#### *McGuire & als. v. Pierce, Assignee, &c.

July Term, 1852,

Lewisburg.

(Absent Lee, J.*)

1. Bonds — Prison Bounds Bond — Joint Execution.† There is a joint judgment and execution against two, who have been arrested and committed to prison. They may jointly execute a prison bounds bond.

2. Same — Same—Breach of — Case at Bar. — It is no defence to an action on a prison bounds bond, that the prisoner, after a departure, voluntarily returned to the rules, and there remained, &c.; or that he voluntarily returned to the jail, &c.; or that the jailor made fresh pursuit after the prisoner, and recaptured him and recommitted him to jail; or that the prisoner accidentally walked, sixteen feet beyond the limits of the prison bounds, which were bounded on an imaginary line, and thereupon immediately returned. &c.

3. Same —Same—Assignment — Sufficiency.‡ — An endorsement of the name of the sheriff on the bond, before action brought, is a sufficient assignment thereof; and the action may be maintained by the' creditor as assignee, without writing out the assignment; or the assignment may be written out in the progress of the trial after the jury is. sworn.

4. Prison Bounds — Recordation in Order Book — Slatute. — The boundaries of the prison rules being recorded in the order book of the County court, in the order of the court establishing them, is a sufficient compliance with the statute requiring said boundaries to be recorded.

5. Prison Bounds Bond — Action on — Measure of Damages. — The measure of damages in an action upon a prison bounds bond is the debt, interest and costs.

6. Commissioners — Depositions—Statute.—A commissioner appointed by a Circuit court to take depositions had authority, under the acts of 1831, Supp. Rev. Code, p. 165, § 80, and 1834, Sess.. Acts, p. 75, ch. 62, § 2, to take depositions in a common law cause.

This was an action of debt on a prison bounds bond, brought by Thomas Pierce, assignee of Benjamin Webb, sheriff of Wood county, against Edward D. and John S. McGuire and their sureties in the bond. The condition of the bond, after reciting that *the said McGuires, partners trading under the firm of E. D. & J. S. McGuire, had been taken in execu*80tion by the said sheriff under a oa. sa. issued from the clerk’s office of said county, at the suit of said Pierce, and had taken the benefit of the prison rules, is in the terms prescribed by law: that is, that the said McGuires should not depart and go out of the rules or bounds of the prison, and should render their bodies to prison in satisfaction of the said execution, at or before the expiration of one year from the date of the said bond. The declaration assigns, as a breach of the condition, that the said John S. McGuire did depart and go out of the rules or bounds of the said prison after the execution of the said bond, and before the expiration of one year from the date thereof; avers that, after the said bond was so forfeited, the said sheriff, by an endorsement thereon, assigned the same to the said Pierce, and contains the general breach of nonpayment of the penalty of the bond. The defendants craved over of the bond, demurred generally to the declaration, and the plaintiff joined in the demurrer; which, however, was overruled by the court.

The defendants also pleaded performance of the said condition ; to which the plaintiff replied generally, and issue was thereon joined. The defendants also tendered to the court eight pleas in writing, to the filing of which the plaintiff objected. The court permitted four of the isaid pleas, numbered 1, 6, 7 and 8, to be filed, to which the plaintiff replied generally, and issues were thereon joined: but these four pleas are not in the record, and it does not appear what they are. The other four of the said pleas, numbered 2, 3, 4 and 5, were rejected by the court; and the defendants excepted. These four rejected pleas all admit that the defendant John S. McGuire did depart from the prison rules as charged in the declaration; but they propose to justify or excuse such departure in different forms, *as follows: No. 2 avers that after such departure the said John S. McGuire voluntarily returned within the rules, and therein continually remained until he was therefrom discharged by due course of law. No. 3 avers that he voluntarily returned into the jail of said county, (instead of the rules as in No. 2,) and was therein confined until discharged by due course of law. No. 4 avers that the jailor made fresh pursuit of the said John S. McGuire, recaptured him, and recommitted him to jail, and kept him there confined until he was discharged by due course of law. No. S avers that said McGuire accidentally walked sixteen feet beyond the limits of the prison bounds, which were bounded on an imaginary line, and thereupon immediately returned ; and from that time until he was discharged by due course of law kept within the said limits; and that this is the supposed escape alluded to in the declaration.

