
    *Burley v. Griffith.
    July, 1836,
    Lewisburg.
    Escape of Slave — Action against Sheriff — Declaration— General Demurrer. — In action on the case, by the-owner of a slave committed to jail for safekeeping under the,4th section of the act passed February 25,1824, Süpp. to Bev. Code, ch. 179, against the-sheriff for suffering the slave to escape, the declaration omits to state the name of the justice who issued the warrant of commitment: Held,. the objection is not available on general demurrer.
    Same — Same—Warrant—Sufficiency of. — In such action, the warrant offered in evidente is not under the seal of the justice, though signed by him, and it does not set out the opinion of the justice that the slave might be confined in jail without public-inconvenience: Held, the warrant is nevertheless sufficient, and was properly admitted as evidence-on the trial.
    Same — Same—Variance between Declaration and Warrant. — in such action, the declaration charges the escape of a slave named Bill: the warrant of the justice is for the commitment of a slave called William Lee: Held, the variance is immaterial.
    Same — Same—Verdict.—In such action, the verdict for plaintiff need not find expressly that the slave escaped with the consent or through the negligence of defendant.
    Action on the case in the circuit supe-riour court of law and chancery for Ohio county, by Griffith against Burley sheriff of the said county, for suffering the escape of a slave belonging to plaintiff. The action was founded on the 4th section of the statute passed February 25th 1824, Supp. to Rev. Code, ch. 179, p. 237. The declaration contained four counts. The first count charged *that the plaintiff, on &c. was possessed of a certain slave named Bill, of great value &c. and that, by virtue of a certain precept, commonly called a warrant of commitment, under the hand of one-, then and there being1 a justice of the peace for the county of Ohio, the said slave was arrested, and committed to the jail of the said county, and to the custody of the defendant, then and there being the sheriff of the said county, and by force of such arrest and commitment, the said slave then and there was in the legal care and custody of the defendant as sheriff aforesaid, and so continued until &c. when the said defendant, of his own mere negligence, suffered the said slave to escape and go at large, without the consent and against the will of the plaintiff, whereby the said slave became totally lost to the plaintiff. The second count stated the commitment of the slave in the same manner as the first; and then charged that he remained in the custody of defendant until &c. when he escaped, and thenceforward had been at large and out of custody, without the license and against the will of the plaintiff; and that the defendant did not make immediate pursuit for the purpose of retaking the said slave, but wholly neglected and refused to do so, whereby the slave was totally lost to the plaintiff. The third count, after stating the commitment of the slave in terms similar to the first, charged that the defendant, without the license and against the will of the plaintiff, suffered the said slave to escape and go at large, whereby he was totally lost to the plaintiff. The fourth count, after stating that the slave was committed by consent of the plaintiff and by virtue of a certain warrant &c. charged that he remained in custody of defendant as sheriff, until &c. when the said slave, without the license and against the will of the plaintiff, escaped; and that the said slave might have been retaken by making immediate pursuit, yet the defendant did not make such immediate pursuit, but wholly neglected and ^refused so to do, whereby the said slave was wholly lost to the plaintiff.
    The defendant put in a general demurrer to the declaration; which was overruled. He then pleaded not guilty, and issue was joined on the plea; and a jury being impaneled to try the issue, found a verdict for the plaintiff for 300 dollars damages; on which the court rendered judgment accordingly.
    The defendant filed a bill of exceptions stating, that at the trial “the plaintiff offered in evidence to the jury a paper purporting to be a warrant from George Dulty, a justice of the peace for Ohio county, commanding the keeper of the jail of said county to receive and commit to his prison the negro slave in the declaration mentioned, which paper or warrant is in the words and figures following, to wit: ‘Virga. Ohio county, set. To P. W. Kennedy, const, and to the keeper of the jail of said county. Whereas Duke Griffith of said county hath complained before me, that his negro man slave William Dee is now going about frequently from place to place, without his leave, and that he the said Griffith now entertains fears that he the said ffm. will leave him and depart the commonwealth, without he is confined; and the said Griffith has applied to me to commit him the said slave to the jail of said county for safekeeping: These are to authorize you the said jailor to receive the body of the said negro slave William into your jail and safe custody, and him there safely keep, until said Griffith may demand him, or he be otherwise discharged by due course-oflaw. Jan’y S, 1834. (Signed) Geo. Dulty. ’ —And it being admitted by the parties that said Burley was not the jailor in fact, but only such, as being the then high sheriff of said county, and that one George Caruth-ers was in fact the jailor at the time said negro slave was committed and imprisoned, and at the time of his supposed escape, the defendant objected to the said paper or warrant going in evidence to the jury, not *only because the said supposed warrant is not under the seal of said justice, but also because it does not shew that the said Dulty, who signed and granted the warrant, was of opinion that the said negro slave might have been confined, at the time, in the jail of said county, without public inconvenience. But the court admitted the said warrant to go in evidence to the jury; to which admission the defendant excepts &c.”
    On the petition of Burley, a supersedeas was awarded to the judgment.
    Jacob, for plaintiff in error.
    No counsel for defendant in error.
    
      
      This section provides, “That whenever the master or owner of any slave shall desire to confine him in the jail of any county or corporation within this commonwealth, it shall be lawful for any justice of the peace in such county or corporation, upon the application ot such master or owner or his agent, to grant a warrant to the jailor, authorizing him to receive such slave into his custody and to confine him in said jail; provided such justice be of opinion that such slave may be so confined without public inconvenience: it shall thereupon be lawful for the j ailor to receive such person into his custody, and to keep him in the jail aforesaid, until he shall be released by lawful authority from his master or owner, or until the public convenience shall require his discharge.” — Note in Original Edition.
    
