Bowen v. Huntington , 3 Conn. 423 ( 1820 )

Hosmer, Ch. J.

Payton R. Randall, imprisoned in the county oí New-London, on execution in favour of the plaintiffs, having taken the oath provided by law for poor debtors, was admitted to the liberties of the prison, and afterwards escaped, with the knowledge, consent and direction of the defendant. The plaintiffs, the execution creditors, have brought their action on the case against the defendant, the sheriff of said county, for the preceding escape ; and on the trial, the defendant, to mitigate the damages, offered evidence to shew, that Randall was a bankrupt, when he departed from prison, and has continued so ever since. The judge rejected the evidence, on the ground that the escape was voluntary, and that the rule of damages is the execution debt, with interest and costs ; to review which decision, is the object of the present motion.

The escape was with the consent of the defendant, and therefore, was voluntary. By the statute regulating gaols and gaol-ers, sect. 16. (page 366.) when a person is imprisoned for the non-payment of an execution, if he shall he permitted, by the keeper of the prison, to escape, the sheriff is made liable to satisfy “ the debt or damage for which he is committed.”— Randall was permitted, by the defendant, to escape ; and by ⅛⅛ act, the defendant became responsible for the amount of the execution, not on construction merely, but by the explicit expressions of the law. The poverty of the debtor, is of no importance in the case. The defendant knew the law, and virtually assumed to pay the debt.

It was not requisite for the plaintiffs to count on the statute, in order to entitle themselves to the benefit of its provisions. Their action is founded on the common law, and the only effect of the statute, is to encrease the damages. There is one rule of damages only, in the case before the court; and so far as 1 know, the practice ever has been, to render judgment, without counting on the statute, for the full amount of the debt. An action of debt, for escape from prison, by a person committed on execution, is the usual remedy in Westminster-Hall, in which the sum due to the creditor, is the rule of damages ; but this rule is founded on statute, to which no reference is had in the declaration. Bonafous v. Walker, 2 Term Rep. 126. Jones v. Pope, 1 Saund. 35. n. 1.

It would be quite an illiberal construction of the law, to decide, that the plaintiffs, in their recovery, shall be restricted to the judgment debt. The object of the law, is to transfer to the sheriff a responsibility or trust, equal to that existing on the debtor ; and as he was liable, in the sum advanced for his maintenance, so is the defendant. It is true, that the interest cannot be demanded of the debtor, as the execution authorized thetdefendant to restrain him only, until he should pay the debt for which he was imprisoned. But as the defendant, in direct violation of his duty, has permitted his prisoner to escape, it is perfectly equitable that he should pay the interest, and comports entirely with the liberal system, which, on this subject, the court has adopted. The sum recovered of the sheriff, ought not to be considered as a penalty, but as a transfer of debts, to which, with open eyes, he has rendered himself responsible; and hence no objection can arise on this ground.

I am of opinion, that the proceedings below were correct, and that a new trial ought not to be granted.

The other Judges were of the same opinion.

New trial not to be granted.