Opinion
06-22-1811
Waugh v. Carter
In an action of debt, in the Haymarket district court, on behalf of Moore F. Carter against Samuel Oliver and John Pash, the writ was returned by Alexander Waugh, deputy for James Waugh, sheriff of Fairfax county, " executed the 19th day of August, 1805, and the defendants escaped out of custody."
At the rules, in November, 1805, a common order was entered against the defendants and sheriff, which, in March, 1806, was confirmed; and this office judgment, not being set aside at the ensuing May term, was confirmed against the defendants and James Waugh, the sheriff. The plaintiff's declaration was filed in January, 1806. A writ of supersedeas to the judgment was awarded by a judge of this court.
Judgment reversed; and cause remanded.
Judge Brooke pronounced the following opinion of the court.
OPINION
Saturday, June 22d, 1811. JUDGE BROOKE pronounced the following opinion of the court:
" It seems to the court here that the said judgment is erroneous in this, that the office judgment was entered at rules before the plaintiff (now defendant) had filed his declaration; and in this, also, that the judgment was entered against the plaintiff (in error) as sheriff, upon his return that the said Samuel Oliver and John Pash had been taken and escaped; the court being of opinion that the sheriff could not be made liable for an escape, but by a suit brought against him for that purpose." Judgment, therefore, reversed; all proceedings subsequent to the writ set aside; and cause remanded to be further proceeded in.
Note. See the 35th and 36th sections of the district court law. Rev. Code, v. 1, p. 80. --Note in Original Edition.
Note. See the 3d section of the law concerning escapes. Rev. Code, v. 1, p. 119. --Note in Original Edition.
ESCAPES.
I. Escapes in General.
II. Responsibility of Prisoner.
A. Escape Warrant.
1. In General.
2. What It Must Show.
3. Presumption Arising from Lapse of Time.
4. Escape Warrant Showing That Escape Not from a Prison.
B. Indictment.
C. Punishments.
1. Escape as a Criminal Offence.
2. Where Party Escapes before His Term Is Up.
3. Punishment of Convicts.
III. Responsibility of Sheriff.
A. Criminal Responsibility.
B. What Sheriff's Return Must Show.
C. Defenses.
1. Defenses Held Insufficient.
a. No Jail or an Insufficient One.
b. Recapture after Suit Brought.
c. Insolvency of Prisoner.
2. Defenses Held Sufficient.
a. Prisoner Released under Insolvent-Debtor Act.
b. Prison-Bounds Bond Taken.
D. Damages.
E. Verdict of Jury.
F. Evidence.
1. Burden of Proof.
2. Succeeding Sheriff Disqualified.
IV. Responsibility of Jailor.
V. Penalty in Appellate Court.
VI. Remedies.
A. In General.
B. Effect of Voluntary Return on Remedies.
C. Elegit after Debtor's Escape.
D. Motion against Sheriff.
E. Necessity for Separate Suit against Sheriff.
I. ESCAPES IN GENERAL.
Two Kinds.--By the common law there were but two kinds of escape of a debtor in execution: 1st. voluntary; 2d. negligent. Voluntary escapes are such as are by the express consent of the sheriff or jailor; negligent, where the prisoner escapes without the consent or knowledge of the sheriff or jailor. Stone v. Wilson, 10 Gratt. 529.
II. RESPONSIBILITY OF PRISONER.
A. ESCAPE WARRANT.
1. In General. --It is established by statute that a justice of the peace may issue an escape warrant to retake and secure persons who escape out of prison. M'Clintic v. Lockridge, 11 Leigh 253.
2. What It Must Show. --Although an escape warrant ought regularly to show on its face that the person who issues it is a justice of the peace, yet, on a habeas corpus sued out by the person arrested under it, if it is proved that he is a justice, the prisoner ought not to be discharged. Jones v. Timberlake, 6 678.
