Long v. Palmer, Smith & Co.,
41 U.S. 65 (1842)

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U.S. Supreme Court

Long v. Palmer, Smith & Co., 41 U.S. 16 Pet. 65 65 (1842)

Long v. Palmer, Smith and Company

41 U.S. (16 Pet.) 65


Action for an escape against the Sheriff of Madison County, he having received into his custody as a prisoner the defendant in an action in the circuit court of Mississippi, taken under execution, and having suffered and permitted him to escape.

The declaration set out the judgment obtained by the plaintiffs against Scott, the defendant in the circuit court, the execution, the arrest of Scott, and his delivery to Long as the sheriff, who received him into his custody under the execution and detained him until, without leave or license of the plaintiffs in the execution and against their will, he suffered and permitted him to escape and go at large &c. To this declaration the defendant pleaded that he does not owe the sum of money demanded in the declaration "in manner and form as complained against him," and the jury found that the defendant Long "doth owe the debt in the declaration mentioned in manner and form as therein alleged," and assess damages for the detention thereof at one thousand and sixteen dollars and ninety-six cents, upon which the court gave judgment for six thousand three hundred and fifty-six dollars and one thousand and sixteen dollars and ninety-six cents damages, and costs.

The judgment of the circuit court is correct, under the provision of the statute of Mississippi of 7 June, 1822. The jury was not required in the action to find specially that the prisoner escaped with the consent and through the negligence of the sheriff. The plea alleged that the defendant did not owe the sum of money demanded "in manner and form as the plaintiff complained against him." This plea put in issue every material averment in the declaration. On this issue, on the most strict and rigid construction, the jury has expressly found all that is required to be found by the requirements of the act.

If the sheriff suffers or permits a prisoner to escape, this, both in common parlance and legal intendment, is an escape with the consent of the sheriff.

The object of the act is to make the sheriff responsible for a voluntary or negligent escape, and that this shall be found by the jury. And if this appears from the record by express finding or by the necessary conclusion of the law, it is sufficient.

If any particular practice has prevailed in the state courts as to the manner of entering upon the record the finding of the jury, it is a mere matter of practice as to the form of taking and entering the verdict of the jury, and cannot be binding upon the courts of the United States.

An action of debt was instituted by the defendants in error against Benjamin Long, then Sheriff in Madison county, in the State of Mississippi, for the recovery of $6,277 and costs, the same being the amount of a

Page 41 U. S. 66

judgment obtained by Palmer, Smith & Company against Thomas S. Scott at the January term, 1833, of the District Court of the United States for the District of Mississippi, with interest.

The plaintiffs in the district court averred in the declaration that they had sued out a capias ad satisfaciendum on the judgment against Thomas S. Scott, who was arrested by the deputy marshal and who, having him in custody under the execution, committed him to the custody of Benjamin Long, the sheriff. That the said Benjamin Long received Scott into his custody, and afterwards,

"without the leave or license and against the will of the plaintiffs, suffered and permitted the said Scott to escape and go at large wheresoever he would, out of his custody."

The defendant in the circuit court, the case having been transferred to that court, pleaded "nil debt," and the jury found a verdict for the plaintiff "in the manner and form as alleged by them," whereupon judgment was entered for the plaintiffs according to the verdict. The defendants sued out this writ of error to January term, 1839.

Page 41 U. S. 67

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