
    John Baker vs. Francis G. Deliesseline.
    The entry of a nonsuit on the back of a Declaration is evidence of the termination of that suit in the Court alone where the nonsuit was ordered. In any other Court, evidence of tire record of the judgment must be produced.
    In an action against the Sheriff for an escape under mesne process, evidence that the Plaintiff in the original suit, after the escape, suffered a nonsuit, is not conclusive evidence that he has sustained no injury.
    After an escape, the Plaintiff may proceed against the Sheriff, immediately, without further prosecuting his suit against the principal; but if he do, and abandons it, or is nonsuited, that nonsuit is not conclusive in favour of the Sheriff.
    Where a Defendant is in custody on mesne process, and the Plaintiff is nonsuited, the Sheriff may discharge the Defendant.
    This was an action on the case against Francis G. De-liesseline, late Sheriff of Charleston district, for an eseape-Plaintiff proved the cause of action against Michael Sta-zinsky, the individual who had escaped from the custody of the Sheriff, after the return of the bail writ. The delivery of the bail process to the Sheriff — the arrest — ■ the petition of the debtor for the benefit of the Prison Bounds Act, accompanied by his schedule — the suggestion of fraud filed on that occasion with the verdict of the jury, finding him guilty on the first suggstion — to wit: that he had in his possession the sum of $1,500 when he applied to be discharged under the provisions of the Prison Bounds Act, and his escape, were also given in evidence.
    The defendant produced testimony to shew the insolvency of the prisoner, and also introduced in evidence the declaration in the case of John Baker vs. Stazins-ky, indorsed on the back, “a nonsuit ordered, 11th June, 1823.” This was objected to on the part of the plaintiff: 1st. Because it was not a matter of record, no judgment on the nonsuit having been entered up; and, 2ndly. That admitting the nonsuit had been regularly entered up, it was immaterial to the issue, being subsequent to the escape; the escape having occurred in 1821, and the nonsuit granted in 1823. The nonsuit was permitted to go to the Jury as evidence.
    The defendant having closed, the plaintiff offered in reply evidence to shew that the nonsuit was granted in consequence of the plaintiff’s (in the case of Baker vs, Stazinsky) failing to prove the hand writing of the indor-sers on Sfazinsky’s notes, although he had proved that the drawer, Stazinsky, had acknowledged the debt to the plaintiff, and promised to pay. Plaintiff also produced evidence to shew that at the time of the nonsuit, there was a detainer against the prisoner in another case, by the same attorney, and that under the conviction of fraud, the prisoner should at that time have been in the custody of the Sheriff, and under the provisions of the Prison Bounds Act, could not be discharged “without fully satisfying the action on which he was confined.”
    The case was submitted to the Jury, under the charge of his Honour, Judge Huger, the presiding Judge, who charged them that the plaintiff had established his ease, so far as it regarded the cause of action against Stazinsky— the delivery of the bail process to the Sheriff — the arrest and the escape — and that the verdict of the Jury on the suggestion of fraud, furnished strong evidence of the solvency of the prisoner; but that the question of his insolvency was a matter for the consideration of the Jury alone — that the plaintiff’s having suffered a nonsuit in the progress of the suit against Stazinsky, had sustained no damage, the nonsuit operating as a discharge of the prisoner — that proof of a motion having been made by the defendant’s attorney after the nonsuit was obtained for the discharge of the prisoner was not necessary to authorize the Sheriff to discharge him, and that although the prisoner was in the custody of the Sheriff, under a de-tainer from the same attorney, and under the conviction of a Jury on a suggestion of fraud, that it was immaterial.
    The Jury found for the defendant, and the plaintiff now appealed on the grounds:
    1st; That the presiding Judge permitted the defendant to offer in evidence a nonsuit in the case of Baker vs. Stazinsky, although a judgment on the nonsuit had never been entered up, and was not a matter of record.
    2nd. That a nonsuit in itself was not evidence of a party being out of Court, and at all events was immaterial to the issue before the Court.
    3rd. That the presiding Judge charged the Jury, that where a nonsuit was granted in a case where defendant was in custody of the Sheriff upon bail process, and under a conviction of fraud, the Sheriff must discharge him without a motion in Court to that effect.
    4th. That His Honour charged that the plaintiff, in consequence of the nonsuit in the case against Stazinsky, had suffered no damage, although plaintiff proved that Stazinsky’s notes were still in his possession, unpaid, and that by the verdict of the Jury, Stazinsky possessed fifteen hundred dollars, which would have been more than sufficient to have paid the plaintiff’s debt, and which would have been recovered, if the Sheriff had not suffered the prisoner to escape.
    
      5th. Thát it appeared in evidence that the escape took place in April, 1821, and the nonsuit in the case of Baker vs. Staziiisky, was not ordered until the year 1823, and this was an action against the Sheriff, for an escape long prior to the nonsuit, and upon mesne process ; and,
    6th. That the Jury were bound to find for the plaintiff, although they may have awarded only nominal damages.
    Gadsden, for the motion.
    -, contra.
   Gubia per

Nott, J.

The grounds taken in support of this motion present but'two questions for the considerations of this Court:

1st. Whether the entry of the Clerk, of the order for a nonsuit in the case of Baker against Stazinsky, was admissible as evidence of the termination of the cause?