On the trial of the issue the plaintiff offered in evidence the said bond, with an endorsement thereon in these words: “Benjamin Webb, sheriff of Wood county, by James Cook, deputy sheriff of Wood county.” To the giving of the said endorsement in evidence the defendants objected, because it was no legal assignment. Whereupon the plaintiff asked for leave to write an assignment above said signature, which the court permitted to be done, and which was done, at the bar, in these words: “X assign the within bond to Thomas Pierce,” &c. And it was proved that said Cook who made said endorsement was, at the time of making it, a deputy of Benjamin Webb, sheriff of Wood county. And the said bond, with the assignment so filled up, being offered in evidence, the defendants objected thereto, on the ground that the assignment ought to have preceded the suit; and also because it was variant from the assignment set out in the declaration, being without date. But the court overruled *the objection, it appearing that the endorsement was made before the commencement of the suit, and the defendants again excepted. The plaintiff then offered in evidence a certified copy of the order of Wood County court, laying out the prison bounds of said county by specific metes and bounds and landmarks; but showed no copy or original record of said bounds other than as the same remains upon the order book of said county, the said order never having been otherwise recorded than by its entry on the order book. The defendants objected to the copy of said order as evidence, because it had not been recorded; but the court overruled the objection, and the defendants again excepted. The plaintiff then offered in evidence a deposition taken before A. Samuels, Esq., a commissioner of the Superior court of chancery for Wood county to take depositions ; to the reading of which the defendants objected, on the ground alone of the want of authority of a commissioner in chancery to take the said deposition. But it was further proved that the said deposition was taken in the presence of the counsel of both plaintiff and defendants, and by consent to be read in chief; and the court overruled the objection; and the defendants again excepted. The plaintiff then proved that the said McGuire broke the prison bounds, but for a short time, and immediately returned into them, and remained there until he took the oath of insolvency on the said execution on the 29th of November 1841; that he was insolvent before he broke the said bounds, and no change in his circumstances took place between the time he broke the bounds and the time he took the oath of insolvency as aforesaid, and that the suit was brought on the 9th of December 1841. And the defendants moved the court to instruct the jury that if they were satisfied from the evidence before them that the said McGuire was in as good circumstances at the time he swore out of prison as he *was when he broke the bounds, and that the plaintiff’s means of collecting his debt was not lessened by such breaking, then the true measure of damages would be the damage the plaintiff *had actually sustained by such breaking of the bounds; which in*81struction the court refused to give; but instructed the jury, that if the plaintiff was entitled to recover at all, the true measure of damages was the whole of the debt, interest and costs of the suit in which he was arrested and imprisoned; and the defendants again excepted. Verdict and judgment were thereupon rendered in favor of the plaintiff according to the said instruction of the court. And the defendants obtained a supersedeas from this court.

Fisher, for the appellant.

There was no counsel for the appellee.

*

He had decided the cause in the court below.

†

See monographic *note*on “Statutory Bonds” appended to Goolsby v. Strother. 21 Gratt. 107.

‡

See monographic *note*on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.

MONCURE, J.,

after stating the case, proceeded:

Several errors are assigned by the plaintiffs in error, in the proceedings and judgment, which I will proceed to notice in the order in which they are assigned.

The first is, that “the court erred in overruling the demurrer to the declaration; because a joint bond cannot by law be taken, as each judgment debtor ought to enter into a separate bond with security. ’ ’ I can see no reason and know of no authority why joint debtors, against "whom judgment has been obtained and execution issued jointly, and who have been jointly arrested and committed to prison, may not jointly enter into a prison bounds bond. Indeed, the statute authorizing the bond to be given, plainly contemplates such a case, for its language is, “If any person or persons, taken or charged in execution, shall enter into bond, &c., that he, she or they shall not depart or go out of the rules or bounds of the prison,” &c.

“The second error is, that “the court erred in rejecting the pleas numbered 2, 3, 4 and 5.”

