
    S. S. Farrar and Brothers, vs. Edwin Barnes, late Sheriff.
    
      Practice — Bail—'Return— Ga. Sa. — Sheriff—Debtor.
    A return of non est inventus, made by the sheriff during vacation, is sufficient to fix bail after the return day of the ca. sa. has passed — such return day being the first day of the next term.
    Without some strong reason for putting a debtor in the felon’s cell, a sheriff who refrains from doing so, should not, for that reason, be punished.
    BEFORE WARDLAW, J., AT KERSHAW, SPRING TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was another action on the case against the late sheriff for the escape of Enoch Tryon. It was called Friday morning, the jury having the night before returned a verdict in the case of McKenzie, Cadow & Go. vs. Edwin Barnes, in which the Court had. been industriously occupied from dinner time Tuesday, taking testimony and hearing arguments. It ■was agreed that all the testimony (including records so far as they should be applicable) which was heard in the other case, should be received in this, and read from the Judge’s notes —with the privilege of either party to give any cumulative testimony by the same or other witnesses, and any additional evidence that might be thought advisable.
    
      “ Concerning the insolvency, or rather the pecuniary ability of Enoch Tryon, and concerning the circumstances that attended the escape, there was some re-examination of witnesses, and Shaw and Shiver, new witnesses, were adduced by the defendant; but nothing was elicited which requires a change of the report that has been made on these heads in the other case.
    
      “The whole demands of the plaintiffs against Enoch Tryon, amounting now to about fifteen hundred dollars, were contained in three judgments. The records of these showed in each — writ in assumpsit, with affidavit and order for bail, lodged in the office of Thomas Baskin, (sheriff then and until February, 1855',) July, 1854. Eeturn of the writ of cap. ad resp. by Baskin to Fall Term, 1854.
    “Judgment by default, amount being ascertained by the Clerk, Spring Term, (April 2,) 1855. Fi. fa. lodged (this defendant being sheriff), April 9, 1855. Ga. sa. lodged October 11, 1855. Eeturn on ca. sa. non est inventus, by Barnes, sheriff, dated October 26, 1855. Eeturn proved before the Clerk.
    
      “ ‘ Wait orders. Caston, P. Att'y’ — in Mr. Caston’s band-writing, on each ca. sa. — without date.
    “ The writs of capias ad respondendum in these cases were, one against Enoch Tryon, and the other two against W. W. Tryon & Co., — a firm said to consist of Enoch Tryon and Wash. W. Tryon. The returns made by Baskin, sheriff, are as follows:
    “1. On the .writ against E. Tryon, which was lodged July 19, 1854:
    “ 1 By consent of Caston, plaintiff’s attorney, I have taken' E. Tryon’s bond, by Attorney D. C. Tryon, with S. B. Emmons and D. C. Tryon, sureties.
    “ 1 THOMAS BASKIN,
    “ 1 Sheriff Kershaw District.
    
    “ ‘ 19th July, 1854.’
    “ 2. On the first writ against W. W. Tryon & Co., which was lodged July 15, 1854:
    “ ‘I have made due and diligent search for defendant, W. W. Tryon, and could not find him in my District.
    “ 1THO. BASKIN, S. K. D.
    
    “‘July 15, 1854. .
    
      “ ‘ But served a copy on D. 0. Tryon, attorney, who gave bond for E. Tryon.
    “ 1 THO. BASKIN, S. K. Z>J
    
    “ On the second writ against W. W. Tryon & Go., which was lodged July 19, 1854:
    * “ ‘By consent of Gaston, attorney for plaintiffs, I have
    taken E. Tryon’s bond by D. 0. Tryon, attorney, with S. B. Emmons and D. 0. Tryon, sureties; and made due and diligent search for the other party, and could not find him in my district.
    ‘“THO. BASKIN, S. K. D.
    
