Moore v. Allen
| Decision Date | 21 April 1830 |
| Parties | Moore v. Allen and Grant. |
| Court | Kentucky Court of Appeals |
Prison Bounds. National and State Governments. Jailer Marshal. Acts of Congress. Statutes of Kentucky.
ERROR TO THE FAYETTE CIRCUIT; THOMAS M. HICKEY, JUDGE.
Monroe Chinn, and Owsley, for plaintiff.
Wickliffe Woolley, and Combs, for defendants.
On the 3d of September, 1823, a capias ad satisfaciendum issued from the clerk's office of the federal court, for the 7th circuit, Kentucky district, in favor of Allen and Grant, as plaintiffs, against John Hanna, as defendant returnable on the 1st Monday in December, following. In virtue of this writ, the marshal of the district took the body of Hanna, and committed him to the jail of Mercer county in this state. Some time in October, 1823, Hanna executed a bond, with Moore, the plaintiff in error, as his surety, to Henry Eccles, jailor of Mercer county, conditioned, " that if Hanna well and truly kept and remained within the prison rules or bounds of the prison of Mercer county, being the boundaries or limits of the state of Kentucky, and should not thence depart until discharged by a due course of law then to be void, & c."
Leslie Combs, as attorney for Allen and Grant, on the 12th October, 1824, gave Hanna permission, in writing
Hanna made no application to the jailor, for the purpose of entering on the bond the date of the commencement of his twenty-five days' furlough. He left Harrodsburg some time in October, and in December, 1824, was a resident citizen of the state of Tennessee, where he continued to reside up to the institution of this suit.
Eccles, the jailor, assigned the bond, for the prison rules to Allen and Grant, and they instituted suit thereon, in 1826, and recovered of Moore, judgment for a large amount upon the alleged breach, that Hanna had violated the condition of his bond.
To reverse the judgment thus rendered, Moore prosecutes a writ of error with supersedeas.
The following questions are made and presented for consideration.
1st. Is the instrument declared an obligatory upon Moore?
2. If it be, has Moore been discharged by the permission given Hanna to leave the bounds?
3. If Moore is not so discharged, then it is urged that the declaration is defective?
The first question involves, to some extent, a consideration of the operations of the national and state governments. The ca. sa. against Hanna emanated from a national tribunal. In virtue of it, he was imprisoned in a jail belonging to the state of Kentucky, and transfered by the marshal, a national officer, to the jailor, an officer of the state. In September, 1789, congress adopted a resolution, recommending it to the legislatures of the several states to pass laws, making it expressly the duty of the keepers of their jails to receive, 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 penalties as in the case of prisoners committed under the authority of such states respectively, laws of the United States, vol. II. 75. In March, 1791, congress passed an act, providing, that, " in case, any state shall not have complied with the recommendation, the marshal in such state, under the direction of the district judge, shall be authorized to hire a convenient place, to serve as a temporary jail, and to make the necessary provision for the safe keeping of prisoners committed under the authority of the United States, until permanent provision shall be made by law for that purpose."
Provisions of the acts of congress of 1789 and 1791.
By an act of the general assembly of Kentucky, passed in 1798, it was made the duty of the jailors and keepers of jails, belonging to the state, to receive prisoners committed under authority of the United States, and to keep them according to the warrant of commitment, until discharged " by the due course of the laws of the United States," II. Digest, 679. By another act passed in 1800, (see same page of the Digest), the marshal, for the court of the United States, within this state, has a right to use any county or district prison, for the imprisonment of any one in his custody, by writ or process, in the same manner as the sheriffs of the respective counties have a right to use such prisons, " and all jailors and keepers of jails within this Commonwealth are directed to receive and keep such prisoners delivered them by the marshal or his authorized deputy, in the same manner as if the prisoner were delivered to him by the sheriff of the county in which his jail is fixed."
By the statutes of Ky. 1798 and 1800, 2 Digest 679, Marshal of the U. S. vested with the privilege of using the jails of the several counties.
By an act of 1796, I. Digest, 1046, every prisoner, not committed for treason or felony, was entitled, for the preservation of his health, to the benefit of the prison rules or bounds, upon giving good security to keep within them. In 1822, (same page Digest), the prison rules or bounds were extended to the limits of the Commonwealth. Previous to this time, they were confined to ten acres, to be laid off by the justices of the several counties, within their respective counties, I. Littell's Laws, 376.
Statutes of 1796 and 1822, 2 Dig. 1046, establishing and extending prison rules.
In January, 1800, congress passed an act giving to persons imprisoned, on a process issuing from any court of the United States, the like privileges of the yards or limits of the respective jails, as persons, confined in like cases on process from the courts of the respective states, are entitled to, and under the like regulations and restrictions; laws of the United States, vol. III. 301.
In 1800, congress gave to persons confined by process from the U. S. courts, the same privileges of the prison limits enjoyed by those confined by state process. Laws U. S. vol. 3, 301.
The same act prescribes the course to be taken in order to liberate, from imprisonment, those who are insolvent. It is made the duty of the marshal of any district to execute, throughout his district, all lawful precepts directed to him, and issued under the authority of the United States; laws of the United States, vol. II. 66. By the 9th section of an act of congress of 1795, marshals are invested with the same powers in executing the laws of the United States, as sheriffs exercise with respect to the laws of a state; laws of the United States, vol. II. 481.
The duty of Marshal prescribed, laws U. S. II v. 66 and 481.
The acts of congress, and of the general assembly of Kentucky, referred to, present every thing to be found in the statutory codes of the nation and state, which can bear upon the question under consideration. It has been said in argument, that there was no law in force in 1823, when the ca. sa. against Hanna issued, tolerating his imprisonment under such a writ. Without stopping to enquire minutely, into the correctness of this position, we will barely remark, that the first act of congress, which passed to regulate process in the courts of the United States, required, that " the forms of writs and executions, except their style, and modes of process in the circuit and district courts in suits at common law, shall be the same in each state respectively, as are now used or allowed in the supreme courts of the same." This act was limited in its duration. But the foregoing provision was, in substance, made perpetual, by an act of 1792; laws of the United States, vol. II. 299, sec. 2. This latter act, however, modified the former, by subjecting writs, executions, and other process to such alterations and additions, as the federal courts, respectively, in their discretion, might deem expedient, or to such regulations, as the supreme court of the United States might think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same. This act contains a proviso, giving the plaintiff a right to sue out a ca. sa. in the first instance on any judgment, where that process was allowable, and to this extent it secured to the plaintiff a right to use the ca. sa. in a manner independent of any restricting regulation, which the supreme court might have been disposed to adopt.
By the provision of the act of congress of 1792, the plaintiff had a right to sue out a ca sa, in the first instance, on any judgment where such writ was allowable, independent of the restrictive power granted the sunreme court.
If these acts of congress adopted the writs and processes known used and allowed, by the supreme courts of states, at the time of their passage, as the writs and processes to be used by the federal tribunals, subject to such alterations and additions, as might be made in them, under the act of 1792, and not subject to the changes which might thereafter be made in them by the legislatures of the states; then, as the ca. sa. was allowed, by the laws of Kentucky, and her supreme court, at the dates of the said acts of congress, (regarding Virginia as the representative of Kentucky, which in fact had then no separate existence), it would follow, that the act, abolishing a capias ad satisfaciendum passed by the legislature of Kentucky, in 1821, did not effect the right of Allen and Grant to sue out that writ from the federal court, in 1823. It has been an agitated question, whether congress could, constitutionally, invest the federal courts with...
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