3 Blackf. 14 | Ind. | 1832
On the 1.9th of April, 1830, the plaintiff recovered five several judgments against Samuel Downing, before a. justice of the peace of the county of Bartholomew. On the'21st 'of August,,1830, a writ of .execution issued .on each .judgment directed to a constable of the township, commanding him to levy the several judgments, se.t forth in the several, writs, of the goods-and chattel's , of Downing, but'for'want of property whereon to levy, then to take his body to the gaol of the county, and him deliver into the .custody of the sheriff, there to be detained until payment should be made or he otherwise legally discharged. ' Which several writs came into the hands of the constable on the day of their date, and he,.finding no goods or chattels, afterwards, on the 23d day of August, '1830, arrested Downing by his body on those writs, and delivered .him together with the writs to John C. Hubbard, the defendant, he being then and there the sheriff of the county; who immediately afterwards,
Three points have been raised for the consideration- of the Court.;
The first is, whether the action of debt will lie in this state against a sheriff for an escape on the writ of capias ad salisfacicndum? ' By the common law debt only lies upon contracts. Escapes are considered forts,-and are so, treated by Courts of justice. Hence,.at common law, the remedy is an action-on the case.' The statutes of West. 2, ch. 11, (13 Ed. 1,) and 1 Rich. 2, ch. 12, give the action of debt for escape’s on' the writ of cü. so,., and if these statutes are in force here the action of debt lies. This state-has adopted not'only the common- law of England'but also all the statutes in aid thereof, made prior to the 4th year of the reign of Jac. 1, (except the 2 sec.'of the 6 ch. 43 Eliz., the 8 ch.- of the 13 Eliz., and 9 ch. 37 Hen. 8,) of a general nature and not local to'that kingdom. Those.statutes are affirmative; they take away no common law remedy but add one, leaving the party at liberty to make his own election as to what remedy he will adopt, and are clearly in aid of the common law and in full force here. Steere v. Field, 2 Mason, 486.—-Bonafous v. Walker, 2 T. R. 129.-—Alsept v. Eyles, 2 Hen. Bl. 108
The second point is, whether the sheriff is liable for escapes, until the county authorities have erected a gaol for the reception of prisoners? • By the common law, each county has two prisons — one for the reception of criminals furnished by the public and called public gaols, the other for the reception of debtors, furnished by the sheriff himself. The sheriff may appropriate his OWn house for that use, or he may furnish any
The third point is, whether this commitment was legal or illegal, By the act of 1824, and the amendatory act of 1825, respecting the writs of execution, it is provided that- no writ of ca. sa. shall be issued by the clerks of the Circuit Courts, until after a return of nulla bona to a fu fa., unless the execution
The judgment is affirmed with costs.
The general act, referred to in the text, adopting the common law, &c. was first adopted in 1795, by the governor and judges of the North-Western
The ordinance of 1787, for the government of the North-Western Territory, says, that the inhabitants of the territory shall always be entitled to the benefit of judicial proceedings, according to the course of the common law. Art. 2. The statute of 1795, supra, adopting the common law, &c., is inserted in our Rev. Codes of 1807, 1818, 1834, and 1831.
The action of debt for an escape on execution is generally preferable to that of case. In case, the jury give such damages as they choose, and therefore in cases of hardship, a small sum is sometimes given. But, in debt, the sheriff stands in the situation of the original debtor, and the jury cannot give a less sum than the creditor would have recovered against the prisoner, that is, the sum endorsed on the writ, and the legal fees of execution. 1 Selw. N. P. 504.
The English statutes cited in the text are confined to escapes out of execution; and an action on the case, therefore, continues to be the only remedy for the escape of prisoners who have been arrested on mesne process. 1 Selw. supra, note.
In an action on the case against the sheriff for an escape, the Court of Appeals in Maryland says, — “ It is not denied that in such a case, (an arrest in a civil action, or a commitment for want of bail,) the sheriff would be liable for an escape, notwithstanding the public gaol should happen to be out of repair. That is his own look out. He takes upon himself the office with its responsibilities, and is bound for the safe keeping of those whom the law intrusts to his custody. Public policy requires it, and in an action against him for an escape, it is not a sufficient answer to say that the gaol was out of order.” Slemaker v. Marriott, 5 Gill & Johns. 406.
Vide Rev. Code, 1831, pp. 240, 315.. As to the law, independently of the statute, relative to the issuing of a ca. sa., see Steele v. Murray, Vol. 1, of these Rep. 179 and note.