
    Commissioners of Brown County v. Butt, late Sheriff.
    County liable to sheriff for not providing jail, where sheriff has been subjected to an escape.
    "Where there is an escape of a debtor, in prison for want of a jail, it is proper to sue the sheriff for an escape.
    In a suit by sheriff against the county, for damages sustained in consequence of no jail being provided, record of suit by party injured, against sheriff, admissible evidence.
    Commissioners liable for not supplying jail, without reference to degree of negligence.
    Special action on the case, proper form of action for sheriff against commissioners to recover damages sustained by escape for want of jail.
    This was a writ of error to the judgment of the court of common pleas of Brown county, in an action on the case, brought by the defendant in error, against the plaintiff in error, and was adjourned, by the Supreme Court of Brown county, for decision at Columbus.
    The case was this: Butt brought a special action on the case, against the commissioners, and charged that one Shaw brought an action against Parker, by capias, requiring bail, which was put into Butt’s hands, as sheriff, to be executed. That he arrested Parker, and took appearance bail. That in term time, the bail surrendered Parker, who was committed to the custody of the sheriff and escaped, the county having provided no jail. That Shaw prosecuted an action forthe escape, against the sheriff, the plaintiff in this action, and recovered, whereby he sustained damages. Plea, not guilty.
    At the trial, the plaintiff offered and gave in evidence:
    1. The record of the suit, Shaw v. Butt.
    2. The order of the court committing Parker to custody.
    3. Shaw’s receipt to Butt for the amount recovered.
    4. Butt’s commission as shoriff, with his oath of office.
    5. Proof by witnesses that there was no jail in the county when Parker was committed.
    To the admission of this testimony, the defendants objected, and their objection being overruled, they took a bill of exceptions.
    They then moved the court to instruct the jury, that the plaintiff could only recover nominal damages. This ^motion was overruled, and it was decided that the judgment obtained c.j Shaw against Butt was prima fade evidence of the damage sustained by the plaintiff. To this opinion the defendants also took a bill of exceptions.
    The defendants moved the court to instruct the ju’-y, that unless the commissioners were guilty of gross neglect, in omitting to furnish a jail, they were not liable. This motion was also overruled, and the court instructed the jury, that it was the duty of the commissioners to furnish a jail — that if no jail was furnished, the sheriff was nevertheless liable for escapes, and the commissioners liable over to him. To this opinion the defendants also excepted. Terdict for the plaintiff for the amount recovered against him of damages and costs. Judgment on the verdict — general error assigned.
    Marshall and Gilleland, for plaintiffs in error, contended :
    1. That the county commissioners were not bound to furnish a jail, and therefore could not be liable in this action. They cited Campbell v. Hampson, 1 Ohio 119.
    2. That the record of the case of Shaw v. Butt was inadmissible as evidence — the defendants, in this case being neither parties nor privies, in blood or law, to either of the parties in that case. 1 Phillips’ Ev. 226, 228.
    3. Nominal damages only ought to have been given, because there was no evidence that Shaw had recovered anything against Parker. And the recovery of Shaw v. Butt was for a voluntary escape, for which sheriff ought not to recover. 2 Phillips’ Ev. 227.
    4. Defendants were only liable for gross negligence. Commissioners are by law vested with a discretion to erect a jail, when “ they should deem it necessary.” Where discretion is given, party is only liable for gross negligence. 1 Johns. Ch. 18.
    5. If commissioners are liable, the action should have been brought direct against them by Shaw. This would avoid circuity of action, and' put the original defense in the hands of the party ultimately liable.
    6. The action ought to have been in assumpsit, and not in tort.
    *Brush and Fitzgerald, for defendant in error:
    Insisted that the case of Campbell v. Hampson, 1 Ohio, 119, was against the plaintiff in error. In that case, the court decided that tne sheriff was bound to keep the prisoner in the jail furnished by the county, and was not liable if it were not properly constructed.
    The record, in the case of Shaw w.-Butt, was properly received in evidence, and was conclusive as to Butt’s liability, and as to the amount.
    It is a mistake to suppose that the extent or degree of negligence was the matter to be tried. If the county provided no jail — and they were bound by law to furnish one — the county must be liable, where any individual is injured by that neglect.
    It has been settled in this state, by two decisions of the Supreme Court in Pickaway county, that the proper mode of proceeding is for the party injured to sue the sheriff. The sheriff is always liable to the plaintiff for an escape. And the plaintiff ought not to be turned over to a suit against the county, and tort is undoubtedly the proper form of action.
   Opinion of the court, by

