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BRIG if the danger was so pressing, and the vessel nearly on STRUGGLE her beam ends, was not relief sought by throwing over
บ. the deck-load, or a part of it? The Court does not mean U.STATES. to say that it was the master's duty to sacrifice the car
go rather than go to a foreign port; but from his not disembarrassing himself of an incumbrance which must have been so much in his way, it may well be doubted whether the situation of the brig were as perilous as is now represented, or the lives of the crew exposed to the dangers we now hear of.
From the declarations of the Claimant as to his intentions previous to the voyage an argument was drawn in his favor.
It is sufficient to say that such declarations are not evidence, and if they were, might. in a case otherwise mysterious, rather increase than lull suspicion. As little dependence is to be placed on the fact, that for a foreign voyage, higher wages would have been demanded than for one to Charleston. Although the original agreement with the mariners may have been, and probably was for Charleston, there can be no doubt that the owner would have an interest, in a case of this kind, to raise them full as high as seamen would have a right to expect, if the vessel were carried, and especially without a palpable necessity, to an interdicted foreign port.
Considering then, the suspicious source from which the testimony is derived, and the unfavorable and unexplained circumstances which have been stated, the Court is unanimously of opinion, that the sentence of the Circuit Court must be affirmed,
RANDOLPH v. DONALDSON,
Absent....MARSHALL, Ch. J. & TODD, J.
If a debtor, ERROR to the Circuit Court for the district of committed to Virginia, in an action of debt, brought by Donaldson the state jail, under process against Randolph, late marshal of that district, for the
escape of one Baine, who being taken in execution by RANDOLPH the deputy marshal, had been delivered over to the jailor
of the state prison of Botetourt county, from whose cus- DONALDtody he escaped.
The action was in the common form, and the Defen- from the dant pleaded nil debet, upon which issue was joined.
Courts of the
Upon the trial the Defendant below took two bills of marshal is not exception.
The first bill of exceptions sets forth the judgment and exception of Donaldson against Baine, and the mar shal's return of the execution in these words "Execu“ted, and the Defendant imprisoned in the jail of Bo"tetourt the 13th November, 1797, as per the jailor's "receipt in my possession-Samuel Holt, D. M. for "David M. Randolph M. V. D." It further sets forth the evidence of the fact that the original debtor, Baine, was seen at large; whereupon the counsel for the "Plaintiff prayed the Court to instruct the jury that "although the marshal, the Defendant, by his deputy, "had delivered the said original debtor, Baine, to the "jailor of Botetourt county, where he was committed "to jail, yet that the Defendant was liable to the Plain"tiff for an escape, upon the discharge of the debtor "by the said jailor, unless an escape warrant has been "taken out, as the law directs: whereupon the Court "instructed the jury that in law the marshal would be "liable to the Plaintiff if the said Baine escaped out of "the said jail, with the consent, or through the negli"gence of the said jailor: as the act of the jailor was, "in that respect, the act of the marshal. The Court ❝also instructed the jury, that if the escape of the said "Baine from the jail of the said county of Botetourt ❝had taken place after the expiration of the time when "the said David Meade Randolph was marshal of the "Virginia district, he would be liable for such escape, "unless he shall prove that he had assigned over the "said Baine to his successor in offence by a deed of as"signment; or by an entry on the records of this Court, "that he had made such assignment according to an "act of assembly of the commonwealth of Virginia up"on that subject, entitled "an act to reduce into one "all acts and parts of acts relating to the appointment
RANDOLPH❝ and duties of sheriffs;" the section of which act referred to in the instruction is in the following words: "XXII, and for removing all controversies touching "the manner of turning over prisoners upon a sheriff's "quitting his office, Be it further enacted, That the de❝livery of prisoners by indenture, between the old sher"iff and the new, or the entering upon record, in the "county Court, the names of the several prisoners and "causes of their commitment delivered over to the new "sheriff, shall be sufficient to discharge the late sheriff "from all suits or actions for any escape that shall hap"pen afterwards." To which opinion and instructions "the Defendant excepted."
