Hart v. . Lanier

10 N.C. 244

• Court: Supreme Court of North Carolina
• Decided: December 5, 1824
• Status: Published

Opinions

The act specifies two cases wherein the sheriffs shall be chargeable as special bail; one is where he returns no bail; the other, where the bail returned is held insufficient, then upon exception taken to it, and notice to the sheriff, he shall be liable. When a sheriff suffers the party to go at large without bail, he is not liable to an action for an escape, provided he have him on the return of the writ; but if he have him not then, or afterwards suffers him to go at large without proper authority, he is liable to an action. This is the law of England, because no provision is made there for the sheriff's becoming bail; but according to out law, if the sheriff suffer the party to go at large, he is not liable to an action for an escape, although he have not the body on the return of the writ, but must be proceeded against as special bail, in which case he may make a surrender at any time before final judgment. When the defendant is arrested, and escapes on the way to prison, it evidently was not the intent of the sheriff to make himself liable as bail; he meant to secure the body, and every presumption of his becoming bail is excluded by the fact that the escape was against his will. Whether the escape was made under such circumstances as would amount to a rescue, either by the party himself or others, for which the sheriff would not be liable on mesne process, it is not now in question, the only inquiry being whether, when he returns an escape, he can be proceeded against as bail. I am of opinion he cannot.