
    
      J. J. Dickison vs. Solomon Coward.
    
    A sheriff may take as bail, one not a resident of his district, and having no property within the same ; and if such bail be in other respects sufficient, the sheriff will not be liable to the plaintiff
    
      Before Richardson, J. at Williamsburgh, Spring Term, 1846.
    This was an action on the case brought against Solomon Coward, late sheriff of Williamsburgh district, to recover damages, on the ground that the defendant had been guilty of a breach of official duty, in not taking sufficient bail bond in an action against one J. S. Wells, a debtor of the plaintiff. It appeared that the plaintiff had commenced an action in assumpsit against Wells by bail process. The defendant, then being sheriff, arrested Wells, and took a' bail bond, with one T. G. McCloud as surety. It was admitted that McCloud was not, at the time, and had not been since, a resident of Williamsburgh district, and that he had no property within the district. The plaintiff ]¡roved that he had recovered a verdict in the original action, and that the defendant had returned non est inven-tus to the ca. sa. which had been issued by the plaintiff. With this, the plaintiff closed his case. Something was said by one of the witnesses, on the cross-examination, as to the plaintiff’s pronouncing the bail good, from which it was insisted that he had assented to the sheriff’s taking McCloud on the bail bond ; and that he was a resident of Sumter district, having sufficient property to answer the bond. There was also evidence that the plaintiff, as well as McCloud and Wells, were all, at the time of the issuing of the writ, residents of Sumter district, and that Wells had been arrested while passing through Williamsburgh district.
    The defendant moved for a non-suit, on the ground that there was no proof of a breach or neglect of duty on the part of the defendant, and that the plaintiff had established no cause of action — insisting that a sheriff was not bound to confine himself to persons resident or having property in the district where the action was commenced. The plaintiff relied on the statute and common law, in opposition to the motion, and adduced statute 23 Hen. 6, c. 9, (2 Brev. Dig. 210,) Teasedale vs. Kennedy, 1 Bay, 322, in support of his position. His Honor granted the motion, and ruled, that although the statute of 23 Hen. 6, c. 9, (2 Brev. Dig. 210,) might be regarded as of force in this State, (which seemed to be questioned,) yet that this statute, as well as the decisions to the same purport, were to be regarded as merely compelling the sheriff to take residents of the district when offered, and of sufficient substance ; but not as preventing him from taking residents of other districts, if proper in other respects — and that, in such case, he could not be held liable on this ground alone, but that it must be proved, in addition, that the bail was not a person of sufficient property to answer the bail bond.
    
