#### *Dabney v. Taliaferro.

May, 1826.

Sheriffs† — Furnishing Supplies to Prisoners. — A Sheriff, as jailor, is bound to furnish a runaway com*110mitted to the jail, witli such supplies as are necessary for the season of the year.-

Same — Ex-Officio Jailor — Liability. — A sheriff is ex-officio jailor, and is liable for the misconduct of his turnkey Or servant.

Instruction — Weight of Evidence. — An instruction by the Court, that the facts proved are not conclusive evidence, does not amount to an instruction as to the weight of evidence, because it leaves the whole matter open to the j-ury.

Sheriff — Jailor— Liability. — Quaere. If a j ailor is regularly appointed by the Sheriff, is he thereby discharged from responsibility for the acts of his 'jailor?

This action was originally brought in the Superior Court of King William county. It was an action of trespass on the case, brought by Taliaferro against Dabney, as Sheriff and jailor of the county of King William, to recover the value of a negro man slave, the property of the plaintiff, who was confined in the jail of the said county, as a runaway; which slave was rendered entirely useless to his master, by neglect of duty, on the part of the defendant, as Sheriff and jailor, in not furnishing diet, fire, and bed covering.

The declaration charges, that Dabney, by the law and custom of the land, was keeper of the jail, by virtue of being Sheriff of the said county, and bound to keep the said jail in all things as the law directs, for the confinement and safe keeping of all persons lawfully committed to the said jail, as prisoners: that by the same law, he was bound to furnish every prisoner, with wholesome ■ and sufficient food, with sufficient fuel, when necessary and proper, and with .cleanly and sufficient bed covering, &c. that the said Dabney, as Sheriff, and keeper of the said jail, on the day of January, 1821, received into the said jail, a certain runaway negro slave, named Bartlett, the property of the plaintiff, of the value of $5u0: that the said Dabney, and those acting for him, so negligently and carelessly behaved and conducted himself and themselves, in that behalf, that the said slave became diseased and *frost-bitten from cold, crippled and maimed, and was injured by and through the mere negligence, carelessness, and default of the said Dabney, and was wholly lost, and of no value to the plaintiff, to his damage $1000.

The defendant demurred generally to the declaration; and pleaded, that at the time ofthe supposed injury, he was not the jailor or keeper of the jail of the said county of King William. Issue was joined, and a verdict was found for the defendant. On motion of the plaintiff, a new trial was granted; and on the like motion, the venue was changed to the Superior Court of King & Queen county, with leave to the plaintiff to amend his declaration, and to the defendant, to plead any additional plea or pleas in bar, within ninety days.

The cause was tried in the Superior Court of King & Queen, where the jury found a verdict for the plaintiff, and $400 damages.

At the trial, the defendant filed two bills of exception. In the first, it is stated, that the defendant, move the Court, to instruct the jury, that the defendant, if the jailor of King William county, was not bound by the law of the land, to have furnished the runaway slave in the declaration mentioned, who was committed on the 7th of January, 1821, with blankets, or other bed covering, and with fuel; which motion was over-ruled by the Court, and an instruction to the contrary thereof was. given to the jury.

The second bill of exceptions stated, that the defendant introduced evidence to prove that James R. Thornton, who was tavern-keeper at the court-house of King William, had the custody of the keys of the jail, before and after, and at the time the runaway slave was committed to King William county jail: that he received all prisoners who were committed to the said jail: that he dieted them, and received the compensation allowed by law for that service: that he held the keys, by consent of the Sheriff, and acted in his stead; and that he exercised complete control over the jail afofesaid. The plaintiff "introduced evidence to *prove, that the defendant •was allowed by the Court, the public allowance authorised by law to be made to the jailor, which was received by him. Whereupon, the defendant moved the Court to instruct the jury, that under the law of the land, the said Thornton, if it was proved to them that he was appointed by the Sheriff, keeper of the jail aforesaid, was alone answerable to the plaintiff’s action, and not the High Sheriff; which motion was over-ruled by the Court, who instructed the jury, that the High Sheriff was ex-officio jailor of the county, unless he appointed some other person as jailor; and that the defendant was liable for the misconduct of the said Thornton, as. his turnkey or servant, unless he could prove that he had regularly and legally appointed him the jailor; and that the mere facts attempted, as above, to be proved by the defendant, were not conclusive evidence of such regular appointment by the defendant.

Judgment was rendered for the plaintiff, and the defendant appealed.

