#### Wilkes v. Slaughter.

I From Bertie. J

if a sheriff give his prisoner the keys of the prison, it is an escape, though the prisoner should not go without the walls.

This was an action of debt against the sheriff of Bertie, for permitting one Ryan, a debtor in his custody on execution at the suit of the plaintiff, to escape.

. The facts were, that Slaughter, being sheriff of Bertie, by virtue of a ca. sa. at the suit of the plaintiff, arrested Ryan on the 15th of June 1822, and conveyed him to the *212common jail. The defendant, after placing Ryan in the' jail, delivered to him the key thereof; and Ryan contin-ned in the jail, from the 15th of June until the 5th of jujy? having, during that period, possession of the key, permitting such persons as he thought proper, to enter into and depart from the jail, and generally keeping the jail door open, and having it in his power to depart from the jail at his own pleasure. After the 5th of July, Ryan left the jail, and continued at large until his death, in November 1822.

The defendant, to justify setting his prisoner at large after the 5th of July, produced from the office of the clerk of the county court of Bertie, a paper writing, purporting to be a record of a petition and proceedings in discharge of Ryan on the 5th of July, as an insolvent debtor, by two of the justices of the peace of Bertie county.

This paper witting set forth a notice to Wilkes of the intended petition, regularly given; a petition to two of the justices of Bertie, praying the benefit of the acts for the relief of insolvent debtors; the command of the justi - ces to the defendant, as sheriff, to bring the prisoner before them, together with the writs which he had against him; the certificate of the justices, that Ryan had, in the presence of the plaintiff, taken the oath prescribed for an insolvent debtor, passed in the year 1773, chap. 4, section 3; their order to the defendant for his immediate enlargement; and a schedule signed by Ryan of debts due him.

The presiding Judge, Badger, instructed the jury, that it was, in law, an escape in a sheriff to permit his prisoner to keep the key of the jail, and to keep the door open; and that the supposed record did not justify the defendant in setting the prisoner at' large after the 5th of July.

Verdict for plaintiff, new trial refused, judgment, and appeal.

*213 Gaston, for the appellant,

contended that an escape, as the definition would show, implied a going at large of the prisoner. (Com. Dig. “Escape.” C. Impey’s Shff. 183. Adjudged Cases 431. Cases temp. Hardw. 310.

Putting the key in the prisoner’s hands, gave him the ability to escape; that ability, unexerted, was different from the act of escape, and they were here confounded.

It is, indeed, said, (3 Reports 44.) that those in execution shall not go at liberty within the prison, and 2 Dyer 249 b, is referred to. On examination, it will be found that this is simply an order of the Star Chamber, subjecting the keeper to a fine for disobedience.

As to the record offered in evidence, the inquiry is not how far these proceedings were regular, or how far they operate to pretect the debtor from future arrest; but it is, are they so utterly null that the sheriff is not protected by them? If they administered the wrong oath, or no oath, it may nullify the discharge of the defendant, but it cannot effect the sheriff’s justification.

The judgment setting the prisoner at liberty, is that of a court of competent authority, which the sheriff is not answerable for having obeyed. Jordan v. James, (3 Hawks 118.)

An officer is safe in obeying process erroneously issued. (Impey 82. Ventriss 273.) So also in obyeying process irregularly issued. (Ventriss 434. Cro. J. 8. 1 Tidd 436. 1 Strange 509.)

The officer need not show any judgment, he is justifiable by the writ alone. Britton v. Cole, (1 Salk. 409.)

The justices here had authority to issue the writ, and had jurisdiction of the case. See the act of 1741.

Hogg, contra.

Confinement implies, a minister of the law, and a prisoner in his custody; the prisoner was here in his own custody, he was the deputy of the sheriff. According to the policy of our law, imprisonment is the confinement of the person. The humanity which would *214alter it is spurious; for what the law contemplates, is to exclude a prisoner from intercourse with his kind, except in certain extreme cases.

Suppose a sheriff takes bond from his prisoner that he will remain in safe custody, the bond is void; much less, then, will the law suffer a jailor to permit his prisoner to go at large upon his parol of honour.

The common law annexes but one idea to imprisonment; that is, custody of the body, by the exercise of personal restraint; and the sheriff can substitute nothing for it.

But there is no want of authority on the point now before the court. 3 Reports 44, recognises as law the decision in Dyer, and very clearly shows that there may be an escape within the walls of the prison.

