The court instructed the jury, as to the fact of the escape, that Wilson being out of the custody of the defendant, (387) without having been legally discharged, was prima facie evidence against the sheriff; but that he was not liable unless the escape happened by his actual neglect; and without such neglect they should find for the defendant. There was a verdict for the defendant, and an appeal to this Court for misdirection in matter of law. On the trial of this suit it appeared to me a great hardship upon sheriffs to be made liable for escapes of persons from jails, when they had no authority in ordering the building of them or in keeping them in order when built, and when it does not appear that they have acted in any respect otherwise than correctly. Considering how rigid the law of England is against sheriffs, I had supposed that in all probability it gave them a greater power than our sheriffs possess of keeping the jails in good order. But in this I was mistaken. They are built there and kept in order as ours are here; the sheriff there accepts of the office at his peril, and in case of an escape after the debtor is committed to jail, the sheriff is liable, however innocent he may be, except the escape has been occasioned by the act of God or the King's enemies (4 Co., 84), because the law supposes in all other cases that the sheriff and his posse are sufficient (1 Str., 435), and although both the plaintiff and defendant may be innocent, yet the law and policy require that the loss should rather fall on the sheriff than on the other party. Cro. Jac., 419. So it is with a common carrier: he is liable in all events, unless he come within the exceptions before given. Therefore, upon further reflection, considering the policy of the law, and conferring with my brethren, I think I misdirected the jury on the trial below, and, for that reason, that a new trial should be granted.
Cited: Adams v. Turrentine, 30 N.C. 162; S. v. Johnson, 94 N.C. 926. *Page 285
(388)