
    Hooe v. Tebbs and Wife.
    Wednesday, October 31, 1810.
    1. Prison-Bounds Bond — Suit on — Judgment—Effect on Sheriff. — If, in a suit upon a prison-bounds bond, a Court possessing competent jurisdiction adjudge the bond void; the plaintiff may sue the Sheriff without appealing from the judgment though erroneous.
    2. Same — Same—Same—Same.—fn such case the Sheriff, though not a party to the suit on the bond, is bound by the judgment; unless he can prove it was obtained by collusion.
    3. Escape of Prisoner — Action against Sheriff — Verdict —Sufficiency.—In an action against the Sheriff for an escape, a verdict in general terms, for the plaintiff, is not sufficient to authorize a judgment; notwithstanding the charge in the declaration be, that the Sheriff took a defective prison-bounds bond, and thereupon voluntarily permitted the prisoner to escape; and issue be joined on the plea of not guilty. An express finding by the Jury according to the act of 1792 concerning escapes, is absolutely necessary.
    4. Prison-Bounds Bond — Sufficiency of. — It seems, that a prison-bounds bond, taken payable to the plaintiff, is good at common law, and an action may be maintained upon it.
    5. Same — Same.—Quaere, whether it be not also good under the act of Assembly?
    This was a special action on the case in the Dumfries District Court, by William Tebbs, and Victoria his wife, against Bernard Hooe, sen. late Sheriff of Prince William County. The declaration charged that the plaintiffs had, in a certain action of trespass, assault and battery, obtained a judgment, and sued out a writ of capias ad satisfaciendum, against one Daniel Tebbs, which was delivered to George Lane, one of the defendants’ deputies, to execute, who thereupon took the body of the said Daniel Tebbs in execution; and that the said George Lane, “contriving, and unjustly intending, contrary to the duties of his office, to hurt, injure, and deprive the plaintiffs of the means and remedy of obtaining their damages and costs aforesaid, afterwards, (the said Daniel Tebbs being still in custody, &c.) did receive and take of the said Daniel Tebbs, together with Wil502 loughby Tebbs *as his security, a prison-bounds bond payable to the plaintiffs, (and not to the Sheriff,”) which was set forth in hasc verba: ‘‘and thereupon the said Lane, without the license of the plaintiffs, and against their will, contrary to the duties of his office, freely and voluntarily permitted and suffered the said Daniel Tebbs to escape, and go at large, out of the custody of the said Lane, so being Deputy Sheriff as aforesaid, wheresoever he would, the plaintiffs being wholly unsatisfied for their damages,” &c.
    The declaration charged, moreover, that the plaintiffs thereafter brought an action in the said District Court on the said bond; and that, by the judgment of the Court, the said bond was declared to be illegal, and that an action was not sustainable thereon ; by reason of which premises the plaintiffs had never received and recovered their damages and costs first mentioned, but had been run to great trouble and expense in prosecuting, and discharging the costs accruing on the action sued out by them on said bond,” &c.
    The defendant pleaded not guiltj'; and, issue being joined, a verdict was found in the following words: “We of the Jury find for the plaintiffs, and do assess their damage to one hundred and eight pounds, five shillings.” A motion was made in arrest of judgment; 1. “Because the Jury who tried the issue had not expressly found that Daniel Tebbs the prisoner did escape with the consent, or through the negligence of the defendant, or his officer; or that he might have been retaken, and that the defendant and his officer neglected to make immediate pursuit;” and, 2. “Because the whole proceedings were erroneous and irregular.” The Court overruled the motion, and gave judgment for the plaintiffs: the defendant appealed.
    Botts, for the appellant, made thfiee points; 1. That the- prison-bounds bond set out in the declaration was a valid one. The 21st section of the act of 1748, c. 8, repealed in 1793, (under which this bond was taken,) does not expressly say to whom it should be payable; but the strong implication is, to the plaintiff; the act not requiring it to be payable to the Sheriff. In like manner, the law relating to forthcoming bonds,  though it uses the expression, “if the owner of such goods and chattels shall give sufficient security to such Sheriff,” &c. has always been construed as requiring such bonds to be made 503 “payable to the plaintiffs.” It *is true that, by the act of 1764, c. 6, s. 1, the Sheriff is directed to assign over and deliver the prison-bounds bond to the plaintiff: but this only shews that the Legislature supposed the bond might be taken payable to the Sheriff; not that the law required it. Indeed, it answers every beneficial purpose to take it to the plaintiff, or to the Sheriff for his benefit. The 7th section of the act of 1748, c. 6,  does not vitiate this bond; first, because it was taken under the authority of the before-mentioned act of Assembly; and, secondly, because the clause now in question relates only to bail-bonds or bonds for *1 ‘appearance. ” The same construction, viz. that it related only to persons arrested on mesne process, was given in England to the statute 23 Hen. VI. c. 9; from which ours is copied.
    