      The plaintiff appealed, and now moved this court to set aside the non-suit, on the ground :
    Because his Honor was in error, in deciding that the sheriff was not liable to the plaintiff for accepting, as bail, one who was not a resident of his district when the suit was commenced, and who had no property within the same.
    Mitchell, for the appellant.
    It is contended on the part of the plaintiff, that he has established a clear case of official default against the defendant, for that he has not done that for the protection of the plaintiff, which he, as a public officer, was bound to do by the statute and common law, and, therefore, must answer in damages. The case may be considered as resolving itself into the question : What is the duty of the sheriff on arresting a defendant under bail process, and what sort of security is he answerable for, on admitting the defendant to bail 1 The plaintiff contends that by the common and statute law, the sureties should be answerable within the district, residing and having property there; 23 Hen. 6, c. 9, (2 Brev. Dig. 210.) It was argued on the other hand, in support of the non-suit, that although the statute makes it compulsory on the sheriff to accept the sort of security there pointed out, yet that it does not thence follow that he is liable to the plaintiff for not conforming to the statute, if the bail be otherwise good. If the statute were relied on for the plaintiff, as creating and establishing the responsibility of the sheriff in such cases, there might be much in this ; but such is not the position taken on the part of the plaintiff. It is that by the common law previous to the statute, it was the duty of the sheriff, in all cases of arrest, without exception, to produce the defendant to answer to the action, and that if he did not he was liable; but to this general responsibility, the statute created an exception — and the statute is referred to, merely .to shew that the sheriff has not brought himself within the exception, inasmuch as the bail was not a house-holder, and had nothing within the district. The defendant could, at common law, in some cases, procure his enlargement by suing out his writ of mainprise; but this was a separate process, in which the character of the security was judicially determined on. The sheriff, it is true, could always of himself take bail— but this did not discharge or limit his responsibility; it was only a sort of security for himself, in allowing the defendant to go at large, and did not at all aifect the plaintiff’s right; he could still be ruled to “ bring in the body,” <fcc. and he had to look to the sureties for his indemnity, in case the defendant was not forthcoming. That this was the condition of the law previous to the statute, may surely be clearly inferred from the statute itself. To suppose that the sheriff could, by taking sureties, discharge himself, and yet that he could exercise his own caprice in taking sureties or not, would surely imply an arbitrary official control, strangely at variance with that jealous regard for the liberty of the subject, for which the common law has been always commended. Whereas, if he was in all cases held responsible, it was natural that it should be left to his own discretion, when he should take security and .when not, and it seems to have been a supposed abuse of this discretion, that led to the passage of the statute, compelling him to take bail of a certain description, and, to that extent, discharging his responsibility; but with this exception — leaving the law as it stood previously. That this was the condition of the law, does not depend, however, upon inference alone from the provisions of the statute. We have the highest authority directly to the point. The case of Ellis vs. Yarborough, sheriff, was an action against the sheriff for an escape. Ch. J. North, in expressing the inclination of his opinion on the first argument, states very clearly what the condition of the law was ; “ it was clear that he (the sheriff) was to keep the party arrested in prison until the debt was satisfied, and that if he had gone at large, it had been escape ; the sheriff had no excuse but by this statute, and to entitle him to any benefit thereby, he must pursue the very directions therein prescribed, and therefore ought to take good and sufficient bail, for otherwise, the statute would be eluded, if it be left in his own power to take what bail he pleases; and he was of opinion that the plaintiff had an interest in the security,” (fee. and afterwards, to the same effect, on delivering the opinion of the court — “ the common law was very rigorous as to the execution of the process ; the ca-pias was ita quod habeas the body at the day of the return, and if the sheriff had arrested the defendant, it had been an escape to let him go.” 2 Mod. 179, 180.
    It is true, that the final opinion of the court in the above case was against the action, but on the extreme ground (beyond what is here contended for) that though the statute compelled the sheriff to take bail, yet that he was not discharged thereby, but was still liable to bring in the body on rule or to be amerced, and therefore not liable in this form of action — which clearly cannot now be sustained. The opinion was only cited to show the condition of the law previous to the statute. The subsequent case of Barton vs. Aldioo?'th, put the liability of the sheriff, since the statute, on its proper footing. That was an action on the case against the sheriff for not taking proper bail, and the sheriff pleaded that he had taken persons having sufficient within the County, and he was held to be discharged thereby ; Cro. Eliz. 624.
    t! So if the sheriff take bail who has nothing within the county, it is at his peril, and the bail stands.” Comyn’s Dig. Bail. K. 2.
    So our own case of Teasedale vs. Kennedy, is to the same effect. That was an action brought to make the defendant (the sheriff) liable for insolvent bail, and the court held that, when a sheriff takes one who is a householder, who is apparently in good circumstances, he is discharged. It is not expressly said a householder within the district, but that must be inferred, as the sheriff is not expected to know the conditions, (fee. of those beyond the limits of his authority. Practically, it would be a monstrous inconvenience if the law were otherwise, for then a sheriff in Greenville might take a resident of Charleston as bail, and drive the plaintiff to sue in a remote part of the State; — • besides, it would involve the monstrous proposition that the sheriff must be expected to know the circumstances of every man throughout the State. Of those in his district he may be reasonably expected to know something, but surely not throughout the State. In fact, if we depart from the limits pointed out by the statute, there is nothing to confine us to the State, but it may, with as much reason, be said that he may take a resident of another State. There is nothing but an arbitrary exercise of discretion that could prevent this, if the statute be departed from.
    It seems, then, to be clear, from, every consideration, that the sheriff, to discharge his responsibility, must bring himself within the exception of the statute, and conform to-its - provisions, otherwise he renders himself liable for an official default, for which he must respond to the plaintiff. And in this view, it is resp'ectfully submitted, that the non-suit must be set aside. ,
    