    “ ‘July 19, 1854.’”
    “ The bonds were not adduced. •
    “ The render by the bail; order of Court (entitled of the three cases above mentioned, as well as of others); the petition for the Insolvent Debtors’ Act; the suggestion and pleas; verdict against Enoch Tryon; appeal dismissed; warnings to the defendant, and all subsequent circumstances, were in this case the same'as'in the others; so were the pleadings. • . • •
    “A material difference, it will be observed, is, that in this ease there were no proceedings against the bail, as here no term had intervened between the lodgment of the ca. sa. and the render by the bail.
    “ The defendant insisted here more violently than he had done before, that Enoch Tryon was never lawfully in the custody of the sheriff; but I answered this as before, by the acts of Enoch Tryon, showing ratification of what his attorney, D. 0. Tryon, had done, and such waiver and assent as estopped him, and precluded the objections of this defendant.
    “ The instructions given to the jury were in the main the same which had been given in the other case. The grounds of appeal are the same, except that the seventh and eighth in this case are additional. All except the eighth, are answered by the report in the other case. As to this eighth, I now add, that in reference to the comments which were made on the part of the plaintiffs upon the defendant’s neglect of Thomas Baskin’s advice, I read the thirty-seventh section of the Sheriff’s Act of 1839, (11 Stat. 32,) and expressed my opinion that, without strong circumstances of excuse, a sheriff would be liable to punishment who should put a debtor in a cell set apart for felons. To reconcile with justice the law, which rejects the insufficiency of a jail as an excuse for an escape, I also read the forty-second section of that Act, which requires from the sheriff an annual 'report to the Commissioners of Public Buildings, of the actual condition of the jail, the repairs which may be wanting, and their probable cost.’
    " The verdict in this case, too, was for the plaintiffs, twelve dollars and twenty-five cents.”
    The plaintiffs, appealed, and now moved this Court for a new trial on the grounds :
    1. Because the commission containing the testimony of Sarah Tryon, George W. Harris, Joseph Taylor, and Alvin Roberts, and the commission containing the testimony of Augustus Tryon, were not returned in the mode prescribed by law.
    2. Because the facts proved that Enoch Tryon was charged in execution, and his Honor should so have said to the jury, instead of stating to the jury as matter of law, that he was not so charged, and stating to them his opinion that as matter of fact he was not.
    3.Because his Honor should have instructed the jury that the return on the ca. sa. was void, inoperative, and in fact no return.
    4. Because his Honor charged that the statement in the petition of Enoch Tryon, for the benefit of the Insolvent Debtors’ Act, was no evidence against defendant that he had been arrested under ca. sa.
    
    5. Because his Honor charged that the sheriff is not required by law to make a return to an execution at every term during its active energy.
    6. Because his Honor charged that the return proved before the clerk was conclusive evidence that the ca. sa. was left with the clerk, and the onus was on the plaintiffs to show that it was re-lodged.
    7. Because his Honor charged that the return of non est inventus to the ca. sa. was a good return, and was to be referred to the first day of the term after which it was made.
    8. Because his Honor charged that the sheriff had no right to put the debtor in an apartment of the jail intended for prisoners committed on criminal charge.
    9. That the facts proved the conduct of the sheriff in reference to the safe-keeping- of Enoch Tryon, and his escape, to be not only negligent, but of a character from which the jury should have presumed a voluntary escape.
    10. Because the verdict of the jury was against the law and evidence.
    Moses, De Pass, for appellants. -
    
      Shannon, Kershaw, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

The observations which have just been made in the case of McKenzie, Cadow & Co., against this defendant, apply to this case, except that here no reason for a withdrawal of the ca. sas. from the sheriff can be found in proceedings against bail; for there were no such proceedings, and could not properly have been until after Fall Term, 1855, which was the first term after the lodgment of ca. sas. by these plaintiffs. But it is seen in this case that the writing, called a return, on each of the ca sas., was made by the sheriff October 26, 1855; that Enoch Tryon returned to the district October 27, and the Fall Term commenced October 29. It was fairly argued, and may well have been believed by the jury, that Mr. Oaston, anticipating the return of Enoch Tryon, and not desiring his arrest in satisfaction of the plaintiffs, caused the sheriff to make on each ca. sa. what he considered a return, that at the Fall Term, then at hand, would fix the bail, and withdrew the ca. sas., to have them in readiness for proceeding against the bail, whenever such proceeding promised a beneficial result. This proceeding might have been delayed for a long time, and if Enoch Tryon had not been rendered by bis bail, it would probably have been successful, whenever afterwards he left the State.

