
    
      The State of South-Carolina vs. W. R. Halford, Sheriff.
    
    Jfor the esoape from jail of a debtor in custody under a ca. sa., nothing will excuse the sheriff but the act of God or the public enemy.
    
      Before Withers, J., at Barnwell, Fall Term, 1852.
    The report of his Honor, the'presiding Judge, is as follows:
    “ In this action the plaintiff (for the benefit of J. C. Richardson) claimed damages for the escape of one Charles J. Provost, who was in the custody of the defendant, by virtue of a ca. sa.
    
    
      “ He had filed a schedule, and had been before a commissioner of special bail, on application for discharge, but was remanded until he should deliver the assets specified in his schedule, or so much thereof as should satisfy the demand on the ca. sa., or until he should be otherwise discharged by law. There were three debtor’s rooms and an entry, on the second floor of the jail, of which Provost had the range. A door-way led from the entry into a small passage, communicating with the cells, to which there was a shutter, which, if closed and locked, would exclude access to the cells. To each of two of the debt- or’s rooms, there was a fire-place; to the intermediate room there was none. A plank ceiling was placed around the walls of the three rooms, excepting, of course, the two fire-places. The brick of the chimneys were quite inferior. The evidence was that Provost possessed himself, in some way, of a round iron bolt, some 2\ feet long, and more than an inch in diameter, and having effected a breach in one of the fire-places, through the wall, tied strips of blanket to the iron bolt or bar placed across the breach, and made his exit through it, and down to the ground. It was thus he escaped.
    “ The plaintiff’s counsel, though adducing evidence intended to fix negligence on the sheriff, nevertheless insisted upon the legal position, that no insecurity of the jail could protect the sheriff, and that for an escape such as this, he could urge only the act of God, the public enemy, or a discharge by due course of law.
    “ I was reluctant to enforce such law upon the jury; that is to say, the law that applies to a public or common carrier. But it was so laid down in Smith vs. Hart, 2 Bay 395 ; was recognized (though arguendo) by Johnson, J., in Saxon vs. Boyce, 1 Bailey 66 ; and by Evans, J., in Cook vs. Irving, 4 Strob. 204.
    “ The plaintiff’s counsel declining to acquiesce in placing the case on the question of negligence, but insisting on the benefit of the rule of law, as above stated, I so positively instructed the jury, to wit: That the defendant was liable for the debt, interest and costs, due to Richardson by Provost, unless the" latter was at large by the act of God, the public enemy, or by virtue of a lawful discharge. There being no pretence that any such excuse existed, the jury returned a verdict for the plaintiff, for the amount of the demand as appearing on the ca. sa.”
    
    The defendant appealed, and now moved for a new trial, on the ground:
    That his Honor erred in charging the jury that nothing will excuse the sheriff, if a prisoner arrested on final process be at large, but a rescue by the public enemy, the act of God, or a discharge by due course of law.
    Aldrich, for the motion.
    Bellinger, Hutson, contra.
   The opinion of the Court was delivered by

Frost, J.

The appeal presents a mere question of law, which must be decided by authority. The liability which has been enforced against the sheriff, in this case, has been recognized from the earliest period of the law. By the statute 1 Rich. 2, c. 12, R. Stat. 442, if any warden be attainted, by due process, that he had suffered a prisoner in execution to go at large, the plaintiffs shall have their recovery against the warden, by writ of debt. In Shaw’s case, Year-Books, 16 Ed. 4, fol. 3, it is affirmed, that when judgment is once rendered, and the defendant taken in execution, by his body, a rescue shall not excuse the sheriff or warden; and it was adjudged by all the judges and sergeants of the law, when the Bastard of Faucon-bridge made an insurrection in the county of ffent, and broke the prison of the King’s Bench and let the prisoners go at large, that the warden could in no manner excuse himself; and by advice of his counsel, he petitioned Parliament; and an Act was passed that he should not be charged, on account of such escape. Alsept vs. Eyles, 2 H. Blac. 111., was an action of debt for the escape of a prisoner in execution. The defendant pleaded that he was sheriff and keeper of the prison by letters patent of the king, by whom the prison should be maintained and repaired; and by reason that the jail wall was too low, the prisoner, by the aid of persons from without, had effected his escape. Lord Loughborough said, it was impossible to maintain the ground that the sheriff was not liable for negligence. As the law stands, nothing but the act of God or public enemies can excuse the sheriff.

In Saxon vs. Boyce, 1 Bail. 67, Johnson, J., confirmed the rule in Alsept vs. Eyles, and in Cook vs. Irving, 4 Strob. 208, it was again recognized. Smith vs. Hart, 2 Bay 395, was an action of debt for an escape. ' The sheriff offered evidence of the insecurity of the jail; that he had made remonstrances to the governor on the subject; and that it had frequently been presented by the grand jury; but the evidence was excluded. On appeal, it was held to have been properly excluded ; because, it was said, if testimony of this kind were once admitted, it would open a door to sheriffs and jailors for making excuses, without end; for which reason the law is clear that it is no legal excuse.

In O’Neil vs. Marson, 5 Burr. 2812, to debt for an escape, the sheriff pleaded a rescue of the prisoner by a mob. Lord Mansfield said to the defendant’s attorney, “You have looked very carefully into it; but it appears there is no case to be found on the side of the defendant. The cases are hard; but they are too strong to be got over.” It is needless to multiply authorities. The law is well settled; and if it is to be changed, that must be done by the Legislature.

The Sheriff’s Act of 1839 did not, as it has been contended, alter the common law liability of the sheriff for an escape. It only declares the measure of damages against the sheriff, fox-voluntary and negligent escapes ; but does not define what shall be an escape; leaving that to the common law.

The rule may, in some cases, operate hardly on the sheriff; but they are rare. Most frequently an escape is favored by the negligence of the jailor. The walls and fastenings of the jail, however strong and solid they may be, are not of themselves sufficient to prevent escapes. The vigilance of the jailor is indispensable to the safekeeping of the prisoners. • The liability of the sheriff and of a common carrier, respecting the subjects committed to their charge, rests on a common ground of public policy. The sheriff is not a mere bailee. He exercises a public employment and is charged with a' duty, in the safekeeping of prisoners, of vital importance to government. The law is deprived of its efficacy, and the judgment of the court is frustrated, when a prisoner escapes. The good order of society and the security of private rights depend on the execution of the law. Pretexts and excuses for an escape are so easily invented and so easily maintained by evidence, that unless they are cut off, the sheriff may, in almost every case, secure to himself impunity. It is sufficient to exempt the rule from any imputation of harshness, that public necessity demands it. The motion is dismissed.

O’Neall, WaRdlaw, Witheus "and Whitner, JJ., concurred.

Motion dismissed.  