Simms and Wise v. Slacum

• Decision Date: 01 February 1806
• Citation: 3 Cranch 300,7 U.S. 300,2 L.Ed. 446
• Parties: SIMMS AND WISE v. SLACUM
• Court: U.S. Supreme Court

7 U.S. 300

3 Cranch 300

2 L.Ed. 446

SIMMS AND WISE v. SLACUM.

February Term, 1806

ERROR to the circuit court of the district of Columbia, in an action of debt brought by Slacum, as assignee of Charles Turner, sergeant of the court of Hustings of Alexandria, upon a prison-bounds-bond, in which Simms was the principal and Wise the surety.

The condition of the bond was as follows: 'Whereas Jesse Simms, in jail and custody, by virtue of a writ of capias ad satisfaciendum, sued out of the clerk's office of the court of Hustings, holden in Alexandria, dated the 12th day of August, 1800, at the suit of George Slacum, assignee of Charles Turner, sergeant of the court of Hustings aforesaid, for the sum of 1,285 dollars and 45

cents, including all legal costs at the time of the caption aforesaid, having prayed the benefit of the prison-rules, as laid out and bounded by order of the court of Hustings aforesaid, and having tendered the above bound Peter Wise, junior, as surety for the same, agreeable to an act of the general assembly in that case made and provided.

'Now, if the said Jesse Simms do well and truly keep himself within the prison-rules, as laid out and bounded by the court of Hustings aforesaid, and from thence not depart, until he shall be discharged by due course of law, or pay the aforesaid sum of 1,285 dollars and 45 cents to the aforesaid George Slacum, assignee of Charles Turner, sergeant aforesaid, then the above obligation to be void, or else to remain in full force,' &c.

The pleadings were finally brought to this issue, whether Simms did depart from the prison rules-without being discharged by due course of law?

At the trial, three bills of exceptions were taken by the defendants; but the only question decided by this court arose upon the third; which stated, that after the execution of the bond, Simms was discharged by a warrant from two justices of the peace, under the authority of the insolvent act of Virginia; and that being so discharged, and not before, he departed out of the rules. The plaintiff offered evidence to prove sundry acts of fraud committed by Simms, in order to procure the discharge; whereupon the counsel for the defendants prayed the opinion of the court, and their instruction to the jury, that if they should be of opinion, from the evidence, that frauds were committed individually by Simms, in obtaining his discharge, but without the participation of the magistrates who granted it, and without the participation of Wise, the other defendant, such frauds, so committed by Simms, could not so far vitiate or avoid the said proceedings under the insolvent act, and the discharge so obtained by Simms, as to charge Wise, in this action, for a breach of the condition of the bond, by reason of Simms having left the prison-rules by virtue of such discharge. Which instruction, the court refused to give; but were of opinion, and directed the jury, that if they should be of opinion, from the evidence, that any fraud was committed by Simms alone, in obtaining, or for the purpose of

obtaining, the said warrant of discharge, though without the concurrence of either of the magistrates, or of Wise, in such fraud, it did avoid the discharge so obtained by Simms, so as to charge Wise in this action for a breach of the said condition, by reason of Simms' having left the prison rules by virtue of such a void discharge. To which refusal and instruction the defendants excepted.

The act of Assembly of Virginia, 1792, c. 67, concerning the county courts, § 15, P.P. 86,^* authorises the county and corporation courts to lay out, and mark the 'bounds and rules' of their respective prisons; and declares, that 'every prisoner not committed for treason or felony, giving good security to keep within the said rules, shall have liberty to walk therein, out of the prison, for the preservation of his or her health, and keeping continually within the said bounds, shall be adjudged in law a true prisoner.'

The act of 1792, c. 79, concerning the escape of prisoners, § 2, P.P. 119, provides, that if a prisoner, having given security for, and obtained the liberty of the prison-rules, shall escape and go out of the same, the sheriff shall immediately apply to a justice of the peace for an escape-warrant to retake the prisoner, and give notice thereof to the creditor, and assign over to the creditor the bond taken for the liberty of the rules, who shall be obliged to receive the same; and the creditor may proceed to take his debtor upon the escape-warrant; and if he be retaken and committed to jail, the sureties in the prison-rules-bond, shall be discharged; but if the debtor be not retaken on the warrant, and committed, the sureties are liable to the creditor. And the sheriff is not liable, unless the sureties were insufficient when taken.

By the 1st section of the act, the escape-warrant must be upon the oath of the sheriff, or some other credible person.

The act of 1793, c. 151, for the relief of insolvent debtors, P. P. 303, authorises two justices of the peace to discharge insolvent debtors, and provides, that notice

shall be given to the party at whose suit the prisoner is in execution. It declares also, that the warrant of discharge shall be sufficient to indemnify the sheriff against any action of escape. And that the prisoner shall not be again imprisoned upon any judgment obtained previous to his taking the oath, unless by virtue of a ca. sa. issued by order of the court in which the judgment shall have been rendered.

The estate of the insolvent is vested in the sheriff. But the creditor may, on scire facias, have a new fi. fa. to seize any property which the debtor may afterwards acquire.

C. Lee, for plaintiffs in error. A prisoner in the bounds is as much in jail as if within the walls of the prison. The oath of the insolvent debtor was provided as the guard against fraud; but the bond is only a substitute for walls to the prison-bounds. As to the surety, a discharge by a competent authority is conclusive.

The warrant of discharge is an indemnity to the sheriff, whether obtained by fraud or not. The act of assembly does not expressly provide, that it shall indemnify the surety as well as the sheriff, but he is within the same reason.

The body of the debtor cannot be retaken, unless by order of the court, on proof of fraud. In the case of fraud in the debtor alone, the remedy of the creditor is not by an escape-warrant, but by a new ca. sa. against his person, or a fi. fa. against his goods.

The sheriff is bound to discharge the prisoner upon receipt of the warrant; if he disobeys it he is liable to an action of false imprisonment; and after obeying it, he cannot go before a justice of the peace, and swear it was an escape, so as to obtain an escape-warrant. If he cannot get an escape-warrant, he cannot assign the prison-rules-bond; for he is, by the act, only authorised to assign it when an escape has actually happened. The creditor is not bound to take an assignment; nor can he demand it. When, therefore, the debtor is discharged by a competent authority, the obligation of the bond ceases. It is functus officio; the surety is no longer liable for an escape, and is

as much discharged as if, after an escape, the debtor...