1810.

administratrix

and, lastly, the assignment of the bond, on the 1st of March, MARCH, 1790,"by the said William Foushee, formerly Sheriff as aforesaid, to the plaintiff, whereby an action accrued to her Meredith's to demand of the said William Duval," (who alone was sued, notwithstanding there were two other obligors) the penalty of the said bond, &c.

The defendant craved oyer of the bond, and pleaded conditions performed. By the copy of the bond, thus spread upon the record, it appeared a joint and several bond, taken to Foushee, as Sheriff, but payable to him, "his certain attorney, his executors, administrators or assigns;" not saying his "successors" in office. The assignment, endorsed on the bond, is dated March 1, 1796.

The Jury found a special verdict, the most material facts in which were, that, after executing the said bond, Daniel Duval had the benefit of the prison rules, and resided not in the prison, but in a house which he had rented (within the bounds) of a certain John Henry; but the rent was never paid; that Isaac Younghusband succeeded Foushee as Sheriff, and, at a Court held for Henrico County the 1st of February, 1790, received an assignment from the said Foushee of the prisoners in his custody, which was entered of record, and found by the Jury in hæc verba; (in which assignment Daniel Duval was mentioned as one of the said prisoners at the suit of Anne Meredith, and the sum, with which he was charged, was set forth;) that the said Duval was then within the prison rules, and not residing within the prison; that he never was actually in the custody of the said Younghusband, any otherwise than the law might imply, by reason of his being within the rules, and by force of the said assignment; that Younghusband required security for the prison fees from the plaintiff; "that the plaintiff had before given bond and security for the prison fees to William Foushee, the former Sheriff;" which bond was found at large in hæc verba, bearing date the 10th day of June, 1789, payable to him as Sheriff, his certain attorney, his heirs, &c.; not mentioning his successors; and that he objected thereto

V.

Duval.

MARCH, 1810.

administratrix

V.

Duval.

on account of the securities' not being within the County; that on the 3d day of February, 1790, the said Isaac YoungMeredith's husband, being Sheriff of the County aforesaid, discharged the said Daniel Duval from the prison bounds for want of security for prison fees, by a writing found also in hæc verba; "that the said Daniel Duval on the day aforesaid went at large out of the prison rules with the knowledge and consent of the said Younghusband, and without the consent of the plaintiff, and ever afterwards went at large out of the said prison rules; that he knew that the Sheriff's reason for discharging him was the nonpayment of the prison fees; that the plaintiff did not reside in the County of Henrico, either at the time of delivering the said execution to the said Foushee, or at the time of the discharge; nor did she name any person resident in the said County of Henrico, where the said execution was to be levied, for the purposes expressed in the act 10 Geo. III. c. 3. s. 13."

But it was not found that notice was given to the plaintiff to give security for the prison fees, or that she failed to do (a) See act of so.(a)

1772, c. 13. s. 1. Ch. Rev. 24.

The District Court, upon this special verdict, gave judgment for the defendant; and the plaintiff appealed to this Court.

This case was argued at June term, 1807, by Bennett Taylor and Williams, for the appellant, and Warden and Call, for the appellee; and again, at October term, 1809, by Williams and Wickham, for the appellant, and Nicholas, Warden, Call, and Randolph, for the appellee: but, as all the points in the case are so fully considered by the Judges in the following opinions, a just regard for brevity compels the reporter to omit the arguments of counsel.

Thursday, March 15, 1810. The Judges pronounced their opinions.

Judge TUCKER. (After stating the case as above.) One

1810.

Meredith's administratrix

V.

Duval.

of the exceptions taken to the declaration by Mr. Warden MARCH, was, that the bond is therein called a bill obligatory. I doubt whether it would have availed him on a special demurrer, even if there had not been a recital in the declaration, of the condition: his second objection, that it was not alleged that the parties bound themselves jointly and severally, appeared to me to have much more weight, William Duval being sued alone: but Mr. Williams satisfied me upon that point: that, after oyer, the bond becomes part of the record, and the court must judge upon the whole record, 5 Gwill. Bac. (tit. Øyer,) p. 438. citing 3 Salk. 119. Hob. 217. Show. Cas. Parl. 221. Carth. 513., says it becomes part of the declaration, and is not part of the plea. In Leftwich v. Berkely,(a) the Court took notice (a) 1 Hen. & of the bond as part of the record, though no oyer was Munf. 61. demanded: but the error there also appeared in the declaration; so that I lay no stress upon that case as to this point. Now here, by the oyer, it appears the bond was several as well as joint; and therefore, according to the principles established in that case, as well as in Berkely v. Boxley,(b) the suit might be maintained (6) October against either of the obligors alone, or against the whole term, 180,5. jointly. The third objection made by Mr. Warden applies to the recital of the bond, and not to the refusal of payment, as alleged in the declaration, and is therefore unimportant. The fourth is contrary to my understanding of the record; since I can perceive a clear breach of the condition from the tenor of the verdict.

