#### NEILL CURRIE vv. SAMUEL SWINDALL.

Where an action is brought fey a plaintiff to recover the amount of a reward» offered by the defendant, for the apprehension and delivery in jail of an individual charged with a criminal offence, it is incumbent on the plaintiff to prove that he either compelled the individual by force, or induced him by persuasion, to make the surrender.

If the surrender of such individual was wholly voluntary, although tho plaintiff accompanied him to the jail and saw him lodged there, he has no right of action.

Where an agent is authorised to offer a reward for the apprehension of an individual, it is only necessary to prove that this was done — the mode of doing it is entirely immaterial.

Appeal from the Superior Court (of Law of Bladen County, at a Special Term in December 1850, bis Honor Judge Dice presiding.

This was an action of assumpsit, brought to recover the sum of one hundred dollars, which, it was alleged, the defendant had offered to give any one, who would apprehend and commit to prison, a certain person of color, named Chavis, charged with homicide.

The plaintiff proved by a Mr. McNeil, that the defendant requested him (the witness) to offer a reward of one hundred dollars in his (the defendant’s) name to any person, who would apprehend and commit to jail the said Chavis: that the defendant did not direct in what manner the reward should be offered, whether by written advertisement or by publication in a newspaper: that he (the witness) wrote to the Editor of the ‘’Fayetteville Observer,” and the purport of what lie iptd written was *362(here the defendant’s counsel objected, that the witness could not speak of what he had written to the Editor without producing the letter or accounting for its absence, but the Court permitted him to proceed) contained in the newspaper then before the Court, dated Nov. 20th, 1848. The plaintiff then introduced the jailor of the County, who proved, that the plaintiff came to his house on the Saturday night before the trial of the culprit, distant from the jail about two hundred yards, and told him he wished him to go to the jail: that he accordingly went, and found there Chavis and a man by the name of Smith with him : that the said Chavis was not confined in any way» and upon the jailor’s opening the door, the plaintiff told Chavis to go in, which he accordingly did.

It was in proof, that Chavis was tried the week following the Saturday night of his going into custody, being the Spring Term 1849, of Bladen Superior Court of Law. It was also in proof, that the culprit Chavis was in the employment of the plaintiff*, at the time of the homicide. The defendant offered to prove, that he was in the employment of the plaintiff after his trial, but this latter evidence was objected to and excluded by the Court.

There was no proof, that the plaintiff made any effort to arrest the culprit, nor was there any proof of his having arrested him, but that before stated.

The defendant contended, among other things, that the plaintiff had not, in fact, apprehended the culprit, but that he had intended to come in of himself, and the plaintiff being aware of it, merely accompanied him to claim the reward ; and this, it was insisted, was inferable from the facts, that it was just the Saturday night before his trial that the culprit came in: that he came untrammelled : that there was no show of force or constraint upon him: that he had been in the employment of the plaintiff at the time of the homicide ; and that no proof had been offered of any act of arrest by the plaintiff’, or even of his having' *363searched for the offender. And the defendant’s counsel prayed the Court to instruct the jury, that if they believed the culprit had come in of his own accord, and although the plaintiff may have accompanied him, yet if it was not in consequence of any force or persuasion used by the plaintiff, the plaintiff was not entitled to recover.

The Court refused to give the instruction prayed for, but told the jury, that it was not necessary for the plaintiff to have brought Chavis to jail by force to enable him to recover, but if he had induced Chavis to come to jail by persuasion and promises of assistance, it would be the same as if he had used force. The only evidence, how Chavis got in jail, was the evidence of the jailor, and they must decide upon that, whether the plaintiff had brought Chavis and put him in jail, and, if they found for the plaintiff on this point, and also found, that the defendant had authorised McNeil to offer the reward, as stated by McNeil, then the plaintiff' was entitled to recover ; and there was no evidence calling for such instructions as the defendant’s counsel had asked for. A verdict being rendered for the plaintiff, and a rule for a new trial discharged, the defendant appealed.

W. Winslow, for the plaintiff’.

Strange and McDougald, for the defendant.

PearsqN, J.

There is error in the refusal to give the instruction prayed for, and in the manner in which the case was left to the jury.

The instruction concedes, that the plaintiff is entitled to recover, if the person accused surrendered himself, in consequence of either force or persuasion used by the plaintiff; but it asserts, that if the man surrendered himself of his own accord, the plaintiff is not entitled to recover. There can be no question of the truth of the proposition asserted; for, if the man surrendered himself of *364his own accord, without any force or persuasion on the part of the plaintiff, then he has not performed the ser* vices for which the reward was offered. Indeed, his Honor does not deny the proposition, but refuses “togive the instruction and after reciting what the defendant had conceded, “that it was not necessary for the plaintiff to have brought the man to jail by force, but if he had induced him lo come to jail by persuasion and promises of assistance, it would be the same as if he had used force,” he proceeds to instruct the jury, “that the only evidence, how the man got in jail, was the testimony of the jailor, and they must decide upon that, whether the plaintiff had brought and put him in jail and puts his refusal to instruct the jury, as prayed for, on the ground, that there was no evidence to raise the question.

There is error in thus narrowing down the case, and, in effect, deciding it. The man is in jail — he was induced to come either by force or persuasion used by the plaintiff, or he came of his own accord. There is no evidence, that he came of his own accord — ergo, he came by force or persuasion used by the plaintiff.

There is no evidence that the plaintiff had used force to apprehend the man. The testimony of the jailor, although not inconsistent with the idea, that the plaintiff had, by persuasion, induced the man to surrender himself, was, by no means, conclusive of the fact, and did not exclude the idea, thst he had surrendered himself of his own accord. So, the fact, that the surrender was made on Saturday night before Court, was consistent with either view of the case. The same may be said of the other fact, that the man was in the plaintiff’s employment at the time of the homicide. And it seems to us, that there was nearly, if not quite as much, ground for instructing the jury, that there was no evidence that the surrender was made in consequence of persuasion used by the plaintiff, as for the instruction, that there was no evidence *365that the man surrendered himself of his own accord. — > That enquiry ought to have been submitted to the jury, with instructions, that the burthen of proof was on the plaintiff; and, in the absence of any proof of an aet done or words used by him, tending to induce the man to surrender himself, if the jury could not satisfy themselves how the fact was, they should find for the defendant.

There is no error upon the question, relative to the letter of McNeil to the Editor of the “Observer.” It was not necessary to prove its contents. It was sufficient to prove, that the defendant had authorised McNeil to offer the reward, and that it was offered. The mode, in which McNeil procured it to be done, was wholly immaterial.

As to the other question, it is only necessary to say, thafc^ in a case depending on well balanced circumstances, the fact, that the man after bis acquittal went to work with the plaintiff, might have had some weight on one side or the other; and in a case of circumstantial evidence, the facts following, as well as those which precede, and those which accompany the act, are sometimes important.

Pur Curiam. There must be a venire de now*