Judge Hitchcock:

The first and most important question presented to the court for decision in the present case is, whether a county can be made responsible for the escape of a prisoner, confined for debts where the escape happens in consequence of the. want of a jail, or where the jail furnished by the county commissioners is insufficient. It is necessary to dispose of this question in the first place, because if the county is not liable, the judgment of the court of common pleas was erroneous, and must be reversed.

The law has been long settled in England, the country from which we derive most of our laws, as well as our ideas of jurisprudence, that the sheriff is liable for escapes. It is to him, and him alone, in such cases, that the judgment creditor can look for redress. The same principle prevails in some, although not in all, our sister states. Whenever a question of law has been settled in England, the courts in this country are in the habit of adhering to such decision. *It is undoubtedly correct that such should, as a general rule, be the case. But to adhere blindly to English decisions when no good reason can be assigned for them, or when no other reason can be assigned than that it has been thus decided, to do this without inquiring what influenced the courts to make such decisions, to do it without inquiring whether the same-reasons exist in this country as in that, would be foolish in the extreme. It is a useful maxim that when the reason of a law ceases, the law itself should cease. A particular law, or rule of law, might be very beneficial in England, or one of our sister states, which, if enforced in Ohio, would be attended with injurious consequences. Influenced by these circumstances, this court has ever been in the habit of looking to the effects which would follow the adoption of any particular rule of decision. Why is the sheriff in England made liable for an escape ? The reason is obvious. The sheriff in that country, as well as in this, is the keeper of the jail. But he is not bound to confine the debtor in the public jail of the county, if there be one, but he may confine him in a house or prison furnished by himself. If the public prison is insufficient he can make all necessary repairs or alterations, and for the expense will be indemnified. In short, he may adopt any course which is essentially necessary to secure his prisoner, provided he confines him within the proper bailiwick. Such being his situation, it is perfectly proper that if the prisoner escapes, he should be liable. The escape will not happen without a violation or neglect of duty on his part, and whenever an individual sustains an injury in consequence of the violation or neglect of duty on the part of a public officer, justice requires that the officer should make reparation for that injury. But to make the officer liable where no such circumstance intervenes, when he has in fact complied with the requisitions of law and with his own duty, would be manifestly unjust. What, then, is the situation of the sheriff in Ohio ? Can he confine the debtor in such place as he thinks proper? Can he confine him in a prison of his own choice? It will not be pretended. On the contrary, the law requires that the debtor shall bo confined in the jail of the county. And should he be confined in any other *place, the sheriff would be liable to the creditor for an escape, or to the debtor for false imprisonment. True, the sheriff may, under peculiar circumstances, convey his prisonerto the jail of an adjoining county, but this is only in extraordinary cases. Is the sheriff authorized to fix upon the placo for, or to erect a jail for the county ? In the “ act providing for the erection of public buildings,” passed January 22,1810, the law in force when the escape now complained of happened, but which does not materially vary from the present law on the subject, these duties are assigned to the county commissioners.

The sheriff has no power to provide a prison, nor can he repair one unless at his own expense. Under these circumstances, to make the sheriff ultimately liable for the escape of a prisoner, when the escape happens for the want of a jail, the law giving him no power to furnish such jail, or to make him liable when the escape happens through the insufficiency of the jail, the law conferring no right upon him to make necessary repairs, would be manifestly unjust. It would be to inflicta penalty on an officer who had violated no law, who had been guilty of no violation or neglect of duty. It would, in fact, be to punish him for a neglect of duty on the part of others.

