#### RANDOLPH *v.*DONALDSON.

^i»seni....MAUsiiAiT,, *Ch.*J. Todd, *J.*

u a dcbtpi-, uiSer'pmiesi *77from the unfeed "state" escape, the ie not

*76ERROR to the Circuit Court for the district of an ac^on debt, brought by Donaldson against Randolph, late marshal of that district, for the *77escape of one Baine, who being taken in execution by the deputy marshal, bad been delivered over to the jailor of the state p¡ is on of Botetourt co.unty, from whose custody he escaped,

. The action was in the common form, and the Defendant pleaded *nil debet,*upon which issue was joined.. '

Upon the trial the Defendant below took two bills oí exception.

The first bill of exceptions sets forth the judgment and exception of Donaldson against Baine, and the mar shai’s return of the execution in these words « Execu- *“*ted, and the Defendant imprisoned in the jail of Botetourt the 13th November, 1797, as per the jailor’s « receipt in my possession — Sa.tnuel Holt, D. M, for *“*David M. Randolph M. V. D.” It further sets forth the. evidence of the fact that .the original debtor, Baine, was e<n at large; «whereupon the counsel for the « Plaintiff prayed the Court to instruct the iury that *ft*although the marshal, the Defendant, by his deputy, *ft*had delivered the said original debtor, *Baine,*to the *tt*jailor of Botetourt county, where he was committed *tt*to jail, yet that-the Defendant was liable to'the Plain*tt*tiff for an escape, upon the discharge of the debtor *ft*by the said jailor, unless an escape warrant has been taken out, as the law directs :. whereupon the -Court *“*instructed the jury that in law the marshal would.be *ft*liable to the Plaintiff if the said Baine escaped out of *f‘*the said jail, with the consent, or through the negli*tt*génce of the said jailor: as the act of the jailor was, *f<*in that respect, the act- of the marshal. The Court *ft*also instructed the jury, that if the escape of the said *ft*Baine from the jail of the said county of Botetourt *tt*had taken place after the expiration of the time-when *tt*the said Dayid Meade Randolph was marshal of the *ft*Virginia district, he would be liable for such escape, *tt*unless he shall prove that he had assigned over the *ft*said Baine to his successor in offence by .a deed of as*tt*signment; or by an entry oh the records of this Court,. *ft*that he had made such assignment according to an *‘t*act of assembly of the commonwealth of Virginia up- « on that subj x-t, entitled « an act to reduce into one *ft*all acts and parts of acts relating to the appointment *78« and duties of sheriffsthe section of which act « referred to in the instruction is in the following words; « XXII, and for removing all controversies touching « the manner of turning over prisoners upon a sheriff’s *“*quitting his office, *Be it further enacted,*That the de- « livery of prisoners by indenture, between the old sher- « iff and the new, or the entering upon record, in the « county Court, the names of the several prisoners and « causes of their commitment delivered over to the new «. sheriff^ shall be sufficient to discharge the late sheriff « from all suits or actions for any escape that shall hap- « pen afterwards.” To which opinion and instructions «the Defendant excepted,”

The 2d bill of exceptions, stated that<e the Defendant « offered evidence of the insolvency of Baine at the time « of his imprisonment and discharge, and moved the « Court to instruct the jury that if they were satisfied « of the insolvency of Baine, and that Donaldson neither « resided himself, nor had. any known agent, in the « county of Botetourt, at the time of Baine’s imprisnn- « ment and discharge, to whom notice might be given « that he was insolvent and that security for the prison «.fees was required, that in these circumstances, the «jailor was legally justified in discharging him under « the act of the general assembly of Virginia in such. « case madé and provided. But the Court was of opi- « nion that in the application of this act of assembly to « the case of a marshal, the whole district of Virginia « was to be considered as his t county, and it was suffi- « cient if the said Donaldson had any such known agent « in the district, of Virginia; and so instructed the ju- « ry ,• to which opinion and instrustion the Defendant « excepted,”

The jury found a verdict in the following words: « we **f*of the jury find that the said Alexander Baine in the « declaration mentioned did escape from the jail in «the connty'of Botetourt, with the consent of the «Defendant, the then marshal of the Virginia dis«trict, as in the declaration is set forth j and there-, « fore we find for the Plaintiff the d*'bt in the declara- « tion mentioned and assess his damages to one thousand dollars.”

*79Upon this, verdict judgment was rendered for the JPlaintiff, and the Defendant took his writ of. error.

