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V. Fuller, 21 Pick., 318 ; Laddv. Thomas, 12 Ad. & Ell., 117.
2. The court erred in refusing to charge the jury as re-
quested by the defendants, with regard to the duty of the
officer to search for personal property on which to levy the
execution. There is no evidence that the officer made any
search to find personal property. The motion indeed finds
that it did not appear tliat the officer knew of property be-

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Biilklcj If* Finch.

longing to the defendant Finch, or that he owned any prop-
erty ; the meaning of which is that no evidence was offered
on this subject. But it does appear, by implication at least,
that he did not make any effort to find any property, nor en-
quired of the execution debtors if they had any. The other
execution debtors might have had an abundance of personal
estate, and the officer might have known it at the time of de-
mand made. The statute in terms makes it the duty of the
officer to take personal estate if he can find it, before he can
arrest the body. He shall abo give to the debtor a reasonable
opportunity to deliver to him personal estate. This opportu-
nity was denied by this officer, for demand was made of the
defendant in Norwalk, while his residence was in New Canaan,
many miles distant, and then he was immediately arrested.

8. The permission of the jailer that the defendant should
go beyond the liberties of the prison constituted a voluntary
escape. The sheriff cannot rightfully permit a debtor to do
this. If permitted the whole object of the imprisonment
would be defeated. It nowhere appears that the court-house,
to which the defendant was permitted to go, was within the
prison liberties. This court cannot assume that it was. Nor
is it any protection to the sheriff that the jailor accompanied
the defendant to the court-house. If he could rightfully go
with him there, he could go with him anywhere, and the im-
prisonment would be only in name. This permission being
in violation of law constituted a voluntary escape, and from
that time the imprisonment of the defendant was illegal, and
the bond given by him to procure his release was void. JLt is
no answer that the permission was given at the request of the
defendant or for his accommodation. All voluntary escapes
are or may be at the request of the debtor. BartleU v. Willi^^
8 Mass., 86 ; Colhy v. Sampson^ 6 id., 810 ; Clap v. Cofran^
7 id., 98 ; Burroughs v. Lowder^ 8 id., 878 ; Degnmd v.
JBiinneweUy 11 id., 160 ; Clapp v. Eayward^ 15 id., 276;
Whitehead Y. Vamumy 14 Pick., 528; 2Jhe People v. JStone^
10 Paige, 606 ; U. States v. Noah, 1 Paine, 868; Thompson
v. Lockwoodj 15 Johns., 256 ; Dive v. Manningham^ Plowden,
60 ; Lenihall v. Cool^^ 1 Saund., 161 ; MosedeWs case^ 1 Mod.,

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Bulkley v. Finch.

116 ; Benton y. StUton, 1 Bos. & Pul., 24 ; Com. Dig., Us-
capcy C.

4. The court erred in refusing to charge the jury that if
they should not find that a request was made of the defend-
ants or one of them to pay the bond, and that a reasonable
time had elapsed thereafter for such payment before the ser-
vice of the writ, the plaintiff could not recover. The court
also erred in the charge which was given. Assuming the re-
quest alleged in the declaration to be sufficient, it is material
and necessary to be proved. This bond is not for the pay-
ment of a mere debt due when given, but is an obligation to
pay a collateral sum of money, the right to which would ac-
crue only in case there should be a breach of the condition
of the bond, which was also for the performance of a collat-
eral act. Now it is alleged in the declaration that if there
should be a breach of the condition of the bond, then, after a
reasonable time, upon request, they would pay. It is certain
that the allegations must be proved, or the« plaintiff cannot
recover on this declaration. It is not necessary to enquire
on this motion whether it was necessary to allege a request,
but being alleged it is necessary to prove it, becausd it is one
of the terms of the bond itself as set forth in the declaration.
The plaintiff has undertaken to declare on this bond accord-
ing to its legal effect, and if the legal effect be that it is not
payable on request, then there is a fatal variance between tha-
declaration and the bond given in evidence. Bristow v..
Wriffht, Doug., 665 ; Harris v. Mantle, 3 T. R., 307 ; 1 Smith
Lead! Cas., (6th Am. ed.,) 901, 903, 920, 922 ; Sheehy v.
Mandeville, 7 Cranch, 208 ; Crawford v. Morrell, 8 Johns.,
263; Bulkley v. Landon, 2 Conn., 404; Curley v. Bean,
4 id., 259.

