Mabry v. . Turrentine

This is an action of debt for the negligent escape of Mordecai Flemming, committed in execution to the defendant, the (202) sheriff of Orange, by the Superior Court of Davidson on a judgment rendered in that court in October, 1839, for $604.30, with interest, etc., and $16.08 for costs. It was tried on nil debet, and the facts are stated as follows:

In May, 1839, one Adams recovered a judgment against Flemming, in Orange County Court, and at the succeeding November Term the bail of Flemming in that action brought him into the County Court of Orange, and surrendered him in discharge of themselves; and on the motion of the plaintiff, Adams, a committitur in execution was entered in that suit, and the present defendant, then the sheriff of Orange, took Flemming into custody thereon and committed him to prison.

The writ in the original suit of Mabry against Flemming was served in Surry County, where Flemming resided and gave bail. On 12 February, 1840, Mabry sued out a ca. sa. on his judgment, directed to the sheriff of Surry and returnable to April Term, 1840; and it was returned, "Non est inventus — the defendant is in Hillsborough jail." The plaintiff sued a sci. fa. against the bail, and at the next term (April, 1841) they pleaded that the principal, Flemming, was then confined, under lawful process, a prisoner in the jail of Orange County, and so the jury found. The following entry was then made of record:

"It being made to appear to the court that Mordecai Flemming is now confined under legal process in the jail of Orange County, and it appearing also that the said Flemming is indebted to the plaintiff, John P. Mabry, in the sum of $604.30, with interest thereon from October Term, 1839, and also in the sum of $16.08 for costs: It is therefore ordered that notice be issued to the sheriff and jailer of Orange County, commanding them to retain the said Flemming in prison until he shall pay and satisfy the said debt and costs to the said plaintiff, or until the said Flemming be otherwise discharged by (203) due course of law."

A copy of the order was issued by the clerk and served on the defendant on 23 November, 1841, by Pride Jones, as returned by him under his hand as coroner. The counsel for the defendant objected to receiving the return in evidence, because, as he alleged, the said Jones was not coroner in November, 1841; and in support of the objection he gave in evidence a copy of the record of the appointment of Jones as coroner at February Term, 1840, and of his then taking the oaths of office and giving bond; and it not appearing of record that any bond had been subsequently accepted by the court, the counsel for the defendant insisted that the said Jones was not legally in office at the time his return purported to be made, and, therefore, that the return was not evidence. On the part of the plaintiff a bond was then introduced and its execution proved, bearing date in May Term, 1841, of the County Court, which purported to be the official bond of Jones, as coroner, and his sureties; and the clerk of the County Court proved that when he came into office after 1841 he found it among the records and papers in his office. The court overruled the objection, and received the return in evidence.

The plaintiff then gave further evidence that the defendant was the sheriff of Orange from 20 November, 1839, to 1 November, 1844, inclusive, and that on the latter day Flemming escaped from jail, after having been detained a prisoner there by the defendant from November, 1839.

On the part of the defendant evidence was then given that the jail of Orange was new and strong, and that Flemming had effected his escape therefrom at the time mentioned by sawing asunder two iron bars of the grate in a window, and thereby making an opening large enough to get through; and also that the doors of the jail were locked on the evening before (204) the escape. And he gave further evidence tending to show that Flemming was assisted to escape by some one outside the jail.

Upon the foregoing evidence the counsel for the defendant insisted that he was not liable in this action unless upon proof of a willful participation in the escape of Flemming, or of gross and culpable negligence of the defendant, and, also, that the order of the Superior Court of Davidson was not a sufficient commitment in execution to render the defendant liable in this action; and he prayed the court so to instruct the jury. But the court refused to give such instructions, and instructed the jury that Flemming was duly committed in execution on the plaintiff's judgment, and that the defendant, after being served with a copy of thecommittitur, was bound to keep him a prisoner in execution therefor, and was liable for his escape, although the jail was new and as good as any in the State, and although Flemming might have been aided in escaping by persons outside — unless such escape was effected by the act of God or the public enemies. The plaintiff had a verdict and judgment, and the defendant appealed. The coroner's return was properly admitted. The Rev. St., ch. 31, secs. 126-7, requires sheriffs and coroners to serve all notices in any cause or proceeding, and enacts that their returns on the notices shall be evidence of the service. But the objection is that Jones was not coroner, because he did not renew his bond, or the court did not accept a new bond from him, and that, therefore, he was not capable of holding the office, according to the statute. Rev. St., ch. 25, sec. 3. It is no part of the objection that Jones, who had been duly appointed and admitted into office originally, was not acting as coroner, (205) and so recognized generally by the public authorities and the community.