C. Lee, *for the Plaintiff in*error.

. By the law of Virginia it. is necessary that the jury should state, in their verdict, that the escape was with the consent of the, sheriff. The verdict,, in the present case states the consent of the marshal; but the jury found the fact in consequence of the instruction of the Court.

■ 1. The first opinion to which an exception was taken was that the *marshal*was liable for the. negligence of the *jailon*

The jailor was not the deputy nor the officer of the marshal, but the deputy of the sheriff of Botetourt county. He was not an officer of the United States but an officer of the commonwealth of Virginia. He was not appointed by, nór under the control of, nor responsible to the marshal.

By the judiciary act of the United States, *yol.*1, *p.*66, § 28, the marshal is expressly made liable for his deputies « and shall be held answerable for the delivery, to “ his successor, of all prisoners which may be *in Ms*« *custody*at the time of his removal, or when the term « for which he is appointed shall expire, and for that « purpose may retain such prisoners in his custody unís til his successor shall be appointed and. qualified af* « the law directs.”

On the 23d of September, 1789, *yol.*1, *p.*362, congress resolved «‘that it be recommended to the legista- « tures of the several states to pass laws making it'ex- « pressly the dijty of the keepers of their jails toreceive « and safe keep therein all prisoners committed under «the authority of the United States, until they shall be « discharged by due course of the laws thereof, under «the like pend!ties ¡js in the ca^e of prisoners commitíí ted under the authority of such states respectively ; «the United States to pay for the use and keeping of « such jails, at the rate óf 50 cents per month for each « prisoner that shall,.ttnder their authority, be commit- *80“ ted thereto; during the time such prisoners shall be “therein confined.; and-also to support such of said “ prisoners as shall be committed for offences.”

In consequence of this recommendation, the legislature of Virginia passed “ an act for the safe keeping of “ prisoners committed, under the authority of .the Uni- “ ted States into any of the jails in this commonwealth.” *F. P. new Rev. Code, 'bol.*1, *p.*43, by which it was enacted “ that it shall be the duty of the keeper of the jail “ fn every district, county or corporation within this ' “ commonwealth, to receive into his custody any prisoner or prisoners, who may be from time to time “ committed to his charge, under the authority of the “ United States, and to safe keep every such prisoner “ or prisoners according to the warrant or precept of “ commitment, until he shall be discharged by the due “ course of the laws of the United States.”

2. “ And that the keeper of every jail aforesaid, “ shall be subject to the same pains and penalties for “ aiiy’neglect or failure of duty herein, as he would “ be subject, to, by the. laws of this commonwealth, for “ a like neglect or failure, in the case, of a prisoner cornsi mitted under the authority of the said law's.”

The keeper of the jail is directly liable to the party. It was not intended that he should have a double remedy, viz : against the keeper of the jail and the marshal. Nothing could be more unreasonable than to make the marshal liable for the conduct of a person not appointed by him, over whom he has no control, and against whom he has no remedy. When the marshal had delivered the prisoner to the keeper of the jail he had discharged, his 'duty and was- no longer, liable. The prisoner was no longer in the custody of the marshal, bilí of the jailor.

2. The second opinion of the Court, to wmcii an exception was taken was that, if tiie escape was after tlie Defendant had ceased to be marshal, still he was liable unless he had assigned over Baine as a prisoner to his successor in manner provided by the law of Virginia.

The observations already made are. an answer to this *81opinion. The marshal was bound by the law of the United States to deliver to his successor only such prisoners as were in his custody. Baine was not in his custndy, and therefore he was not bound to deliver him' over — and if not bound to deliver him over, he could be liable for his escape.

The opinion was objectionable also on another ground. By the law of Virginia, the delivery over of prisoners by indenture, and the record of the names of the prisoners delivered over, is not the only evidence which a sheriff may produce of the fact of the delivery.. The statute is cumulative only. It describes a mode by which he may certainly exonerate himself, and the kind of evidence which would be conclusive, but does not deprive him of the right of proving the delivery over of the prisoners by other means. The act of congress says nothing of the mode of delivery nor of the mode of pi oof.

The marshal was not bound to. take out. an escape warrant as required by the Jaw of Virginia *fi P.- P. 118,J*because the prisoner w<as in the custody of the. jailor, and not of the marshal. Besides the marshal must of necessity reside at a great distance from many of the jails and it would be unreasonable to. oblige him to superintend them all.

