UNITED STATES SUPREME COURT DECISIONS ON-LINE

Ifs debtor committed to the state jail under process from the courts of the United States escape, the marshal is not liable.

The act of Congress has limited the responsibility of the marshal to his own acts and the acts of his deputies. The keeper of a state jail is neither in fact nor in law the deputy of the marshal; he is not appointed by nor removable at the will of the marshal. When a prisoner is regularly committed to a state jail by the marshal, he is no longer in the custody of the marshal or controllable by him.

Error to the circuit court for the District of Virginia in an action of debt brought by Donaldson against Randolph, late marshal of that district, for the clubjuris

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escape of one Baine, who being taken in execution by the deputy marshal, had been delivered over to the jailer of the state prison of Botetourt County, from whose custody he escaped.

The action was in the common form, and the defendant pleaded nil debet, upon which issue was joined.

Upon the trial, the defendant below took two bills of exception.

The first bill of exceptions sets forth the judgment and exception of Donaldson against Baine and the marshal's return of the execution in these words:

"Executed, and the defendant imprisoned in the jail of Botetourt 13 November, 1797, as per the jailer's receipt in my possession -- Samuel Holt, D.M. for David M. Randolph M.V.D."

It further sets forth the evidence of the fact that the original debtor, Baine, was seen at large,

"whereupon the counsel for the plaintiff prayed the court to instruct the jury that although the marshal, the defendant, by his deputy, had delivered the said original debtor, Baine, to the jailer of Botetourt County, where he was committed to jail, yet that the defendant was liable to the plaintiff for an escape, upon the discharge of the debtor by the said jailer, unless an escape warrant has been taken out, as the law directs; whereupon the court instructed the jury that in law the marshal would be liable to the plaintiff if the said Baine escaped out of the said jail with the consent or through the negligence of the said jailer, as the act of the jailer was in that respect the act of the marshal. The court also instructed the jury that if the escape of the said Baine from the jail of the said county of Botetourt had taken place after the expiration of the time when the said David Meade Randolph was marshal of the Virginia district, he would be liable for such escape unless he shall prove that he had assigned over the said Baine to his successor in offense by a deed of assignment, or by an entry on the records of this Court that he had made such assignment according to an act of assembly of the Commonwealth of Virginia upon that subject entitled 'An act to reduce into one all acts and parts of acts relating to the appointment

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and duties of sheriffs.' The section of which act referred to in the instruction is in the following words:"

" XXII, and for removing all controversies touching the manner of turning over prisoners upon a sheriff's quitting his office, be it further enacted that the delivery of prisoners by indenture between the old sheriff and the new or the entering upon record in the county court the names of the several prisoners and causes of their commitment delivered over to the new sheriff shall be sufficient to discharge the late sheriff from all suits or actions for any escape that shall happen afterwards."

"To which opinion and instructions the defendant excepted."

The 2d bill of exceptions stated that

"The defendant offered evidence of the insolvency of Baine at the time of his imprisonment and discharge and moved the court to instruct the jury that if they were satisfied of the insolvency of Baine, and that Donaldson neither resided himself nor had any known agent in the County of Botetourt at the time of Baine's imprisonment and discharge, to whom notice might be given that he was insolvent and that security for the prison fees was required, that in these circumstances the jailer was legally justified in discharging him under the act of the General Assembly of Virginia in such case made and provided. But the court was of opinion that in the application of this act of assembly to the case of a marshal, the whole District of Virginia was to be considered as his county, and it was sufficient if the said Donaldson had any such known agent in the district of Virginia, and so instructed the jury, to which opinion and instruction the defendant excepted."

The jury found a verdict in the following words:

"We of the jury find that the said Alexander Baine in the declaration mentioned did escape from the jail in the County of Botetourt, with the consent of the defendant, the then marshal of the Virginia District, as in the declaration is set forth, and therefore we find for the plaintiff the debt in the declaration mentioned and assess his damages to one thousand dollars. "

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Upon this verdict, judgment was rendered for the plaintiff and the defendant took his writ of error. clubjuris

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