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opinion. The marshal was bound by the law of the RANDOLPH United States to deliver to his successor only such prisoners as were in his custody. Baine was not in his DONALDcustody, and therefore he was not bound to deliver him over-and if not bound to deliver him over, he could not be liable for his escape.

The opinion was objectionable also on another ground. By the law of Virginia, the delivery over of prisoners by indenture, and the record of the names of the prisoners delivered over, is not the only evidence which a sheriff may produce of the fact of the delivery. The statute is cumulative only. It describes a mode by. which he may certainly xonerate himself, and the kind of evidence which would be conclusive, but does not deprive him of the right of proving the delivery over of the prisoners by other means. The act of congress says nothing of the mode of delivery nor of the mode of proof.

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The marshal was not bound to take out an escape warrant as required by the law of Virginia (1 P. P. 118,) because the prisoner was in the custody of the jailor, and not of the marshal. Besides the marshal must of necessity reside at a great distance from many of the jails and it would be unreasonable to oblige him to superintend them all.

3. The third opinion objected to at the trial was that in applying the Virginia law of sheriffs to the marshal, the whole district was to be considered as his county; and therefore if the Plaintiff had an agent in any county it was sufficient to prevent his discharge without notice.

The words of the act of assembly relative to the residence of the creditor or his agent, ought to be taken strictly. The laws of the state are to be taken as rules of decision where they apply. But in this case they were not applicable.

R. I. TAYLOR, contra.

If doubts exist as to the construction of a law, the argument ab inconvenienti has great weight. If the jailor is not liable to the marshal, the United States are not able to enforce their judgments. The jailor of a VOL. IX.

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RANDOLPH County is the officer of the sheriff who may or may not v. require security. A district jailor gives security only DONALD in the sum of 1500 dollars. It is not very important whether the jailor is liable, as the remedy would generally be of little value. But if he is liable it does not follow that the marshal is not.

SON.

Under the resolution of congress and the act of Virginia the jailor is only liable to the same "pains and penalties," strictly and tehnically considered, as if, &c. That is he is only liable criminally, and not civilly. He is liable to punishment for a voluntary escape, but not to a civil remedy.

It cannot reasonably be presumed that the legislature meant to confide the revenue, the debts of individuals and the execution of the criminal laws of the United States to the responsibility of a county jailor.

It is not unreasonable to charge the marshal, for he has by law all the power necessary for the safe keeping of his prisoners. Laws of the United States, vol. 1, p. 65. He may call out guards, or he may have an officer on purpose to keep his prisoners.

He is bound to deliver over all his prisoners to his successor and if bound to deliver over, he is bound to safe keep them. If those who are confined in the county jails are not in his custody, there are none in his custody. Who is to produce them on habeas corpus? In case of epidemic disease, who is to remove them? Who is to bring them into Court for trial? Who is to receive the money upon execution?

If the legislature of the United States meant thus to hazard the revenue, the criminal jurisprudence, and the property of individuals, they would not have left it to inference, but have been more explicit.

2. As to the second opinion; it was right if the first was right. There is no other mode by which a sheriff quitting his office can relieve himself from responsibility. But there was no evidence in the record that the escape was after the Defendant ceased to be marshal, and therefore the opinion was inapplicable to the case

and if so could not injure the Defendant. The bill of RANDOLPH exceptions is always supposed to contain the whole evidence in the cause. s Dall. 38.

3. As to the third opinion. There was no evidence in the case that the prisoner was discharged because there was no agent of the creditor to pay his jail fees; and therefore this opinion also was inapplicable to the case, and could not hurt the Plaintiff in error. But if the law as to sheriffs in their counties is to be applied to the marshal of the district, then the whole district must be considered as his county. A creditor would have to keep an agent in each county to receive notices, for it would be impossible for him to know in which county the marshal would imprison his debtor.

C. LEE, in reply.

It is unreasonable that the marshal should be responsible for all the jailors in the state, over whom he has no

control.

