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administratrix

V.

Duval.

MARCH, quire property, he shall still have his remedy against him for the prison fees. Should a contrary construction of the Meredith's law prevail, which should oblige the Sheriff to prove actual insolvency before he could demand security of the creditor for the prison fees, it will, in my apprehension, render the acts of 1764, 1769, and 1772, which form a regular system, almost nugatory, and so many dead letters; and be productive of much litigation, great injustice to Sheriffs, and further distress to many unfortunate debtors.

In what manner, and before what tribunal, it may be asked, is a Sheriff to prove the insolvency of an imprisoned debtor to the satisfaction of the creditor, before he can legally demand of him the security required by law, which, since the act of 1772, gives the Sheriff a right to demand such security, the moment the debtor is committed to prison?

From the general tenor of those acts, it appears to me that the legislature justly presumed, (until the contrary should appear, as in the case of Rose and Shore, to be further noticed hereafter,) that every person confined in gaol for debt was unable to pay the prison fees; and the proof of solvency ought to be on the creditor: 1st, Decause he is the occasion of the debtor's being confined, which is supposed to be for his own benefit; in consequence of which the law calls upon him immediately to give security for the prison fees; 2dly. Because an affirmative is more easily proved than a negative; and, 3dly. Because the Sheriff, being an executive officer, is obliged to execute all legal process put into his hands by the creditor; and whose commissions upon executions for small sums, where the debtors are imprisoned, are very inadequate to his services; and therefore ought not to be delayed, run any risk, or put to extraordinary trouble without due compensation.

The case of Rose and Shore has been much relied on, as decisive in favour of the appellant here; but in my conception it is the reverse; as the case appears to be essentially different.

A Mr. Claiborne was imprisoned for debt, within the

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administratrix

V.

Duval.

bounds, at the suit of Shore; who, agreeably to the requi- MARCH, sition of the law, upon a presumption that Claiborne was insolvent, gave bond as usual, to Rose, the gaoler, for the Meredith's prison fees; who, from time to time received them from Shore, at 1s. 3d. per day for upwards of 15 months. Shore having afterwards discovered that Claiborne was possessed of a considerable estate, brought an action of assumpsit against Rose for so much money had and received to his use. On the trial there was a special verdict, in which the Jury expressly found "that Claiborne was, during all that time, possessed of sufficient property, and able to maintain himself in prison, without the aid of the said fees;

AND THAT HE WAS NOT MAINTAINED BY THE SAID DE

FENDANT; whereupon the District Court gave judgment for the plaintiff; which, on an appeal, was affirmed by the unanimous opinion of this Court, upon the ground (so far as my opinion concurred) of the special finding of the Jury above stated. But there is no such finding, nor any thing similar, in the case before us. On the contrary, the Jury here find that Duval resided in a house distinct from the prison, but within the rules; for the rent of which he contracted with John Henry, the proprietor, but the rent never has been paid; which finding of the Jury was more than nine years after Duval was discharged out of custody: from whence a strong presumption arises, that he really was insolvent, being impliedly found so by the verdict; more especially as debts for rent are recoverable in a summary way by distress.

And in order to assimilate this case to that of Rose and Shore, the Jury ought here to have found that Duval was possessed of sufficient property, and able to maintain himself in prison, and that he was not maintained by the Sheriff or gaoler.

If Younghusband discharged Duval as an insolvent debtor unable to pay the prison fees, when he was not so, he thereby made himself liable for the debt: and suppose this had been a suit to compel him to pay it, what would

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MARCH, have been the gist of the action? the ability of the pri soner to pay the fees, or to maintain himself in prison, Meredith's which the plaintiff must have averred and proved, (as in the case of Shore against Rose,) before he could have had a verdict in his favour.

administratrix

Duval.

What was the principal point in controversy between Shore and Rose? the ability of Claiborne to pay the fees, or to maintain himself in prison; which being proved to the satisfaction of the Jury, they so found the fact specially, and the Court very properly gave judgment for the plaintiff. So, on the same principle, if a Sheriff brings suit against a creditor on a bond for payment of the prison fees of his insolvent debtor, he must aver and prove the insolvency of the prisoner before he can recover; but he is not bound to prove such insolvency before he has a right to demand the security required by law; for he has a right to make the requisition immediately on the prisoner's being confined.