Mr. Call's objections appeared to me entitled to consideration. I doubted with him whether the bond, not being payable to the Sheriff and his successors in office, was in due form; but there is no form prescribed by the statute; and, as the statute gives the Sheriff a special power to assign the bond to the creditor, which has been done in this case, the assignment was sufficient to enable the plaintiff to sue upon it in her own name. Had not this been the case,

MS.

I should scarcely have doubted whether a court could have disregarded the error in the date of the assignment in the declaration, being truly found in the special verdict. (a) The reason given why the bond should have been taken to the Sheriff and his successors, and delivered to the succeeding Sheriff, that he may have notice that the party was entitled to the benefit of the prison bounds, seems inapplicable to the present case; for Younghusband has shewn under his hand and seal, that he knew Duval was entitled to them: having expressly so stated it in the instrument of discharge. Nor can I agree with Mr. Call, that the bond was taken for the benefit of the Sheriff, or for his indemnification : the recital in the act shews it to be for the benefit of the prisoner, whose health might suffer by a close confinement.

Upon the merits of this case I have never felt the smallest doubt, except as it has been excited by a difference of opinion from the Judges who pronounced the judgment in the District Court, and from those, with whom I have the misfortune to differ in opinion, in this Court. A prisoner who gives security for the prison bounds, is from thenceforward no otherwise in the custody of the Sheriff, than as may be sufficient to protect the Sheriff against any suit which the creditor may bring against him for not confining the debtor within the walls of the prison. He is in the eye and contemplation of the law, a true prisoner; being, as was said in the case of Lysle v. Stephenson,(b) in the custody of the law: but the Sheriff hath no longer any power over him, either to restrain him, or to discharge him, if he reside not within the prison. If the prisoner should depart from the bounds within view of the Sheriff, he must apply for an escape warrant before he can retake him; and this he is required to do immediately; and, moreover, immediately to give notice to the creditor or his attorney, or agent, and to assign over the prison-bounds bond. A neglect in either of these particulars will render the Sheriff himself liable; but nothing else will, unless the security to the bond shall

afterwards be found to have been insufficient to pay the debt MARCH,

when the bond was taken.

1879

administratrix

V.

Duval

I have carefully examined the acts of assembly to disco- Meredith's ver what fees a gaoler would have a right to demand of a prisoner within the prison bounds; and I can find none except the fee of 1s. 6d. per day for maintaining him in diet. Now, according to the principles established in the case of Rose v. Shore, 1 Call, 540. it ought to have been averred and proved that Duval was unable to pay that fee, before the sheriff could have a right to demand it from the creditor; à fortiori, it is equally necessary that that fact should be established, before the Sheriff could be authorized to discharge him out of his custody, and thereby deprive the creditor of the satisfaction which the law allowed him for his debt. I will go further; it being found in this case that Daniel Duval did, himself, rent a house within the prison bounds, and reside therein, and that he did not reside in the prison, the presumption (if any presumption were to be made) is, that he maintained himself: if, in fact, the gaoler had found him in victuals, it ought to have been so found in the verdict; and it ought, moreover, to have been found that he was unable to pay the gaoler the legal fee for so doing, and, without such finding, the creditor could not in this case be made liable to the Sheriff for it. If any presumption arises from this special verdict, it is, that Duval was able to pay his prison fees, since he had credit enough to hire a house within the prison bounds, although he never in fact paid any rent for it.

In whatever point of view I consider this case, the instrument of discharge has always appeared to me not to be a discharge by due course of lazv: and the voluntary depar ture of Mr. Duval from the prison bounds, (within which he actually rented and occupied a house for his accommo

Note. But see 1 Rev. Code, c. 213. p. 368, 369. where the Courts are authorized to fix the fees of gaolers for the diet of prisoners, either committed for debt, or at the suit of the commonwealth; provided, that the allowance shall not exceed 84 cents per day.

VOL. I.