Wickham, for the appellant,

said that this action was founded on our Act of Assembly, and not on the common law: that the 1 Rev. Code, 235, sec. 34, which points out the duties of jailors, has no relation to runaways, as is proved by the allowance of forty cents per diem, for their maintenance and support. The Act concerning runaways is found in 2 Rev. Code, 284; but the term prisoners, which is used in the Act just quoted, is never applied to runaways. The allowance of forty cents per diem would be exhorbitant for the maintenance of a slave.

But, if this action is founded on the common law, no specific duties, such as are required by the Statute, are imposed on the Sheriff. The declaration should .only have alleged the breach generally, that the slave was negligently kept, &c. not that he was not furnished with wholesome and sufficient food, with sufficient fuel, with cleanly and sufficient bed covering, &c.

*But, the Sheriff is not answerable for the acts of the jailor. The jailor, it is true, is the servant of the sheriff; but the *111Sheriff is not the jailor. As to runaways, certain duties are imposed on the jailors by name, and not on the Sheriffs. In the 1 Rev. Code, 235, jailors are required to perform certain acts, which clearly do not belong to Sheriffs. In other oases, the Sheriffs are required to do certain things, where jailors are certainly not intended. These laws shew that the Hegislature considered jailors and Sheriffs as distinct persons. The same distinction is observed in 2 Rev. Code, 285; where it is made the jailor’s duty to advertise at the door of the court-house; but the Sheriff is to sell the slave, if it should be necessary. 2 Rev. Code. 287. sec. 12, 13, affords further instances of this distinction. That the jailor is liable for negligent conduct, is proved by Fitzh. Nat. Brev. 93-8, and 12 Co. 137, and Hawk Pl. Cr. b. 1, c. 1.

The instruction was wrong, because it pronounced an opinion on the weight of evidence.

Stanard, for the appellee, said, that it was the duty of the Sheriff to treat his prisoners with humanity; and if so, the declaration was good, in charging specifically, such gross negligence, as amounts to a violation of his duty in that respect. Besides this particular enumeration of instances of negligence, the declaration charges, in general terms, that the defendant negligently and carelessly conducted himself, &c. which removes Mr. Wickham’s objection to the manner of charging the gravemen. 1 Chitt. Cr. Haw, 808. 1 Institutes, 295.

The instruction was correct. The Court was called on to instruct the jury, that the Sheriff was not bound, under any circumstances, to furnish the prisoner with blankets or other bed covering’, and with fuel, and the Court refused. In doing so, it well supported the spirit and humanity of our law. The law is express to this effect. 1 Rev. Code, 235. The distinction between prisoners and runaways, ^’committed to prison, is unfounded. Sheriffs are jailors. 2 Inst. 589; and 1 Black. Comm. 346, says that jailors are the servants of Sheriffs. Therefore, the latter are responsible for the acts of the former. An Act of Assembly gives the Sheriff an action against the magistrates of the county, for keeping insufficient jails. 1 Rev. Code, 250. Why is this given, unless the Sheriff is responsible for escapes and other injuries, arising from the bad condition of the jail? It is even doubtful, whether any action would lie against the jailor. 2 Bac. Abr. Tit. “Escapes in Civil Cases,” E. 2. The Sheriff and jailor are treated as the same persons, in all our laws.

*

The President and Judge Cabell absent; the latter of whom was confined, during- a great part of this term, by a severe indisposition.

†

See monographic *note*on "Sheriffs and Constables" appended to Goode v. Galt, Gilm. 152.

By common law the sheriff is ear *officio*jailor and

*110the jailor his mere servant. Stephenson v. Salisbury (W. Va.), 44 S. E. Rep. 217.

See monographic *note*on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.

May 26.

JUDGE CARR

delivered his opinion.*

Taliaferro had a negro man committed to the jail of King William county, on the 7th of January, 1821, as a runaway. The slave having become frost-bitten, while in jail, Taliaferro brought an action on the case against the Sheriff, charging that the Sheriff is, by the law of the land, jailor, and as such, bound to furnish necessary food, covering, fire, &c. to all prisoners: that the defendant, as Sheriff, received into the jail of the county, his slave committed as a runaway; and that he, and those acting for him, so negligently and carelessly conducted themselves in that behalf, that the slaves became diseased, frost-bitten from cold, crippled and maimed, by and through the mere negligence, carelessness, and default in duty, of the said Sheriff and jailor, and was, and still is of no value to the plaintiff.