    But in many cases where a bond is not sufficient, under the act of Assembly, to-authorize a motion in a summary way, it has been decided that an action may be maintained upon it at common law: particularly, where a statute requires a bond to be taken payable to the plaintiff, it is, valid as a common law bond, though taken to the Sheriff: the converse of which rule ought equally to hold good.
    2. The judgment in the suit on the bond, to which the present appellant was no party* ought not to bind him; especially as that judgment was illegal, 
    
    3. The verdict of the Jury in this suit is imperfect, in not expressly finding that the debtor escaped with the consent or through the negligence of the Sheriff,  The Clerk’s entry that the Jury found the defendant “guilty in manner and form as charged in the declaration,” is merely the clerical form of recording the verdict, but does not satisfy the act of Assembly. At common law, it would be otherwise. On a general verdict of “guilty,” the Court would adjudge that the Sheriff had been guilty of voluntarily permitting the escape of the prisoner. But this act goes farther and for wise reasons. A Jury might shrink from finding a voluntary escape, when through hurry or inadvertency, they might find a general verdict for the plaintiff. But, however this may be, the words of the act are plain, and positive, and must be obeyed.
    Williams, contra.
    The action in this case maj' be considered, either, as on the case for a voluntary escape, or, (more 504 properly,) *as against the Sheriff for misfeasance in office, in taking a bond which was not such as the law required.
    This being an action on the case, the verdict substantially complied with the law > for the point put in issue by the plea of “not guilty” was, whether the defendant was guilty in manner and form as charged in the declaration; and the verdict of the Jury, by finding the issue in favour of the plaintiff, expressly found that the defendant was guilty in the same manner and form. How far, indeed, the act of Assembly is applicable to actions on the case for escapes, might be questioned; since, in such actions, the Jury inquire into all the circumstances, and give such damages as. they may deem pioper; whereas, in debte for an escape they must give the whole debt. In the last-mentioned action a special finding by the Jury, that the escape was voluntary, may be requisite because the plea of nil debet does not expressly put that point in issue. But, in the action on the case, it is otherwise; a finding to the same purport being sufficient; for the Legislature have not pretended to prescribe the form, but the substance of the verdict. The case of Johnson v. Macon, 1 Wash. 4, is not like this; having been decided on the ground of there being no proof of an actual escape. In that case, too, it is said that “the consent or negligence of the Sheriff, though made necessary by the act of Assembly, ought to be presumed, unless on the Sheriff’s part, a tortious escape be shewn, and that fresh pursuit was made.”
    But, secondly, this is an action against the Sheriff, for misfeasance in office, in taking a bond, contrary to law, to the injury of the plaintiffs. The fair inference from the 21st section of the act of 1748, c. 8, is, that the Legislature intended the bond (which the Sheriff was to take) to be payable lo the Sheriff; because the law did not direct it to be taken to any other person. The law concerning escapes puts this beyond a doubt, by directing the prison-bounds bond to be assigned to the creditor; whereas forthcoming and replevin bonds are only to be delivered (not assigned) to the creditor, or to be returned to the Clerk’s office. The bond being payable to the plaintiff, was therefore certainly not good as a statutory bond; and, if it were good as a common law bond, the Sheriff is not thereby cleared from responsibility; for it was 'his duty to take such a bond as the statute required. The plaintiff had his election to sue either the obligor, or 505 the ^'Sheriff. But the case of Syme v. Griffin is a plain authority to shew that this bond was utterly void.
    Botts, in reply.
    I admit that the verdict, finding the defendant guilty, did find the declaration in substance. Nevertheless, the Legislature, intending to reform the common law in this particular, demands an express declaration from the mouths of the Jury, that it was a voluntary or negligent escape, or that there was not fresh pursuit. Where the words of a statute are plain, consequences are not to be regarded; for this would be to usurp legislative authority ; and this act is penned in terms precluding all possible ambiguity. In Johnson v. Macon, 1 Wash. 6, the President of this Court, in reference to the same act, says, the finding that the escape was voluntary, or negligent, must be express.
    The two arguments offered by Mr. Williams and myself shew strongly that it makes no difference whether the bond was given to the Sheriff or plaintiff; the law not having directed which. Why should the Sheriff be more naturally designated as the, obligee than the plaintiff? The plaintiff in this case accepted the bond, and made his election by suing the obligor. The bond, being good at common law, was as beneficial to the plaintiff, as if taken according to the act of Assembly; the mode of proceeding and recovery being the same.
    