6. The court should have charged the jury that the reason-
able time mentioned in tlie declaration did not begin to run
till demand or request made. This is a reasonable construc-
tion. Henry Finch was a mere surety. He could not be
presumed to know when his principal escaped, as the plaintiff
must have known, having him in custody. Requiring a
reasonable time to elapse before a demand should be made

Vol. XXXVII. — 11

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Bolkley r. Finch.

could be of no advantage to the surety, as he could not be
presumed to know when it began. But it would be reason-
able, and ordinary prudence would dictate, that the surety
should have a suitable time to make the payment after he
should be notified of the forfeiture of the bond ; and the court
should have so informed the jury. Graham v. Van Diemen^B
Land Co.^ 30 Eng. Law & Eq. R., 574. And as no demand
whatever was made a reasonable time had not begun to nm,
and no cause of action had accrued.

6, The last request of the defendants for instruction to the
jury should have been complied with, and the court erred in
withholding it. The debtor was entitled by law to the un-
restrained liberty of the prison limits upon the delivery to
and acceptance by the plaintiff of the bond in suit, and it
was false imprisonment to deprive him of it. U. States v.
Noahy 1 Paine, 368. Now the case shows that, after the de-
livery of the bond, the jailer required the debtor to return to
the gaol every night at 8 o'clock, and to be locked therein
until morning, from the 29th of January till the 30th of
March, the day he left. Here was compulsory imprisonment
within the walls of the prison in direct violation of the law,
and the debtor had a right to escape from it by going beyond
the reach of the gaoler and the means of this imprisonment.
But not only this, the bond became void in consequence of the
|)laintiflf depriving him of the liberty to which he was entitled
by law, and the granting of which was the consideration and
condition of the bond which had been given. This duty of
the sheriff to permit this liberty and the obligation of the
debtor to perform the condition of the bond, are in the nature
of mutual covenants, as they are in fact mutual conditions,
and the violation of this duty of the sheriff operates as a re-
lease aud discharge of the bond, for it is essential to a right
to recover upon it.tliat the plaintiff should prove a perform-
ance of the conditions on his part to be performed. Warner
V. Smith, 8 Conn., 14. It is no answer to this objection that
the defendants in their plea did not give notice of this wrong-
fiil imprisonment and that they should rely upon it in their
defence. The evidence of it was received without objection

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Bulkley v, Fincli.

then, and it is now too late to urge it. Goslin v. Corryy
7 Mann. & Grang., 842, 847.

L. Warner^ Jr,^ contra, cited, with regard to the officer's
return, Gen. Statutes, p. 49, sec. 223, p. 55, sec. 248, and
AUen V. Gleason^ 4 Day, 876; as to voluntary escape,
1 Swift Dig., 544, Huntington v. Williams ^ 8 Conn., 427, *Spy-
mour V. JBhrveyy 8 id., 68, and Brown v. Getchell^ 11 Mass.,
11 ; and as to the necessity of a demand upon the bond, and
of an averment that a reasonable time had elapsed, Seymour
V. Harveyy 8 Conn., 70, and Atistin v. Burbanky 2 Day, 474.

Cabpenteb, J, The first question in this case arises on
the motion in error. The claim is that the court erred in
overruling the motion in arrest of judgment. The ground
o( that motion was that the declaration is insufficient. The
alleged insufficiency consists in the want of an averment that
a demand or request was made of the defendants to pay the
money named in the bond declared on; and also in the
want of an averment that a reasonable time for the payment
of the money had elapsed before the commencement of this
suit. By looking at the declaration it will be seen that the
pleader, instead of declaring upon the penal part of the bond
generally, as he might have done, took the more usual, and
perhaps the better course, of setting out the condition, and
averring a breach. ,

H, in describing the penal part of the bond, he had omitted
the words " in a reasonable time when thereto requested,"
this question probably would not have arisen. By striking
out those words, which relate to the time of payment, it will
clearly appear from the declaration that the bond was not, and
could not be, payable until there was a breach of the condi-
tion. That averment therefore is inconsistent with other
parts of the declaration ; and being, to some extent at least,
repugnant, and the declaration being complete and sufficient
without it, it may and ought to be treated as surplusage.
If so, the necessity for averring a demand, and that a reason-
able time had elapsed, disappears.

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Bulkley v. Finch.