3. Presumption Arising from Lapse of Time. --Where an escape warrant is sued out for a debtor, the presumption which arises from the length of time which has intervened since the day the warrant was issued, and before the prisoner was arrested thereunder, that the debt for which the prisoner was held has been discharged, is rebutted by the fact that there was no jail in the county where the warrant was issued in which the debtor could be placed. Jones v. Timberlake, 6 678.
4. Escape Warrant Showing That Escape Not from a Prison. --The statute, 1 Rev. Code, ch. 136, § 1, which, " for the more effectual retaking and securing persons who escape out of prison," enacts that " if any person committed, rendered or charged in custody, in execution or upon mesne process, to any county or corporation prison or to the jail of any district, shall thence escape, a justice may issue an escape warrant," does not authorize such warrant in the case of a person who escapes out of the custody of a sheriff, before being committed to prison; and if a person be taken and detained in custody under an escape warrant which shows on its face that the escape was not from any prison, but merely from the custody of the sheriff, he may be discharged by writ of habeas corpus. M'Clintic v. Lockridge, 11 Leigh 253.
B. INDICTMENT.
Convicts Escaping from Penitentiary.--Proceedings against convicts under the 54th section of the penitentiary act must be by indictment. Com. v. RyanVa. Cas. 467.
C. PUNISHMENTS.
1. Escape as a Criminal Offence. --By the common law the offence of prison breaking was deemed in all cases a felony; but by the common law, as modified by the act passed in 1794, if a person is actually committed to jail for any treason or felony for which if convicted he might be sentenced to loss of life or limb and breaks his prison he is a felon, but if he is confined for an inferior offence he is punishable for misdemeanor. Com. v. RyanVa. Cas. 467.
2. Where Party Escapes Before His Term Is Up. --Where a party has been indicted and the verdict of the jury finds him guilty and orders that he be imprisoned for a certain time and before that time has expired the party escapes from jail and is afterwards retaken, he is to be kept in prison beyond the prescribed period for the length of time he was out when he escaped; and this though he has already been indicted for the escape. Cleek v. Com., 21 Gratt. 777.
3. Punishment of Convicts. --The 54th section of the Penitentiary Act prescribes a punishment for convicts escaping from that prison: the punishment consists in such additional confinement and hard labor, agreeably to the directions of the act, and such additional corporal punishment not extending to life or limb, as the court before whom such person shall be convicted of said escapes shall, in the exercise of a sound discretion, adjudge and direct. Com. v. RyanVa. Cas. 467.
III. RESPONSIBILITY OF SHERIFF.
A. CRIMINAL RESPONSIBILITY. --The sheriff in Virginia is ex officio jailor of his county, but may devolve the duties of jailor on a deputy, and will not be criminally liable for a negligent escape permitted by him. If, however, a prisoner is permitted to go at large with the knowledge and approval of the sheriff, and by his discretion and authority, and while so at large the prisoner escapes, the sheriff is himself criminally liable for the escape. Watts v. Com., 99 Va. 872, 39 S.E. 706.
B. WHAT SHERIFF'S RETURN MUST SHOW. --A return by the sheriff that a debtor taken in execution had escaped without his consent or negligence without adding that he had made immediate pursuit of the prisoner or that the prisoner could not be retaken is not sufficient to protect the sheriff; to add the latter is as much a matter of defense which the sheriff is bound to show as that the escape was made without any negligence on his part. Stone v. Wilson, 10 Gratt. 529.
C. DEFENSES.
1. Defenses Held Insufficient.
a. No Jail or an Insufficient One. --Neither the fact that there was no jail provided nor that the one provided was insufficient is a good excuse for the sheriff's allowing the prisoner to escape. Stone v. Wilson, 10 Gratt. 529; Parsons v. Lee, Jeff. 49.
b. Recapture after Suit Brought. --Recapture is not a good defense to an action of escape brought against the sheriff, if the recapture was made after the action was brought even though before issue was joined. Parsons v. Lee, Jeff. 49.
c. Insolvency of Prisoner. --It is no defense to an action of escape brought against the sheriff, that he, knowing of the insolvency of the prisoner, asked the plaintiff, who had a judgment against him, security for the prison fees and that they were refused, it was still his duty to hold him twenty days and for releasing him before that time he was liable in the action brought against him. Webb v. Elligood, Jeff. 59.
