Servis v. Marsh

Bunn,'J. The agreed facts bring this case squarely within the rule of the common law that if a defendant, when taken in execution, is seen at large for ever so short a time, it is an escape which will make the sheriff liable to the plaintiff for the amount of the debt. It is the duty of the sheriff or marshal to obey the writ, and the writ commands him to take the defendant, and him safely keep, so that he may have him ready to satisfy the plaintiff. This is the rule in case of a voluntary or willful escape from arrest on final process. In arrest upon mesne process the- rule is different; and, if the sheriff brings in the body on the day of the return, it is sufficient. But in arrest upon final process of execution he must have the body ready at all times to be produced before the court; and if he do not, but voluntarily suffer the prisoner to depart out of his control for never so brief a time, he cannot retake him, but makes himself personally liable to the plaintiff for his debt and costs. It is contended by defendant’s counsel that the common law has never been made applicable to United States marshals, and so does not apply to the case. But I think this a mistaken view. It is true that congress has never adopted the common law; but this is not essential. I take it that, in the'absence of any law of congress qualifying or limiting the liability of marshals, they are governed in these matters, as to the rights of third persons, by the law of the state where they are located and doing business. The transaction in suit took place in Illinois, and the law of that state will control the rights of the parties; and, Illinois having at an early day in its history adopted the common law of England, that law will govern, unless there is some statutory law or regulation, either of the state or of congress, (of which I know none,) to change it. Undoubtedly congress might limit or change the liability of marshals, but until it does so the state law will govern. Defendant’s counsel has cited the case of Randolph v. Donaldson, 9 Cranch. 84, and seems to rely upon it as an authority to show that the common-law rule is not applicable to marshals. But that case is not an authority for the defendant. Congress had recommended the states to allow United States prisoners to be committed to state jails, and the state of Virginia had so provided. In accordance with these provisions the marshal had committed a debtor in execution to the keeper of a state jail. That case decides that- where a debtor taken in execution was delivered by the marshal into custody in a státe jail, and jjut in charge of the keeper of the jail, and escaped from such keeper without the fault of the marshal, the marshal was not liable. The act of congress limited the responsibility of the marshal to his own acts and the acts of his deputies. The keeper of the jail was neither in fact nor in law the deputy of the marshal.- . He was a county officer, not appointed by the marshal, nor in any way responsible to him, nor removable at his will. When a debtor was regularly committed to a state jail by the marshal, he was no longer in the custody of the marshal, nor controllable by him. Therefore the marshal was not liable for the default of the jailer. There is a clear implication running all through the case that, if the prisoner had escaped through the fault of the marshal or his deputy, the marshal [797] would have been liable, and the judgment of the circuit court affirmed. In the case at bar, the prisoner went at large by consent of the deputy-marshal who had him in custody. The marshal gives his bond for the faithful discharge of the duties of his office, and is as much responsible for the acts of his deputy as for his own acts. The deputy gives bond to the marshal, and is to him alone responsible. The public look to the marshal for indemnity, and know nothing of his deputies. The defendant’s counsel rely in some degree upon the defense set up by plea that after the prisoners were permitted to go at large they voluntarily surrendered themselves up to the deputy, and were again confined in jail, and their keeping paid for by the plaintiff. This- appears to be the fact, but it also appears that their escape was unknown to the plaintiff. Under these circumstances the facts do not constitute a defense. All the authorities cited on the point by defendant relate to cases where, the escape was negligent, and not voluntary. No doubt, when the escape is not voluntary, — that is, where it is without the knowledge, consent, or fault of the officer, — there may be a recapture when fresh pursuit is made, and such recapture may be pleaded in an action for the debt. But this was never the rule in cases where the officer permitted the prisoner to go at large. In such cases he cannot recapture, and, if he do, that will not affect his liability for the execution debt. In fact, by such recapture he makes himself liable to an action for false imprisonment, and the prisoner will be discharged on habeas corpus. In these cases it is held that not even a fire or a mob or anything less than the act of God or the public enemies, will avail to excuse the officer. Such seems to be the settled doctrine to this day in England, and generally in this country, wherever the common law prevails, and whether this was the original rule of the common law before the statutes of 13 Edw. I., c. 11, (Westminster II., c. 11,) and 1 Rich. II., c. 12, were enacted, or whether these statutes introduced the rule, it is quite unnecessary to inquire. The rule is one of public policy, and has been deemed necessary to insure good faith and diligence on the part of sheriffs and marshals. It may seem in such a case as this, where there has been no personal fault attaching to the marshal, to be a stringent rule. But the answer to such a suggestion is that the act of the deputy is the act of the marshal, and the marshal must do his duty. There should be a judgment for the plaintiff for the amount of the execution debt and costs, with interest at 6 per cent, from the day of the escape. See Hawkins v. Plomer, 2 W. Bl. 1048; Alsept v. Eyles, 2 H. Bl. 108; Bonafous v. Walker, 2 Term R. 126; Elliott v. Duke of Norfolk, 4 Term. R. 789; 2 Phil. Ev. 397; Southcote’s Case, 4 Coke, 84b; Fairchild v. Case, 24 Wend. 381; Rainey v. Dunning, 2 Murph. 386; Patten v. Halsted, 1 N. J. Law, 277; Adams v. Turrentine, 8 Ired. 147; State v. Halford, 6 Rich. Law, 58; Seymour v. Harvey, 8 Conn. 70; Bowen v. Huntington, 3 Conn. 423; Clapp v. Hayward, 15 Mass. 276; Call v. Hagger, 8 Mass. 429; Hopkinson v. Leeds, 78 Pa. St. 396; Powers v. Wilson, 7 Cow. 274; Riley v. Whittiker, 49 N. H. 145; Sherburn v. Beattie, 16 N. H. 437; Filewood v. Clement, 6 Dowl. 508; Butler v. Washburn, 25 N. H. 251; Phil. Ev. pt. 2, o. 3, p. 398.