Slemaker v. Marriott ( 1833 )

Buchanan, Ch. J.,

delivered the opinion of the court.

The appellant being the owner of a negro slave who had absconded from his service, on his being brought back, caused him to be committed by a justice of the peace to the jail of Anne Arundel county, who was received by the then sheriff into his custody, and confined in jail; and on the expiration of his term of service as sheriff, the defendant who succeeded him, on entering upon the duties of his office, accepted and took possession of the jail, together with the negro slave then confined in it, but who in a few days afterwards made his escape, and became wholly lost to the appellant; and this suit was brought against the defendant as sheriff, to recover damages for the escape.

At the trial the plaintiff gave evidence of the value only of the negro, as the measure of the damages sought to be recovered. And the defendant offered to give evidence of the condition of the jail at the time of the confinement and escape of the negro; which was objected to on the part of the appellant, on the ground that the jail being out of repair did not exonerate the defendant from his responsibility in damages on account of the escape ; but the court overruled the objection, and suffered the evidence so offered to go to the jury. To which an exception was taken, and the question presented is, whether a sheriff is liable in damages for an escape, in any such case of commitment to jail by a justice of peace of a negro slave at the instance of his owner, as in the ordinary case of an escape ? The evidence was not offered in mitigation of damages, but in bar of the action, and objected to on that ground, and admitted for that purpose. It was the only purpose for which it could have been used. The defendant was liable or not for the escape. If answerable at all, and not exempted from responsibility by the jail being out of repair, (if such was the fact,) his liability was co-extensive with the loss, the injury sustained by reason of the escape, and could not be affected by any condition of the jail, (with which the appellant had nothing to do,) that did not exonerate the defendant. It is not like the case of an action for damages, in which the conduct of the plaintiff, the provocation received by the defendant, &c. may be given in mitigation, as in an action for a libel, or of assault and battery. And whether the evidence offered, and objected to, was admissible or not, in bar of the action, depends upon the character, and extent of the duties, and responsibility of sheriff, in relation to commitments to their custody, and safe keeping, by justices of the peace of negro slaves, at the instance of their owners. If the owner of a negro slave has the right to have such negro slave committed to jail, the sheriff, as such, is bound to receive and safe keep him; and is equally liable for an escape, as in the case of a man whom he has arrested in a civil action, or who may be committed for want of bail. And it is not denied, that in such a case the sheriff would be liable for an escape, notwithstanding the public jail should happen to be out of repair. That is his own look out; he takes upon himself the office with its responsibilities, and is bound for the safe keeping of those whom the law intrusts to his custody. Public policy requires it, and in an action against him for an escape, it is not a sufficient answer to say that the jail was out of order. The only inquiry therefore is, whether the appellant had a right to have the negro man in question committed to the jail of Anne Arundel county; no objection being raised to the sufficiency of the warrant of commitment, in form, or substance.

It has been the constant practice (with what moral propriety, it is not for us to say,) for owners of slaves in this State, to have them committed to the jails of the respective counties, for real or supposed offences committed against their owners. But a great abuse of the public jails having grown up, in making them the receptacles of slaves for persons engaged in the traffic of buying and selling them, the act of 1818, ch. 208, was passed to correct that abuse. By the first section of which it is declared to be unlawful for the sheriff of any county, to receive into the public jail any negro slave unless committed in due course of law. The second section imposes a fine of $500, upon any sheriff who shall receive into the public jail any slave unless he shall be so committed. And by the third section it is enacted, “that nothing in this act contained, shall be construed to prohibit or prevent the owner of a slave, who is a person not engaged in the traffic of buying and selling slaves, from having any slave committed to jail, and supported at his expense.” Thus, by prohibiting sheriffs from receiving into the public jails, negro slaves belonging to persons engaged in the traffic of buying and selling slaves, unless committed in due course of law; and treating commitments of negro slaves for safe keeping, at the instance of such persons as not made in due course of law; and by declaring, that nothing in that act shall be construed to prohibit or prevent the owner of a slave, who is not a person engaged in the traffic of buying and selling slaves, “from having any slave committed to jail,” by irresistible implication, (construing all the sections together,) legalizing such commitments, and giving to them the character and effect of, and recognizing them as commitments in due course of law. The words “having any slave committed to jail,” meaning (in the sense in which they are used in the act,) committed by a proper officer of the law. What other construction can be given to that act ? No negro slaves are to be received into the public jails, unless committed in due course of law, but slaves committed at the instance of owners not being persons engaged in the traffic of buying and selling slaves, are to be received into the public jails. Such commitments therefore, are authorized by that act, and are commitments in due course of law. It is a right recognized, and extended by the act to the designated owners of slaves, to have them committed to jail by the proper officer, and the sheriffs are bound to receive such slaves so committed, to be supported under the provisions of the last section of the act, at the costs of their owners.

In this case, the defendant having entered upon the duties of his office, accepted, and received the jail from his predecessor, together with the negro in question then confined in it, he took him with the jail, and is in no better condition, than if he had been originally committed to his custody; and is amenable to the appellant in damages to the amount of the loss sustained, in consequence of the escape of the negro.

In this view of the subject, we think the court below erred in permitting the evidence objected to, to go to the jury.

judgment reversed and procedendo awarded.