2. Defenses Held Sufficient.
a. Prisoner Released under Insolvent-Debtor Act. --A sheriff, who has released a debtor, taken in custody upon a ca. sa., by authority of a warrant of discharge from a magistrate under the act for the relief of insolvent debtors, is not liable to the judgment creditor in an action of debt for an escape, although it is shown that the notice by the debtor to the creditor, of his intention to apply for the benefit of the act, was insufficient. Price v. Holland, 1 Patton & H. 289.
b. Prison-Bounds Bond Taken. --Where a sheriff has taken a prison-bounds bond from a debtor he has no authority to authorize or prevent an escape and therefore he cannot be held liable for the debtor's escape. Meredith v. Duval, 1 Munf. 76; Vanmeter v. Giles, 1 Rob. 328; Lyle v. Stephenson, 6 Call 54; McGuire v. Pierce, 9 Gratt. 167. See further, on subject of prison-bounds bond, monographic note on " Official Bonds" appended to Sangster v. Com., 17 Gratt. 124.
D. DAMAGES. --Although in an action against a sheriff and his surety upon the official bond of the sheriff the recovery can only be of such damages as the relator may have sustained by reason of the breach of the condition of the bond, yet these damages are not necessarily equal to the amount of the debt. Perkins v. Giles, 9 Leigh 397.
E. VERDICT OF JURY.
General Rule.--When an action of escape is brought against the sheriff it is not sufficient for the jury to bring in a general verdict of guilty but they must expressly find that such debtor escaped with the consent or through the negligence of such sheriff or officer; or that such prisoner might have been retaken and that the sheriff or his officers neglected to make immediate pursuit. Johnson v. Macon, 1 Wash. (VA) 5; Johnston v. Macon, 4 Call 367 at 370; Vanmeter v. Giles, 1 Rob. 328; Hooe v. Tebbs, 1 Munf. 501.
An Exception.--But see Burley v. Griffith, 8 Leigh 442, which holds that this rule applies only to debtors confined under execution. And that where an action on a case is brought by the owner of a slave committed to jail for safe-keeping under section 4 of the Act passed Feb. 25, 1829, against the sheriff for suffering the slave to escape, the verdict for the plaintiff need not have been expressly that the slave escaped with the consent or through the negligence of the defendant.
F. EVIDENCE.
1. Burden of Proof. --Where an action of escape is brought against the sheriff, the burden of proof is on the plaintiff to prove the escape; on the defendant to prove that there was no consent or negligence on his part and that due means were used to retake the prisoner. Stone v. Wilson, 10 Gratt. 529; Johnston v. Macon, 1 Wash. (VA) 4; Johnston v. Macon, 4 Call 367.
2. Succeeding Sheriff Disqualified. --In an action brought against the sheriff for escape, the succeeding sheriff is not a proper witness to prove that the prisoner was not turned over to him, as it goes to exonerate himself. Johnston v. Macon, 4 Call 367.
IV. RESPONSIBILITY OF JAILOR.
An indictment against a jailor, for permitting a prisoner in his custody to have an instrument in his room with which he might break jail and escape, and for failing carefully to examine at short intervals the condition of the jail, and what the prisoner was engaged at in said jail, in consequence of which the prisoner escaped, does not state an indictable offence, although if this were an indictment against the defendant as jailor, for negligently permitting a prisoner committed to his custody to escape, there could be no doubt but it would be good; as it is well settled that such an indictment can be sustained. Com. v. Connell, 3 Gratt. 587.