In support of this assignment of error, the counsel for the plaintiffs in error cited and relied on several cases in the New York reports; which, with some other cases, and the course of legislation in that state in regard to escapes, it may be proper to notice somewhat in detail. When those cases were decided, the common law on the subject of escapes was the law of New York, except in some respects in which it had been altered by statute, formerly it would seem that persons in custody on civil process in that state, had no right to go at large within the limits of the prison, without the permission of the sheriff, though they might do so with such permission. But by an act passed in 1801, (which appears to have been but a re-enactment of a law which was passed in 1793,) it was made the duty of sheriffs to permit all prisoners in custody on civil process to go at large within the limits, on their giving bond with security to keep the same; and the sheriff was authorized, in case he should discover the security to be insufficient, to confine the prisoner until other sufficient security was offered. 4 John. 49; 10 John. 577. After the passage of this act, it was decided that a sheriff might still permit a prisoner in execution to go within the liberties of the prison without taking security ; and if the prisoner, without his knowledge, went beyond the limits, but returned again before suit brought, he was not liable for an escape: the limits of the liberties of the prison being considered as an extension of the walls of the prison, and a return within the limits of the same as a return within the prison; and where no bond or security is taken by the sheriff, his right of recaption remaining in full force; and a voluntary return before suit brought being equivalent to a recaption, which will purge a negligent escape. Peters v. *Henry, 6 John. R. 121, decided in 1810. In the case of Tillman v. Lansing, 4 John. R. 45, decided in 1809, it was held that where a prisoner in execution, on giving security to the sheriff, was allowed the liberties of the prison, and went beyond the limits and returned again, the sheriff had no power to restrain him; and that though this was neither a voluntary nor negligent escape, yet it was such an escape under the statute of 1801, as could not be purged by a voluntary return before suit brought, and rendered the sheriff liable in the first instance; and that he must resort to the security for his indemnity, as the bond was not made assignable. The court was of opinion that the sheriff, after having taken security, had no right to restrain the prisoner, should he see him at large, his remedy being upon the bond; and that it was a breach of the condition of the bond for the prisoner to go beyond the limits, and could be no defence to him that he returned before suit brought against the sheriff. In the case of Bissell v. Kip, 5 John. R. 88, in 1809, it was decided that where a defendant in execution and admitted to the liberties of the prison, walked beyond the limits knowingly and voluntarily, on the pretence of avoiding a bank of snow which obstructed his usual walk, it was an escape for which the sheriff was liable; and that where the limits were not defined by visible marks or boundaries, and the prisoner went beyond them into a building which was supposed to be within the limits, staid an hour and returned, it was an escape for which the sheriff was liable.