When the escape is voluntary, or where it happens in consequence of the negligence of the sheriff, he ought to be liable. But where it happens in consequence of circumstances not within his control, the principles of justice require that he should be exonerated.

It may, perhaps, be thought by some that if the sheriff is to be exonerated on the grounds before specified, it would be proper to make the county commissioners liable in their individual capacity. But we must consider the capacity in which the county commissioners act. They are the representatives of the county. The money which they expend is the money of the county. The funds with which public buildings are erected, are the funds of the county. In fact, the acts of the commissioners are the acts of the county, and it is only through them that the business of the county can be transacted. And when it is said that it is the duty of the • commissioners to furnish public buildings, nothing more *is intended than that this should be done by the county. It is true the commissioners may, in some cases, be punished criminally for a neglect of duty, but this is a civil action, the object of which is to recover remuneration for a civil injury. The injury has been sustained in consequence of a neglect of duty on the part of the commissioners, not as individuals, but in their corporate capacity as the representatives of the county of Brown. If liable at all, therefore, they must be liable in this capacity.

Inasmuch, then, as it is duty of the commissioners of a county, or, in other words, of the county itself, acting by its commissioners, to furnish a good and sufficient jail; and, inasmuch, as the sheriff has no voice nor control in this business, it is the opinion of a majority of the court that where an escape happens in consequence of the want of, or insufficiency of a jail, the county must be eventually liable for such escape. Similar considerations influenced the court in the decision of the case of Campbell v. Hampson, 1 Ohio, 119, and we see no reason to change the principle there decided.

Having disposed of the question which I considered the most important in the case, I will now proceed to consider the other points made by the counsel for the plaintiffs in error. It is urged that admitting the principle settled by the court to be correct, Shaw could not, with propriety, have a recovery against Butt, turning Butt round against the county for his indemnity; but should, in the first instance, have commenced an action in his own name against the county. If this were a new question, I should feel disposed to concur in opinion with the counsel for the plaintiffs in error. It being the duty of the county to furnish a prison, and the escape having happened in consequence of a neglect of this duty, .it would seem to be proper that the county should be directly liable to the party injured. By adopting such course, circuity of action would be avoided. The party in fault would suffer for his negligence, while an innocent individual would not be put to the trouble of defending or prosecuting a suit. But I do not consider this question as open for discussion. It has been repeatedly decided that the judgment creditor must look to the sheriff *for his remedy, and in this case we settle the principle that the sheriff shall be indemnified by the county. The decision of the court of common pleas was, therefore, in this particular correct.

It is further objected that the court of common pleas permitted the record, in the case of Shaw v. Butt, to be given in evidence to the jury — the plaintiffs in error not being either parties or privies to the judgment in that case. The principle contended for is, as a general rule, undoubtedly correct. Had the action been founded upon that judgment, the record should have been excluded — such action could not have been sustained. But the foundation of the action was the negligence of the commissioners in furnishing a jail, in consequence of which the plaintiff below had sustained an injury. The extent of this injury must be ascertained, and this could be done only by showing the amount he had been compelled to pay. For this pui’pose the record was introduced. It was mere collateral matter, and for this purpose might well be given in evidence.

The next exception is that there was no evidence that Shaw proved that he sustained any damage in consequence of the escape of Parker, and, therefore, that the damages in the case of Butt against the commissioners should have been merely nominal. And, moreover, that the recovery against Butt was for a voluntary escape. It is the opinion of the court that the amount of damages recovered by Shaw v. Butt is the proper rule of damages in the present case. Whether the evidence submitted to the jury was sufficient, in that case, to justify them in finding that amount of damages, we know not. The reasonable presumption is that it was. Nothing to the contrary appears, nor can the correctness of that verdict be questioned in this case. As to the nature of the escape, whatever might have been the form of action against Butt —whatever might have been the evidence in the case against him — ■ it appears from the bill of exceptions before us, that the escape happened in consequence of the want of a jail. Had a sufficient jail been furnished, the county must have been exonerated. The sheriff alone would have been liable. But such was not the fact.

