Kain v. Ostrander ( 1811 )

Per Curiam.

This is a motion to set aside the non-suit directed at the circuit; but the principal question raised is, whether the suit can be sustained by the executors of the sheriff against his gaoler, for a breach of duty. This is a special action on the case sounding in tort. The point would more properly have arisen on demurrer, or on a motion in arrest of judgment. If, however, the court should perceive, that the action will not lie, that reason would be sufficient not to interfere and set aside the nonsuit, when the counsel have raised and argued the point.

When a deputy sheriff or gaoler commits abroach of duty, in regard to their trust, the usual course for the principal is to resort to his bond of indemnity; and if he has omitted to take one, it would seem from the case of Atterton v. Harward, (Cro. Eliz. 349. 1 Roll. Abr. 98. B. c. 1. and 2.) that the gaoler is only answerable m assumpsit, on his implied undertaking to serve the sheriff with diligence and fidelity. Here he is not charged upon any contract, express or implied, but as a tortfeasor, for a voluntary escape and a breach of duty, when, in judgment of law, the sheriff himself is equally guilty.

But it is not necessary to place the cause upon that ground, nor do the court mean to give any decided opinion upon that point; because, admitting that the suit would lie, here was not the requisite evidence of a culpable negligence in the defendant, to justify a recovery against him; and for that re'ason the motion is denied.

Motion denied»