The order to wait, put on each ca. sa., was probably put after the withdrawal, and intended to make sure of the sheriff’s non-interference, or to quiet his anxiety. There is no plausible reason, that can be sugested, why the order to wait should have been put on either of the ca. sas. when it was first lodged; then E. Tryon was out of the State, the lodgment could have had no purpose but "to fix bail by the return of non est inventus, and that purpose would have been defeated by an order that forbade such return. There is an entire absence of evidence that either of the ca. sas. was ever in the hands of the sheriff after the 26th day of October, 1855, —the return on each was proved before the clerk, — all of them have been adduced by the plaintiffs, and the orders written upon them by Mr. Oaston yet stand as if unrevoked. The circumstances are here, as in the other case, such as fairly justified the jury in finding such facts in relation to the ca.sas. as showed that neither of them was an effective process for the arrest of Enoch Tryon in the hands of the sheriff, at any time between his render and .his escape.

The 7th ground, the first additional one in this case, questions the propriety of an .instruction, which was here material, in’considering the probable views of Mr. Caston. This Court concurs with the presiding Judge in holding that the entry on a ca. sa. of non est inventus, made October 26, became on the first day of the following term, October 29, (which was the first term after the lodgment,) a good return to fix the bail. It -is decided in Ancrum vs. Sloan, 1 Rich. 421, that a return of non est inventus, made by the sheriff during the vacation, in which a ca. sa. is lodged, will not fix the bail, so as to authorize proceedings against them returnable to the next term; that is, to the first term after the lodgment of the ca. sa. The earliesj return day of the ca. sa. is properly the first day of the term next after its lodgment, and one term must intervene between its lodgment, and the commencement of proceedings against the bail. But it is not to be understood that the labor of writing out the returns on the very day when they become effective — the first day of the term — is required. A return, written before, becomes effective when the return day • arrives. This is especially true in reference to the return of non est inventus for fixing bail, because the lodgment of the ca. sa. is intended only as notice to the bail, and whether the sheriff could or could not have actually obeyed the mandate of the ca. sa., by arresting the principal, is immaterial, if he makes the return of non est inventus.

As to the 8th ground, also additional, it will be perceived, that if the sheriff had kept Enoch Tryon in the strongest cell of the jail, and under an oppressive load of chains, the escape would still have been deemed at least negligent. It is only then as affecting the punitive damages, which should have been awarded against the sheriff' for neglect of his duty, that remarks, concerning the putting of debtors into the felon’s cell, could have been influential. Thomas Baskin advised the use of the cell only if indications, of E. Tryon’s intention to escape should be seen. When neglect of dhty deserving of punishment was imputed to the sheriff, because in the absence of any indication of E. Tryon’s intention to escape, this advice was said to have been disregarded by forbearance to put the debtor into the cell, the 37th sect, of the Sheriff’s Act suggested the expression" of opinion that, without strong circumstances of excuse, a sheriff would be liable to punishment, who should put a debtor into a cell set apart for felons. It is true, that the section referred to, by its letter, subjects to punishment only the violation of its requisition, that prisoners for- debt and felons shall be kept “in separate apartments of the jail:” but a sheriff who so far regards the spirit of the enactment as to refrain, without special excuse, from subjecting a debtor to the severities of a cell designed for felons, even when no felon is there, does not for that deserve punishment. To this opinion, remarks of the circuit Judge may have contributed to bring the jury; and if they did, the opinion is not one which can be justly complained, of.

The motion is dismissed.

O’Neall, G-loyer, and Munro, JJ., concurred.

Motion dismissed.  