In the case of Ballou v. Kip, 7 John. R. 175, in 1810, where the limits of the prison liberties were marked by no visible monuments, and the survey of them was vague and uncertain, and a prisoner, who had given bond to the sheriff for the liberties, without intending to go beyond them, went into a house within the reputed limits, but which proved not to be in the actual limits, and returned “before suit brought, it was held that this, being an inadvertent and involuntary escape, and a return before suit brought, the sheriff was not liable. The case was distinguished from that of Tillman v. Lansing, which was considered as applying only to an escape voluntarily and knowingly made. By an act passed in 1809, prison bounds bonds were made assignable to the plaintiff in the execution, who was authorized to sue as assignee of the sheriff; and by an *82act passed in 1810, it was declared “that nothing contained in the acts of 1801 or 1809 aforesaid, shall be so construed as to prevent any sheriff, in cases of- escapes, from availing himself, as at common law, of a defence arising from a recaption on fresh pursuit, and a returning of the prisoner within the custody of such officer before an action shall be commenced for the escape.” In the case of Mandell v. Barry, 9 John. R. 234, in 1812, it was decided that the said act of 1810 was intended only for the relief of the officer when sued for an escape; and that therefore when an action was brought by the assignee of the bond against the original debtor and his'sureties, a voluntary return after a voluntary escape, and before suit brought, was not a defence; and the assignee might recover the amount of the debt in the original suit, though no suit had been brought against the sheriff for the escape. The court said the act “was made to relieve the .officer, who may be an innocent party, and not the original debtor, who bound himself to remain a true and faithful prisoner, and that he would in no wise escape. If he has willfully departed from the liberties, he has broken his engagement, and forfeited all just title to indulgence. The persons who became his sureties, (and who were probably indemnified by him,) must and ought to be equally responsible with the debtor, or otherwise the guard hereby intended against fraud, would be illusory and of no effect.” “The fact *of how long the prisoner continued without the liberties, or to what distance he escaped,'never can be material, when it is once ascertained that the escape was voluntary and intentional.” This decision of the Supreme court of New York was reversed by the Court of errors in Barry v. Mandell, 10 John. R. 562; in which it was held that the statutes relative to prison liberties had not altered the common law as to the liability of sheriffs for escapes, nor taken away their common law rights as to a fresh pursuit and recaption; and if a prisoner goes beyond the liberties without the privity of the sheriff, to an action against him for an escape, he may plead recaption or voluntary return before suit brought, as he might do in an action for a negligent escape at common law; and this was the true construction of those statutes before the passage of the said act of 1810. The bonds given to sheriffs for. the liberties are for his indemnity only, and neither the sheriff nor his assignee can recover on such bond without showing he is injured; and to an action on such bond by the sheriff or his assignee, it is a good plea in bar that the prisoner voluntarily returned before suit brought. But that, even if this were not so before the act of 1810, yet that act is so far a virtual repeal of the provisions of former acts ; for the recaption, on fresh pursuit, or voluntary return before action brought, being a good defence to the sheriff in an action against him for the escape, it is equally a good defence to the prisoner and his security in a suit against them by the sheriff or his assignee on the bond.

Thus stands the law of New York on all the cases referred to; and there can be no doubt but that the pleas rejected in this case, or some of them, would present good defences to the action, if the decision of the Court of errors, in the case last cited, were a binding authority and a correct exposition of the law *of this state. If the statutes of Virginia on the subject of escapes were like the statutes of New York, which came under consideration in those cases, none of those cases being binding authorities with us, we might have to determine the relative respect which would be due to the decisions of the Supreme court (in which all of them but the last was decided) and the Court of errors of that state, in which case it would be remembered that some of the judges of the former were among the most profound that this country has ever produced. But it is enough to say that the statutes of the two states on the subject are entirely different; and that the cases in that state all concede, and those of them which would warrant the admission of any of the pleas which were rejected in this case are founded on the concession, that the prison bounds bond there was, when those cases were decided, a bond of indemnity to the sheriff. And it being settled that the giving of the bond did not affect his common law rights and liabilities, it followed, as a necessary consequence, that any plea which would be a good defence to an action against him for an escape, would be a good defence to an action on the bond, whether in the name of him or his assignee. In this state the prison bounds bond is not a bond of indemnity to the sheriff, and is, in effect, a very different instrument from the like bond in New York. There, the sheriff was responsible, if the security in the bond became insufficient after it was given, though good at that time; and therefore the sheriff had a right to require additional security if that first given became insufficient. Indeed, though the bond was assignable to the execution creditor, he was not bound to accept the assignment, but might, at his election, sue the sheriff for an escape, or sue on the bond as assignee of the sheriff. Here the sheriff has no power to prevent the escape of a debtor, who has taken the benefit of *the prison bounds. Lyle v. Stephenson, 6 Call 54; but it is the duty of the sheriff, when a person in execution escapes from the prison bounds, immediately to obtain an escape warrant, and give notice thereof to the execution creditor, and assign to him the bounds bond, which he is obliged to receive; and. the sheriff is then free from all liability, unless the security in the bond was insufficient at the time it was taken. The creditor may, at his election, proceed to retake the debtor if he can, or sue upon the bond for the recovery of his debt.” If the debtor be retaken and committed to jail, his_ securities are discharged from their bond. It *83is perfectly obvious therefore that the bounds bond here is not a mere bond of indemnity to the sheriff, but when it is assigned to the execution creditor, becomes an effectual security for the debt; and that none of the pleas which were rejected in this case, would be good pleas in bar of an action on such bond. It would be a good plea in bar of such an action, that the debtor was retaken and committed to jail under the escape warrant by, or at the instance of, the creditor; because the statute declares that the securities in that case shall be discharged. And it might also be a good plea in bar of such an action, that the debtor, after breaking the bounds, voluntarily returned to jail, and was therein confined with the approbation of the creditor, and with a knowledge on his part of the escape. This would seem to be the same defence in effect with that which the statute gives. But none of the rejected pleas are equivalent to either of these.

