Huntington v. Williams

Hosmer, Ch. J.

Payton R. Randall was committed to the gaol of New-London county for debt; of which county the plaintiff was the sheriff; and the liberties of the prison were allowed him on the bond of the defendants, conditioned that he should remain a faithful prisoner. Randall left the liberties of the gaol; and, on the ground that his departure constituted an escape, the plaintiff brougnt his action on the bond. The defendants pleaded, that Richard Stroud was keeper of the gaol, appointed by the plaintiff, and that Randall departed from the prison, with his consent and approbation. These facts were traversed ; and the issue was found in favour of the defendants. The plaintiff contends, that the departure of Randall, with the consent and approbation of the keeper of the gaol, was not in law an escape ; and whether it was, or was not, is the only question on which it is necessary to express an opinion.

The limits or liberties of the gaol, are considered as an extension of the walls of the prison. In Peters & al. v. Gedney, 6 Johns. Rep. 121. 123. it was said, by-Spencer, J. in delivering the opinion of the court : “ The question, in fact, is. whether permitting the prisoner, who is in on execution, to enjoy the liberties, is an escape in the sheriff; for if the liberties are to be considered the gaol of the county, in the case of confinement on civil ‘process, as much so as the four walls, then a negligent escape from them, and a return before action brought, is a good defence.” “ It has frequently been decided, in this court, that the sheriff may let a prisoner in execii *430 tion, go within the liberties, without taking a bond, which is f° his indemnity; and this opinion is supported, by the case of Bonafous v. Walker, 2 Term Rep. 26. Ashhurst, J. says, in case, that the statute 8 and 9 William, establishing the rules, makes them, to all intents and purposes, the same as the walls of the prison. If so, then the prisoners in execution are within the prison, whilst on the limits.” The same principle is distinctly recognized in the case of Drake v. Chester, 2 Conn. Rep. 473 . It necessarily results, that Randall, when on the limits, was within the prison, in the custody of the sheriff; and if he had consetlted to his departure thence, that it would have constituted a voluntary escape, and taken away his right of recovery on the bond.

It remains to be considered, whether the escape of the prisoner, with the assent of Stroud, is not, precisely, of the same character. The jury have expressly found the fact, that “ Richard Stroud was keeper of the gaol, by the plaintiff V appointment,” and as such, “ had the charge and custody of said Randall,” at the time of his escape. Waiving, however, the exclusive effect of this finding, and admitting, that Stroud was appointed, in tolidem verbis, keeper of the gaol, the consequence is irresistible, that the gaoler was invested with all the authority of his principal. By the statute for regulating gaols, tit. 81. c. 1. s. 18. it is provided, that “ they (the sheriffs) shall and may putin and substitute under them, such keepers of the gaol as they shall see cause.” By this legal substitution, the keeper of the gaol has devolved on him the whole duty and authority of his principal over the prisoners, so that his acts are, in law, the acts of the person appointing him. Besides, the nature of the delegation authorizes and demands this construction, unless this absurdity be sanctioned, that the keeper of the entire gaol, is keeper of a part of it only. It .was said by Holt, C. J. in Parker v. Kett, 12 Mod. 467. that “ the nature of a deputation, is to convey all the power of the principal, without any reservation or restriction. And this is apparent by the case of Norton v. Stire, Hob. 12. where the high-sheriff constituted an under-sheriff, with a proviso, that he should not serve any execution, above the value of twenty pounds, without leave of the high-sheriff; and the proviso is held void, and contrary to the deputation itself, and therefore to be rejected.” The nomination and appointment of a per *431 son, by the sheriff, as keeper of a gaol, implicitly confers on him the power of doing all such acts, as the sheriff himself could execute, in relation to the persons committed to prison; and there exists no diversity in respect of their powers.— Whether it would be legally possible for the sheriff to restrict the authority imparted, it is not necessary to decide; although on this point I entertain no doubt.

The ground on which I have rested my opinion, renders it unnecessary for me to refer to the cases cited in argument. Tracy v. Van Rensellaer, 8 Johns. Rep. 379. and Hamilton v. Wilson & al. 1 East 383. on which reliance was placed, have no bearing on the question before the court- They proceeded on the ground, that the debtor was never within the custody of the sheriff.

I am of opinion, that there is no error in the judgment complained of.

The other Judges were of the same opinion.

Judgment affirmed.