#### JAMES C. TURRENTINE vs. THOMAS FAUCETT.

Where a sheriff arrested a man on a ca. sa. and committed him to jail, in ■custody of the jailor, and the prisoner escaped ; Held, that, without a bond of indemnity, the jailor was only bound to the sheriff for want of fidelity or due care in the discharge of his duty.

A sheriff has a right to take a bond from the jailor to indemnify him for all losses, to which he may be subjected by the escape of a prisoner, while in custody of the jailor.

Appeal from the Superior Court of Law of ©range County, at the Fall Term 1S50, his Honor Judge Manly presiding.

In this case the following facts are agreed upon by the parties: That one Fleming was committed indue course of law, as a debtor in execution, at the instance of Boaz Adams in one case, and of John P. Mabry in another case, to the custody of James C. Turrentine, the plaintiff, as the sheriff of Orange County, and he delivered the said Flem* ing to the defendant, Faucett, the jailor of said County; and he remained in close prison until the night of the 1st of November 1844, when he made his escape by his own act, assisted by some one from the out-side of the prison, by cutting through the iron bars of the window, but without the knowledge or consent or actual negligence of the defendant. The plaintiff was sued for an escape; as sheriff, in an action of debt, by both Adams and Mabry, who effected recoveries against him for their debts against Fleming. And on the 30th day of August 1849, he paid said Adams the amount of his judgment against him for *653said escape, viz: $3830 69, and for costs of said suit 071 43. And on the 30th day of August 1849, he likewise paid the said Mabry his said judgment, viz: 0620, and for costs of said suit $80 82: that on the same day he paid to his own attornies in the said two suits $310; and in expenses in attempting to ari’est the said Fleming, $62 50 : that the said Turrentine commenced an action of assumpsit for said escape against the said Faucett, as jailor, on the 15th day of October 1847, in Orange Supe* rior Court; and at March Term of said Court 1849, the said plaintiff was non-suited therein, and judgment of the Court was rendered against him: and that afterwards; the said Turrentine, on the 30th day of August 1849, commenced the present action for the same cause of action against said Faucett, as jailor: that the said Faucett was jailor and the said Turrentine sheriff on the 1st of November 1844, when the said Fleming made his escape. Upon this state of facts, the Court was of opinion, the plaintiff was not entitled to recover, and instructed the jury, that while the action was believed to be in time and not barred by the statute, yet upon the other plea, the plaintiff could not recover. Thero was a verdict in accordance with these instructions.

Rule discharged ; judgment, and appeal..

TV. II. Haywood and J. H. Haughton, for the plaintiff.

J. W. Norwood and J. H. Bryan, for the defendant,

submitted the following argument:

The action is assumpsit, upon the implied undertaking of the defendant as jailor.

The common law only implies an undertaking for reasonable care, diligence and fidelity. 1 Com. Cont. 222. Bac. Ai. master and servant, M., Story on Agency 172, 182. Átterton v. Harward, Cro. Eli. 349. Kain v. Os > trunder, 8 Johns. R. 209-10.

*654At common law the action against the sheriff for an es • cape, whether voluntary or negligent, was case ; it was regarded as a breach of duty and a tort. The same principles apply to the action of debt against the sheriff upon the statute; it is still regarded as a tort — the action is founded “in maleficio.” 2 Bac. Ab. Escape 525, letter F.

The sheriff is subjected upon grounds and for reasons of policy which do not apply to the jailor. His (the jailor’s) is only a common law liability, so that upon the action against him, actual negligence must be proved and actual damage shewn. If the sheriff wishes an indemnity from his jailor, all the old books say he must take a bond from his deputy, whereby his common law liability will be altered and his responsibility enhanced.

The responsibility of the sheriff has been assimilated to that of a common carrier, (the owner of a ship fcr instance,) who is subjected upon grounds of policy for all losses, except those occasioned by the act of God or the public enemy, yet his servants and agents are only responsible to him for reasonable care and diligence and skill.

If the jailor were considered a wrong-doer and liable in the same degree and upon the same principles as the sheriff, yet the general rule is, that there is no contribution between wrong-doers, 29 E. C. L. R. 37, and indemnity stands on the same ground. Merryweather v. Nixon, 8 T. R. 186.

Pearson, J.