3 The third opinion objected to at the trial li'as that in applying the Virginia law of sheriffs to the marshal; the whole district was to be considered as his county ; and therefore if the Plaintiff had an agent in any county it was sufficient to prevent his discharge without notice;

The words of the act of assembly relative to the residence of the creditor or his agent, ought to be taken strictly. The laws of the state are tó be takeh as rulei1 of decision where they apply. But in this case they were not applicable.

R. I. Taíiok, *contra.*

If doubts exist as to the construction of a law, the argument *ab inconvevienti*has great weight. If the jailor is not liable to the marshal, the United States are not able to enforce their The of a *82county is the officer of the sheriff Who may Or may not require security. A. district jailor gives security only in the siim of 15(30 dolíais. It is not very important whether the jailor is liable, as the remedy would generally be of little value. But if he is liable it'docs not follow that the marshal is not.

Under the resolution of congress and the act of Virginia the jailor is only liable to the same “ *pains and*penaltiesstrictly and telinically considered, as if, &c. That is he is only liable criminally, and not civilly. He is liable to punishment for a voluntary escape, but not to a civil remedy.

It cannot reasonably be presumed that the legislature meant to confide the revenue, the debts of individuals and the execution of. the criminal lavys of the United States to the responsibility of a county jailor.

It is not unreasonable to charge the marshal, for he has by law all the power necessary for the safe keeping of his prisoners. *Laws of the United States, vol.'*1, *p.*65. He may call out guards, or he may have an ófficer on purpose to keep his prisoners.

He is bound to deliver over all his prisoners to his successor and if bound to deliver over, he is bound to safe keep them. If those who are confined in the county jails are notin his. custody, there are none in his custody. ' Who is to produce them on *habeas corpus?*In case of epidemic disease, who is to remove them ? Who is to bring them into Court for trial ? Who is to receive the money upon execution ?

If the legislature of the United States meant thus to hazard the revenue, the criminal jurisprudence, and the property of individuals, they would not have left it to inference, but have been more explic it.

2. As to the second opinion; it was right if *the!*first was right. There is no other mode by which ,a sheriff quitting his office can relieve himself from responsibility. But there was no.evhTence in thfe record that the escape was after the. Defendant ceased to be marshal, and therefore the opinion was inapplicable to the case — 1 *83and if so could not injure the Defendant. The hill of exceptions is always supposed to contain the whole evidence in the cause. 3 *Hall. 38.*

3. As to the third opinion. There was no evidence in. the case that the prisoner was discharged because there was no agent of the creditor to pay his jail fees ; and therefore this opinion also was inapplicable to the case, and could not hurt the Plaintiff' in error. But if the law as to sheriffs in their counties is to be applied ,to the marshal of the district, then the whole district must be considered as his county. A creditor would have to keep an agent in each county to receive notices, for it would be impossible for him to know in which county the marshal would imprison his debtor.

C. Lee, *in reply.*

It is unreasonable that the marshal should, be responsible for all the jailors in the state, over whom he has no control.

The sheriff is bound to commit a prisoner to the jail of that county, in which he is *arrested;*and so is the marshal. If the jail is bad, the justices of the county are responsible. If the prisoner escape through the negligence or by the consent of the jailor, fhe sheriff is liable, because the jailor is his deputy. In Virginia if a sheriff commit a prisoner to the district jail, he is not liable, because the district jailor is not his deputy. A *Habeas Corpus*would be directed to the jailor and not the marshal. As to the risk of the revenue, the United States tnust suffer as others do ; they have thought proper to trust it to such keepers and if they suffer, the remedy is in their own hands.

As to* the second opinion ; if there was no evidence to justify it, that is another ground *of*error. But it appeared in the bill of exceptions that the witness was uncertain whether it was before or after the Defendant ceased to be marshal that he saw the prisoner at large. Tl|e opinion therefore was prejudicial to the Defendant,

*S'.*As to the third opinion. The law of Virginia, (1 *P. P.*306, § 52,) declares it to be unreasonable that a *84sheriff should be obliged to go out of his county to give notice to creditors at whose suit any person may be in his custody,'or to pay money levied on execution, and enacts that where an execution shall be delivered to the of any other county than that in which the creditor shall reside, such creditor shall name an agent in the county where, the execution is to be servid, for the'purpose of receiving notices and money; and if the creditor fail to appoint such agent, the sheriffisnotboundtogive notice previous to a discharge of such prisoner for want of security for his prison fees.