A prisoner shall not he permitted to go at liberty, either within or without the prison; if he is so permitted, it is an escape. Per Parsons, C. J. in Bartlett v. Willis, (3 Mass. R. 100.)

Giving a prisoner the key of the prison, is an escape. Per Parsons, in Coleby v. Sampson, (5 Mass. R. 810.)

Day and Whittelsey v. Britt, (6 Johns. R. 72.) 2 Bac. Mr. 515, Wilson’s edition, and 1 Bos. and Pull. 24. were also referred to.

As to the justification offered, a writ from the competent authority is necessary. The justices here had no jurisdiction. The discharge under the 3d section of the act of 1773 is an absolute nullity. (10 Co. R. 66.) Brown v. Compton, (8 Term R. 424.)

Hall, Judge.

The principal question in this case is, whether the sheriff is chargeable with an escape for having given up to Ryan the keys of the jail in which he had lodged him, whereby it was optional with Ryan cither to remain in jail or not.

It is said in 3 Co. 44, that every person in jail, by process of law, is to be kept in salva et arcta custodia, in order to compel him the more speedily to pay his debts *215and make satisfaction to his creditors. And it is stated in the same case, that by stat. of West. 2. ch. 11. the she-v riff may keep them who are in execution in fetters and Leons, to the end that they may satisfy their creditors, Lord Coke says, that, if need require it, prisoners may be kept in irons by that statute; but that could not be done by the common law; that imprisonment is intended for safe custody, but not for punishment. ([Bac. Mr. Escape, B. Co. Lit. 260 a.) It is also laid down in Plow den 37, that if a woman be jailor, and one imprisoned in the jail marry her, it is an escape in the woman, for the law adjudges the prisoner to be at large; for he cannot be imprisoned but under a keeper, and he cannot be under the custody of his wife: that if the warden of the fleet, who hath his office in fee, die seized, his son and. heir being then imprisoned there, and the office descend to him, being in prison, the law will adjudge him to be out of prison, although he has fetters upon him; because he cannot be his own prisoner. So that no man can be lawfully detained in jail without a jailor or keeper.

In Bartlett v. Wilkes and others, (3 Mass. Rep. 101-2.) Parsons,’ C. J. says, that to allow a prisoner greater liberty than the law permits, is an escape. The escape is committed by being out of the legal custody of the sheriff; that if the debtor has a liberty inconsistent with that custody, he cannot be said to remain in legal custody. In Coleby v. Sampson, (3 Mass. Rep. 310.) the coroner arrested one Minot, the deputy jailor, for debt; neither the sheriff, or any other keeper of the jail authorized by him, was there to receive him; the coroner left his prisoner there with a copy of the precept: it was adjudged an escape in the sheriff, because he was not there to receive Minot; for Minot> though deputy jailor, could not receive himself; for the prisoner, by being a keeper, and having the keys, is no longer restrained of his liberty: that if a' sheriff make a prisoner of the jail keeper and give him the keys, it is an escape of the sheriff.

*216In 6 Johnson’s Rep.' 22, it is decided that if a ca. sa. on a judgment against a sheriff was delivered to the coroner, who arrested the sheriff and delivered him in jail to the cus£0(jy of the under sheriff and jailor, and the sheriff immediately after went at large, the coroner was liable for an escape, because the sheriff was committed to the jail of which, by law, he had the custody, and of which he appoints the keeper.

From these cases it appears clear to my mind, that custody implies physical force sufficient to restrain the prisoner from going at large; that when that physical force is removed, it is, in the eye of the law, an escape. No moral obligation can be received as a substitute for it. Although promises may be made, and may be observed, to remain in close jail, the moment compulsion and force are withdrawn, there is no legal custody; the prisoner becomes a free agent; there is no longer any imprisonment, and the precept to the sheriff is disobeyed. This is the result of the view I have taken of the case. The other point made, it is unnecessary to consider. I think the rule for a new tidal should be discharged.

Henderson, Judge.

