Action for an escape against the Sheriff of Madison County, he
having received into his custody as a prisoner the defendant in an
action in the circuit court of Mississippi, taken under execution,
and having suffered and permitted him to escape.
The declaration set out the judgment obtained by the plaintiffs
against Scott, the defendant in the circuit court, the execution,
the arrest of Scott, and his delivery to Long as the sheriff, who
received him into his custody under the execution and detained him
until, without leave or license of the plaintiffs in the execution
and against their will, he suffered and permitted him to escape and
go at large &c. To this declaration the defendant pleaded that
he does not owe the sum of money demanded in the declaration "in
manner and form as complained against him," and the jury found that
the defendant Long "doth owe the debt in the declaration mentioned
in manner and form as therein alleged," and assess damages for the
detention thereof at one thousand and sixteen dollars and
ninety-six cents, upon which the court gave judgment for six
thousand three hundred and fifty-six dollars and one thousand and
sixteen dollars and ninety-six cents damages, and costs.
The judgment of the circuit court is correct, under the
provision of the statute of Mississippi of 7 June, 1822. The jury
was not required in the action to find specially that the prisoner
escaped with the consent and through the negligence of the sheriff.
The plea alleged that the defendant did not owe the sum of money
demanded "in manner and form as the plaintiff complained against
him." This plea put in issue every material averment in the
declaration. On this issue, on the most strict and rigid
construction, the jury has expressly found all that is required to
be found by the requirements of the act.
If the sheriff suffers or permits a prisoner to escape, this,
both in common parlance and legal intendment, is an escape with the
consent of the sheriff.
The object of the act is to make the sheriff responsible for a
voluntary or negligent escape, and that this shall be found by the
jury. And if this appears from the record by express finding or by
the necessary conclusion of the law, it is sufficient.
If any particular practice has prevailed in the state courts as
to the manner of entering upon the record the finding of the jury,
it is a mere matter of practice as to the form of taking and
entering the verdict of the jury, and cannot be binding upon the
courts of the United States.
An action of debt was instituted by the defendants in error
against Benjamin Long, then Sheriff in Madison county, in the State
of Mississippi, for the recovery of $6,277 and costs, the same
being the amount of a
Page 41 U. S. 66
judgment obtained by Palmer, Smith & Company against Thomas
S. Scott at the January term, 1833, of the District Court of the
United States for the District of Mississippi, with interest.
The plaintiffs in the district court averred in the declaration
that they had sued out a
capias ad satisfaciendum on the
judgment against Thomas S. Scott, who was arrested by the deputy
marshal and who, having him in custody under the execution,
committed him to the custody of Benjamin Long, the sheriff. That
the said Benjamin Long received Scott into his custody, and
afterwards,
"without the leave or license and against the will of the
plaintiffs, suffered and permitted the said Scott to escape and go
at large wheresoever he would, out of his custody."
The defendant in the circuit court, the case having been
transferred to that court, pleaded "nil debt," and the jury found a
verdict for the plaintiff "in the manner and form as alleged by
them," whereupon judgment was entered for the plaintiffs according
to the verdict. The defendants sued out this writ of error to
January term, 1839.
Page 41 U. S. 67
THOMPSON, JUSTICE delivered the opinion of the Court.
This is an action of debt, brought against the defendant for the
escape of Thomas S. Scott, who had been duly committed to his
custody by the Marshal of Mississippi. The declaration sets
Page 41 U. S. 68
out the judgment obtained by Palmer, Smith & Co., against
Scott, the issuing the execution thereupon, the arrest of Scott,
and his delivery to the defendant as sheriff, who received him into
his custody by virtue of the said execution and detained him until
afterwards, to-wit, on 10 October 1833, when without leave or
license and against the will of the said Palmer, Smith & Co.,
he suffered and permitted the said Scott to escape and go at large
wheresoever he would, out of the custody of him the said Benjamin
Long, so being sheriff as aforesaid. To this declaration the
defendant pleaded that he does not owe the sum of money demanded by
the plaintiffs in the declaration or any part thereof in manner and
form as the said plaintiffs have complained against him. And the
issue thereupon joined came on to be tried by a jury, which, upon
its oath said that the defendant did owe the debt in the
declaration mentioned in manner and form as therein alleged, and
assessed the damages for the detention thereof at $1,016.96.