And it is very obvious that no such averment was necessary
in itself to make a good declaration upon such a bond and
condition set out together. So far. as the plaintiflF is con-
cerned both defendants are principals. Upon a breach of the
condition the bond at once became payable. One of the de-
fendants must have had knowledge of the breach as soon as
it occurred, as he was a party to the breach. No notice to
him, and no request, were therefore necessary to fix his lia-
bility. The parties have not stipulated that a reasonable
time shall be allowed for payment, but on the contrary the
fair inference from the terms and nature of the contract is,
that he is bound to pay immediately. The other defendant
must stand in the same situation. He is not, except as be-
tween himself and his co-obligor, a surety or guarantor, but
is liable as principal upon an absolute contract. Seymour v.
Harvey^ 8 Conn., 63.

The remaining questions arise under the motion for a new

1. The officer who served the execution by virtue of which
Curtis Finch was arrested, made demand of him for payment
of the execution. Payment was refused. He then made de-
mand for property whereon to levy to satisfy the same, but
none was shown him. As he knew of no propierty, he ar-
rested the body. The court instructed the jury that the arrest
was lawful. This instruction was unexceptionable. If the
debjor refuses to pay, and refuses to turn out property, and
the officer knows of none, he may safely assume that there
is none. If the debtor has property he knows it. If he de-
sires to protect his body from arrest, it is his duty to make it
known to the officer. If he fails to do so, it comes with ill
grace from him to complain that the arrest was illegal.
Allen V. Glea8on, 4 Day, 376.

2. After the arrestV the defendant, and before the execu-
tion of the bond in suit, the defendant, at his own request,
was permitted to go to the court-house in Bridgeport, in com-
pany with the jailer, to attend to some matter of business.
Tlie defendants asked the court to instruct the jury that that
was a voluntary escape, and rendered the subsequent deten-

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Bulkley v. Finch.

Hon illegal, and consequently the bond in suit void. The
court refused so to instruct the jury. I think the defendants
were not entitled to this instruction, even if it be assumed
that the court-house was off the prison limits. Such a trans-
action might, perhaps, constitute an escape as between the
creditor and the sheriflF, but I can see no reason for allowing
the debtor, at whose request and for whose benefit he was
permitted to go to the court-house, to set up this claim and
on that ground relieve himself from liability. But however
this may be, a conclusive answer to this claim is found in the
fact that it no where appears that the court-house was oflFthe
prison limits. That fact is material to this defence, and if the
defendants would avail themselves of it the burden was on
them to show it.

8. The charge of the court, " that it was not necessary to
aver in the plaintiff's declaration a demand or request made,
nor if averred was it necessary to prove it," was correct. So
also was his refusal to inform the jury what constituted a
reasonable time, and when the reasonable time mentioned in
the declaration began to run. These points have already been
suflSciently considered. I would remark however that the
claim made in the argument, that by reason of these aver-
ments there was a variance between the declaration and the
proof, cannot avail the defendants here, inasmuch as it does
not appear that the question was made in the court below.

4. After the delivery of the bond, the jailer required the
prisoner to return to the jail at night, which he did every
night, with one exception, until his escape. And this, the
defendants claimed, vitiated the bond, and the court was
asked so to charge the jury. The court declined so to

Precisely on what ground this claim is based is not readily
perceived. There is no pretence that the bond was procured
by fraud, or that there was any misrepresentation, either by
the plaintiff or his jailer, in respect to the consideration of
the bond. Nor is it claimed that any subsequent unlawful
act of the jailer makes the bond illegal. The only plausible
daim that can be made in respect to the matter is that there

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' 37 861

BO m l

37 86
66 U


Burns v. Fredericks.

has been a practical failure of consideration. But that is not
a defence. In the absence of fraud, nothing short of a total
failure of consideration will be a complete defence to the
action. A partial failure niiaj in some cases be a defence
pro tanto ; but no such claim was made in this case, and the
court was bound to meet only the claim made.

We cannot yield our assent to the claim that the prisoner
had a right to depart from the limits to escape imprisonment,
even though it be conceded that the imprisonment was illegaL
If it was illegal, he was not bound to submit to this require-
ment, and would have been justified in resisting it, if neces-
sary, by force. If compelled to submit, the appropriate
remedy was by an action for damages.

The judgment of the Superior Court must be affirmed, and
a new trial denied.

