
    John J. Conyers vs. John C. Rhame.
    
      Voluntary Escape — Sheriff-—Forged Bail Bond.
    
    Where a sheriff having a debtor under arrest on bail process discharges him on a bail bond which proves to be a forgery as to the signature of the bail, such discharge is a voluntary escape, although the sheriff was ignorant, at the time of the discharge, of the forgery.
    BEFORE WITHERS, J., AT SUMTER, EXTRA, JUNE TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbe defendant bad been sheriff and was sued by tbe 'plaintiff, in case, for tbe voluntary escape of one Ellerbe H. Jones, sued by tbis plaintiff, bis bail process being issued upon a promissory note for nine hundred dollars.
    “ His writ was lodged 21st October, 1854, and was regular as bail process. A return was endorsed upon it, of tbe same date, signed by tbe defendant, as follows: “ Arrested E. H. Jones, and be gave W. B. Jennings for bis bail.” Tbe paper which tbe defendant received as a bail bond bad tbe form of one, was partially filled up (tbat is tbe blanks of it) by Eve-leigb, tbe deputy or clerk of Rhame; bad October, 1854, inserted as a date, but not tbe day of tbat month; purported to be executed by Jones and W. B. Jennings; but it turned out, ultimately, tbat tbe name of W. B. Jennings was discovered to be a forgery, as well as tbe name of J. 0. Stafford, which was subscribed to tbe note given by Jones to Oonyers. Rhame returned tbe writ regularly, i. e. to tbe Fall Term of 1854, with tbe endorsement above stated on it; and he bad discharged Jones, upon tbe receipt of tbe paper above described as a bail bond.
    
      “ After tbe Spring Term of 1855, Rhame Laving discovered the forgery of Jennings’ name, and the forgery of Stafford’s being then likewise generally understood, applied to the' attorney of Conyers for the bail writ. The attorney, knowing (he said) well enough that Rhame wanted to use it to get himself, if he could, “ out of the scrape,” let him have the writ; without a word, however, of understanding or agreement between them, he, (the attorney,) being well inclined to let Rhame do the best he could, though he would in no degree compromit the rights of his client. He took the precaution to endorse Rhame’s return of October 21st, 1854, on the declaration, and take Rhame’s signature thereto.
    “ Rhame, through Bateman, deputy, having stricken out the first return, made the following on the writ: Arrested E. H. Jones, and committed■ him to jail, 5th May, 1855;’ and he added this: ‘ The defendant was arrested 1st October, 1854, and delivered on a bond signed W. B. Jennings, but the bond proved to be false,’ which was subscribed by Rhame, as sheriff.
    “ Jones applied for the benefit of the prison bounds Act on the 10th May, 1855, rendered in schedule only a portmanteau and wearing apparel, and was discharged 19th May, same year. The plaintiff prosecuted his case against Jones, had judgment signed 4th December, 1855 ; lodged ft. fa. and ca. sco. same day, neither of which produced any fruit, for Jones had long departed. He brought this action on the 17th March, 1856.
    “This was the case which the plaintiff, Conyers, insisted was a voluntary escape, and the defendant, Rhame, a negligent one.
    “ T held this: That whatever indulgence a sheriff might allow his prisoner, on civil process lodged for bail, before the return of that process, if, after that return, he could produce neither the body nor a bail bond, there was an escape, in other words, an unlawful enlargement from custody; if the sheriff consented to, or connived at, snob enlargement, it was a voluntary consent to an unlawful enlargement; and that being an escape, it could be nothing less than a voluntary escape, and that on the part of him who consented to it, or connived at it. That Rhame was exceedingly careless and negligent in receiving from Jones a basely fraudulent paper for a bail bond, did not make his consent to his enlargement less voluntary; and, such an act being an escape, the gross negligence that may have deluded Rhame into authorizing it, positively enacting it, could not make it the less, but the more a voluntary escape. I held such doctrine after pretty full argument, on the one side and the other. It should be regarded as a decision by the Court, and the jury left no latitude, for I treated the spurious.paper received by Rhame as a bail bond, to be of no virtue beyond a mere blank. (It ought, perhaps, tó be taken into the case, as a fact, that Jennings was amply good for the debt of Conyers, if he had in fact signed the paper.)
    