The proof of the solvency or insolvency of an imprisoned debtor, in my apprehension, rests on circumstances as the case may be. Where the creditor brings an action against the Sheriff or gaoler, to subject him to the payment of the debt, for having discharged the prisoner, as unable to pay, or to maintain himself in prison, when he was not so; or to recover money wrongfully paid for the maintenance of such prisoner, (as in the case of Shore against Rose,) the proof of the solvency of the prisoner lies on the creditor: And where a Sheriff or gaoler brings suit against a creditor for the fees of his imprisoned debtor, the proof of the insol vency of the prisoner lies on the Sheriff or gaoler.

On these grounds I am of opinion that Younghusband was justified by law in discharging Duval out of custody; but, lest I be mistaken on this point, I proceed to consider the other, to wit, Whether the written discharge of the prisoner, by the Sheriff, did not exonerate the securities from the penalty of the bond for his keeping within the

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prison rules, and leave the creditor to her remedy against MARCH, the Sheriff only?

administratrix

V.

Duval.

I am to consider this point, then, on a presumption that Meredith's the Sheriff had not a legal right to discharge the prisoner, but that he did so in his own wrong, and at his peril; and became immediately liable to the creditor for the amount of the debt: and he being so liable, why vex and distress. an innocent security for the malfeasance of a public officer, of ability to answer for his own misconduct, instead of having immediate recourse against him? The appellee bound himself, his heirs, &c. with condition that the prisoner, Daniel Duval, should keep within the prison rules until thence discharged by due course of law; and being discharged by the Sheriff, in whose custody he was, that may well be considered as a discharge in due course of law; as the Sheriff was the only executor of the law, he was the only person who could of right discharge the prisoner in any event.

Suppose the Sheriff in the written discharge, instead of saying it was for want of security for the prison fees, had stated that the prisoner had paid him the full amount of the debt and costs, would not that be considered as a discharge by due course of law, whether the money had, or had not, been paid to the Sheriff? or would the securities have been bound to prove an actual payment of it? I confidently conceive not; nor were they, as the case stood, bound to prove the insolvency of the prisoner.

Mr. Williams, though, contended that "if the debtor had tendered the whole debt and costs to the Sheriff, he would have had no right to discharge him!" Miserable, indeed, would be the case of every prisoner confined for debt, should that be adjudged to be law!!

As to the recital in the discharge, that Duval was a prisoner within the bounds of the prison as laid off by the General Court, (noticed in the argument by Mr. Williams,) I believe it to be correct. The County gaol of Henrico has been used as the public gaol, ever since the removal of the seat of go

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V.

Duval.

vernment to Richmond; and by several acts of assembly, passed from time to time, the Judges of the General Meredith's Court were empowered to superintend and regulate the public gaol; and the bounds laid off by direction of that Court, under the authority of one of those acts, have always been considered and used as the prison bounds of Henrico County; unless they have since been altered by order of the District Court. But, be that as it may, the circumstance, in my apprehension, does not affect the merits of this

cause.

Let us consider what was the true nature, intent, and spirit of the undertaking of the securities? It was that Daniel Duval should not escape, nor voluntarily depart out of the prison rules; but they did not mean to be responsible for the misconduct of the Sheriff (with whom they had no privity, and who was the only person, I conceive, that in any event had a right to discharge the prisoner) in case he should discharge him without legal authority. The Sheriff had the same right over the prisoner, so far as respects his legal discharge, as if he had been confined in the debtors' room of the gaol, and the key in the pocket of the Sheriff, who, at the time of his admission to office, had given ample security for the due and faithful performance of his duty; and against whom for misfeasance or malfeasance in office, any person aggrieved by his misconduct, had a prompt and legal remedy by action on the Sheriff's bond.

A Sheriff who discharges a prisoner contrary to law, makes himself liable for the debt, but cannot subject the innocent securities, who have no control over him, to loss or damage, by his own acts or default; for the Sheriff's and prisoner's securities cannot, or ought not, to be both answerable at the same time, to the creditor for an escape; as that would be making them securities for each other, without the consent of either; and would deter many from acts of benevolence and kindness towards unfortunate persons imprisoned for debt, in becoming their securities for the prison bounds.

From the evidence and circumstances disclosed in this