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Ruggles v. Bucknor.

and paid the draft. Under these circumstances, this can be viewed in no other light than as a voluntary payment, with full knowledge of all the facts. It is not pretended but that something was due on account of the general average, from the owners of the cargo on board, at the time the injury was received. The objection goes only to the amount; and whether even this is well founded, does not very satisfactorily appear from the case ; at all events, it is too late as to the defendant to open the account. Nor can he have any cause of complaint. He has only paid the draft of him who assumed to be responsible for the general average ; and this payment made too, after time taken for consideration and advice on the subject. And it is perhaps fairly to be inferred from the case, that in so doing he acted under the special instructions of the drawer of the bill. For when the bill was first presented to him, he said he had received orders not to pay it; but some few days after he accepted and paid the bill. The cause of this change of determination is not disclosed. But as the defendant professed to act under instructions from some quarter, it is reasonable to conclude they proceeded directly or indirectly from the drawer of the bill, so as to give to the payment his sanction. But whether this be so or not, the defendant is concluded by his voluntary payment, and is not entitled to any deduction from the verdict on this account.

I am accordingly of opinion that the plaintiff is entitled to judgment upon the verdict as found by the jury.

CIRCUIT COURT OF THE UNITED STATES.

NEW-YORK, APRIL TERM, 1825, AT NEW-YORK.

BEFORE

Hon. SMITH THOMPSON, Associate Justice of the Supreme

Court.
Hon. WILLIAM P. VAN NESS, District Judge.

THE UNITED STATEs v. M. M. Noah, SHERIFF, &c

Under the act of Congress of 6th January, 1800, the Sheriff of a county is bound

to take a bond for the limits, as provided by the state laws, from a prisoner confined on process from the Courts of the United States, and false impri

sonment would lie on his refusal. Such a bond has in all respects the same incidents and the like legal effect

with a bond taken under the state laws. It is assignable, and an assignment discharges the Sheriff from liability for a

subsequent escape. The United States are expressly named in the act, and bound by it, and an as

signment of a bond to them when they are plaintiffs, is valid. The Secretary of the Treasury having accepted such an assignment, the Court

presumed that he was authorized, and held the plaintiffs bound by his ac

ceptance. The term process, in the act, includes executions as well as mesne process. After a prisoner bas been enlarged upon a limit bond, the Sheriff can confine

him again only on the bail's becoming insufficient. He cannot accept a sur. render of him--certainly not after an assignment of the bond.

United States v. M. M. Noah.

ERROR to the District Court of the Southern District of New-York.

The plaintiffs brought an action of debt in the Court below againt the defendant as Sheriff of the city and county of NewYork, for the escape of one Joseph Wilson, a prisoner committed to his custody on a capias ad satisfaciendum, at the suit of the plaintiffs.

At the trial it appeared that the plaintiffs on the 4th of May, 1819, issued a ca. sa. on a judgment against Wilson, directed to the Marshal of the district, on which he was taken, and afterwards delivered over under the act of Congress to the Sheriff of the city and county of New York. The desendant on coming into office received the prisoner from his predecessor, and on the 10th of April, 1821, enlarged the prisoner upon a bond for the limits, which bond was afterwards assigned under the statute of the state to the plaintiffs, and the assignment accepted by the Secretary of the Treasury through the District Attorney. After the assignment of the bond, the surety offered to surrender the prisoner, and demanded that the bond should be cancelled, both which were refused by the defendant; and subsequently, on the 28th day of November, 1822, the prisoner escaped.

R. TILLOTSON, D. A. for the plaintiffs.

E. W. KING for the defendant.

THOMPSON, J. This case comes up on a writ of error to the District Court of the United States for the Southern District of New-York, on a judgment in favour of the defendant in error

United States v. M. M. Noah.

The suit in the Court below, was an action of debt, against the defendant as Sheriff of the city and county of New York, for the escape of one Joseph Wilson, a prisoner committed to his custody on a capias ad satisfaciendum, at the suit of the United States. Wilson, after his commitment, was not permitted to go at large, nor did the alleged escape take place, until he had duly entered into bond for the jail liberties pursuant to the law of the state of New-York; and the only questions which arise here are, whether the Sheriff was authorized to take such bond and set the prisoner at liberty, and whether such bond, having been assigned to the plaintiffs, an action can be sustained against the Sheriff for the escape.

Congress, by a resolution of the 23d of September, 1789, recommended to the legislatures of the several states, to pass laws making it the duty of the keepers of their jails to receive and safe keep therein, all prisoners committed under the authority of the United States, until they should be discharged by due course of the laws thereof, under the like penalties, as in the case of prisoners committed under the authority of such states respectively.

The state of New-York, in 1801,4 passed a law making it the duty of the Sheriffs of the several cities and counties of the state, to receive into their respective jails, and safely keep, all prisoners who shall be committed to the same, by virtue of any process to be issued under the authority of the United States; and in case any prisoner should escape out of the custody of any Sheriff or keeper to whom such prisoner might be committed, such Sheriff or keeper is made liable to the like actions and penalties, as he would have been, had such prisoner been committed by virtue of any process issuing under the authority of the state.

By an act of Congress passed the 6th of January, 1800, it is provided that persons imprisoned on process issuing from

a 1 Vol. L. N. Y. 208, K, and R. revision.

b 3 Vol. L. U, S. 301.

United States v. M. M. Noab.

any Court of the United States, as well at the suit of the United States, as at the suit of any person or persons in civil actions, shall be entitled to like privileges of the yards or limits of the respective jails, as persons confined in like cases on process from the Courts of the respective states are entitled to, and under the like regulations and restrictions."

These laws and the resolution of Congress are in pari muteria, and to be construed together. The object of Congress was to obtain permission from the respective states, to have the use of their jails for the safe-keeping of prisoners committed under process from the Courts of the United States. This state granted this permission, and Congress adopted the state laws as to the privileges of the yards and limits of the jails, to be allowed to such prisoners.

Under the act of Congress, Wilson had a right to demand of the Sheriff to be admitted to the privilege of the limits in the same manner as if he had been committed on process from a state Court, and we must look to the state law to ascertain what that right was ; and by that law e it is expressly made the duty of the Sheriff, to permit any prisoner who shall be in custody on civil process only, to go at large within the. limits of the jail liberties, provided he gives a bond with sufficient sureties, in double the amount of the sum for which he is confined ; conditioned to remain a true and faithful prisoner, and not to escape or go without the limits of the liberties of the jail until discharged by due course of law. Such bond was duly made and delivered to the Sheriff ; and he no longer had any authority over the person of Wilson, to prevent his going at large wherever he pleased. The Sheriff however is not exonerated from an action for the escape, should the prisoner go without the limits, and he must look to his bond for indemnity. Such bonds however are made assignable, and it is made the duty of the Sheriff, upon the request of the

CIR L. 429.

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