2nd. ' Whether the presiding Judge did not err in charging the Jury, that the plaintiff, by - suffering a nonsuit,, virtually discharged Stazinsky from imprisonment, and that that fact proved that he had sustained no injury.

1st. There can be no question, that out of the Court in which the proceedings are had, a regular judgment is the only legitimate evidence of the termination of a cause, for the obvious reason that the non production of the judgment would furnish a presumption that an intermediate or interlocutory order had been reversed or set aside; but this reason does not apply in cases where the proceedings are had in the same Court in which they are offered in evidence; for in legal contemplation, the whole record is before the Court, and in reality are always at the command of the Court, and for that reason, it is not necessary in pleading to make proferí of a record of the same Court. Í should apprehend, therefore, that whatever was calculated to prove that the plaintiff could not have proceeded in his cause against Stazinsky was admissible as evidence of its termination. Had the plaintiff the legal right, and would he have been permitted to' proceed with this order staring him in the face, although no formal judgment had been entered up ? I think not; for although the order could not have been strictly pleaded in bar, the Court would have stayed the proceedings' and given the defendant leave to enter up his judgment; and precedents are not wanting in which this Court have permitted the amendment and periection of a record, according to the truth of the case, even áfterthe trial below, and would do so now, if it was necessary to the justice of the case.

2nd. In connection with the second question, it will be necessary to premise that Stazinsky was arrested by the defendant on mesne process, at the suit of the plaintiff, on the 20th December, 1820. That he filed a petition praying for the benefit of the Prison Bounds Act, accompanied by a schedule of his estate and effects, and upon the trial of an issue made up on a suggestion of fraud, he was found guilty in having kept back $1500 which he had in cash, and that subsequently to these proceedings, to wit, on the 15th April, 1821, he made his escape from the prison. The plaintiff also proved on this trial, that Sta-zinsky was indebted to him the amount for which he was arrested, $812, besides interest. The order for a nonsuit was entered on the 11th June, 1823, more than two years after Stazinsky had escaped. There is no question, and, indeed, it is not controverted, that on the escape' of Sta-zinsky, the plaintiff was entitled to an action against the defendant, and that he was not bound to prosecute that action further, and although he might do so if he had been delayed, or suffered any other loss in consequence of it, he was still entitled to recover from the defendant to that extent (see the cases cited, 1 Saunders, 331; 2nd Wilson, 294; 5th Johnson’s Rep. 182;) and in all these eases the question necessarily is, what damage has the plaintiff sustained ? It is said, and that is in effect tbe error complained of, in the charge of the presiding Judge, that the nonsuit is conclusive evidence that the plaintiff has sustained no injury, and was not, therefore, entitled to recover. A nonsuit is clearly not decisive of the right of the plaintiff to recover. He may bring a new action for the same cause, and the judgment of rionsuit will not be a bar. It could not, therefore, be conclusive as to the fact, Shat Stazinsky was not indebted to the plaintiff in'the sum for which he was arrested. But the argument'principally relied on, and which I have no disposition to avoid, is, that a nonsuit being the result of those proceedings, it follows that if Stazinsky had remained in custody, the plaintiff would not have recovered against him in that action, and, therefore, has sustained no injury. A nonsuit, strictly speaking, is the voluntary act of the plaintiff, and the. judgment is founded on his supposed neglect to bring on the issue to be tried according to the, course and practice of .the Court; and judgment, as in case of nonsuit, is awarded in those' cases, when the plaintiff fails to prove the facts necessary to support his action. Now, let us suppose that the plaintiff was guilty of a default, and was, therefore, nonsuited, or that he had failed to prove the facts necessary to support his action, or what sometimes happens, that he has been properly' nonsuited; and how, I would ask, is the situation of the plaintiff rendered worse, or the defendant’s better. The fact of Stazinsky’s escape rendered the defendant legally liable, and the defendant might have maintained an action against him — 2d. Esp. 239. The plaintiff was not bound to pursue him, and whether he abandoned the pursuit in the instant, or two years after, cannot be material; if the right to abandon once existed, it still remained. Was he nonsuited for defect of proof? or was the nonsuit improperly granted? What is it that imposes on him the obligation to incur tbe expenses of preparing for trial in the one ease, or of prosecuting an appeal in the other, if (as is said to be the fact) Stazinsky had escaped beyond his reach ? If, as is supposed, the law imposed this obligation on him, it would necessarily have imposed on the defendant the corresponding obligation to indemnify him for those expenses, and so far from benefiting the defendant, he would have been prejudiced by it. So far, therefore, from the nonsuit being conclusive evidence that the plaintiff had sustained no injury, it is rebutted by the proof oí the debt due by Stazinsky, and does not weigh a feather.

A question not necessarily involved in the preceding view is raised in the third ground of the brief. It is for the supposed misdirection of the J udge in charging the Jury, that a defendant, on mesne process, is entitled to be discharged on a nonsuit ordered, although he has been convicted of rendering a fraudulent schedule on an application for the benefit of the act. About this, I think,, there can be no question. The object of his confinement was, that his body might answer the plaintiff’s suit; when that was atan end, the Sheriff had no authority to detain, him longer. ■ ■ Motion granted.  