   BROCKENBROUGH, J.

The defendant in error, Duke Griffith of the county of Ohio, having apprehensions that his slave William Dee would leave him and depart the commonwealth, applied to a justice of the peace for a warrant to commit him to the jail of the county, under the act of assembly concerning servants and slaves, passed the 25th of February 1824 (Supplement to Rev. Code, ch. 179, 'i 4, p. 237). The act declares that whenever the owner or master of a slave shall desire to confine him in the jail of any county &c. it shall be lawful for any justice of the peace in such county &c. upon the application of such master or .owner, to grant a warrant to the jailor, authorizing him to receive such slave into his custody, and to confine him in said jail, provided such justice shall be of opinion that such slave may be so confined without public inconvenience: and that it shall be thereupon lawful for the jailor to receive the slave into his custodj», and to keep him until released by the master, or until public convenience shall require his discharge. The magistrate issued the warrant, and set forth the cause of commitment, but did not insert in it his opinion that the slave might be so confined without public inconvenience. The warrant *was signed by the magistrate, but was not sealed. The slave was committed, and shortly after escaped from the jail.

Griffith then instituted his action on the case against Burley, sheriff of the county, for the escape. The declaration charges both a voluntary and negligent escape in different counts, and also charges the defendant with the failure to make immediate pursuit for the purpose of retaking the slave. The defendant filed a general demurrer to the declaration, which was overruled: he also pleaded the general issue; there was a trial by» a jury, who assessed the plaintiff’s damages to 300 dollars, and a judgment was rendered. At the trial, the defendant filed a bill of exceptions to the opinion of the court admitting the warrant to be given in evidence against him.

Several objections have been made to the judgment, which will now be noticed.

The objection to the declaration raised by the demurrer is, that the name of the justice who issued the warrant is not given in either count. To this it has been properly answered, that the warrant is only inducement to the action, and need not be set out with particularity. It is moreover clear that the omission of the name of the justice in the recital of the warrant, is not so essential to the action, as that judgment cannot be given according to law and the very right of the cause; it should therefore have been specially alleged as a cause of demurrer. It is an objection of mere form, having no substance in it.

Several objections are made to the warrant going in evidence to the jury. The first is, that the declaration charges that a slave named Bill was committed to the jail, whereas the warrant is against one named William Tee. This frivolous objection was not made at the trial; on the contrary, the defendant’s bill of exceptions states that the plaintiff offered in evidence a warrant commanding *the keeper of the jail to receive into his custody the negro slave in the declaration mentioned; thus admitting that the slave mentioned in the declaration, and that in the warrant, was the same slave: and the jury were entirely competent to decide on the identity. The next objection is, that the warrant does not set out the opinion of the justice that the slave might be confined in jail without public inconvenience. The act does not require it. The proviso is merely directory to the magistrate. If he thinks that the jail is too full of debtors or criminals, or that it is otherwise inconvenient to the public to authorize masters to place their slaves there for safekeeping, he will not issue the warrant; otherwise, he may issue it. But there is no occasion for stuffing the warrant with that irrelevant matter. The third objection to the warrant’s going in evidence is, that it is not under the seal of the justice. This is the most formidable objection, because most of the elementary writers lay down the position that the warrant ought to be under the hand and seal of the justice. 4 Black. Com. 290. But yet it has been decided that it is sufficient if it be in writing and signed by him, unless a seal is expressly required by a particular act of parliament. Willes’ Rep. 411. And Buller, in his Nisi Prius, p. 83, says, that “warrant, ex vi termini, means only an authority; therefore a warrant under the hand of the justice is sufficient, without being under seal, unless particularly required by act of parliament:” and refers to Padfield v. Cabbel et al., 16 & 17 Geo. 2, in C. B. This appears to be sound doctrine; and if it is true when applied to a warrant in a criminal case, which commands, how much more reasonable is it in case of a warrant which merely authorizes thé jailor to receive the person sent to him. If the warrant had not been strictly legal, a question might have arisen whether the defendant could have objected to it, the jailer having received the slave under its authority. To meet this view *of the case, the defendant stated in his bill of exceptions that Burley was not the jailor in fact, but 'only such, as being the high sheriff; aqd that one George Caruthers was the jailor in fact, who received the slave, and was jailor at the time of the escape. It is contended on the one side, that if the warrant was not lawful, the sheriff was not liable, but only Caruthers personally as bailee. On the other hand, it is argued that as the jailor is only the deputy of the sheriff, the latter is liable for the misconduct of his agent in acting under an unlawful authority. It is not necessary to decide this question, as it does not arise.

The last objection is to the sufficiency of the verdict. It is supposed that this case comes within the meaning of the act in 1 Rev. Code, ch. 136, $ 3, p. 550, and that the jury should expressly find that the prisoner escaped with the consent or through the negligence of the officer. In the case of Hooe v. Tebbs, 1 Munf. 501, one of the court thought that in an action on the case, where the plaintiff charged that the prisoner escaped by negligence and by permission, a general verdict of guilty . was equal to an express finding of the charges laid in the declaration; but the other two judges thought that the words of the act were unambiguous, and that the jury must find those facts. That law applies only to debtors confined under execution, and does not extend to such a case as this, in terms; nor should it be made to embrace it by implication, as it is very clear that the escape of the slave either by negligence or permission, was the very matter in controversy before the- jury, and by their verdict they affirm that fact. The judgment should be affirmed.

The other judges concurring, judgment affirmed.  