In the case of Crump v. Bennett, 2 Litt. R. 209, it was held that if a debtor committed to the prison rules depart thence, however innocently, from ignorance of the real boundaries, however short the distance and sudden his return, his bond is forfeited. That case was decided in 1822, and is entitled to great weight, because *the statute law of Kentucky on the subject was then identical with our own. Some of the observations of the court in the case are very striking and appropriate. “The prison rules,” they said, ‘are for the benefit of- the debtor, and he is bound to take notice of and ascertain them if practicable, and must break them at his peril; and it does not lie well in his mouth to say, that without the consent or concurrence of the plaintiff in the execution, he had taken the rules, and yet was ignorant of them, and therefore had a right to go where he pleased. Besides, a departure without the rules, however small, is a breach of the letter of the bond. If the true line is departed from, it will soon become a puzzling question, how far he may progress without danger. If he can plead ignorance and want of intention, the extent of his knowledge and the quo animo with which he transgressed will soon become difficult questions for courts and juries, when the rule adopted by the court below is more certain and definite, and cannot be ramified into niceties, or embarrassed with numerous exceptions.”

The third error assigned is, that “the court erred in permitting the prison bounds bond to be assigned upon the trial of the cause after the jury were sworn, as the assignment of the instrument is an essential part of the plaintiff’s case, to enable him to institute and maintain the action.”

If an obligee of a bond or payee of a note endorse his name in blank thereon, and deliver it to another person for the purpose of assigning or endorsing it to him, the blank endorsement imports an authority to any bona fide holder to write over the same a full assignment or endorsement to him, and in fact, without being filled up, may be regarded, for all purposes of pleading and evidence, as a full assignment or endorsement. Courts will consider that as done which may be done, and will not even require the formality of ^writing out a full assignment or endorsement at the time of the trial. This is the uniform practice in regard to ordinary bonds and notes, and is convenient and legal-There is no difference between a prison' bounds bond and an ordinary bond, in this, respect. The law directs the sheriff to-assign and deliver the bounds bond to the execution creditor, and obliges the latter to receive it. The bond in this case was delivered to the creditor with the sheriff’s name endorsed thereon in blank by his deputy, and was received by the creditor before the commencement of the suit. The assignment to the creditor was then complete, and there was no necessity for filling up the assignment at the time of the trial, though of course there was no error in permitting the assignment to be then filled up.

The fourth error assigned is, that “the court erred in permitting the boundaries of the prison bounds to be given in evidence, without having been recorded as the statute directs. ’ ’

The statute referred to by the counsel of the plaintiff in error, 1 Rev. Code 1819, p. 251, § 18, requires the marks and bounds of the prison rules, directed to be laid out by the justices of every county and corporation, to be recorded, but does not prescribe the particular book in which they áre to be recorded. The marks and bounds in this case were entered only on the order book of Wood county court, but having been entered therein as part of one of the regular orders of the court, and the order book being certainly a record book, they were recorded within the meaning of the statute.

The fifth error is, that “the court erred in admitting the deposition taken before A. Samuels, Esq. to be read, inasmuch as a commissioner in chancery has no authority to take a deposition in a law cause.”

It perhaps would be a sufficient answer to this objection to say that the said deposition was taken ‘ ‘in *the presence of the counsel of both plaintiff and defendants, and by consent to be read in chief.” But a better answer is that when the deposition was taken a commissioner appointed by a Circuit superior court to take depositions (as A. Samuels was) had authority to take a deposition in a law cause; the act of April 1831 providing for the appointment of such commissioners, authorizing them “to take the depositions of witnesses in any cause depending in their courts:” Supp. Rev. Code, p. 165, $ 80; and the act of February 1834 declaring “that the depositions of witnesses in suits depending in any court of this commonwealth, may hereafter be taken, &c. by any commissioner appointed by any Circuit superior court, &c. for the taking of depositions.” Acts of 1833-4, p. 75, ch. 62, § 2.