      Haynsworth, contra.
    The only questions made in this case are, whether the sheriff is bound in every case to require of a prisoner arrested by him on mesne process in a civil case, bail, having sufficient within the county” (district) in which the arrest is made, and whether he is liable to an action on thé case for taking bail, however good, if not .so having sufficient within the district.
    The plaintiff relies on the statute 23 Hen. 6,-c 9, (2 Brev. Dig. 210 ; P. L. Append, p. 8) for establishing the affirmative of these questions; as, according to his construction of the statute, it is the sheriff's imperative duty to exact such bail. We, on the other hand, contend that, according to the true construction of the statute, it is his imperative duty to receive such bail if offered, but that he is not bound to exact it in every case,' and that he may, without, breach ofhis duty, accept good and sufficient bail, although not residing or owning property within the district. Our construetion, we think, is justified by .the reasons for the passage of the Act;. the obvious meaning of the provision construed in reference to those reasons, and by authority recognizing it.
    The statute recites, that the King, considering the great perjury, extortion and oppression by sheriffs, &c. for remedy thereof, enacts; 1. That no sheriff shall let to farm his county, &c. Nor, 2. Return any of his own officers on any inquests directed to be executed by. him. 3. That he shall let out of prison all persons (with certain exceptions specified) upon reasonable sureties of sufficient persons having sufficient within the county, &c. 4. That he
    shall take no obligation from any person arrested by him, by color of his office, but to himself, and by the name of his office, and upon condition to appear at the return of the writ. 5. That he shall appoint deputies in the various courts to receive writs, &c. to be delivered to them. 6. For breach of this law, “ in any point of the same,” he shall lose to the party injured treble damages, and forfeit the sum of £40, one-half to the King, and the other to the person who shall sue for the same. 7. That the various courts shall inquire of breaches of this law without special commission ; and 8. That the sheriff, upon his return of cepi corpus, shall be chargeable to have the prisoner at the return of the writ as before the making of the Act.
    The chief reason of the law is to prevent perjury, extortion and oppression, and the provisions are framed for that end. In 1 Sell. Prac. 129, it is said, “By the common law the sheriff was not obliged to let persons to bail, but might insist upon keeping them in custody till the return of the process, unless they were replevied by the writ de hom. repleg. Hence the greatest hardships were endured, not only from the confinement itself, but especially from the scandalous extortions from defendants, by the sheriffs or their officers, in order to purchase their ease and favor in, or their temporary enlargement from, prison. It was to remedy these grievances that the statute of H. 6. was made. It was not passed to give the sheriff any new power, or to enable him to take bail in cases where he could not bail before ; but in order to compel him to take bail in those cases where he might have taken bail and refused to do so.” To the same effect it is laid down in 1 Tidd Pr. 194: “ Before the Statute 23 H. 6, c. 9. the sheriff was not obliged to bail a defendant, though he might have taken bail of his own accord. This arbitrary power produced great extortion and oppression of the subject; to remedy which, the statute was passed.” And on page 196, “where the defendant is arrested and in actual custody, it is the duty of the sheriff to take bail if required; and therefore if a bail bond be tendered with sufficient sureties, and the sheriff refuse to accept it and liberate the defendant, he is liable to a special action on the case. The clause which requires reasonable sureties was introduced for the benefit of the sheriff, and therefore, though he may insist on two sureties, yet he may take a bond with only one. And for the same reason the plaintiff cannot maintain an action against him for taking sureties which are insufficient, or do not inhabit within the county.” The proposition that the plaintiff cannot maintain an action against the sheriff for taking insufficient bail, if correct in England, which may be doubted, as Tidd in a note refers to cases in which it was ruled otherwise, it is presumed was altered by operation of our Act of 1809, conferring on bail to the sheriff the privileges of special bail. Without stopping, however, to discuss this question here, we think the law itself and the authorities quoted, clearly shew that the special object of the statute was the protection and relief of persons under arrest against the arbitrary power of the sheriff; and not the security (by any new provision introduced for that purpose) of the creditor’s demand. This special object and end of the law would be violated- and frustrated by a construction requiring the sheriff in every case to demand bail owning property within the district; as cases may, and do often occur, in which persons are arrested out of their own districts among strangers, who might be compelled to lie in jail, although able to give the best bail in their own district. This would be perverting a law intended for the relief of prisoners into an engine of oppression and cruelty to them, and furnishes a strong argument against that construction which would sanction it.
    Another argument against that construction is suggested by another view of the subject. The clause giving to the party injured by any breach of the law treble damages, and subjecting the offender to a severe penalty, if that construction prevails, would be a very harsh and unreasonable one: The statute subjects the sheriff to these damages and penalty for doing contrary to the Act, “in any point of the same.” If, therefore, it is doing contrary to the Act for the sheriff to accept of bail, “ not having sufficient within the county,” he thereby subjects himself to these damages and penalty, however good the bail may be, and however safely he may thereby secure the plaintiff’s demand. The unreasonableness of the consequence is an unanswerable argument against such a construction.- Another argument against this construction is, that if it be against the law to take bail not having sufficient within the county, then the bail bond is void, for the statute expressly declares any obligation taken by the sheriff otherwise than according to the provisions thereof, to be void ; and an individual cannot bind himself as bail for another in a district in which he does not own property. If so, it ought to be announced in our treatises on legal obligations, as an important qualification of the law of contracts.
    Another argument against that construction is, the want of authority to support it. We have not been able to find any case in which the sheriff has been held liable to an action on the case, or to an action for the penalties imposed by the Act, for taking bail not having property in the county; nor in which a bail bond has been held void for that reason; nor have we found it so announced in any book of authority. If the law be with the plaintiff, it is hardly conceivable but that such cases should have frequently occurred, which might easily be referred to as authority settling the point; and the want of such authority, we think, is conclusive against him.
    The construction for which we contend is consistent with the reasons and objects of the law, avoids objections and establishes reasonable regulations for just and sufficient causes. The sheriff’s duty by law, without respect to the statute, is to take what he in good faith'believes-to be good and sufficient bail, for the security of the creditor. But the protection of the liberty of the citizen is, in contemplation of law, a matter of still higher consequence; and experience having shewn that sheriffs often abuse their power over prisoners for purposes of oppression and extortion, under pretence of a stern performance of their duty toward the creditor, the law was passed for the purpose of limiting and restricting their power of refusing, not of accepting, bail. The law assumes that the sheriff is acquainted with the circumstances of persons owning property within his county* and therefore makes it imperative on him to receive such as are sufficient answering this description. It is not presumed that he knows sufficiently the circumstances of persons not owning property within his county, and therefore he is not compelled to receive such as bail; but he is not forbidden to do so. It is a matter left to his discretion, in relation to which he ought to act prudently and bona fide. Should he wilfully or carelessly take insufficient bail, he is responsible to the creditor — otherwise not.
    But it is contended that the sheriff is responsible to the creditor, at -all events, to produce the body of the defendant, and that the bail is intended for his own indemnity; that the creditor may elect to take an assignment of the bail bond and discharge the sheriff, or he may refuse to do so, and hold the sheriff responsible. If this be so, it is submitted that an action on the case will not lie against him. In taking insufficient bail or no bail at all, he has neglected his own interest, but committed no trespass against the plaintiff for which this action lies; and the nonsuit ought to be supported on this ground. The remedy on this supposition is to rule the sheriff to bring in the‘ body of the defendant at the return of the writ, in accordance with the English practice, and, in default of his doing so, to mulct him with the debt. But it is further submitted, that our Acts on the subject of bail, and especially the Act of 1809, (7 Stat. 307) have virtually operated a change of the law in this respect. Bail to the sheriff, by the Act referred to, is invested with the privileges of special bail, and may surrender his principal in discharge of himself. It would be a very hard and unjust law upon the sheriff to hold him absolutely responsible, and in effect release the security for his indemnity which the law compels him to receive. Accordingly, the practice of ruling the sheriff in such cases has gone into disuse; and it is understood to be no longer the law, that he is absolutely responsible at all events: and this is recognized by legislative enactment. By the law establishing the prison bounds, the sheriff is made responsible for the sufficiency of the security of the bond for the bounds, and this requirement is repeated in the Act of 1839, But in the Act of 1840, p. 121, it is altered, and it is declared that “ the liability of the sheriff for the solvency of sureties to prison bounds bonds, shall be the same with that for the solvency of the sureties to bail bonds, and no other.” It is also recognized by the decisions of our courts : see particularly Arthur ads. Antonio, 1 N. & McC. 251; Loker vs. Antonio, 4 McC. 1.75 ; and Harwood vs. Robertson, 2 ,Hill, 336.
   Curia, per

