
    Love v. M’Alister.
    
      \JSscape from Prison. —Liability of Sheriff.]
   Pee CuRIAM.

M’Alister sued Brownlow; Love, the sheriff, arrested him; after judgment M’Allister took a fi. fa. and he pleaded, first, that he committed Brownlow to prison, who escaped, without his consent, privity, or neglect; secondly, committed, and broke prison, without the consent, privity, knowledge, * oneglect, &c.; thirdly, the same in substance; fourthly, committed, and that he was furnished by the plaintiff’s agent with a bed, bedstead, bedclothes, and covering, by means whereof he escaped. To these pleas M’Alister demurred, and the Circuit Court sustained it.

• The first question is as to the liability of the sheriff as bail. In M'Kee & Co. v. Love, for the same escape, this court some time ago decided that the sheriff in this State is liable as bail in all cases where the defendant in the action is not forthcoming, and that he is not in any case liable to an action for an escape on mesne process. Why does our act of Assembly declare that he shall be liable as bail, when no bail is taken, or insufficient bail, or where no assignment is made of the bail bond ? It is to the end that he may be subjected to the same proceedings and restricted to the same pleas as bail, and be entitled to no others. What these were was well defined in the law before. The bail could plead the death of the principal, surrender in due time, or payment of the money. The recognizance of bail, which was of record, gave him these alternatives. Beyond these the record did not allow of any, and the recognizance to which our bail bond is equivalent, could not be encountered by matters of defense, not allowed of in the condition of the recognizance. In like manner, by our law, was the sheriff bound as bail. He was entitled to the same pleas. But the sheriff is in divers cases excusable by law, although the prisoner be not forthcoming. If by fire or a public enemy he be released, or if there be no gaol or an insufficient one, from which any one may escape at pleasure, or if the prisoner be discharged by the plaintiff; these by law as well as reason are good defenses to an action for the escape in mesne process. If he must be proceeded against as bail, then there must be transferred to the sai. fa. all the additional defenses which the sheriff could have; to an action on the case for an escape * on mesne process, or otherwise there could be taken from the sheriff divers legal defenses, which the law hath not either expressly or intentionally taken from him, and then the sci. fa. will be a substitute for the action for an escape. Damages will be assessable at the discretion of the jury. Judgment will be given upon the verdict, and execution issue upon that; whereas the legal judgment upon the sci. fa. is that the plaintiff have execution of the judgment upon which the sci. fa. is founded. 5 Com. Dig. “ Pleader,” 3, L. 3 ; Suter, 1282: 2 L. R. 1049; 2 Wilson, 98; 1 Com. Dig. “ Bail,” R. 10; 1 Salk. 208. But now the judgment must be that the plaintiff upon the sci. fa. recover the damages given by the jury. Upon an escape in mesne process the jury may in discretion assess what damages they think proper. 2 Wilson, 295. The name and not the substance will be changed. Upon that as well as upon the action, the jury must inquire into the amount of damages sustained by the escape on mesne process. That depends upon the solvency of the defendant, and the cause of action against him, as well as the amount of it. Peake’s Evidence, 450, 397. Evidence relative to all these matters, the jury must hear on the sci. fa. In case of a voluntary escape after imprisonment, the sheriff must be allowed as bail to retake the prisoner, without being liable to an action for false imprisonment, and in this respect also the law will be changed. Although the plaintiff do not object, at the time appointed by our act, to the bail for insufficiency, yet the sheriff will be liable as bail himself, as the law declares him to be, if he do not take sufficient bail. 1794, ch. 1, § 11; 1890, ch. 6, § 1, April.

If for the sheriff’s accommodation he he furnished with all these pleas to the sci. fa., and with others which may be needful to excuse the non-production of the body, why not allow additional pleas to other bail ? Shall the sheriff as bail be allowed pleas which others as bail are not entitled to; cui bono is all this; for * what purpose is the alteration ? I do not mean to depart from the points decided. These remarks are intended to show the bent of our inclination, as we approach the new and undecided question made by these pleadings. The prisoner was furnished by the plaintiff’s agent with the means of effecting his escape. Who shall be bound to retake him ? Who shall bear the loss occasioned by it ? He that is not the cause thereof, or he that is ? The plaintiff might have discharged him, he may allow him any privileges he may think proper, the responsibility is his own ; it is not incumbent on the sheriff, and as this would be a good defense in an action for the escape, so it must here.

Overrule the demurrer.

This was the opinion of RoaNE and Haywood, Judges; but Whyte, Judge, was of a different opinion, which he delivered as follows: —

This case is not to be distinguished in substance from the case of McKee & Co. v. Love, sheriff, decided in this court at this place, May term, 1814. With the reasoning of that case, the doctrine there laid down, and the principles therein contained, I entirely concur, and therefore deem it necessary here to repeat them. In point of form an additional plea is contained in this case, which is not pleaded in that, but it affects not, neither does it make any alteration in the question determined by that decision. The plea is that after the writ had been executed upon Brownlow, and he had failed and refused to give bail, and therefore was committed to gaol for safe keeping, the plaintiff, M’Alister, by his agent, put into possession of Brownlow a bed, bedstead, bedclothes, and cording, by means of which he broke the said prison, without the privity, consent, knowledge, or neglect of Love, the sheriff, and effected his escape. This plea shows either a voluntary, or a negligent escape, and it matters not which of the two, as both are comprehended in the above decision. It amounts not either in words or in legal import to a voluntary discharge by the * plaintiff, M’Alis-ter. It is only in the easement furnished by him, which was altogether subject to the control of the sheriff, and optional with him whether he would permit or not. If he permitted it he cannot complain, being his own 'act. Take the alternative that he did not, and it makes out a case of negligence and inattention to his dirty. It cannot be inferred from the act of furnishing bed, bedclothes, &c., that he intended a discharge, for it supposes a residence and continuance in prison ; these articles being for his accommodation in that place, and precludes the contrary idea of a removal or discharge. This is my view of the additional plea in this case, and its legal operation is embraced by the above case of McKee & Co. v. Love, a case which has fully gone into all the learning on the subject, and clearly stated the principles of the decision, with which I am perfectly satisfied. I consider it unnecessary to add anything further.

I am therefore of opinion there is no error in the record, and the judgment of the Circuit Court ought to be affirmed.

But judgment was given according to the opinion of the other two judges.  