The sheriff is bound to commit a prisoner to the jail of that county, in which he is arrested; and so is the marshal. If the jail is bad, the justices of the county are responsible. If the prisoner escape through the negligence or by the consent of the jailor, the sheriff is liable, because the jailor is his deputy. In Virginia if a sheriff commit a prisoner to the district jail, he is not liable, because the district jailor is not his deputy. A Habeas Corpus would be directed to the jailor and not the marshal. As to the risk of the revenue, the United States must suffer as others do; they have thought proper to trust it to such keepers and if they suffer, the remedy is in their own hands.

As to the second opinion; if there was no evidence to justify it, that is another ground of error. But it appeared in the bill of exceptions that the witness was uncertain whether it was before or after the Defendant ceased to be marshal that he saw the prisoner at large, The opinion therefore was prejudicial to the Defendant.

3. As to the third opinion. The law of Virginia, (1 P. P. 306, § 52,) declares it to be unreasonable that a

DONALD-
SON.

RANDOLPH sheriff should be obliged to go out of his county to give บ. notice to creditors at whose suit any person may be in DONALD- his custody, or to pay money levied on execution, and

SON.

enacts that where an execution shall be delivered to the sheriff of any other county than that in which the creditor shall reside, such creditor shall name an agent in the county where the execution is to be served, for the purpose of receiving notices and money; and if the creditor fail to appoint such agent, the sheriff is not bound to give notice previous to a discharge of such prisoner for want of security for his prison fees.

The jailor was liable only in the same manner and to the same extent as he would have been if the prisoner had been committed under the state authority. If committed under the state authority he would have had a right to discharge the prisoner for want of security for his fees without notice to the creditor. The Court therefore erred in giving an opposite opinion.

February 21st. Absent....MARSHALL, Ch. J. & TODD, J. STORY, J. delivered the opinion of the Court as follows:

This is an action of debt brought against the former marshal of Virginia for an alleged wilful and negligent escape of a judgment debtor. At the trial of the cause in the Circuit Court of Virginia, several exceptions were taken by the Plaintiff in error to the opinions of the district judge who alone sat in the cause; and the validity of these exceptions is now to be considered by this Court.

The first exception presents the question whether an escape of a judgment debtor, after a regular commitment, under process of the United States' Courts, to a state jail, be an escape for which the marshal of the United States for the district is responsible.

Congress, by a resolution passed the 23d September, 1789, (1 Laws U. S. 362) recommended to the several states to pass laws making it the duty of the keepers of their jails to receive and safe keep prisoners committed under the authority of the United States, under like

2.

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penalties as in the case of prisoners committed under RANDOLPH the authority of such states respectively; and, by another resolution of 3d of March, 1791, (1 Laws U. S. DONALD357) authorized the marshals, in the meantime, to hire temporary jails. In pursuance of the former recommendation, the legislature of Virginia, by the act of 12th November, 1789, ch. 41, (Revised Code, 4s) made it the duty of the keepers of the jails within the state to receive and keep prisoners arrested under the process of the United States, and for any neglect or failure of duty, subjected them to like pains and penalties as in cases of prisoners committed under process of the state.

The act of congress of 24th September, 1789, ch. 20, § 27 and 28, authorizes the marshals of the several districts of the United States to appoint deputies, and declares them responsible for the defaults and misfeasances in office of such deputies. But there is no provision in any act of congress declaring the keepers of state jails quoad prisoners in custody under process of the United States to be deputies of the marshals, or making the latter liable for escapes committed by the negligence or malfeasance of the former. If, therefore, the marshals be so liable, it is an inference from the general powers and duties annexed to their office.

It is argued that the marshals are so liable, because, in intendment of law, prisoners committed to state jails are still deemed to be in their custody; and in support of this argument is cited the provision in the act of congress which makes the marshal, on the removal from or the expiration of his office, responsible for the delivery to his successor of all prisoners in his custody; and authorizes him, for that purpose, to retain such prisoners in his custody until his successor is appointed. And this argument is further supported by its analogy to the case of sheriffs, and by the extreme inconvenience which, it is asserted, would arise from a contrary doctrine.

The argument is not without weight; but, upon mature consideration, we are of opinion that it cannot prevail. The act of congress has limited the responsibility of the marshal to his own acts and the acts of his depu

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