STATE OF TENNESSEE, to Use of UNITED STATES, v. HILL et al., 60 F. 1005

BARR, District Judge, after stating the facts as above, delivered the opinion of the court. Many errors have been assigned, but we need only consider whether the suit as brought was maintainable.

The opinion of the court is very brief, but the learned judge seems to have been of the opinion that no expenses incurred by the United States in causing the indictment, arrest, or removal of the prisoner, nor the expenses of his recapture, could be recovered against the sheriff and his sureties, unless such expenses could have been recovered against the prisoner had he been convicted, and that the fines which might have been assessed against him, had he been convicted of the offense or offenses charged, could not be considered in estimating the damages unless the prisoner had been previously convicted and fined.

It may be conceded that, had said Boalen been tried and convicted, none of the expenses alleged to have been incurred by the United States could have been assessed against him, and judgment rendered therefor on the indictment. But this is- not an action at law against a sheriff for an escape in wkick the measure of damages is couflned to the interest which a creditor has or might have in liis imj>risoned debtor. It is an action on the official bond of a sheriff, in which one of the obligations is that he will faithfully perform Ms duty as sheriff.

Among other duties, the sheriff has the charge and custody of the jail of his county, and the prisoners legally committed therein, until discharged by law. This includes federal as well as state prisoners, and the Tennessee statute makes the sheriff civilly responsible for the acts of the jailer whom he appoints. Code Tenn. §§ 6238-6242. The sheriff executed his bond to (he state, but any party aggrieved can under the statute sue on the bond in the name of the state, and in such cases the suing party is considered the real plaintiff. Id. §§ 3492-3494.

The district court has, by the express terms of the act of congress, jurisdiction of all suits at common law brought by the United Htales; hence there is no difficulty as to the jurisdiction of that court, if there is a cause of action on this bond alleged in favor of the United States.

It is insisted that although Boalen was in the legal custody of the sheriff, and his escape is alleged to have been by the negligence of the sheriff, the United States cannot maintain an action for his escape, because the United States, in the arrest and punishment of offenders against its laws, acts as sovereign, and not in its corporate capacity, and, therefore, cannot have an action for damages, whatever may have been the negligence of a jailer in allowing the escape of the prisoner, Boalen; and Cotton v. U. S., 11 How. 229, and South v. Maryland, 18 How. 396, are referred to as sustaining this proposition.

Cotton v. U. S., 11 How. 229, was an action of trespass qnare clausum fregit brought by the United States against Cotton for cutting and carrying away pine timber from the lands of the United States. The error complained of by Cotton was the refusal of the trial court to ins!met: “

(1) That the only remedy for the United States for cutting pine timber on public lands was by indictment; (2) that the United Slates have no common law remedy for private wrongs.” The supreme court sustained this refusal of the lower court, and there is nothing in the opinion sustaining the distinction suggested. Indeed, the court say, in answering the suggestion, that an indictment was the only remedy; that “the punishment of the public offense is no bar to the remedy for the private injury.” In South v.

Maryland, reported in 18 How. 396, the action was against a sheriff and his sureties for his refusal and neglect in not rescuing one Pottle from mob violence, and the court held the action could not be maintained. The court held that the duty of the sheriff to protect Pottle from mob violence arose from his being a conservator of the peace, and his neglect was not merely the neglect to perform a ministerial duly. In the opinion the court divided the duties and powers of a sheriff at common, law into four distinct classes.

In the ministerial class are put the duty of a sheriff as keeper of the county jail, and his liability for the safekeeping of prisoners committed to his custody.

The court says, in the course of the opinion: “It is an undisputed principle of the common law that for a breach of a public duty an officer is punishable by indictment; but where he acts ministerially, and is bound to render certain services to individuals for a compensation in fees or salary, he is liable for acts of misfeasance or nonfeasance to the party who is injured by him.” in this case an individual was suing; hence, the use of that word by the court. .But the question of the liability of a ministerial officer in a civil action for misfeasance or nonfeasance to a state or the United States was neither presented nor considered by the court.

Neither is there any suggestion of a distinction between the sovereign powers and the corporate capacity of the United States as to the right to institute a civil action. The sovereign power and corporate capacity of the United States are so intermingled that it is often impossible to separate them, or to know when one ceases and the other commences.

But, whatever may be the distinction, it can have no relation to the right of the United States to bring a civil action or to defend one, if they so elect. 'It is argued, however, that as there has not been a trial of Boalen, and it is not alleged he was guilty of the crimes for which he is indicted, and for which he may be fined if guilty, there can be no recovery, because the alleged negligence of the jailer has not caused the United States any pecuniary injury, but rather the contrary, as the escaped prisoner was no longer a charge upon the United States.

This argument overlooks the fact that the United States, in arresting and imprisoning Boalen, who was charged with the violation of its criminal laws, acted under an undoubted power, and in the performance of a duty, and that, in the exercise of this power and the performance of this duty, it has expended money in causing the arrest, removal to Nashville, and the imprisonment there, of Boalen, to secure Ms trial for indictable crimes, and that the benefit of the money thus expended by the United States has been entirely lost by the negligence of his jailer. 'Such actions as this are unusual, but this fact is certainly not conclusive against the right, since criminal proceedings against an officer who has given bond for the faithful discharge of his duties, for misfeasance or nonfeasance in office, may have proven to be the more efficient remedy.

No decision has been cited in which the right of action in such a case as this one has been denied, and there are two cases at least in which such right of action has been recognized and sustained. Com. v. Reed, 2 Bush, 618, 3 Bush, 516. In Com. v.

Reed, 2 Bush, 618, the Kentucky court of appeals sustained an action on a sheriff’s bond against him and his sureties for the negligence of the sheriff in failing to arrest a person on bench warrants issued on indictments for unlawful gaming, and for willfully taking insufficient surety on bond for the appearance of another person whom he had arrested for the same offense. The court of appeals, by C. J.

Robertson, in the opinion said: “Although there may be no precedent for any judicial recognition of such a remedy, yet we perceive no reason why it should, not be available; and it seems to us that principle sanctions it, and that it is sustained by both the common and statutory.law of Kentucky.” This court, in another part of the opinion, say: “Nor is the muleterminateness of the damages, and the difficulty of ascertaining tlieir precise amount by any certain or fixed standard, a sufficient answer.

The same difficulty occurs in many other classes of action undoubtedly maintainable.” In this case the Tennessee statute makes tire sheriff civilly responsible for the acts of the jailer whom he appoints, and as we have seen the United States may sue, and a cause of action is alleged in the declaration, the demurrer should have been overruled. The measure or extent of damages is not now before this court, and we do not indicate an opinion thereon.

The judgment of the district court sustaining the demurrer to the declaration and dismissing the action is reversed, and the district court is directed to set aside said order, and proceed in conformity with this opinion.