Long v. Palmer

ERROR to the Circuit Court for the Southern District of Mississippi. An action of debt was instituted by the defendants in error, against Benjamin Long, then sheriff in Madison county, in the state of Mississippi, for the recovery of $6277 and costs, the same being the amount of a judgment obtained by Palmer, Smith & Company against Thomas S. Scott, at the January term 1833, of the district court of the United States for the district of Mississippi, with interest, &c.

The plaintiffs in the district court averred in the declaration, that they had sued out a capias ad satisfaciendum on the judgment against Thomas S. Scott, who was arrested by the deputy-marshal; and who, having him in custody under the execution, committed him to the custody of Benjamin Long, the sheriff, &c. That the said Benjamin Long received Scott into his custody, and afterwards, 'without the leave or license and against the will of the plaintiffs, suffered and permitted the said Scott to escape and go at large wheresoever he would, out of his custody.' The defendant in the circuit court, the case having been transferred to that court, pleaded nil debt; and the jury found a verdict for the plaintiff, 'in the manner and form as alleged by them;' whereupon judgment was entered for the plaintiffs, according to the verdict. The defendants sued out this writ of error to January term 1839.

The case was argued by Coxe, for the plaintiff in error; an by Henderson, for the defendant.

Coxe, for the plaintiff in error, contended, that the judgment against Benjamin Long, in the circuit court, was erroneous, upon the principles of the common law; and particularly, by the laws of Mississippi. He said, that there were no averments in the declaration of matters which, by the law of Mississippi relating to actions for an escape, were, by the express provisions of the statute, required to be found by the jury. The liability of a sheriff for an escape, was, where the plaintiff had not consented to the escape of the prisoner, and the negligence of the officer to make immediate pursuit. The only averment in the declaration in this case is, that the sheriff permitted Scott, against the will of the plaintiff, without leave or license, to escape, and suffered him to go at large wheresoever he would, out of his custody. The finding of the jury should have been upon the necessary and required averments; and the verdict should, in compliance with the statute, have found the facts required by the statute to create the liability of the sheriff. The jury found a general verdict. No implication will be allowed. The statute expressly declares that the jury shall find the facts. The action for an escape is the pursuit of a rigid remedy; and the statute of Mississippi, looking to the hardship of the imposition of liability on the sheriff, has declared, that all the facts necessary to create it shall be expressly found.

Henderson, for the defendants in error, contended, that the entry of the judgment on the verdict of the jury, did authorize the assertion that the jury had found all the facts required by the statute. It was for the defendant below to have brought by plea before the jury, any of the requisitions of the act of assembly which should be proved to make him liable. If an issue had been tendered on such a plea, these facts would have been brought into controversy. The entry of a general judgment on a special verdict is often made, and is lawful and proper.

This is an action of debt, and the provisions of the statute of Mississippi do not apply to such actions. If the action had been on the case, for the escape under mesne process, it might have been necessary to have proved all the requirements of the statute, under proper averments in the declaration. The language of the act of Mississippi may authorize this position. The plaintiffs in this case allege a debt to be due to them for an escape. The defendant pleads nil debet, that he does not owe the money, and the jury find, that he did owe the same, in manner and form, &c; this is sufficient. Cited, 4 Call 370; 1 How. (Miss.) 64; 3 Ibid. 419; 2 Gallis. 231; 3 W. C. C. 17, 558; Pet. C. C. 74; Tidd's Forms 334; 1 Arch. Pract. 205; 1 Munf. 501; 5 Pet. 190; 1 Mass. 153; 1 Paine 159; 2 Pet. 16.

THOMPSON, Justice delivered the opinion of the court.