Rountree v. Smith , 1 Stew. 157 ( 1827 )

JUDGE' WHITE

delivered the opinion of the Court.

This was an action on the case in the Circuit Court of Lauderdale county, by Smith against Rountree, late sheriff of that county, for an escape. . A trial being had on the general issue, the jury found the said issue in favor of the said plaintiff, and assess his damages by reason thereof to Si30. On this verdict the Circuit Court rendered judgement for the plaintiff, and Rountree has thereupon brought his writ of error.

The only matter relied on as error is, that the verdict is illegal and void, and no judgement ought to have been rendered thereon for the plaintiff.

M‘Kinley and Hopkins, for plaintiff. Coalter, for defendant in error.

gy the first section of the act of 1812,^a it is provided, “ That no judgement shall be entered against any sheriff or other officer, upon am suit brought upon the escape 0f an> debtor in his or their custody, unless the jury who spajj tIy jssue jn the cause, expressly find that such debtor or prisoner did escape with the consent or through the negligence of such sheriff or other officer or officers; or that such prisoner might have been retaken, and the sheriff and his officers neglected to make immediate pursuit.”

This language is too plain to be misapprehended. The declaration here charged the defendant with having permitted the escape of a prisoner in his custody, by virtue of an execution at the suit of the plaintiff; in other words with a voluntary escape ; but the jury who tried the cause did not find expressly that the debtor escaped with the consent of the sheriff. It is true, from the state of the issue, by finding for the plaintiff in the action, they found the defendant guilty of a voluntary escape as charged in the declaration. But the words of the statute are imperative, and can be complied with only by an express finding in the nature of a special verdict. The judgement entered on the verdict was contrary to the clear prohibition of the statute. It must be reversed and the cause must be remanded.

Judge Gayle dissenting.

a «Laws Ala. 721.