      “ A question remained, which I left to the uninfluenced judgment of the jury; that is to say, whether the plaintiff, through the re-delivery of the writ to Rhame • authorized the re-capture of Jones, in which case I instructed them that the voluntary escape, the cause of this action, was waived by Conyers, and he could not recover, for he had sued purely • for a voluntary escape. The jury saw nothing in this inquiry to help Rhame, for they rendered a verdict against him for the former recovery against Jones and the cost, to wit: one thousand one hundred an'd nineteen dollars and thirty-one cents.”
    The defendant appealed and now moved this Court for a new trial on the grounds: ’
    1. Because his Honor charged that the defendant was guilty of a voluntary escape, whereas that question ought to have been left to the jury — or if it be a question of law, the jury ought to have been told that it was a negligent escape.
    2. Because the verdict is contrary to the law and facts in .this, that tbe facts showed that it was a negligent escape, and therefore the defendant was only liable for the actual loss (beyond costs) which actual loss was nothing.
    8. Because the re-capture of Jones (the original defendant,) and his discharge constituted a sufficient defence.
    Bellinger, for the appellant.
    It is a case of negligent, and not of voluntary escape, and his Honor should £0 have instructed the jury. The negligence may have been gross, but still there was nothing but negligence, and that consisted in taking a forged bail bond. In that was the'wrong and not in the discharge, for he had the right to discharge if he took a bond, even though it should turn out to be insufficient. At any rate the question was one of fact and should have been left to the jury. In a case of escape the intent, with which the act was done, is a material inquiry, and that can only be determined by a jury. He cited Act of 1712, 2 Stat. 554; Act 1839,11 Stat. 31; Act Congress, 1st Session, Ch. 60; 1 Tom. L. Die. Escape; Com. Dig. Escape; Webster’s Die. Escape; 2 Esp. N. P. 238 ; 1 Buss, on Or. 419 ; 2 Blac. Com. 281; 3 Black. Com. 416; 4 Black. Com. 130, 191; Grimke, Justice, 157, 216; Briscic vs. Moore, Dud. 231; State vs. Arthur, 1 McM. 457 ; State vs. Halford, 6 Bich. 58 ; Gooh vs. Irvine, 4 Strob. 206 ; Palmer vs. Hatch, 9 Johns. B. 329 ; Holmes vs. Lansing, 3 ’Johns. Cas. 73; Jansen vs. Hilton, 10 Johns. B. 549 ; Barry vs. Mandell, 10 Johns. B. 563; 2 Coke, B. 120; 6 Taunt. 325, 490; 12 Mas's. B. 319; 1 N. Hamp. B. 100; 1 Boot, 106; 2 Con. B. 473; 10 Johns. B. 220; Minor, 260.
    
      
      Spain, Richardson, contra.
    The authorities cited from the books on criminal law have little application. Where the proceding is by indictment for an escape, there the intent is material, and it must be shown that the sheriff consented to an unlawful enlargement knowing it to be unlawful. In a civil action, it is enough to show, that the enlargement was by consent and that it was unlawful. In cases like the one before the Court, where the debtor may demand his discharge upon giving bond, the distinction would seem to be this: If the sheriff takes a valid bail bond, then there is no escape, even though there be an irregularity or defect, as, in this case, if there be no subscribing witness, or if the day of the month be not inserted in the bond. In such case if the plaintiff sustains damage by reason of such irregularity or defect he must sue specially for that. So if the bail should prove to be insufficient, the action must be for taking insufficient bail, and not for an escape. But if the sheriff discharges without taking bail at all, or, what is the same thing, if the bond should be void, then there is an escape, and that is necessarily voluntary because the sheriff consents to it. In this case the name of the bail was forged and Jones alone signed the bond. Now if one can be his own bail — if Jones can be bail for Jones — then there was a valid bail bond; otherwise there was none, and the discharge being without bond was a voluntary escape. The error of the counsel for the appellant consists in this: He confounds the negligence in taking a forged bail bond, for which unquestionably an action lies, and for which there is a count in the declaration, with the escape, which is a different thing, and for which an action also lies. And again, he assumes that it is necessary, in a civil action, to show a criminal intent, as if the proceeding were by indictment. Now if the defendant were under indictment for an exactly similar offence, the evidence might not be sufficient to. convict him, not because the . escape was not voluntary, but because in indictments for a voluntary escape, a criminal intent must be shown. They cited Bac. Abr. Escape; White vs. Jones, 5 East, 292 ; Act 1839, 11 Stat. 31, 32; Bonafous vs. Walker, 2 T. B. 126; Smith vs. Hart, 1 Brev. 146; 3 Blac. Com. 415; 2 Phil. Ev. 399 ; Adams vs. Turrentine, 8 Ired. 152; Mabry vs. Turrentine, 8 Ired. 201; Brissac vs. Moorer, Dud. 228; Cook vs, Irving, 4 Strob. 204; State vs. Halford, 6 Bich. 58. But the verdict may stand even if the escape was negligent, for it is well settled that under a count for a voluntary escape a negligent one may be shown; Bonafous vs. Walker. But the escape was voluntary and in such case there can be no subsequent arrest unless the plaintiff directs it. 2 Esp. N. P. 611; Lansing vs. Fleet, 2 Johns. Cases, 13 ; Scott vs. Peacock, Salk. 271.
   The opinion of the Court was delivered by

O’Neall, J.

I concur fully in the ruling of the judge below. The defendant had neither the body nor the bail bond of the defendant at the return term of the writ. Cook vs. Irving, 4 Strob. 204. This was an escape: and that it was voluntary, was conclusively shown by the fact, that the prisoner was out of his custody by his assent. When these facts were proved, it was the duty of the judge to tell the jury, as he did, that it was a voluntary escape. If he had left the facts to the jury, and they had found, as for- a negligent escape, we would have set the verdict aside on the motion of the plaintiff, as palpably against the evidence. I therefore conclude, that the defendant can take nothing by his motion; which is dismissed.

Motion dismissed.

Withers, Whither, Glover and MuNRO, JJ., concurred.

Wardlaw, J.,

dissenting. I cannot overcome tbe impression tbat tbe idea of assent or connivance is necessarily involved in tbe complex idea of voluntary escape: and tbe assent or connivance, it seems to me, must be not to tbe mere enlargement of tbe prisoner, but to bis unlawful enlargement. Did tbe defendant know tbat tbe bond wbicb be received was forged? Perhaps bis.negligence was so great tbat bis knowledge, or something equivalent to it, might have been discovered in evidence of all tbe circumstances. But I distinguish between ignorance of law and ignorance of fact, and I think it should have been left to tbe jury to decide tbe question whether tbe escape was voluntary. No fixed rule or general principle enabled a judge himself to draw from the evidence of tbe circumstances, tbe ultimate conclusion on this question of fact.

Motion dismissed.  