4 Ky. 160 | Ky. Ct. App. | 1808
OPINION of the Court, by
-Field, as assignee of the sheriff of Bourbon, instituted an action agajnst George Slaughter and his securities, upon a bond conditioned for keeping the prison bounds. The defendants pleaded that said Slaughter had been confine(j jn the prison bounds upwards of twenty days, “ and being unable to pay the ordinary prison fees which accrued after that period, the defendant, Buckhannon, act'ing as jailor for the county aforesaid, gave notice of die said non-payment of the said ordinary prison fees to the said plaintiff, and demanded payment thereof, to wit: the sum,” &c. “ at,” &c. “on the day,” &c. “-and ^ saj¿ plaintiff failed to discharge the said fees, when so demanded as aforesaid ; m consequence wnereot, the said Buckhannon, acting as jailor aforesaid, discharged die said defendant Slaughter from his custody, and thereupon the said Slaughter departed from the bounds ; wj,ich is the same departure in the said declaration men-tionech” &C. “without that,” &C.--
To this plea the plaintiff replied, (by protesting against the assertions that Slaughter was discharged by due course of law, that he was unable to pay the prison fees, or that any demand of them had been made by Buck-hannon,) “ that before the time when the said demand, of him, the said Buckhannon, is supposed to have been made in the said plea, of the ordinary prison fees of him,” &c. “ — —to wit: on the day,” &c. “-he, the said plaintiff, did then and there execute to him, the said Buckhannon, a bond, with a certain William Markham
From a view of the statutes respecting “- — the escape of debtors and other prisoners,” “-concerning executions, and for the relief of insolvent debtors,” it is apparent that the sheriff is the officer first contemplated as having the authority to take the bond for keeping the prison bounds. Thus, in the first recited act, sec. 2, (Brad. E. L. K. p. 33, vol. 1) upon the escape of one who may have obtained liberty of the prison rules, the sheriff is required to give notice thereof to the creditor at whose suit the piisoner was in custody, and to assign over and deliver to such creditor the bond by him (the sheriff) taken for tfie liberty of the prison rules. In the second act before mentioned, sec. 26, (same book, p. 268) it is declared, that if any person taken or charged in execution shall enter into bond with good and sufficient security not to depart out of the prison rules or bounds, “ it shall be lawful for the sheriff,¡ or officer in whose custody” such prisoner shall be, to permit such prisoner to go out of prison and return at pleasure. The sheriff is the immediate officer of the law, to whom all process of the courts of justice are directed ; to him the capias ad satisfaciendum in this particular instance was directed, by virtue of which Slaughter had
The motion in arrest of judgment, and the opinion of the circuit court thereupon, the propriety of which is a a subject of enquiry in this court, brings into view the plea, replication and demurrer. The question which seems to arise out of the pleadings is this : after bond and security given by the plaintiff for payment of the prison fees of his debtor, could the jailor lawfully discharge the prisoner, because the plaintiff failed to discharge the fees which had accrued when demanded; or was the jailor bound, notwithstanding the demand and refusal, to keep the prisoner still longer on faith of a recovery to be had on the bond? If the latter, the replication is good in avoidance of the demand and failure stated in the plea; if the former, the replication is ill. This question depends on the proper understanding of the 32d section of the last before recited act, (Brad. E. L. K. p. 272) which declares that such fees for keeping a debtor, who is unable to pay them,, as shall become due after the expiration of twenty days, shall be borne by the creditor until he consents to release his debtor ; and if the creditor, upon notice given,, “ shall refuse to give security to the sheriff or jailor for the payment of such prison fees, or shall fail to pay the same when demanded, it shall and may be lawful for the sheriff or jailor to discharge such debtor out of prison.” It is not enough, according to the act, that the creditor shall give security to pay, he must actually pay when required; or, in other words, the act does not oblige the sheriff or jailor to take a promise ion payment, a bond instead of money. The bond and security may be required, according to the permission of the act, at the discretion of the sheriff or jailor. This permission was necessary to secure the officer against loss which might accrue to him from sustaining insolvent debtors at the suit of insolvent creditors- But whether security has or has not been given,, the creditor must pay his debtor’s prison fees (if the debtor is unable) as often as demanded, at the hazard