Action of debt against the sheriff of Bertie for permitting one Ryan, a debtor in his custody on execution at the suit of the plaintiff to escape. *Page 114
The facts were that Slaughter, being sheriff of Bertie, by virtue of a ca. sa. at the suit of the plaintiff, arrested Ryan on 15 June, 1822, and conveyed him to the common jail. The defendant, after placing Ryan in the jail, delivered to him the key thereof; and Ryan continued in the jail from 15 June until 5 July, having during that period (212) possession of the key, permitting such persons as he thought proper to enter into and depart from the jail, and generally keeping the jail door open, and having it in his power to depart from the jail at his own pleasure. After 5 July, Ryan left the jail, and continued at large until his death in November, 1822.
The defendant, to justify setting his prisoner at large after 5 July, produced from the office of the clerk of the county court of Bertie a paper-writing purporting to be a record of a petition and proceedings in discharge of Ryan on 5 July, as an insolvent debtor, by two of the justices of the peace of Bertie County.
This paper-writing set forth a notice to Wilkes of the intended petition, regularly given, a petition to two of the justices of Bertie praying the benefit of the acts for the relief of insolvent debtors; the command of the justices to the defendant, as sheriff, to bring the prisoner before them, together with the writs which he had against him; the certificate of the justice that Ryan had, in the presence of the plaintiff, taken the oath prescribed for an insolvent debtor, passed in 1773, ch. 4, sec. 3; their order to the defendant for his immediate enlargement, and a schedule signed by Ryan of debts due him.
The presiding judge, Badger, instructed the jury that it was, in law, an escape in a sheriff to permit his prisoner to keep the key of the jail and to keep the door open; and that the supposed record did not justify the defendant in setting the prisoner at large after 5 July.
Verdict for plaintiff; new trial refused; judgment, and appeal. The principal question in this case is whether the (214) sheriff is chargeable with an escape for having given up to Ryan the keys of the jail in which he had lodged him whereby it was optional with Ryan either to remain in jail or not.
It is said in 3 Co., 44, that every person in jail by process of law is to be kept in salva et arcta custodia, in order to compel him the more speedily to pay his debts and make satisfaction to his creditors. And it is stated in the same case that by stat. of West. II, ch, 11, the (215) sheriff may keep them who are in execution in fetters and irons, to the end that they may satisfy their creditors. Lord Coke says that if need require it prisoners may be kept in irons by that *Page 115 statute; but that could not be done by the common law; that imprisonment is intended for safe custody, but not for punishment. Bac. Abr., Escape, B. Co. Lit., 260a. It is also laid down in Plowden, 377, that if a woman be jailer, and one imprisoned in the jail marry her, it is an escape in the woman, for the law adjudges the prisoner to be at large; for he cannot be imprisoned but under a keeper, and he cannot be under the custody of his wife; that if the warden of the fleet, who hath his office in fee, die seized, his son and heir being then imprisoned there, and the office descend to him, being in prison, the law will adjudge him to be out of prison, although he has fetters upon him; because he cannot be his own prisoner. So that no man can be lawfully detained in jail without a jailer or keeper.
In Bartlett v. Wilkes, 3 Mass. 101-2, Parsons, C. J., says that to allow a prisoner greater liberty than the law permits is an escape. The escape is committed by being out of the legal custody of the sheriff, that if the debtor has a liberty inconsistent with that custody, he cannot be said to remain in legal custody. In Coleby v. Sampson, 3 Mass. 310, the coroner arrested one Minot, the deputy jailer, for debt; neither the sheriff nor any other keeper of the jail authorized by him was there to receive him; the corner left his prisoner there with a copy of the precept. It was adjudged an escape in the sheriff, because he was not there to receive Minot; for Minot, though deputy jailer, could not receive himself; for the prisoner, by being a keeper and having the keys, is no longer restrained of his liberty; that if a sheriff make a prisoner of the jail keeper and give him the keys it is an escape of the sheriff.
In 6 Johnson, 22, it is decided that if a ca. sa. on a judgment (216) against a sheriff was delivered to the coroner, who arrested the sheriff and delivered him in jail to the custody of the under sheriff and jailer, and the sheriff immediately after went at large, the coroner was liable for an escape, because the sheriff was committed to the jail of which by law he had the custody, and of which he appoints the keeper.
From these cases it appears clear to my mind that custody implies physical force sufficient to restrain the prisoner from going at large; that when that physical force is removed it is in the eye of the law an escape. No moral obligation can be received as a substitute for it. Although promises may be made, and may be observed, to remain in close jail, the moment compulsion and force are withdrawn there is no legal custody; the prisoner becomes a free agent; there is no longer any imprisonment, and the precept to the sheriff is disobeyed. This is the result of the view I have taken of the case. The other point made it is unnecessary to consider. I think the rule for a new trial should be discharged. *Page 116