Adams v. Turrentine

• Decision Date: 31 December 1847
• Citation: 8 Ired. 147,30 N.C. 147
• Court: North Carolina Supreme Court
• Parties: BOAZ ADAMS v. JAMES C. TURRENTINE.

8 Ired. 147

30 N.C. 147

BOAZ ADAMS

v.JAMES C. TURRENTINE.

Supreme Court of North Carolina.

December Term, 1847.

An action of debt will lie against a sheriff under our Statute for a negligent escape of a prisoner confined for debt, even though there was no actual negligence.

There are only two kinds of escape, known to our law, of a prisoner confined for debt; one voluntary and the other negligent, except where the prisoner has escaped by the Act of God or of the enemies of our Country.

The only difference, as to the liability of the officer, between the two kinds of escape, is, that, in the case of voluntary escape, he is liable absolutely; in the case of negligent escape, he has a right to retake the prisoner, and, if he does retake him upon fresh pursuit, he is not liable to an action of debt brought after such re-caption, and when he has the prisoner in custody.

The meaning of the term “negligent escape” in our Statute is the same, that was given to that term at the common law.

It is a rule for the construction of Statutes, that, when they make use of words and phrases of a definite and well known sense in the law, they are to be received and expounded in the same sense in the statute.

The cases of State v. Jernigan, 3 Mur. 12, and Rainey v. Demming, 2 Mur. 386, cited and approved.

Appeal from the Superior Court of Law of Orange County, at the Special Term, on the second Monday of December 1847, his Honor Judge BATTLE presiding.

This action is debt against the sheriff of Orange for the negligent escape of Mordecai Flemming, committed to the defendant in execution. Plea, nil debet, and issue thereon. The plaintiff obtained judgment against Flemming in Orange County Court, and afterwards, at November term, 1839, the bail brought him into Court, and surrendered him, and on the motion of the plaintiff, he was committed in execution, and was received by the defendant, who was then sheriff of Orange and confined him in the gaol of the County until the 1st day of November, 1844, when the debtor escaped. It was admitted by the parties, that, during the whole period of Flemming's detention, and when he escaped, the defendant was the sheriff of Orange; that the gaol was new, well constructed, and strong; and that, when the prisoner escaped, the doors of the gaol were locked, and that he made his escape by cutting asunder two iron bars of the grating of a window of the debtor's room, and thereby made an opening, through which he passed; that there was no apartment in the prison for a gaoler's residence; and that the escape took place in the night time, and without the knowledge or consent of the defendant; and that, from the form of the window, the position of the grating, and the manner in which the bars were sawed, it appeared that Flemming was assisted to escape by some person on the outside of the prison.

Upon the foregoing facts, the counsel for the plaintiff contended, that he was entitled to recover, because the defendant was bound to keep the debtor safely, and that nothing would excuse him for not doing so, but the act of God, or of the enemies of the country. On the other hand, the counsel for the defendant insisted, that, upon a proper construction of the Act of Assembly, the defendant was not responsible in this action, as the debtor escaped without any actual negligence of the defendant, or his gaolers. Of this latter opinion was the presiding Judge; and he so instructed the jury, who found, accordingly, for the defendant, and from the judgment the plaintiff appealed.

J. H. Bryan, with whom was Morehead, for the plaintiff .

The action of debt is given by the Statute, Westminster 2, ch 11, (13 Ed. 1.)

Coke in his commentary on this statute, says that it is the duty of the sheriff to keep the prisoner in “ salva et arcta custodia.” 2 In. 381.

Under this statute by judicial decisions in England, escapes had been classed into negligent and voluntary--the distinction is, however, only important where in a civil action, the sheriff pleads recaption before suit, which he may do when the escape is negligent only.

The sheriff here has been guilty of a negligent escape, and every escape, which does not arise from the act of God or the King's enemies, is, in law, negligent. 2 H. B. 111. 113 4 T. R. 789. 4 Co. Rep. 84, b. Ex'r. Rainey v. Downey, 2 Murph. 386.

The term “negligent escape,” had acquired a legal and technical meaning and must be supposed to have been used by our Legislature in its well understood sense.