In this opinion the other judges concurred.

Andrew Burns, Jr., vs. Charles Fredericks.

In an action for ii^uries committed bj a dog the defendant denied Being the
owner of the dog. The dog at the time was in the possession of one 3/, who
at the time of the trial was absent from the country. Held that declarations
of My mode immediately after the injury, that he did not own tlie dog and that
it belonged to the defendant, were not admissible in evidence for the plaintiff.

The defendant admitted that on the morning after the injury he took the dog into
his possession. Held that, for the pui*pose of explaining this act, he might
prove a declaration made to him by 3/ immediately after the injur)', that he
had bought the dog of the defendant but that now he would not keep him.

One W, an eye witness of the occurrence, having testified for the plainti£f to
facts tending to show that the dog made the attack without provocation, the
defendant was allowed, against the objection of the plaintiff, to ask him
whether he had not said that the dog was not to blame. Held that this en-
qniry was not objectionable as calling for a matter of opinion and not of fact.

The mother of the plaintiff, (who was a child,) testified for the plaintiff, as to
the extent of his injuries, she not having seen the occurrence. On cross-exam-
ination the defendant was aUowed, against the objection of the plaintiff, to ask

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Burns v. Fredericks.

her whether both the plaintifr and W had not told her that the dog was not
to blame, to which she replied that she did not remember that either of them
had told her so. The defendant afterwards offered evidence that she had said
that she knew the dog was not to blame, which, against the objection of the
plaintiff, the court admitted. Held — 1 . That the evidence was not wholly irrele-
vant, inasmuch as it tended to show that the plaintiff and W might have stated
the facts to her at the time differently from their testimony at the trial. 2.
That if inadmissible it seemed to be of too little importance to be a ground
for granting a new trial.
The plaintiff in his motion for a new trial complained that the court below
charged the jury that the statute provided that any dog should be presumed to
be owned by the person on whose premises it was kept. The motion stated
that this charge was given "among other things," but did not show what those
other things were, nor what application the court made of the statute, nor in
what connection it alluded to, nor for what purpose. Held that the
objection was not presented in such a way that the court was bound to con*
sider it.

Trespass for injuries done by the defendant's dog to the
plaintiff, a minor who sued by his father and natural guar-
dian ; brought to the Superior Court in Fairfield county, and
tried to the jury on the general issue before Sanford, J.

On the trial the plaintiif claimed to have proved by the
testimony of himself and one Wielbacker, that while passing
along a public street in Bridgeport, on his way to his father's
house, being then a child of eight years of age, he saw a •
large dog belonging to the defendant loose in the street, and
a number of boys engaged in throwing stones before the dog
for the purpose of having him run after them and bring them
back ; that while the dog was waiting and watching for the
stones to be thrown, the plaintiff, playfully and without ap-
prehending any danger, put his arms around the neck of the
dog to hold him back ; that the dog instantly turned, seized
the plaintiflF and bit his face severely ; that the dog, at the
time, was kept for the defendant by one Mitskey, a keeper of
a saloon near by, who some time before the trial went to
Europe, and in whose hands, several months before, the de-
fendant had left the dog for the purpose of having him kept
for him. The plaintiff oflFered his father to testify that imme-
diately after the plaintiff" was bitten the father applied to
Mitskey, who, it was admitted, was then in possession of the
dog, to learn of him who was the owner of the dog, and that

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Burns t;. Fredericks.

Mitskey made answer that he did not own him. The plain-
tiff then enquired of the witness what induced him to go
and see Fredericks the defendant. He answered that Mits-
key told him that Fredericks owned the dog when the mis-
chief was done. To both of tliese answers the defendant
objected, and the court excluded them.

On the cross-examination of Wielbacker the defendant en-
quired of him whether he had not said that the dog was not
to blame. To this the plaintiff objected, but the court over-
ruled the objection ; and the witness answered, that he had
not said that the dog was not to blame.

The plaintiff introduced his mother, Sarah Burns, to tes-
tify to his condition after the injury. On cross-examination
the defendant asked her whether Wielbacker told her on the
night following the accident that the dog was riot to blame ;
also whether the plaintiff did not tell her that the dog was
not to blame. To both of these questions the plaintiff ob-
jected; but*^ the court overruled the objections and allowed
the enquiries.