One Fleming, who was in jail under a capias ad satisfaciendum, escaped. The plaintiff was sued, as sheriff, and forced to pay a large amount to the creditors, and brings this action against the defendant, his jailor, and declares upon an undertaking to keep the said Fleming faithfully and securely, and on failure to indemnify and save the plaintiff harmless from all loss or *655damage. It is stated in the case agreed, that Fleming made his escape without the knowledge or consent, or actual negligence of the defendant.

The defendant by his counsel admits, that there was an implied undertaking to keep the prisoner faithfully and diligently, but denies, that the law implies ail undertaking to keep safely or to indemnify.

The Judge in the Court below so decided. To this the plaintiff excepts. There is no error.

For the plaintiff it is said, the sheriff is by law bound to keep prisoners safely. The defendant, when he undertook to act as jailor, must be presumed to have done so. with reference to this liability of his principal; hence* there is an implied undertaking on his part, so to act as to prevent his principal from being subjected to loss; or, in other words, there is an implied undertaking to keep safely or indemnify.

For the defendant it is said, the general rule is, that agents, servants, and bailees, where the contract is for the benefit of both parties, are only liable for ordinary neglect. In the case of sheriffs, common carriers, and innkeepers, an exception is made; they are held liable as insurers, except against “the act of God, and the King’s enemies,” upon the ground of public policy. This reason does not extend to their deputies, agents and servants.— Therefore, the latter do not fall under the exception, but stand under the general rule.

The argument for the plaintiff cleaidy shows the expediency of taking a bond of indemnity, (as sheriffs usually do.) But if he neglects to do so, non constat the law will imply an undertaking to keep prisoners safe or indemnify. An undertaking to act faithfully and diligentljvis implied by law. This, the jailor is able to do, if he will. B-t when it comes to insuring, that prisoners will be kept safely, and indemnifying against acts beyond the control of the jailor, and which do not fall within the reach of *656ordinary diligence, it is clearly a different question. This higher obligation, which the law, from motives of public policy, imposes on the superior, can only be imposed on the inferior by an express undertaking. Public policy is satisfied by hcldingthe superior responsible. As between him and his jailor, the general rule applies, unless there be an express agreement to indemnify.

To illustrate r a rail road company, as a common car. rier, is bound to insure every article bailed to be carried ; because, public policy requires it, and it is presumed the rates are fixed in reference not only to the trouble of carrying, but to this liability.

This policy does not extend to the conductor of a train, and there is no presumption, that he has undertaken a higher degree of responsibility, than that which is imposed by the general rule, in the absence of an express undertaking to that effect, in consideration of higher wages.— -So, although the company be chargeable, as a common carrier, he is not liable over, without proof of a want of ordinary care.

. It is suggested, that if this liability is not implied by Jaw, it is unlawful to take a bond of indemnity and such bond is void ; and that the real purpose of taking these-bonds is not to add to the liability, but to increase the security.

It is against law to take a bond of indemnity, and thereby encourage or permit an unlawful act — as to give a stranger a key and free access to the jail. But an indemnity from the jailor is an inducement to make him more strict and vigilant in the discharge of his duties. Sheriffs have, for this reason, always been allowed by bond or express undertaking of jailors and deputies, to raise the responsibility of the inferior to the same degree as that imposed on the superior.

The practice of taking bonds has been so uniform, that we have not been able to find a single case like the'pre* *657sent. There is, however, an old case, in a report of high authority, which fully sustains our conclusion. — Atterton v. Harward, Croke Eliz. 349. That was case by a bailiff against a debtor for making his escape, whereby the creditor recovered of the sheriff, and he of the bailiff, on his assumpsit to save the sheriff harmless against all escapes ; and so the bailiff sought to recover of the debtor, for making his escape, by which tori he had been subjected to damage. Upon not'guilty, it was found against the plaintiff. The Court was of opinion, “that the bailiff was not chargeable to the sheriff by law, but by his assumpsit, and this being his voluntary act, shall be no cause to charge the defendant, but shall make himself liable.” But they argued, “if the bailiff had been chargeable bylaw, without such promise, an action did lie for him against the defendant, who caused him to be charged.”

Upon the authority of this case, in Kain v. Ostrander, 8 John. 207, it is said, “the usual course is to resort to his bond of indemnity, and if he has omitted to take one, the jailor is only answerable on his implied undertaking to serve the sheriff with diligence and fidelity.” And the decision is in favor of the jailor, on the ground, that there was no evidence of that culpable neglect, which is requisite to make a jailor liable.

Per Curiam. Judgment reversed.

Note. — In consequence of the indisposition of Judge Nash, very few opinions were delivered by him at this Term.