O’Neall, J.

The very clear written arguments submitted by the attorneys for and against the motion, have relieved us from any embarrassment in deciding this case. I agree with the Judge below that the stat. 23 Hen. 6, c. 9, was not intended to abridge the right of the sheriff to let to bail persons in his custody by civil process: but to remedy the abuse of his power in refusing to do so, by compelling him to accept “ reasonable sureties of sufficient persons having sufficient within the county.” The case of Teasedale vs. Kennedy, 1 Bay, 322, merely decides that a house-holder, in apparently good circumstances, is sufficient bail. In that case, the court states the law as I have always understood it. “ If a sheriff take as bail a man who is notoriously insolvent, in doubtful circumstances, or without a fixed residence, or the like, he is answerable.” There is nothing here about a residence in the county or district. The cases from Cro. Eliz. (pp. 808, 852, 862) of Clifton vs. Webb, Blackbourn vs. Michelbourn, Cotton vs. Webb, expressly decide that the bond is good notwithstanding the bail may have nothing in the county. If the bond be good in law, the plaintiff cannot complain that he has sustained any damages until he shews that the bail is insufficient, or that he is in some other way injured by the bail not living within the county or district. The motion is dismissed.

Richardson, Evans, Butler, Wardlaw and Frost, JJ. concurred.  