The question presented upon this writ of error arises under a
law of the State of Mississippi concerning escapes passed 7 June
1822 (Rev. Code 318), the third section of which declares
"That no judgment shall be entered against any sheriff or other
officer in any suit brought upon the escape of any debtor in his or
their custody unless the jury who shall try the issue shall
expressly find that such debtor or prisoner did escape with the
consent or through the negligence of such sheriff or other officer
or that such prisoner might have been retaken, and that the sheriff
or other officer neglected to make immediate pursuit."
This latter branch of the act is not involved in the present
question. The declaration contains no averment of neglect to make
immediate pursuit to retake the prisoner. To this section of the
act, which is general and extends to all actions for escapes,
whether the prisoner is in custody of the sheriff on mesne process
or on an execution, there is a proviso which declares that when the
sheriff or other officer shall have taken the body of any debtor in
execution and shall willfully and negligently suffer such debtor to
escape, the party suing out such execution may have and maintain an
action of debt against the sheriff for the recovery of all such
sums of
Page 41 U. S. 69
money as are mentioned in the execution and damages for
detaining the same, any law, custom or usage to the contrary
notwithstanding. So that when the action is for the escape of a
prisoner in execution, the measure of recovery is fixed, and not
left open to any mitigating circumstances. This proviso takes the
case of an escape where the prisoner is in custody on an execution
out of the provisions in the enacting clause. The action in this
case is debt, and comes within the proviso. But the grounds on
which the sheriff is made liable for the escape are substantially
the same. In the enacting clause, he is made liable if the escape
is with his consent or through his negligence. And in the proviso
he is made liable if he willfully and negligently suffer the
escape. The word "or" must obviously be here substituted for "and"
shall willfully or negligently suffer the escape. To consent to an
escape is certainly willfully to suffer it. And the question which
arises upon this record is whether the case is brought within the
provisions of this act.
The action is debt against the sheriff, and the averment in the
declaration, on which his liability for the escape rests, is that
he, without leave or license and against the will of the said
Palmer, Smith & Company (the plaintiffs in the execution)
suffered and permitted the said Scott (the prisoner) to escape and
go at large, out of the custody of him, the said Benjamin Long, so
then being Sheriff of the County of Madison, and the said sum of
$6,356.83, due for said damages and costs, being then and still
wholly unpaid and unsatisfied. The error complained of in this
record is that the jury has not expressly found that the prisoner
escaped with the consent or through the negligence of the sheriff.
The plea to this declaration, which contains the averment above
mentioned, is that the defendant does not owe the sum of money
demanded in the declaration in manner and form as the plaintiff has
complained against him. This plea puts in issue every material
averment in the declaration, and the plaintiff was called upon to
prove such averments. It put in issue, therefore, the inquiry
whether the sheriff suffered and permitted the escape. If he
suffered and permitted the escape, this, both in common parlance
and in legal intendment, was an escape with the consent of the
sheriff. And the verdict or the jury is that the defendant
Page 41 U. S. 70
doth owe the debt in the declaration mentioned in manner and
form as therein alleged. The manner and form alleged in the
declaration is that he owed it by reason of his having permitted
the prisoner to escape. So that upon the most strict and rigid
construction of the act, the jury have expressly found that the
escape was with the permission of the sheriff, which is equivalent
to finding that it was with his consent, according to the
requirement of the act. This act does not point out any particular
form in which the finding of the jury is to be entered upon the
records of the court. The object of the act is to make the sheriff
responsible for a voluntary or negligent escape, and that this
shall be found by the jury. And if this appears from the record by
express finding or by the necessary conclusion of law, it is
sufficient. So that if the verdict of the jury in this case should
be considered no more than the common form upon the plea of
nil
debet, all the averments in the declaration are, in judgment
of law, presumed to have been proved. And if any particular
practice under this statute has prevailed in the state courts as to
the manner of entering upon the record the finding of the jury, it
is a mere matter of practice as to the form of taking and entering
the verdict of the jury, and cannot be binding upon the courts of
the United States. The judgment of the court below is
accordingly
Affirmed.
This view of the case renders it unnecessary to consider the
motion to dismiss the writ of error.
Order
This cause came on to be heard, on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Mississippi and was argued by counsel. On consideration
whereof it is now here ordered and adjudged by this Court that the
judgment of the said circuit court in this cause be and the same is
hereby affirmed with costs and damages at the rate of six percentum
per annum.