The 2d bill of exceptions stated that the Defendant "offered evidence of the insolvency of Baine at the time "of his imprisonment and discharge, and moved the "Court to instruct the jury that if they were satisfied "of the insolvency of Baine, and that Donaldson neither "resided himself, nor had any known agent, in the "county of Botetourt, at the time of Baine's imprison❝ment and discharge, to whom notice might be given that he was insolvent and that security for the prison fees was required, that in these circumstances, the "jailor was legally justified in discharging him under "the act of the general assembly of Virginia in such "case made and provided. But the Court was of opi"nion that in the application of this act of assembly to "the case of a marshal, the whole district of Virginia "was to be considered as his county, and it was suffi"cient if the said Donaldson had any such known agent “in the district of Virginia; and so instructed the ju"ry; to which opinion and instrustion the Defendant "excepted."
The jury found a verdict in the following words: "we "of the jury find that the said Alexander Baine in the declaration mentioned did escape from the jail in "the county of Botetourt, with the consent of the "Defendant, the then marshal of the Virginia dis
trict, as in the declaration is set forth; and there"fore we find for the Plaintiff the debt in the declara❝tion mentioned and assess his damages to one thou"sand dollars."
Upon this verdict judgment was rendered for the RANDOLPH Plaintiff, and the Defendant took his writ of error.
C. LEE, for the Plaintiff in error.
By the law of Virginia it is necessary that the jury should state, in their verdict, that the escape was with the consent of the sheriff. The verdict, in the present case states the consent of the marshal; but the jury found the fact in consequence of the instruction of the Court.
1. The first opinion to which an exception was taken was that the marshal was liable for the negligence of the jailor.
The jailor was not the deputy nor the officer of the marshal, but the deputy of the sheriff of Botetourt county. He was not an officer of the United States but an officer of the commonwealth of Virginia. He was not appointed by, nor under the control of, nor responsible to the marshal.
By the judiciary act of the United States, vol. 1, p. 66, 28, the marshal is expressly made liable for his deputies and shall be held answerable for the delivery, to "his successor, of all prisoners which may be in his "custody at the time of his removal, or when the term
for which he is appointed shall expire, and for that "purpose may retain such prisoners in his custody un"til his successor shall be appointed and qualified as "the law directs,"
On the 23d of September, 1789, vol. 1, p. 362, congress resolved" that it be recommended to the legisla"tures of the several states to pass laws making it ex"pressly the duty of the keepers of their jails to receive "and safe keep therein all prisoners committed under "the authority of the United States, until they shall be "discharged by due course of the laws thereof, under "the like penalties as in the case of prisoners commit
ted under the authority of such states respectively; "the United States to pay for the use and keeping of "such jails, at the rate of 50 cents per month for each "prisoner that shall, under their authority, be commit
RANDOLPH❝ted thereto, during the time such prisoners shall be , บ. "therein confined; and also to support such of said DONALD- "prisoners as shall be committed for offences."
In consequence of this recommendation, the legislature of Virginia passed an act for the safe keeping of "prisoners committed, under the authority of the Uni❝ted States into any of the jails in this commonwealth." P. P. new Rev. Code, vol. 1, p. 43, by which it was enacted" that it shall be the duty of the keeper of the jail "in every district, county or corporation within this "commonwealth, to receive into his custody any pri"soner or prisoners, who may be from time to time "committed to his charge, under the authority of the "United States, and to safe keep every such prisoner "or prisoners according to the warrant or precept of "commitment, until he shall be discharged by the due "course of the laws of the United States."
2. And that the keeper of every jail aforesaid, shall be subject to the same pains and penalties for any neglect or failure of duty herein, as he would "be subject to, by the laws of this commonwealth, for "a like neglect or failure, in the case of a prisoner com"mitted under the authority of the said laws."
The keeper of the jail is directly liable to the party. It was not intended that he should have a double remedy, viz against the keeper of the jail and the marshal. Nothing could be more unreasonable than to make the marshal liable for the conduct of a person not appointed by him, over whom he has no control, and against whom he has no remedy. When the marshal had delivered the prisoner to the keeper of the jail he had discharged his duty and was no longer liable. The prisoner was no longer in the custody of the marshal, but of the jailor.
2. The second opinion of the Court, to which an exception was taken was that, if the escape was after the Defendant had ceased to be marshal, still he was liable unless he had assigned over Baine as a prisoner to his successor in manner provided by the law of Virginia.
The observations already made are an answer to this