Tlie defendant, for the purpose of contradicting the testi-
mony of Wielbacker, offered evidence that the latter, on the
night following the accident, said that the dog was not to
blame. To this the plaintiff objected, on the ground that it
only contradicted the witness in a matter of judgment, and
that it was irrelevant; but the court admitted it. The
defendant also offered evidence that Sarah Burns said that
she knew that the dog was not to blame for what he had
done ; to which the plaintiff objected, but the court admitted it.

The defendant, having offered evidence to prove that the
dog was the property of Mitskey, also testified that on the
morning after the injury Mitskey told him that he knew that
he had bought the dog of the defendant, but that he would
not have him now, and would kick him out of doors on ac-
count of the occurrence. To the admission of this evidenfte
the plaintiff objected, but the court admitted it. But the
defendant offered the evidence, and the court admitted it,
solely to expl^^in the fact, which the defendant did not deny,
that he took the dog away with him on the morning after the

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Burns v. Fredericks.

accident, and immediately after the last mentioned conversa-
tion with Mitskey, and had never thereafter collected or at-
tempted to collect any pay for him of Mitskey.

TTie jury having returned a verdict for the defendant, the
plaintiflF moved for a new trial for error in the rulings and
charge of the court. The part of the charge objected to was
stated by the plaintiflF in his motion only as follows : — " The
court charged the jury, among other things, that the statute
provided that any dog should be presumed to be owned by
the owner or occupier of the premises on which such dog
should be kept or harbored."

Sturges and Q-. W. Warner ^ in support of the motion.

!• The possession of the dog by Mitskey was some evi-
dence that he owned him. It was an act of Mitskey, and
his declaration explained or characterized this possession,
and showed its true character to be not a possession for him-
self as owner but as bailee. It was against his interest. Avery
Y. Cleman$, 18 Conn., 306 ; Willies v. Farley , 3 Car. & P., 895 ;
Smith V. Smith J 8 Bing., N. C, 29 ; Pocock v. Billings^ Ry. &
Mood., 127 ; Barm BeBode%' ease, 8 Adol. & EL, N. S., 208,
244 ; Adams v. Bamdson, 10 N. York, 809, 313 ; Fellows v.
Fellows, 87 N. Hamp., 75 ; 2 Russ. Ch. R., 67, note ; Ival v.
Finchj 1 Taunt., 141 ; 1 Phil. Ev., 257 ; 2 id., 645, 592 ; Marcy
V. Stone, 8 Cush., 4 ; Ford v. Haskell, 32 Conn., 489 ; Lundy.
Inhabitants of Tyngsborough, 9 Cush., 36.

2. The testimony of the defendant to prove a declaration
by Wielbacker that the dog was not to blame, was inadmissi-
ble. If Wielbacker ^inaself had testified that the dog was
not to blame, such testimony would have been inadmissible.
It was the expression of an opinion that the dog had done
nothing for which the owner <;ould be held responsible, which
involved a question of law, and was the very matter to be
submitted to the jury. The same objection applies with
Increased force to the evidence of a similar declaration by
Sarah Burns. It was mere opinion, based upon the repre-
sentations of others. Elton v. Larkins, 6 Car. & P., 386 ;
2 Phil. Ev., 727 ; Simmons v. New Becffard ^ Nantucket Steam-

Vol. XXXVII. — 12

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Bums r. Fredericks.

boat Co.y 97 Mass., 361, 371 ; Perkins v. Augusta Ins. ^ Bank-
ing Co., 10 Gray, 312, 824 ; 1 Smith Leading Cases, 764 ;
Lane v. Bryant^ 9 Gray, 245 ; Bohinson v. Fitchhurg ^ Wor-
cester B. B. Co. J 7 id., 92, 96 ; Attorney General v. Hitchr
cock, 1 Exch., 91 ; BeWUtv. Barley, 17 N. York, 340, 346.

3. No one will contend that the first part of Mitskey's
declaration to the defendant, standing alone, would be admis-
sible. It is hearsay evidence in its most objectionable form.
The whole is equally inadmissible. Mitskey's motive, and
his purpose in regard to the dog, are wholly immaterial. But
it was offered and received by the court wholly to explain the
fact that the defendant took the dog away on the morning
after the accident ; a fact in itself inmiaterial and irrelevant.
The injury had been done, a cause of action had accrued ;
and anything said or done by the defendant and Mitskey the

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