9 Pa. 451 | Pa. | 1848
The first error assigned is founded in a misconception. In some of the counties of the commonwealth, the sheriff himself resides in the jail of the county, and superintends personally the custody of the prisoners, whether confined under criminal or civil process. In other counties, the custom has been for the sheriff to appoint a jailer, without reference to the 28th section of the act of 1790, which seems to require the approbation of the justices of the Court of Quarter Sessions of the proper county, in open court. The legitimacy of this practice would seem to be recognised in Duncan v. Klinefelter, 5 W. 141. But be this as it may, no one will - pretend to question the sheriff’s right to appoint deputies to perform the duties appertaining to the office, and that he may designate ■ one of these by the title of jailer. “ The most important of the duties of such an officer,” says the court in the case just cited, “ and one which he assumes to perform by the acceptance of the office, is to keep safely all prisoners lawfully committed to his custody, until discharged by due course of law.” As deputy, upon the simple appointment of the sheriff, he is undoubtedly bound to keep safely all persons committed on mesne or final process, and if he permit a debtor to escape, and the sheriff be thereby made responsible, the jailer is liable over to his principal: Wat. on Shff. 40-1; Bac. Ab. T. Shff., H. 5. It is said the sheriff may, and often does, take a bond from the jailer, with security,
There was nothing in the recital of the bond tending to mislead the sureties to their injury. It but asserts the appointment of Scarborough as jailer, so far as the sheriff could legally make the appointment, and this unquestionably covered the commitment of debtors.
The second alleged error of any consequence, rests in the supposition that the prosecution of the original action brought by Benton against Henry and Hoyle, to judgment, might have been made available as a defence by the sheriff in the action instituted against him for the escape. This position proceeds upon the idea that the steps taken by Benton in the first suit, after the sheriff’s return of the escape, was an election to consider Hoyle as in court, and this amounted to a waiver of the plaintiff’s right to charge the sheriff for the escape. Certainly, if the sheriff, in the action against him, waived an available defence known to him, he did it at his peril, and the present defendants may have the advantage of it. But with what show of reason could the sheriff set up as a defence, that the Common Pleas of Bucks permitted him to appear and take defence in the original action, for his own protection ? How could he say, “ because, on my own application, I was permitted to litigate with the original plaintiff, and put him to proof of his claim, which he eventually established, therefore I am discharged from answering for the escape of his debtor” ? Such a defence must
It only remains to consider the objection that no verdict was found for the penalty of the bond; and therefore the court had no power to enter judgment under the act of 14th June, 1836. The first section of this act directs, in substance, that in suits on bonds for any penal sum, or for the non-performance of any covenant or written agreement, the plaintiff shall assign the breaches for which he claims damages, and thereupon he shall have judgment for the amount of such bond or penalty in due course of law, and execution thereof for such damages as shall be assessed for the breaches
Judgment affirmed.