The sixth and last error is, that “the *84court erred in instructing the jury that under the circumstances of this case the true measure of damages was the debt and interest ; and consequently erred in refusing to give the instruction asked for by the defendants’ counsel.”

The prison bounds bond in Virginia is, as we have seen, not a mere bond of indemnity to the sheriff, but, when it is assigned to the creditor according to law, becomes a substantial security for the debt: That was evidently contemplated by the statute. The imprisoned debtor having availed himself of the liberties of the prison on the terms prescribed by the statute, and having departed from the said liberties and broken his bond, the creditor has his election to pursue and retake the debtor, or to abandon his execution as having become abortive by the acr of the debtor, and resort to an action on the bond “for the recovery of his debt.” The amount of the debt seems to be recognized by the very language of the statute as the measure of the recovery on the bond. To depart from that certain standard would be unreasonable and embarrassing. The “opinion of the profession has, I think, universally been in favor of that standard. It has never - been affirmed to be the true standard by this court; but that, I think, is only because its propriety has never before been seriously questioned. The subject has, however, come under the consideration of the courts of several of our sister states, whose decisions are entitled to very great respect. In Kentucky, where the law on this subject is, or rather was, similar to or identical with ours, the subject came under consideration in the case of Hubbard v. Harrison, 1 Bibb’s R. 550,’which was an action brought on a prison bounds bond in the name of the assignee of the sheriff. The defendant in the court below endeavored to maintain, by a plea which the court rejected, and a prayer for an instruction which the court refused to give, that the plaintiff had sustained no damage by the departure of the debtor from the prison bounds. The Court of appeals, in reference to that part of the case, used this strong language: “The third general head embraces the two sham pleas offered by the defendants, and the motion for an instruction to the jury, which embraced the same matter offered in one of those sham pleas. The court below entertained very correct ideas of these matters, and this court might well pass them by without further remark. They will, however, observe,. for the information and satisfaction of the attorney who moved.them, .that by a breach of the condition of the bond by Newhouse, the bond became a security for the debt adjudged against Newhouse in favor of the plaintiff in that action, as also for the interest and costs therein adjudged. ” I make the above quotation to show how well satisfied the court was in regard to the question under consideration; but it may be proper to say that I do not mean to apply to this case so much of the opinion as implies that the question was too plain to be raised. For although I am decidedly of opinion that the question “should be solved in favor of the plaintiff in the court below, I yet think it admitted of sufficient doubt to be raised; especially after the decision of the case in 9th Leigh, hereafter to be mentioned. In the case of Burroughs v. Lowder, 8 Mass. R. 373, which was an action on a prison bounds bond, the question was decided in the same way. The court in its opinion said, “We consider this point as put at rest in the cases referred to; nor is it unreasonable. The debtor’s body is considered as a pledge for his debt. It is not for him to say the pledge was inadequate. If the sheriff is liable for the escape, it is clear that he must be answerable in the sum for which the debtor was held a prisoner.” A similar decision was made by the Supreme court of errors of Connecticut in Seymour v. Harvey, 8 Conn. R. 63; and also by the Supreme court of New York in the case of Mandell v. Barry, 9 John. R. 234; although that case was afterwards reversed by the Court of errors, but on grounds arising out of the peculiar nature of their statute law of escapes, as before stated. The case of Perkins v. Giles, 9 Leigh 397, is relied on by the counsel of the plaintiffs in error. But that was an action on the official bond of the sheriff, and by the express terms of the statute giving a right of action on such bond to any person injured by the breach of the condition thereof, the recovery in such case can only be of such ’ damages as the relator may have sustained by reason of such breach. And I therefore think that it does not apply to this case.

Bor the foregoing reasons, I am for affirming the judgment.

The other judges concurred in the opinión of Moncure, J.

Judgment affirmed.