Our Statute of 1836 makes a marked distinction between the escape of a criminal, and that of a debtor--when the sheriff is indicted for the escape of a criminal “he may be permitted to shew that the escape was not by his consent or negligence, but that he acted with proper care and diligence,” that is, that there was no actual negligence-- Rev. St. 109--but in civil cases no such plea is given by the Stat. Id. 569. Upon the indictment where the inquiry is as to guilt, the knowledge of the sheriff is material--but in the civil action he is charged upon grounds of policy, as in the case of common covines: the law arms him with the whole power of the county for the purpose of keeping the debtor safely, and will not permit him to allege a rescue or breach of prison, unless by the public enemy--a release by a mob is no defence-- Elliott v. Duke, of Norfolk, 4 T. R.

Waddell and Norwood, for the defendant .

RUFFIN, C. J.

The action is founded on the Act of 1777, ch. 118; which gives debt against a sheriff, who shall “wilfully or negligently suffer” a debtor taken in execution, to escape. The question turns on the meaning of the term, ““negligently,” in the statute. It seems a little singular, that at this day a definition of that expression should be called for, in reference to an escape. It is true, the statute does not directly define it, but the meaning, we think, is not the less clear. It seems to have been used as a word before appropriated to one kind of escapes, which was then the subject of legislation, and as already having a definite meaning in respect to that subject, and, therefore, not then needing explanation. At all events, it must be so understood. For it is an ancient rule for the construction of statutes, that, when they make use of words and phrases of a definite and well known sense in the law, they are to be received and expounded in the same sense in the statute. This has been applied to statutes creating crimes, and especially when the enactments are merely affirmative; as in the Act of 1779, making the “““stealing” of a slave a capital felony. Jernigan's case, 3 Mur. 12. Indeed, this rule is not confined to the construction of statutes, but extends to the interpretation of private instruments. There are exceptions to it, where it is seen that a word is used in a sense different from its proper one, in instruments made by a person inops consilii. But that is a condition in which the legislature cannot be supposed; and, therefore, although the intention of the Legislature, as collected from the whole Act, is to prevail, a technical term, having a settled legal sense, cannot be received in any other sense, unless, at the last, it be perfectly plain on the Act itself, what that other sense is. This principle, which is as well one of common sense as of common law, seems to be decisive of the present question.

There are, at the common law, two kinds of escapes: the one, wilful or voluntary, as it is oftener called: the other, negligent. Whether before or after judgment, the common law gave an action on the case for an escape of either kind. The difference, and the only difference, between the consequences of voluntary and negligent escapes of a debtor in execution, was that in the former case, the sheriff could not retake the party, whereas, in the latter he might; and, if he did so upon fresh pursuit, and subsequently kept the party in safe custody, the reception formed a defence to an action afterwards brought. In that state was the law, when the statutes 13 Ed. 1, c. 11, and 1 Ric. 2, c. 12, passed, and gave debt against sheriffs and the warden of the fleet, for escapes of debtors in execution. Immediately the principles of the common law, touching the two kinds of escapes, became applicable to the construction of the Acts, and they were applied to the actions given by the statutes as they had been to those given by the common law. The action of debt was held to lie as well for negligent, as for voluntary escapes; and, indeed, evidence of the one might be given upon a count for the other. Nothing could purge a voluntary escape, when prosecuted in either form of action; and in both, recaption before action brought for a negligent escape, was a bar. Ridgeway's case, 3 Rep. 52. Bonafous v. Walker, 2 T. R. 126. The statutes were merely affirmative, only giving a cumulative remedy for escapes, without undertaking to define them; and, consequently, they were, as to their diversities in nature, and in their defences, left to be ascertained by the common law. What was before a wilful escape remained so still; and to the action of debt for it there was no defence, that would not have equally barred an action on the case. So, likewise, it was with respect to a negligent escape, It was constituted as before; no old bar was taken away, nor any new one given. The liability of the officer in debt, depended, then, entirely upon the enquiry, whether he would be liable in the action on the case. Recourse was, therefore, necessarily had to the common law, to determine what is an escape, and what a wilful or a negligent one. Whenever a person, once under arrest, is at large, unless by the consent of the creditor, or the authority of law, it is an escape. It is said by Mr. Justice BULLER in Bonafous v. Walker, to be voluntary, when it is by the consent or default of the officer.

All other escapes are negligent. To the same purposes respectable text writers speak. Mr. Phillips says, “if...