The counsel for the defendant endeavors to distinguish this case from those cited. Where the keeper, a female, married her prisoner, and where the office of keeper devolved on a prisoner who was and remained in fetters; where the coroner delivered the sheriff whom he had arrested, to the sheriff’s deputy, the jailor, it was deemed an escape in the coroner: because in all these cases there was no keeper, for a priSoner cannot be his own keeper. In the present case, he says that the sheriff remained still the keeper, although he gave to the prisoner the keys of the jail; and there being in fact no departure out of the walls of the prison, there was, in law, no escape, and that physical restraint is not necessary; that moral restrain^ or what is the same thing, I think,, voluntary restraint, is sufficient; *217and he assimilates this case to one where there is no jail provided by law, or before any jail was pointed out by law as a place of confinement, when the sheriff himself was bound to find a jail, and such jail was weak and insufficient to retain the prisoner; yet the prisoner remained within the walls of the prison, it was deemed not an escape, and lie said that the only test of confinement was the remaining within the walls of the prison. I think-, if this argument is pushed to the proper extent, it Avill show the incorrectness of the conclusion. There can be no confinement Avithout a keeper, and a prisoner cannot be his oavu keepers therefore., if his imprisonment is voluntary, if he is considered as being in confinement it is under his OAvn keeping-, and such confinement is not imprisonment. The cases of the prisoner marrying his keeper, and the office of keeper descending on a person who Avas and continued in prison and in fetters, sIioavs that confinement alone will not do. It must be involuntary confinement, and that under a keeper; for the necessity of there being a keeper, shoAvs that confinement from a person’s own Avill is not sufficient. Nor is it material whether this confinement arises from a prospect of benefit, a sense of duty arising from a disposition to submit to the laAAf, or from a promise made to the keeper, or from any other cause than that of physical force. It is true, if the prison is broke open and a prisoner remains in the jail through choice, the sheriff cannot be charged with the escape, for the opening has not been by his consent; he has not abandoned the prisoner to his own will. Nor is this like the case to which it has been compared, Avhere the jail was weak and might haAre been broke from by the prisoner; it was closed and Avas effectual to the end designed, and an allegation that it was insufficient will not bo heard; it is like a legal presumption Avhich cannot be contradicted. How unlike thu case: here is no attempt at confinement or restraint; the remaining in the jail was purely voluntary; the keys were deli*218vered to the prisoner, and he opened and shut the door at.. his own pleasure. As Chief Justice Parsons says, free-agency is inconsistent with imprisonment. It is designed ma]ie dishonest men pay their debts; men who are able, but not willing to do so. Take away the idea of restraint, and you take with it half its bitterness.