Therefore, those facts are to be assumed; and, so assuming, it is clear that the want of an official bond does not impair the validity of his acts as de facto the coroner, in reference, at least, to third persons. Burke v.Elliott, 26 N.C. 355; Gilliam v. Reddick, ib., 368.

In Adams v. Turrentine, ante, 147, the Court has already decided, at this term, that nothing can excuse the sheriff for the escape of a debtor, but the act of God or of the enemies of the county.

The remaining point is whether Flemming was duly committed to the custody of the defendant in execution on the plaintiff's judgment. Objection is made, both to the authority of the court to commit in this case and also to the form of the commitment. The authority of the court is questioned upon the strength of the provisions of Laws 1777, ch. 115, sec. 22, which provides that if a sheriff shall return upon a scire facias against bail that the principal is imprisoned by virtue of any process, civil or criminal, the court to which such scire facias is returnable shall, on motion of the plaintiff or bail, order that "such principal be retained where he shall be a prisoner until the plaintiff's judgment and costs shall be paid, or be otherwise discharged by due course of law; and that a copy of the order served on the keeper of such prison, before such prisoner's releasement, shall be sufficient authority for him to retain such prisoner until such order be complied with." The act further provides that this shall be deemed a surrender of the principal and a discharge of the bail. It is said that this gives a special authority to commit under the particular circumstances of ascire facias against bail and the return thereon of the sheriff of the imprisonment of the principal by him; and that, as the sheriff did not so return on this sci. fa., and indeed could not, inasmuch as the imprisonment was in another county, the Superior Court of Davidson could not, in the debtor's and sheriff's absence, commit in execution. But we think the (206) nature of this enactment is entirely mistaken, and that the object was not to confer a jurisdiction or authority on the court in a particular case, but to give a privilege, in that case, to the bail, rendered necessary by the situation of our country and by our judiciary system, and to make it imperative upon the court to act on certain evidence to that end. It is an ancient common-law jurisdiction to commit in execution, by order of record, such persons as are surrendered by their bail, or upon a judgment recovered against one already in prison. The regulations of the modes of proceeding are not prescribed positively by statutes, but exist as rules of practice adopted by the courts from time to time, for the convenience of the suitors, bail and officers, to prevent surprise on the one hand and oppression on the debtor on the other hand. The subject is well treated and the nature of the jurisdiction well explained in Tidd Pr., 286, 364, and 2 Sellon Pr., 100 to 111, both as to the modes of committing and to the supersedeas. Now surrenders may even be made before a judge at his chamber and he may order the committitur; and for any irregularity the debtor has his supersedeas. It is unnecessary to comment particularly upon those passages, as they have no obligation here, and are only referred to as showing the nature of the jurisdiction and the practice under it. The committitur is, in substance, a capias ad satisfaciendum, and therefore within the power of the court at common law to award, and is often indispensable where the party cannot resort immediately to his ca. sa.; for example, when the principal is surrendered during the term in which the judgment is taken. As the ca. sa. does not go until the term ended, the commitment in execution is absolutely necessary to the security of the creditor. Now, in England the course is to bring up a prisoner from another jail by habeas corpus, in order to his surrender and to charge him in execution; and it is generally highly proper in order (207) to identify him to the court and to the officer, and to justify the latter as to the person, if sued for detaining the wrong person, as well as for other reasons. But there is nothing in the nature of the thing to prevent the court from making an order of commitment of a person not present in court; and in many cases in this State the power to make such an order is absolutely necessary to the convenience of parties and the advancement of justice. By the act of 1777 bail have the right to surrender the principal; but it can be done only to the sheriff who made the arrest or in open court. But if the principal be in prison in another county, he cannot be surrendered to the sheriff who arrested him; and in many cases it would be impossible and, in most, highly inconvenient to bring him to the court in person. For our counties are so numerous and so distant from each other, and the terms of our courts so short, that after process served on the bail and returned, the habeascorpus could not issue and the party be brought in time to relieve the bail. True, the habeas corpus might be made returnable to a subsequent term; but that would be highly mischievous, as the sheriff cannot take bail after judgment, and would be compelled to retain the prisoner the whole time under all circumstances. Besides, the provision of the act extends to all cases, whether in the County or the Superior Court. Therefore, in cases in which a debtor is lawfully imprisoned in one county, and his bail is proceeded against in the court of another county, it was a justice done to the bail that he should be relieved upon showing those facts, without being required to make an actual surrender in court. It was the purpose of the Legislature to require such relief for the bail from the courts, and also to make the return of the sheriff on the scire facias against the bail sufficient evidence. But, certainly, it was not intended to make that the only evidence, nor to say that (208) in the case of such a return only should the court order the committitur, or order it in the absence of the party. Why should it have been so enacted? It is possible, indeed, that the person in prison may be mistaken, and may not be the debtor. But suppose the fact, the prejudice can be no greater to him than would result from his arrest as the debtor under a ca. sa., and his remedies would be as ready and as complete. In either case he would get a supersedeas or habeas corpus; in the latter he would have his action also against the sheriff, and in the former against the creditor or bail. But, at all events, the Legislature has positively enacted that, as is admitted, it may, and, as we think, shall be done in one case; and therefore there can be no reason why the courts may not mould their practice on this subject so as to make it, in other cases, conform in principle to the legislative enactment and promote the convenient administration of justice. In Granbery v. Pool, 25 N.C. 155, it was taken for granted that by the sound construction of the act of 1777 orders for commitment in execution might be made in all cases where the principal was imprisoned within the State, and a copy of the order served on the sheriff would justify his detention. It is impossible the act is to be restricted to the narrow limits contended for in this case. For, suppose the sheriff refuse to return the imprisonment, although the fact be so, is the bail to lose the benefit of the fact and be forced to trial at the first term and fixed with the debt? Surely not. The substance of the provision is that if the principal be imprisoned, so that the bail cannot surrender him personally in court, when the bail is called to answer for the debt he may make the fact appear, and he shall be discharged as upon a surrender. Indeed, the act says such imprisonment shall be deemed a surrender, and therefore it may be pleaded and relied on as having that effect. If the bail be discharged thereby it is a necessary (209) consequence that the creditor has a right to demand acommittitur as a security for his debt. It may well be that the court is not bound and, therefore, would not accept a surrender of this kind from the bail before a step taken to charge the bail by scire facias, inasmuch as it may be in the power of the bail to surrender the principal when the creditor shall call for him. But in the case before us the bail was clearly entitled to be exonerated, since the creditor was seeking to fix the bail, and would have done so unless the principal's imprisonment authorized an exoneration; and the exoneration of the bail gives the creditor the right in justice, and according to the act of 1777, to require the debtor's detention in execution.