To this declaration, the defendant demurred generally, and also pleaded several pleas. A trial was had, and a verdict for the defendant. The Court granted a new trial; and, for reasons appearing, changed the venue to King & Queen. Heave also was given to the defendant, to plead anew, and to the plaintiff to amend. After the removal, *a jury was sworn, and found a verdict for the plaintiff, for $400; and the demurrer being over-ruled, the Court gave judgment lor the plaintiff.

During the trial, two bills of exceptions were filed; and it vías to the correctness of the Court in deciding these points, that the argument was principally confined.

In the first bill, the counsel moved the Court to instruct the jury, that the defendant, if jailor, was not bound by the law of the land, to furnish the runaway committed on the 7th of January, 1821, with blankets or other bed covering, and with fuel; which motion was over-ruled by the Court, and an instruction to the contrary given.

That the Court did not err in refusing the instructions asked for, seems very clear to me. Eor I cannot for a moment suppose, that by the law of the land, a human being may be imprisoned in mid-winter, and yet the jailor not bound to -provide him with covering or fire. I should as soon think that he was not bound to furnish him food. If the Court, therefore, had stopped at merely refusing the instructions asked, there could have been no doubt of their correctness; but they over-ruled the motion, and gave instructions to the contrary; that is, being asked to say, that a jailor was not bound to furnish covering and fire to a runawas’, committed on the 7th of January, the Court said that he was bound; and I think they were right. Can we suppose a state of the weather at that season, which would justify the jailor in neglecting to make any sort of provision for the cold, neither a blanket to cover, nor a fire to warm the prisoner? If the particular day on which he was committed was so warm, as to have rendered such provision unnecessary for the moment, could the continuance of such weather be counted on, with so much certainty, as to justify the total omission of attention to the subject? I speak not now under the Act of Assembly, but on the principles of the common law; and I am clearly of opinion, that these principles do not warrant or excuse such omission and neglect. The genius of our law is not so cruel and unfeeling. Non obtusa adeo gestamns pectora.

*The second exception. The defendant introduced evidence to prove, that one Thornton, the tavern-keeper, at the court-house, kept the keys of the jail, *112received prisoners, dieted them, and received the compensation allowed by law for that service: that he held the keys by consent of the Sheriff, and acted in his stead: that he exercised complete control over the jail. The plaintiff proved, that the defendant was allowed by the Court, the public allowance, authorised by law to be made to the jailor, which was received by him. Whereupon, the defendant moved the Court to instruct the jury,' that under the law of the land, the said Thornton, if it appeared to them that he was appointed by the Sheriff, keeper of the jail, was alone answerable to the plaintiff’s action, and not the High Sheriff; which motion was ■over-ruled, and the Court instructed the jury, that the Sheriff was ex-officio jailor, ■unless he appointed some other person jailor; and that the defendant was liable for the misconduct of the said Thornton as his turnkey or servant, unless he could prove, that he had regularly and legally appointed him the jailor; and that the facts attempted to be proved as' above, were not conclusive evidence of such regular appointment.

This instruction consists of three positions taken by the Court. 1. That the Sheriff is ex-officio jailor. This X take to be the settled rule of the common law; nor do I see anything in our Statute changing it. On the contrary, they seem to take it as the basis, on which their provisions are founded. 2. The Court say, that the defendant was liable for the misconduct of Thornton as his turnkey or servant, unless he proved a regular appointment of him as jailor. This, I presume, would scarcely be denied. It would be strange to say, that the principle which pervades the whole law, qui facit per alium, facit per se, did not apply here. Suppose the Sheriff were to deliver the keys of the jail to his slave, and order him to attend to the prisoners, and carry them food, and this slave were to set the jail door open, and let them escape; would *not the Sheriff be answerable? Assuredly he would. 3. The Court said, that the facts attempted to be proved, were not conclusive evidence of the regular and legal appointment of Thornton, jailor. If this be considered an opinion- as to the weight of evidence, it was erroneous; for this belongs solely to the jury. But it does not strilie me in that point of view. On the contrary, it was submitting the weight entirely to the jury. To say that evidence is conclusive, is to decide that nothing can rebut it; is to conclude the jury and the party. Here, every thing was left at large. Bogle v. Somerville, 1 Call, 561. There was no error then in this. I have not touched the question, whether, iE the Sheriff had regularly appointed Thornton his deputy,- he could thereby have relieved himself from all responsibility for his acts, because the Court gave no instruction on that point, and it is not therefore directly raised. But, the inclination of my mind is, that. the Sheriff, notwithstanding such appointment, would be liable, as in other cases, for the acts of his deputy.

JUDGES GREEN and COALTER concurred, and the judgment was affirmed.

*

The President and Judge Cabell absent.