Tayior, Chief Justice,

dissentiente. — An escape is defined to be a violent, or privy evasion, out of some lawful restraint; as where a person is arrested or imprisoned, and gets away before delivered by course of law. (Stan/. P. C. C. 26.) The facts of this case do not bring it within this description of the offence; and if they amount to an escape, an alternative should be added to the definition, “ or where the sheriff so indulges the prisoner that he may if he please.” The rule of law ought to be very clear, which charges the sheriff in a case of this kind. Some well established principle, or adjudged case, which leaves nothing to inference or remote analogy, might have been produced, I should think, if the law had been so understood. But, as it is still doubtful to my mind, though I have taken pains to inform myself, it seems to me safe to follow the advice of Lord Coke, given on this very subject: “And for as much as escapes are so penal to sheriffs, the judges of the law have always made such favorable construction, as the law will suffer, in favour of sheriffs; and, to the intent that every one bear his own burthen, the judges shall never adjudge one to make an escape by a strict construction.” (3 Coke 44.) The cases cited, for the plaintiff, do not appear to establish the position that the sheriff is liable in this case. In Boyton’s casef cited 3rd Co. the main points adjudged, were, that the sheriff is not bound to bring the party arrested on a ca. sa. in a right line from the place whei’e he was arrested, or from the county. But if he has the prisoner in court, the day of return, (having been out of his cus*219tody in the mean season,) it is good; but if a sheriff assent that one who is in execution, and under his custody, go out of the jail, for a time, and then to return, although he return at the time, it is an escape. And so it is if the sheriff suffer Mm to go with a bailiff or keeper; for the sheriff ought to have him in close custody. These are cases of an actual going out of the jail, and certainly amount to an escape. But, in the same case, there is a quotation from Dyer,' to show that “ those who are in execution shall not go at liberty, within the prison nor out of the prison, with their keepers; but shall be kept in strict ward.” This appears in Dyer 249 b. to be an order of the Star Chamber, made in 24 Hen. 8. A court which, Lord Clarendon observed, held for ho-nourable, that which pleased, and for just, that which profited. But, admitting the authority to be good, its utmost extent is, to prevent the prisoner from going out of his apartment; and not to restain him from such indulgence as may be had within his room. So it is stated in Dalton, C. 159. that to suffer a prisoner to have greater liberty than the law allows, is an escape. And this is sometimes quoted without the example by which he explains his meaning, viz. That if a jailor, or other officer, shall license a prisoner to go abroad for a time, and to come again, this is an escape, though he return again. Ibid. In the case of Wilkinson v. Salter and Ferry, cited from Cases temp. Hard. 310. the evidence of the escape was, that the prisoner had been seen at large out of the prison; that the plaintiff’s attorney asked the jailor if he was in custody, who told him, he was gone out of the prison on an errand for the prisoners, and that the jailor had made him turnkey of the prison, so that he had the key in his custody, and let people in and out of the jail. The court must be understood according to the subject-matter of the case; and, in reference to these facts, when it pronounces the escape to be voluntary, « for, as he has been entrusted with the keys of the prison, he may go *220out when he will.” In the case cited from 5 Mass. Rep. 31°* s^ier® was guilty of an escape, because he was not at the jail to receive the prisoner, neither had pe ally deputy there. Besides, the jailor, who was the party arrested, was not put into tlie jail, but remained in the jail house, viz. the residence of the jailor. The only jail keeper, therefore, was the party arrested; and he could not secure and confine himself. But in this case, the sheriff continued to be jailor, and was actually present, to fulfil any duty required of him. What is said, in the case last cited, that if the sheriff make a jail keeper of the prisoner, and give him the keys, it is the escape of thes heriff, I must think, that the Court spoke with a view to the action in Wilkinson v. Salter and Perry. But, in that case, there was an actual going out of the jail. There is a plain difference between there being no jail, and a jailor who does'not exercise all the power that the law gives him. I cannot, therefore, consider those cases as applicable, which show that no one can be lawfully imprisoned, without a keeper; as Avhen a woman, who was Avarden of the fleet, married one of the prisoners, he was adjudged to be at large; so if the office of warden of the fleet descend upon a prisoner, the laAV will adjudge him to be out of prison, because he cannot be his own prisoner. It seems to me a prisoner continues within the legal custody of the jailor, while he remains within the prison, and there is an existing jailor. The opposite construction would amount to this: that the physical poAver of escaping shall be equivalent to an actual escape. And if the jail be insufficient, the sheriff may not take the risk upon himself, but shall fetter the prisoner, or summon a guard. That, although the usual restraint has been found ineffectual to keep the prisoner in jail, yet the sheriff shall pay the debt, because there was a possibility of escaping. In what respect does it differ from the case where a feeble sheriff arrest a strong man upon a writ, who goes quietly to jail without external *221force; yet as he might have escaped by a single effort, the sheriff shall be considered as having suffered an escape. Admitting that upon general principles, the design of imprisonment is to enforce a man to pay his debts; yet it does not seem that the law requires any thing more than confinement of the person under legal custody. In the case cited from 1 Bos. and Pull. 24. it was held, that if a sheriff, or other officer, having taken a prisoner in execution, permit him to go about with a follower of his, before he takes him to prison, it is an escape; because the follower could have no power to detain the prisoner, if he had chosen to escape; and the warrant would have been no justification to him, if any mischief had happened. But I cannot doubt, that the sheriff might have interfered in this case, to prevent an actual escape, if the attempt had been made, any more than I can doubt that a sheriff, who is conducting a prisoner to jail, may exert himself to prevent an escape, although he is walking with him, without any restraint on his person. The law, introducing executions against persons for debt, was passed nearly six centuries ago, and provides “that they shall be imprisoned in iron, under safe custody.” Stat. West. 2. In construing this law, it is allowable to take into view the different genius of our institutions and age, the. language of the legislature whilst that law was in force, and the alterations of policy which have recently taken place. And although it may not be practically true, in the extent laid down by a great moralist, “that, as names make laws, manners, likewise, repeal them.” Yet the consideration of these things will sometimes aid in the interpretation of them, “ and give them a meaning, not according to the letter that kills, but according to the spirit that giveth life.” It is accordingly provided, that the apartments of . a jail shall be comfortable; that prisoners shall not be treated with wanton, or unnecessary rigor; and that they may be allowed to procure such additional comforts as *222their circumstances allow. 1795, ch. 433. The question whether there has been an escape or not, is of easy solution, where it depends upon the fact, whether the prisoner remained in, or went out of prison; but to make it depend upon the degree of indulgence, which is shown to him while he actually remains in prison, is to render the application of the law difficult and uncertain.