      
      Escape of Prisoner — Action against Sheriff — Verdict —Sufficiency,—In Vanmeter v. Giles, 1 Rob. 345, it is said: “The judgment rendered for the plaintiff was moreover wrong, becanse the verdict did not expressly find that the prisoner escaped with the consent or through the negligence of the sheriff. Our statute concerning escapes is clear and explicit, that no judgment shall he entered against any sheriff in any suit brought upon the escape of any debtor in his custody, unless the jury who shall try the issue shall expressly find that the prisoner did escape with the consent or through the negligence of the sheriff, or that he might have been retaken, and that the sheriff neglected to make immediate pursuit. This peremptory mandate applies to all actions against the sheriff, and of course his sureties, of whatever nature or form, founded upon an escape; andif not strictly complied with, the defect cannot be supplied by any intendment or conclusion, in favor of a general verdict, from the pleadings or issue: as was held by this court in Hooe v. Tebbs, 1 Munf. 501.” To the point that, where the declaration charges the sheriff with a voluntary escape, who pleads not guilty, a general verdict for the plaintiff does not warrant a judgment against the defendant, the principal case was cited in Stone v. Wilson, 10 Gratt. 536.
      The principal case was cited with approval on this point, but distinguished from the case at bar, in Burley v. Griffith, 8 Leigh 448.
    
    
      
      Prison-Bounds Bond — Sufficiency of. — See the principal case cited in Porter v. Daniels, 11 W. Va. 254, 257.
    
    
      
       Edit. of 1769, p. 196.
    
    
      
       1 Rev. Code, c. 151, s. 37. p. 393.
    
    
      
       Edit. of 1769, p. 194, s. 12, 1 Rev. Code, p. 298, s. 13.
    
    
      
       Edit, of 1769, p. 446, 1 Rev. Code, c. 79, s. 2, p. 119.
    
    
      
       Edit, of 1769, p. 184, 1 Rev. Code, c. 80, s. 17, p. 122.
    
    
      
       6 Bac. Abr. (Gwill. edit.) 179, 1 Term Rep. 422, Rogers v. Reeves.
    
    
      
       Johnsons v. Meriwether, 3 Call, 523; Hewlett v. Chamberlayne, 1 Wash. 367; Beale v. Downman, 1 Call. 249.
    
    
      
       1 Call, 51, Drew. Anderson; Runn, on Eject. 364, 367.
    
    
      
       1 Rev. Code, c. 79, s. 3, p. 119; Johnson v. Macon, 1 Wash. 4.
    
    
      
       Bonafous v. Walker, 2 Term Rep. 126, 1 Vent. 211, 217.
    
    
      
       1764, c. 6, s. 1, Edit, of 1769, p. 446.
    
    
      
       4 H. & M. 277.
    
    
      
       6 Bac. 391, (Gwill. edit.) 1 Term Rep. 728, The King v. Hogg
    
   JUDGE TUCKER

stated the case, and proceeded. The motion in arrest of judgment in this case seems to have been founded upon the third section of the act concerning the escape of debtors, which declares that no judgment shall be entered against any Sheriff, or other officer, in any suit brought upon the escape of any debtor in his or their custody, unless the Jury, who shall try the issue, shall expressly find that such debtor did escape with the consent, or through the negligence of such Sheriff; or that such prisoner might have been retaken, and that the Sheriff and his officers neglected to make immediate pursuit.