*It is further objected that the court of common pleas refused to instruct the jury, that unless they believed the commissioners had been guilty of gross negligence, they must find for the defendant. Such instruction would have been improper. Should the commissioners of a county be indicted for not erecting public buildings, under section 14 of the “act establishing boards of commissioners,” it might be a good defense for them to show that they had not been guilty of gross negligence. But such defense can not be allowed in a case like the present. Here, an individual has sustained au injury in consequence of the neglect of the commissioners. The injuxy to him is the same, whether the negligence was gross or othex'wise, and he is equally entitled to redress.

An objection is made to the form of action. It is said it should have been assumpsit. But this objection will not avail. The action is a special action on the case, and well brought.

In whatever point of view I can consider the case, it appears to me that the court of common pleas were correct in the determination of the sevex'al questions submitted to them, and in this opinion a majority of the court concur.

The judgment of the court of common pleas is therefore affirmed, at the cost of the plaintiffs in error.

Judge Burnet’s

dissenting opinion:

The ground on which I dissent from the opinion of the court in this case is, that I can not consider a county, in its corporate capacity, as liable for the illegal conduct of its officers; and if it is not so liable, I do not perceive any ground on which this action can be sustained. There is no statute in this state, by which it is made responsible, and if there be any principle of-common law that can sustain the suit, it has escaped my observation. There is not any contract, either express or implied, subsisting between the plaintiff and the county of Brown, on which the claim can be founded, nor has the county, in its corporate capacity, been ■guilty of a tort to his prejudice. If the commissioners, by a willful omission of duty, have caused him an injury, they may be answerable for the consequences, *in an action properly framed for that purpose. The statute made it the duty of the commissioners to provide a sufficient jail, and gave them the means of doing so. They voluntarily accepted the trust, and if they have neglected to execute it, and by that negligence the plaintiff has been injured, the injury has not proceeded from the county, but has been occasioned by the illegal conduct of the commissioners, for which they are personally responsible.

Reference has been had to considerations of policy. If there be any weight in these arguments, they are better calculated for the legislative hall than for a court of justice. They might influence the legislature to provide a remedy, but they do not show that it already exists. It way, however, be fairly questioned whether good policy requires such a recourse. A county can not provide public buildings, in any other may than by the agency of its officers. If those officers may neglect their duty with impunity, as will be the case if they can transfer the consequences of their negligence to the county, a strong inducement to the faithful and punctual discharge of duty is lost. It will be a matter of but little moment, as it regards them personally, whether they provide a sufficient jail or not, if the consequence of their negligence is to operate on the public treasury, instead of their own purses. If considerations of policy can be properly used in a case like this, I incline to the opinion that it is better to lot the officers bear the consequences of their omissions of duty than invite them to such omissions, by providing an indemnity, or by suffering them to offend with impunity. It can not be good policy to remove incentives to duty. If it be said that cases of hardship may arise, in which.the commissioners are not chargeable with inexcusable neglect, so as to be personally liable it may be replied, that in such cases the sheriff, or other person injured by an escape, may petition for relief, with a fair prospect of success, if his claim be a meritorious one. But it does not follow that a legal right of recovery must exist for every loss attended with hardship. There are cases without number in which such losses are sustained, and the sufferers are destitute of a remedy, because there is no person legally bound to indemnify. It can not be overlooked, *however, that in the case before us, all the parties acted voluntarily and advisedly. The sheriff knew the situation of the public buildings when he accepted his office, and the defendant had the same knowledge when he caused his debtor to be imprisoned. The hardship, therefore, is not as good as it would seem at first view.

If the liability contended for really existed, it is a natural inference that some adjudged eases might be found to support it, but the research of counsel has not enabled them to produce a solitary ease, in which the funds of the county, or corporation, have been rendered liable for injuries sustained by the unauthorized, illegal, and tortious acts of its officers. As far as the case of Campbell v, Hampson applies, I consider it an authority against the plaintiff. That case was decided on the principle, that a sheriff, who was expressly commanded by the statute to commit a person in his custody to the common jail, and to a particular apartment in that jail, could not be charged as a trespasser in discharging that duty, because, by the misfeasance of the commissioners, the apartment in which he was directed to confine the person had not been provided,' by which it was impossible for him to perform the duty in the precise manner directed.