V. PENALTY IN APPELLATE COURT.
Escape While Appeal Pending.--Where a prisoner convicted of felony obtains a writ of error and then escapes from jail and is still at large, the appellate court will order that the writ of error be dismissed by a certain day unless it shall be made to appear to the court before that day, that the plaintiff in error is in custody of the proper officer of the law. State of W.Va. v. Conners, 20 W.Va. 1; State of W.Va. v. Sites, 20 W.Va. 13; Sherman v. Com., 14 Gratt. 677; Leftwich v. Com., 20 Gratt. 716. And see Franklin v. Peers, 95 Va. 602, 29 S.E. 321, approving Sherman v. Com. and Leftwich v. Com., supra.
No Necessity for Notice.--The appellate court may make such order of dismissal upon motion based on affidavits without previous notice of the grounds of such motion to the plaintiff in error or to his counsel. State v. Sites, 20 W.Va. 13.
Part of Order Dismissed.--And on such escape under the circumstances mentioned above, the appellate court will discharge so much of the order awarding the writ of error as directed it to operate as a supersedeas to the judgment. Sherman v. Com., 14 Gratt. 677.
Notice of Escape Brought to Court Too Late.--But see Leftwich v. Com., 20 Gratt. 716, which though approving the general rule says that after it has heard and reversed a case without having been informed of the escape of the prisoner, the court will not set the reversal aside.
VI. REMEDIES.
A. IN GENERAL.
Right of Election.--When there has been either a tortious escape or a voluntary discharge of a debtor by the sheriff, the creditor has the right of election either to procure an escape warrant from a justice of the peace for the purpose of retaking the fugitive, or to bring an action of debt against the sheriff for the escape. Fawkes v. Davison, 8 Leigh 554; Carthrae v. Clarke, 5 Leigh 268; Windrum v. ParkerLeigh 361.
At Common Law.--And see Stuart v. Hamilton, 8 Leigh 503 at 508, which says that upon the escape of a debtor, the creditor had at common law, and independent of the statute of Will. 3, a right to proceed against the sheriff, or to retake the defendant or to bring an action of debt or scire facias upon the judgment, and thereupon have any execution whatever.
B. EFFECT OF VOLUNTARY RETURN ON REMEDIES. --When the debtor voluntarily returns without any escape warrants being sued out, there is no necessity for the debtor to make his election, as, by the voluntary return, the debtor is considered as held under original process, and the creditor can still hold him or bring an action of escape against the sheriff. There is no reason for presuming that the creditor elected to pursue his remedy against the sheriff and not to hold his right to keep the debtor in prison because he did not take any action to imprison the debtor, as the debtor already having voluntarily returned to prison there is no other step which the creditor could take. Carthrae v. Clarke, 5 Leigh 268.
C. ELEGIT AFTER DEBTOR'S ESCAPE. --If a debtor charged in execution escape, the creditor may sue out a scire facias to have a new execution; and after judgment on such scire facias, an elegit may issue to have delivered to the creditor a moiety of all the lands whereof the debtor was seized at the date of the original judgment or at any time afterwards. Stuart, etc., v. Hamilton, 8 Leigh 503.
D. MOTION AGAINST SHERIFF. --Under the Act, 1 Rev. Code of 1819, ch. 134, § 48, p. 542, a motion may be maintained against a sheriff for an escape. 1st. Where the return on the execution states that the officer has taken the body of the debtor and has it ready to satisfy the execution, and the plaintiff can show the escape aliunde. 2d. When the return shows such a state of facts as would entitle the plaintiff to a verdict in an action of debt for an escape. Stone v. Wilson, 10 Gratt. 529.
E. NECESSITY FOR SEPARATE SUIT AGAINST SHERIFF. --A judgment cannot be entered against the defendant and sheriff, upon his return that the writ was executed, and the defendant escaped; the proper remedy against the sheriff for an escape, being by a separate suit. Waugh v. CarterMunf. 333.