I conceive that there is no principle of the common law more generally acknowledged, or more demonstrably true, than that, whenever the defendant in any action whatsoever pleads the general issue, and relies on that plea only, if the. Jury find a general verdict for the plaintiff, every material fact, allegation and averment, which is sufficiently charged in the 506 declaration *to support an action thereupon, is by such verdict as substantially and expressly found to be true, as if the Jury had repeated the declaration, clause by clause, verbatim, in their verdict. And this is proved by the manner and form of pleading, which, we are told by Sir Edward Coke, 1 Inst. 115, b. affords one of the best arguments, or proofs in law, when drawn from right entries, or course of pleading; for that the law itself speaketh by good pleading. Now the right entry, or course of pleading in this case is, that the defendant, by his attorney, comes and defends the wrong and injury, and saith that he is not guilty in manner and form as the plaintiff hath complained against him; and of this he putteth himself upon the country; and the plaintiff likewise. Thus, the issue for the Jury to try, is whether the defendant be guilty, in manner and form as the plaintiff hath complained against him: they have answered that he is guilty, and assess the plaintiff’s damages. The Court, whose duty it was to mould this verdict into proper form, have done so, and it is accordingly entered that he is guilty in manner and form as the plaintiff by replying hath alleged. But the replication is not special, but merely joins the issue tendered by the defendant in his plea: it denies the truth of the plea, as the plea had before denied the truth of the charge in the declaration, in manner and form as the same was therein set forth. And the verdict, by affirming the truth of the issue thus joined between the parties, has, in my opinion, not only substantially, but expressly, found that the debtor did escape with the consent, of the Deputy Sheriff; it being expressly charged in the declaration, that the Deputy Sheriff, contra^ to the duties of his office, freely and voluntarily permitted and suffered the said Daniel Tebbs to escape and go at large,

Thus far I have spoken upon the general principles of the common law, and the right course of pleading. I will now notice the preamble to the clause of the act before recited, and upon which the defendant has relied for his indemnification; premising that the County Court law requires the Court of every County (under a penalt3r on the Justices, if they fail to do so) to build, and keep in repair, a common gaol and county prison, welt secured with iron bars, bolts and locks. The frequent neglect of this injunction is thus noticed by the Legislature in the act concerning escapes. s. 3. “And whereas the situa507 tion of most prisons in *this Commonwealth hath given opportunities to evil disposed persons to break open the same, and turn out debtors and others in custody, to the hindrance of justice,, prejudice of creditors, and ruin of sheriffs, who have been compelled to pay the debts, with which such prisoners stood charged; for remedy thereof, Be it enacted that no judgment,” &c. We are told by the same eminent Judge before referred to that the preamble of a statute is the key to the mind of the Legislature. What, then, was it in the mind of the Legislature to remedy in this case? The insufficiency of the county gaols: for to that object alone, and the means it afforded disorderly persons to violate the laws, was their attention turned, and not to any voluntary act of misfeasance on the part of the Sheriff, whether the same were committed through wilfulness or mistake. Here the Sheriff is charged with an unlawful, and therefore unjustifiable act, proceeding from one or the other of those causes; it is immaterial which ; for, if a Sheriff mistakes his authority, he is civilly answerable, equally as if he had wilfully offended. I am therefore of opinion that the judgment be affirmed.

JUDGE ROANE.

The judgment of the District Court in the action upon the prison-bounds bond having been in favour of the defendants, upon the ground that the bond was illegal and void; and that judgment being still in full force and unreversed, we must now take it to be correct, and the bond sued upon to be void, whatever opinion the Court may entertain upon the question, as occurring in the present action. It was not incumbent on the appellee to have appealed from that judgment to the Court of the last resort; but it was competent for him to proceed upon the judgment of the District Court, in the present action against the appellant; reserving to the appellant, however, the right to shew that that judgment was obtained by the connivance or collusion of the appellee. These conclusions seem entirely warranted by analogy to the decision of this Court in the case of Lee, Executor of Daniel, v. Cooke, 1 Wash. 306. That was an action against a warrantor of a slave recovered from the warrantee by the judgment of the District Court, and it was adjudged not to be necessary to aver in the declaration, or to prove, that notice was given to the warrantor of the pendency of the action against the warrantee; for that every judgment of a Court of 508 ^Justice is presumed to be fair till the contrary appear; and, if there was any collusion between the parties in that action, it should have been pleaded and proved on the part of the defendant. In that case, as in this, a man was affected by the judgment in a suit to which he was no party: and in that case, as in this, the decision of a subordinate Court was held sufficient to support the second action, as being conclusive upon the point decided, only reserving power to the defendant to shew that the parties to the former action had colluded to his injury.

