M'Gruder v. Russell

2 Blackf. 18 | Ind. | 1826

Blackford, J.

Debt by M’Gruder against Russell, sheriff of Marion county, for an escape. Pica, nil debet. Special ver-1 diet to- the following effect r-1—

M’Gruder, at the May term, 1821, of the Supreme Court, recovered judgment against Tale, and took out an execution of fieri facias. Replevin-bond by Tate with Craig as surety. Ca. sa. directed to Russell, sheriff of Marion county, against Tate alone, upon the replevin-bond; Craig having died since its execution. Russell sent the ca. sa. to Stanly, sheriff of Jackson county, where Tate resided. Stanly arrested Tate in October, 1825, and suffered Mm to go at large until the November following, wben Elliott, acting for Stanly, again arrested Tale on tbe ca.- Sk. and conveyed Mm to Indianapolis, and offered to deliver him to Russell. Russell refused to receive Mm; and, up-1 on a writ of habeas corpus, he was finally discharged. Upon these facts, if the law is in favour of the plaintiff, the jury find for Mm 738 dollars and 13 cents debt, and 158 dollars and 46 cents damages; otherwise they find for the defendant.

The, Circuit Court gave judgment, upon the verdict, in favour of the defendant,

With respect to the fact of an escape in this case, there is-no doubt about that. It is expressly found by the jury, an escape had been suffered, before the execution-debtor had been taken from the county of Jackson, But had it been otherwise, the removal of the party put of the county in which he was arrested, was itself an escape. It was like the case of a bailiff of a liberty, taking the party out of the liberty to the county gaol, and delivering him to the sheriff, which'has been,adjudged an escape. Boothman v. Earl of Surry, 2T. R. 5.

The only question which the case presents, is, whether an action for tiffs escape can be maintained against Russell, the sheriff of Marion county? If Russell is the principal sheriff for the state, as respects the process of the Supreme Court, and the sheriffs of the different counties are merely his deputies; and if the decision of the case is to rest strictly upon the common-law doctrine of principal and agent; no doubt can exist but that for the escape suffered by Stanly, Russell alone is responsible to the plaintiff. Cameron v. Reynolds, Cowp. 403. By the statute of 1824, p. 129, which governs .this case, the sheriff of the county.where the seat of the state government is located, is to act as the sheriff of the Supreme Court, and the sheriffs of the several counties are to act as his deputies, and arc responsible to him ⁽¹⁾. It must be -remarked, that the authority of the sheriffs of the respective -counties, is not conferred by the sheriff of the Supreme Court; nor can such authority when conferred, 'be revoked or abridged by him. They are elected by the people at stated periods, and act in their own.names, as independent officers of their respective counties, not in the name of the sheriff of the Supreme Court in> any case whatever. Under these circumstances, the sheriff of the Supreme Court cannot, in our opinion, be liable for the conduct of the other sheriffs in the different counties, unless made so by the express words of the act of'assembly. There is certainly no such direct statutory provision: it would be very unreasonable if there were.

The law of the state, upon the subject before us,, we con-, ceive to be this. The process of the Supreme Court is directed by the 'clerk, to the sheriff of the Supreme Court. He receives and forwards it, with his mandate, to the sheriff of the county where it is to be executed. The sheriff of the proper-county, makes his return to the sheriff of the Supreme Court, from whom he received it; and the latter returns it to the Supreme Court from whence it issued. The practice, in thisrespect, may be assimilated to that which prevails in an English county, where there is a bailiff of a liberty. The writ is directed to the sheriff; he makes out his mandate to the bailiff of the liberty; the bailiff executes it and makes his return to the sheriff; and the sheriff returns it to his Court. If the writ be a ca.sa.,, the bailiff must confine the party in the gaol of the liberty; and should he suffer him to escape, an action lies against the bailiff, but not against the sheriff. 2 Bac. 519. When the sheriff has nothing to do with the choice of the bailiff or his sureties, he cannot, upon any principle of the common law,. be made responsible for Ms acts; nor can he be considered so liable, by virtue of any statutory provision, where there are no. express words to that effect.

Dewey and Howk, for the plaintiff. Fletcher, Rariden, and Nelson, for the defendant. Per Curiam.

The judgment is affirmed with costs.

(1) This statute is repealed. The sheriff of the Supreme Court is now appointed by the Court for the term of three years. He appoints his deputies in different parts, of the state, and is expressly made responsible for their acts. Stat. 1833, p. 47.