hi., concealed from Hf. the fact, delivered E. to the sheriff of said county, and obtained the reward. In assumpsit by Hf. against P. to recover the reward, held, that P. was merely the servant of Hf. to make the arrest, and that the latter was entitled to the reward. Held, also, that no demand of the reward from P. was necessary before suit.
    No plea of set-off, or notice of set-off, was filed in this cause. Held, that it would not have been competent, therefore, for the jury to have allowed P. compensation for making the arrest.
    An opinion expressed by a witness, inconsistent with facts testified to by him, cannot be given in evidence to impeach his testimony.
    A party employed merely to aid in making an arrest, has no implied authority to engage others, at his employer’s expense, to assist.
    A conviction of petit larceny does not render a person incompetent as a witness.-
    
      Monday, November 24.
    APPEAL from the Franklin Circuit Court.
   Perkins, J.

Assumpsit by Russell Miller against William Pruitt on a count for money had and received, &c. Plea, non assumpsit. Jury trial; verdict and judgment for the plaintiff, and new trial refused.

The facts of the case are substantially these: A reward of 200 dollars was offered, in December, 1850, by the county of Franklin, in this state, for the apprehension and delivery to the sheriff of said county of Joseph Emsiveller, who was charged with the murder of Chauncey Jenks. Russell Miller thereupon went to New Orleans in pursuit of Emsweller, succeeded in arresting and bringing him on the way to Franklin county, as far as Harrison, a town near the eastern boundary of said county, and between it and Cincinnati, at which place, on Thursday night, Emsweller, through the carelessness of Miller, made his escape. Friday morning Miller came on to Franklin county, seeking aid to re-arrest him. Emsioeller’s wife lived with Mrs. Stuttle, on the farm of the defendant, Pruitt. Miller, with other whom he had procured to aid him, watched Mrs. Stuttle’s house Friday night. Emsweller did not appear. On Saturday morning Miller called on Pruitt, related to him the circumstances of his journey to and from New Orleans, his heavy expenses, his arrest of Emsweller, the escape, &c., and solicited his aid in re-taking him. He told Pruitt if he would arrest Emsweller and let him, Miller, know, he would pay him well for it, and furnished him a pistol for safety. Pruitt agreed to watch for Emsweller at Stuttle’s, take him if he should come there, and let Miller know. He said Miller ought to have the reward. In the meantime, Miller continued his search in the vicinity. Emsweller came to Stuttle’s Saturday night, and, on Sunday morning, Pruitt arrested him there, but instead of informing Miller of the fact, he delivered Emsweller to the sheriff and claimed and received the reward of 200 dollars. This is a suit by Miller to recover that money from Pruitt.

It is contended, in behalf of Pruitt, that he arrested Emsweller on his own account, and delivered him to the sheriff, and thus became entitled to the reward offered, as his own property. But we think it plain enough that Pruitt made the arrest at the request and as the servant of Miller, and is entitled, not to the reward, but to a reasonable compensation for that service. Miller had arrested Emsweller and brought him far on the way to the place where he was to be delivered up; had somewhat carelessly perhaps, but not intentionally, suffered him to escape, and was following him in eager pursuit; gave Pruitt, who was not attempting, and, so far as appears, was not intending to attempt, the arrest on his own account, information how and where Emsweller had escaped and where he would be likely to be found; and obtained his promise that he would make the arrest at the place named, not elsewhere, on a promise of being paid for so doing. Had Pruitt, when applied to by Miller, declined to act in his behalf, Miller might, and probably would, have watched at Stuttle’s and arrested Emsweller himself. But, relying on Pruitts promise, he trusted that point to him, and it would certainly be against all equity, under the circumstances, now to suffer Pruitt to repudiate his promise and claim the arrest as made on his own account.

In the second place, it is claimed that if Pruitt was the servant or agent of Miller in making the arrest, then, before this suit could be instituted, it was necessary that there should be a demand by Miller on Pruitt for an accounting and an allowance, or an offer of an allowance, to him, out of the 200 dollars he had received, for his trouble, expenses, &c.

It is in general true that where an agent receives money belonging to his principal in the course of his agency, he is entitled to an accounting before he can be sued for the money, and may retain his expenses, &c. English v. Devarro, 5 Blackf. 588.—See Story on Agency, s. 350. But in this case, we think Pruitt did not receive this reward in the course of his agency for Miller, but rather as a wrong-doer. He was not employed to take Emsweller to Brookville and receive this money on his surrender to the sheriff; but only to arrest and detain him for Miller. If a man is employed simply to find a horse that is lost and bring him to the owner, and he find th¿ horse, but instead of returning him to the owner, take him to the person to whom the owner may have sold him, and receive the price, it would hardly be contended that he received that money in the course of his agency for the owner. It would be otherwise, were he furnished with the horse to sell. And as to the compensation to which Pruitt may be entitled for arresting Emsweller, it could not have been allowed by the jury in this case, had any amount been proved, which there was not, because there was no plea or notice of set-off filed.

We may remark here that a demand of the 200 dollars was made before suit brought. A bill of exceptions states that James Hawthorn, a witness for the plaintiff, testified that he went with Miller to the house of Pruitt, in January, then last, after they had been hunting Emsweller, and that Miller wished Pruitt to aid him in arresting said Emsweller; that the witness was then proceeding to state to the jury what Miller said to Pruitt at the time, relative to the arrest of Emsweller in New Orleans, his subsequent escape, &c., whereupon the defendant, Pruitt, objected to the witness making such statement, but the Court overruled the objection.

'That conversation was a part of the res gestee and properly given in evidence.

The witness then detailed the conversation, and “ proceeded further to say that Pruitt consented to arrest Emsweller if he could, and then to let Miller know of the arrest; that he said he would do right about the reward, that Miller ought to have it, &c.; whereupon the defendant, for the pm-pose of impeaching the witness, proposed to ask him if he had not, after that conversation, on the same day it occurred, told one Thomas Guard that Emsweller was at large, that whoever caught him would be entitled to the reward, and that Miller was no more entitled to it than any other person; ” but the Court refused to permit the question to be asked. We think there was no error in this. The question was irrelevant. The witness had not testified to anything in regard to his own opinion. He had stated that a certain conversation took place between Miller and Pruitt. Now, the question proposed to be asked was, not whether he had told some person that no such conversation did take place, but whether, admitting the conversation to have taken place, he had not, in fact, given his opinion as to the legal question involved in the case. This was a matter wholly unimportant.

G. Holland, for the appellant.

J. D. Howland, for the appellee.

The bill of exceptions further states that the defendant offered to prove, by a competent witness, that he, Pruitt, after Miller had applied to him to arrest Emsweller, agreed with Mrs. Emsweller to give her 100 dollars and to Emsweller himself, 50 dollars of the reward, if she would let him know when Emsweller came home; but the Court would not permit the proof to be made.

This ruling could have done no harm. Pruitt had no authoi’ity to bind Miller by such a contract, even if he could bind himself, which we do not decide; but if he had had such authority, it was not pretended that Pruitt had paid the money, and hence it should not have been deducted in this suit. If Miller was bound by Pruitt’s bargain to pay the money, the Emswellers might, and perhaps would, look directly to him for it.

Emsweller himself was made a witness by the defendant. The plaintiff objected to him as incompetent, because, in 1848, he had been convicted of petit larceny. This, however, is not a crime that renders a person, in law, infamous, and hence, does not render him incompetent as a witness. R. S. p. 999, s. 79, and p. 719, s. 261.

Per Curiam.

The judgment is affirmed, with 2 per cent, damages and costs.  