I shall therefore proceed upon the idea that the bond in question is void; though my opinion is, that it is not so at common law, however it may be under the statute, as to which I have formed no conclusive opinion. The case of Johnson and Meriwether, and the other cases cited by Mr. Botts, prove this, in my judgment, incontestably: and, however this bond may stand justified in other respects by our statute, I am inclined to think that the 17th section of the act concerning Sheriffs does not extend to bonds given by parties in execution, but to such only as are given by persons arrested on mesne process. This has been decided in relation to the English statute, (to which our’s substantially corresponds,) in the case of Rogers v. Reeves, 1 Term Rep. 421. And, although a contrary opinion seems to have been hinted at by this Court in the case of Syme v. Griffin, yet this point was not made in that case; and, besides, that decision may stand justified by another ground taken by the Judges, namely, that a part of the condition of the bond was adjudged to be void by the principles of the common law.

Taking this, then, to be a void bond, as by the decision aforesaid it is declared to be, the releasement of the prisoner from gaol was “an escape with the consent, and through the negligence of the Sheriff,” and such escape is the very gist of this action. There can be no real difference between a releasement of a prisoner without 'taking any, or taking only a void and ineffectual obligation. The Sheriff is bound to retain the prisoner in gaol, unless he gives a bond in all respects such as is required by the law allowing the liberty of the prison rules. ■ Unless that bond be perfect, the party injured is not bound to proceed upon it against the obligors therein; but is at liberty to pursue the Sheriff on the ground of an illegal discharge of the prisoner.

Such being the nature of this action; it being, in effect, an ^action against the Sheriff for the escape of the prisoner; the law (as well as the case of Johnson v. Macon, 1 Wash. 4,) is imperious that the Jury should expressly find the escape to have been with the consent, or through the negligence, of the defendant. This requisite cannot be supplied by any intendment or reference whatsoever; not even by the very strong circumstance, denoting such consent, that a bond was in _ fact taken by the Sheriff at the time, which! was afterwards, however, adjudged to be void.

On these grounds, I am of opinion, that the District Court erred in rendering judgment on the verdict in question, and that its judgment ought to be reversed.

JUDGE ELEMING,

after stating the case. With respect to the charge, that the bond for keeping the prison bounds was made payable to the plaintiffs instead of he Sheriff, I consider that as no good ground of action; for, though it was not taken in strict conformity to the act of Assembly, respecting the persons to whom payable, j’et it was a good bond at common law, according to the decisions of this Court in the cases of Meriwether v. Johnson, and others; and, had the appellees appealed from the decision of the District Court, I have no doubt that judgment would have been reversed by this Court, and the action brought upon the bond sustained. In the case of Syme v. Griffin the condition of the bond was illega! in itself; and therefore no action could have been maintained upon it.

With respect to the escape, no judgment, in my conception, ought to have been entered on the verdict; for, by the act of 1792, c. 79, sect. 3, it is enacted, “that no judgment shall be entered against any Sheriff, ■or other officer, in any suit brought upon the escape of any debtor in his or their custody, unless the Jury who shall try the issue shall expressly find that such debtor •or prisoner did escape, with the consent, or through the negligence, of such Sheriff, or Serjeant, or his officer or officers; or that such prisoner might have been retaken, and that the Sheriff, or Serjeant, and his officers, neglected to make immediate pursuit.” In the verdict before us there is no such finding, nor anjr thing similar, or tantamount; and it seems to me that the rule of the common law that has been mentioned does not apply in this case; it being taken away by a special clause in the act of Assembly above mentioned.

*As to the rule, “that the preamble of a statute furnishes a guide to its construction,” where the enacting words are ambiguous, or doubtful, it may be well to resort to the preamble as a key to discover the will and intention of the Legislature; but where an enacting clause is clear and explicit, as in the present case, it seems to me improper to resort to the preamble, to discover the meaning of the statute, in order to give it an operation, or to destroy its effect, contrary to the will of the Legislature.

I am of opinion, upon the whole, that the judgment is erroneous, and ought to be reversed; and the cause remanded to the Superior Court of Prince William, for a new trial to be had therein.

Judgment reversed, and new trial directed. 
      
       1 Rev. Code, c, 79.
     
      
       1 Wash. 6, Johnson v. Macon.
     
      
       Co. Litt, 79, a.
     
      
       1 Rev. Code, p. 122.
     