Hart v. . Lanier
10 N.C. 244
N.C.
1824
Check Treatment

Lead Opinion

The act specifies two cases wherein the sheriffs shall be chargeable as special bail; one is where he returns no bail; the other, where the bail returned is held insufficient, then upon exception taken to it, and notice to the sheriff, he shall be liable. When a sheriff suffers the party to go at large without bail, he is not liable to an action for an escape, provided he have him on the return of the writ; but if he have him not then, or afterwards suffers him to go at large without proper authority, he is liable to an action. This is the law of England, because no provision is made there for the sheriff's becoming bail; but according to out law, if the sheriff suffer the party to go at large, he is not liable to an action for an escape, although he have not the body on the return of the writ, but must be proceeded against as special bail, in which case he may make a surrender at any time before final judgment. When the defendant is arrested, and escapes on the way to prison, it evidently was not the intent of the sheriff to make himself liable as bail; he meant to secure the body, and every presumption of his becoming bail is excluded by the fact that the escape was against his will. Whether the escape was made under such circumstances as would amount to a rescue, either by the party himself or others, for which the sheriff would not be liable on mesne process, it is not now in question, the only inquiry being whether, when he returns an escape, he can be proceeded against as bail. I am of opinion he cannot.





Addendum

The act of 1777, ch. 115, sec. 16, does not impose it upon sheriffs to become special bail against their consent, and in this case the *Page 136 sheriff has not elected to become bail; so far from it that he was about to put Downs in jail for want of bail when he broke custody. He becomes bail when he lets his prisoner go at large without taking bail at (246) all, or without taking sufficient bail, and exception is taken for that cause at the court to which the writ is returnable. But this is neither of those cases, and therefore cannot be within the act of Assembly. Of course, the sheriff cannot be subjected as bail by this scirefacias. It has been said that if the sheriff is not considered as bail, but subject to an action for the escape, he loses the benefit of making a surrender. 2 N.C. 224. That is true, if he would be liable for the whole of the plaintiff's debt in an action for the escape; but that may not be the case. The jury in such action will be governed by circumstances. Suppose, for instance, it should be proved that the defendant who escaped was insolvent; it would, no doubt, influence the jury in making up their verdict. From this view of the case, I think the judgment should be entered for the defendant. Tutor v. Sheriff, 2 N.C. 485.

And of this opinion was Judge HENDERSON.

PER CURIAM. Affirmed.