It is the opinion of the Court, therefore, that the committitur was rightly made upon the facts found, when it was ordered.

But whether it was so or not, and admitting it to have been erroneous for the reason that it was not founded on a proper return of the sheriff, yet that would not excuse the escape. For the subject was within the jurisdiction of the court and the sheriff could not tell that the court had not acted on a case within the words of the act, and ought not to be prejudiced by any error of the court in that respect; and, therefore, the committitur, when served on the sheriff, was "a sufficient authority for him to retain the prisoner." If the sheriff be justified in detaining the prisoner, it is perfectly settled that he is bound to do so when there is a judgment. As he is not chargeable for the error in the judgment or process, such errors cannot excuse him, unless they be such as render the whole absolutely void, as for want of jurisdiction and the like. It is not for the sheriff to allege that the Superior Court made the order upon insufficient evidence. Moreover, it appears in this case that, in point of fact, Flemming, the plaintiff's debtor, was lawfully (210) imprisoned under the custody of the defendant in the jail of Orange at the time that in the Court of Davidson he was so found to be, and ordered to be retained by the defendant. No injustice, then, was done to any person by the committitur, and the defendant was duly served with a copy of it.

It was further said that the order was made in the suit against the bail, and not in that between Mabry and Flemming, and for that reason that it was not a commitment on the judgment in the latter case. We do not know that we can understand that the order was made on the record of either suit, after it was made up and engrossed. We presume it was put on the minutes in the usual way during the term, and that it is to be considered a part of the record, to which it properly belongs ultimately. But we do not deem that at all material, as the suit against the bail is founded on the first judgment — being a scire facias on that record, to which nultiel record is pleadable; and the whole is so much one suit that after judgment against the bail, execution may issue against the principal and the bail jointly. Rev. St., ch. 10, sec. 3. The order was therefore made in the suit against Flemming. It specifies the debt and costs, and substantially conforms to the precedents, as modified by the act, directing the court to "order the defendant to be retained where he is prisoner until the plaintiff's judgment and costs shall be paid or be otherwise discharged by due course of law." It is in effect a ca. sa. and ought to render the defendant chargeable in like manner for an escape, as is settled in England, and has been held by this Court. Lash v. Ziglar,27 N.C. 702.

PER CURIAM. Judgment arrested.