The jailor was liable only in the same manner and to the same extent as lié would have been if the prisoner had been committed under the state authority. If committed under the state authority he would have had a right to discharge the prisoner for want of security for his fees without notice to the creditor. The Court therefore erred in giving an opposite opinion.

*February 21st.*

.á&sc wi.... Mar s h all, *Ch. J. <$•*Todd, *J.*

Story, *J.*

delivered the opinion of the Court as follows :

This is an action of debt brought against the former marshal of Virginia for an alleged wiiful and negligent escape of a judgment debtor. At the trial of the cause ifi the Circuit Court of Virginia, several exceptions were taken by the Plaintiff in error to the opinions of the. district judge who alone sat in the cause; and the validity of these exceptions is now to be considered by this Court.

The first exception presents the question whether an escape of a judgment debtor, after a regular commitment, .under process of the United^ States’ Courts, to¡ a states jail, be. an escape for which' the marshal of the United States for the district is responsible.

Congress, by a resolution passed the 23d September, 1789. *(1*Laws U. S. 362) recommended to the several states to pass' laws making it the duty of the keepers of their jails to receive and safe keep prisoners committed under the authority of the United States, under like. *85f -alties as in the case of prisoners committed under t . authority of such states respectively *;*and, by another resolution of 3d of March, 1791, (1 Raws ü. S. 357) authorized the marshals, in the meantime, to hire temporary jails. In pursuance of the former nicndation, the legislature of Virginia, by the act of 12th November, 1789, ch. 41, (Revised Code, 43) made it the duty of the keepers of the jaiJs within the state to receive and keep prisoners arrested under the process of thé United States, and for any neglect or failure of duty, subjected them to like pains and penalties as in cases of prisoners committed under process of the state.

The act of congress of 24th September, 1789, ch. 20. § 27 and 2S, authorizes the marshals of the several districts of the United States to appoint deputies, arid declares them responsible for the defaults and misfeasances in office of such deputies. But there is no provision iri any act of congress declaring the keepers of state jails *quoad*prisoners in custody under process of tire United States to be deputies of thetnarshals, or making the latter liable for escapes committed by the negligence or malfeasance of the former. If, therefore, the marshals be so liable, it is an inference from the general powers and duties annexed to their office.

It is argued that the marshals are so liable, because, in intendment of law, prisoners committed to state jails are still deemed to be in their custody: and in support of this argument is cited the provision in the act of congress which makes the marshal, on the removal from or the. expiration of his office, responsible for the delivery to his successor of all prisoners'in his custody ,• and authorizes him, for that purpose, to retain such prisoners in his custody until his successor is appointed.. And this argument is further supported by its analogy to the case of sheriffs, and by the extreme inconvenience which, it is asserted, would arise from a contrary doctrine.

The argument is hot without weight; but, upon mature consideration, wé are of opinion (hat it cannot prevail. The act of congress lias limited the resp msibility of the marshal to his own acts and the acts of his depu*86ties. The keeper of a state jail is neither in.fact r' *in*law the deputy of the marshal, lie is not appoint*. by nor removable at the will of the marshal. When a' prisoner is regularly committed to a state jail by the he is no longer in Ihe custody of the marsjiitl, nor controlable by him. 'Ihe marshal has no authority to command or- direct, the keeper hi respect to the nature of the imprisonment. The keeper becomes responsible for his own acts, and may expose himself by misconduct to the “ pains and penalties” of the law. For certain purposes, and to certain intents, the state jail lawfully used by the United States, may be deemed to be the jail of the United States, arid that k< eper to be keeper of-the United States. But this would'no more make the marshal liable for his acts than for the acts of any other officer (if the United Stab's whose appointment is altogether independent. And in these respects there is a manifest difference between the case of a marshal.and a sheriff. The sheriff is, in law, the keeper-of the county jail, and the jailer is bis deputy appointed and removable at bis pleasure. He has the supervision and control of ail.the prisoners within the jail; and, therefore, is justly made responsible by law for all escapes occasioned by the negligence or wilful misconduct of bis under keeper.

On the whole, as neither the act of congress nor the doctrine of the common law applicable to the cast' of ’ principal and agent, affect the marshal with responsibility for the escape of a prisoner regultfrty committed to the custody of the keeper of a state- jail, we arc all of opinion that the decision of the Circuit Court upon this point was erroneous, and that the judgment must he reversed,.

. This decision renders it unnecessary to consider the Other points raised in the bills of exception.

*fudgment reversed.*