And in delivering the opinion, the court do distinctly intimate, that the party injured had a remedy against the commissioners, whose duty it was to have provided a separate room for debtors. If anything can be inferred from that case, applicable to this, it is that this plaintiff was not liable for an escape which he could not prevent, etc., that he might have defended himself against the suit of the creditor,- and turned him over to the commissioners, who were exclusively liable for the injury he had sustained. And again, I do not see how a decision that the sheriff is not liable to an action of trespass, in a particular case, and that he may defend himself against it, can be improved as an authority to show that in a case of a different character, he may submit to a judgment, and then compel an indemnity from the county.

The books abound in cases, both English and American, in which recoveries have been had against sheriffs for escapes, but not an instance can be found in which they *have recovered an indemnity against the county. If it be replied that this is because the sheriffs in England are not bound to confine debtors in the public jail, but may, at their election, provide a private jail, or may repair the old one, if necessary, for which they are to be remunerated ; the same reply may be given, with equal force, in the present case. In Ohio, the county commissioners are authorized and directed to provide sufficient jails, and it is their duty to levy and collect money, or to contract debts for that purpose if necessary. Consequently, they stand in the situation of sheriffs in England, in relation to escapes, and ought to be answerable for the insufficiency of the jail, in the same manner, and to the same extent. They, as well as the sheriff, are county officers, and in providing public buildings, they all act as agents of the county.

If an escape happens in England, through the insufficiency of the jail, the sheriff must answer for it, and he has no recourse on the county. For the same reason, the commissioners in Ohio should be answerable without recourse. It is a just maxim, that “the reason of the law is the life of the law.” The sheriff, in the case put, is liable without recourse on the county. Why? Because he has been guilty of a misfeasance, in not providing a sufficient ¡ail. Therefore, and for the same reason, the commissioners should be liable without recourse, they having been guilty of a nonfeasance, in not providing a jail.

In every instance, within my knowledge, in which a county has been held liable for an escape, it has been made so by statute. It is by statute, the hundred in England, is made liable for robberies, in certain cases, and under our territorial government, a statute was adopted by the governor and judges, in August, 1792, declaring the counties liable for escapes that should happen through the insufficiency of the jail. The act pointed out the manner in which the money should be assessed and paid, and also the mode of commencing and conducting suits for the recovery thereof, in case the courts should not order it assessed and paid. The frauds that were practiced on the counties, under that law, by collusions between plaintiffs and defendants, when no debts wore really due, and when defendants were utterly ^insolvent, became so appai’ent and oppressive, that the fii’st territorial legislature, in 1799, repealed the act, and no subsequent legislature has seen proper to revive it.

Prior to the adoption of that law, I believe no attempt was made to charge a county in such a case, and this is the first suit that has been brought for that pui’pose, within my knowledge, since the repeal of the law, although escapes have been numerous, for which the sheriffs have been held answerable to the persons injured. The natural inference is, that it has been the prevailing opinion that such actions could not be sustained at common law.

From the most careful view I have been able to take of this case, it appears to me that the county of Brown is not liable, either by statute, or by contract, to pay the money demanded, nor do I discerní that she has committed any tort to the injury of the plaintiffs, and I do not know of any ground, distinct from these on which the action can be sustained.

The duty and the power of the commissioners is created by statute. While they act within the scope of their powers, the county must be bound, but if they should make a contract, to remove the seat of justice, or should seize on pi-ivate property, for county purposes, contrary to law, the county would not be bound by the conti’act, or liable for the trespass ; they would be responsible in their pi’ivate capacities. The proposition, thex-efore, that “the act of the commissioners is the act of the county,” must be taken in a restricted sense. It would be mischievous, as well as unprecedented, to hold the county answerable for their tortious and illegal proceedings. 
      
      Note by the Editor. — As to record evidence, see Gibbs if. Fulton, ii. 180, and note. The law of this case is recognized, vi. 13, and same principle, i. 119.
     