Kepler v. Barker

GholsoN, J. It is conceded by the counsel for the defend* ant, that the English and American authorities show that the insufficiency of the jail will not excuse the sheriff for the escape of an imprisoned debtor; the excuses for such an escape being, on principles of public policy, limited to cases of necessity, “ such, for instance, as the case of a prisoner who leaves the jail when in danger of a sudden fire within the jail, or when the jail is broken by a public enemy.” Margill v. Taylor, 10 Mass. 206. But it is insisted, that owing to legislation in Ohio, and The course of decisions under that legislation, the rule is different : That a sheriff who receives an order of arrest against a fraudulent debtor, can confine only in the jail of his county, and may, therefore, place him in an insufficient and insecure jail, and if he escapes, the plaintiff must seek redress in a personal liability on the part of the county commissioners, for their negligence in not providing a sufficient and secure jail. We are not prepared to say, that admitting the premises assumed in the argument to be correct, the conclusion arrived [181] at would follow. If the sheriff could confine a debtor only in an insufficient county jail, it would not necessarily follow, that he should not be, at least primarily, liable for his escape. The safe keeping of a prisoner, depends not only on the walls, doors and locks of the prison house, but on the care and vigilance of the jailor. Without a watchful and faithful jailor, few houses would make secure places of confinement. What is wanting in the security of the house, may, to a great extent, be supplied by the care and vigilance of the jailor. Wherein was the deficiency to which an escape may be attributed, is a matter of inquiry, which the plaintiff may properly claim should be left to the sheriff and the county commissioners. It may also be observed, that if, as alleged in this case, the jail be notoriously insecure, the sheriff would be a proper party to see that the machinery of the law was put in motion, to enforce on the county commissioners a compliance with their duty to provider sufficient jail. We think, however, that the premises assumed in the argument of the counsel for the defendant are not correct; that the sheriff was not bound to confine his prisoner in a jail, which, in the language of his answer, “ was wholly and notoriously insecure and insufficient,” but might, under the 5th section of the act of 1824, “ defining the duties of coroners and sheriffs in certain cases,” convey him to the jail of such adjoining county, as in his opinion was the most convenient and secure. (2 S. & 0. 1897-1399.) Nor is the operation of that act, in this particular, affected by the subsequent act of April 30, 1852, “ regulating the use of jails of adjoining counties.” (1 S. & C. 748.) The statute first enacted, in express terms, authorizes the use of the jails of adjoining counties by a sheriff, when in his county there is no sufficient-jail. The last statute requires counties, erected for more than five years, to pay a consideration for such use, showing most clearly that -the use before authorized was expected to continue. As to the limited construction claimed by counsel for the -defendant to have been.placed on the aft of 1824, by the court, in the case of Commissioners of Brown County v. Butt, [182] 2 Ohio Rep. 351, we need only say, that we do not understand anything in that case as applying to the act of 1824, but on the contrary, we suppose that the escape which originated the controversy, occurred prior to 1824. That case, sg far as it affirmed a liability on the part of the county to the sheriff for an escape on account of an insufficient jail, has been overruled (Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109); and consequently the reason given for the decision in the case of Richardson v. Spencer, 6 Ohio Rep. 13, can no longer apply. But the court in the Commissioners of Hamilton County v. Mighels, do not negative the personal liability of the commissioners, nor were the matters to which we have adverted, and particularly, that the jails of adjoining counties may be used, taken into consideration. Whatever redress or indemnity a sheriff may have, when he has been held liable for an escape, which, he may be able to show, occurred solely from an insufficient jail, we are satisfied that as between the plaintiff and the sheriff, the rule of the common law remains unchanged by any statute or decision of this state. The decision of the court overruling the demurrer to the defense of the defendant, being opposed to that rule of the common law, must be reversed. Judgment reversed. Sutliee, C. J., and Peoic, Brinkerhoee and Scott, JJ., concurred.