
    
      John A. Cook v. John B. Irving.
    
    The sheriff may suffer a prisoner arrested on mesne process to go at large, without being liable for an eseape, but the bail bond is the only sufficient excuse which he can have for not bringing in the.body at the return of the writ.
    
      Before Wardlaw, J. at Charleston, May Term, 1848.
    This was an action on the case against the sheriff, for the escape of Otto Tityen, who had been arrested under a bail writ, at the suit of the plaintiff.
    The plaintiff produced
    A writ in assumpsit, Cook v. Tityen, lodged in the office of the sheriff, 25th September, 1846, marked for bail.
    The affidavit of plaintiff, annexed thereto, that Tityen was indebted to him in the sum of $175, exclusive of interest, by a note long since due.
    Evidence that with the writ, there had been left at the sheriff’s office notice that Tityen was about to leave the State.
    The return of defendant, that Tityen had been arrested, but had escaped from Payne, deputy sheriff
    Tiie note of Tityen to plaintiff, dated 29th August, 1840, for $175, at sixty days, with evidence of Tityen’s hand writing thereto, and that about a year before the lodgment of the writ, he said to .an agent of the plaintiff, who demanded payment of the note, “I will call and settle.”
    Of Tityen it appeared that he had once kept a shop in his own name, but his stock had been sold out about 1840; after-wards he had kept a small liquor shop, as agent for one Gertz ; had been considered insolvent; had been importuned in vain, for small debts; had standing against him, besides smaller judgments, a judgment in favor of Bullwinkle, for $2015, obtained before 1841, upon which at least $700 had been paid ; was of good repute for character and conduct until he forfeited the confidence of his friends, by going off as he did; and since his departure, has been heard of in New York.
    
      John Seigling, Esquire,
    
    a witness for the defendant, testified as follows : “ In September, 1846, 1 was in the Clerk’s office ; 'I’ityen came in to see Mr. Horlbeck, the Clerk; sheriff Irving entered, and having learnt Tityen’s name, said to him, “I have a bail writ for yon.” Tityen was much sur-, prised, and being told that he must give bail or go to jail, seemed altogether overcome. Irving said that he would give all the indulgence consistent with his duty. Tityen-sat in the office, and Eikerenkotter (a friend who came with him) went to hunt bail. Irving said, “ if he is unsuccessful, Payne shall go with you.” Irving then went out, leaving Payne, his deputy, with Tityen. After a while, Tityen said he was afraid Eikerenkotter would go and alarm his wife: that he himself would arrange the matter, if he could see Cook, and that he wished much to go to his house. Payne agreed to go with him, and Tityen requested me to go also, which, after some observations by him, of the readiness of the world to desert one in distress, I consented to do. We went to his house at the corner of Meeting and Henrietta streets, where, as I knew, he lived with his wife. When he got into the back room, he requested Payne to let him go up stairs and get his wife to send for Cook. Payne seemed desirous of going up with him, but being reproached about going into a lady’s bed-chamber, and seeing there was no outlet but by the stairs where he was, let Tityen go alone. Payne sat down to write the bail bond — waited about ten minutes, and then spoke to me of the delay. I thought the wife was dressing. Payne called out — there was no answer, and he went up stairs, and cried out that Tityen was not to be found. I went up and examined, and found that Tityen must have gone, somehow, out of a window fifteen feet high, upon a brick pavement. No impression was left. The wife was not there. I saw by the clock, that the hour for the departure of the Wilmington boat had just passed, and said to Payne, “ he’s gone by the boat, and it is vain to follow.” This was found to be true. I was greatly surprised to find that Tityen had gone; saw nothing in Payne’s conduct which I considered improper in a vigilant officer, and indeed when he spoke of the delay, thought him unnecessarily suspicious.”
    The conversations mentioned by Mr. Seigling, are those which are objected to in the first ground of appeal. His Honor considered them, part of the res gestee.
    
    He instructed the jury, that under our Act of 1839, notwithstanding the insolvency of Tityen, the plaintiff was entitled to recover at least enough to cover costs, if the sheriff had been at all in default.
    That the law required extreme diligence from its officers, but permitted, if it did not enjoin, such indulgence to persons arrested under mesne civil process, as was required by humanity, or by the right of the person arrested to have such reasonable chance of obtaining bail, as afforded no probable opportunity of escape ; that if all the precautions, which a very i prudent person would, under the circumstances, have taken, were taken by Payne, neither the visit to Tityen’s house, nor the permitting Tityen to be out of sight, in a room which was guarded and might have been considered secure, of itself necessarily shewed the sheriff’s liability. The jury must judge whether there was any negligence.
    That if no notice of Tityen’s intention to leave the State had been given to the sheriff, the negligent keeping of him by the sheriff would not have been excused; such notice did not require the sheriff to be unnecessarily harsh; and so, leaving the fact of negligence to be judged of by the jury, he intimated an opinion, that the circumstance of the notice having been given, (of which much had been said in the argument,) was not of great moment.
    The jury found a verdict for the defendant.
    The plaintiff moved the Court of Appeals for a new trial, on the following grounds:
    1. Because his Honor allowed evidence of the statements of Tityen and Dr. Irving to go to the jury.
    2. Because his Honor charged the jury that although special notice was given to the sheriff of the intention of Otto Tityen to go away from the State, it did not authorize or enjoin on the sheriff any additional diligence.
    3. Because the deputy’s allowing Otto Tityen to go out of his sight, was not such diligence as is enjoined by law.
    4. Because the verdict was, in other respects, contrary to law and evidence.
    
      Kunhardt, for the motion.
    
      Petigru, contra.
   Curia, per Eva:ns, J.

It is conceded that if the debtor had been arrested on a ca, sa, the sheriff would be liable. According to all the authorities nothing will excuse the sheriff, if a prisoner arrested on final process be at large, but a rescue by the public enemy, the act of God, or a discharge by due course of law. Such imprisonment is one of the means of enforcing the judgment of the Court, to compel the payment of the debt, or an assignment of the debtor’s property. But on mesne process, when no debt or damages have been established, the law allows of bail process as a mere security that the body of the debtor shall be forthcoming at the return of the writ to answer to the plaintiff’s action. Every indulgence, therefore, consistently with this object, may be lawfully extended to the prisoner. It is laid down in 3 Bac. Ab. last Am. ed. title Escape in Civil Process, D. P. 404. “ After an arrest on mesne process the jailor may suffer the prisoner to go at large, provided he have him at the return of the writ, but if a defendant taken in execution be seen at large, for any, the shortest time even before the return of the writ, the sheriff will be chargeable for an escape ; for it is his duty to obey the writ; and the writ commands him to take the body of the defendant and him safely keep, so that be have the bo-1 dy to satisfy the plaintiff.” In Lewis v. Borland, it is said an attachment for not paying over money is in the nature of mesne process and the sheriff is not liable for an escape in permitting the defendant to go at laige, provided he have him at the return of the writ. As to indulgence to a prisoner on mesne process, all the authorities agree, but all annex the proviso that the sheriff have the body at the return of the writ, or its substitute, the bail bond, which he is required by the Stat. 26 H. 6, c. 10, to take. I have looked through most of the cases on the liability of the sheriff for escape, and I no Avhere find any intimation that it is any excuse for the sheriff that the defendant on mesne process escaped out of his possession by force or fraud, except in the case of rescue by others. If the prisoner be forcibly taken from him, this will excuse in mesne process, although it will not on final process ; and the reason assigned is that in one case he should call the posse commitatus to his aid, in the other may not. The sheriff’s liability, in none of the cases, is made to depend on the question of diligence or negligence. He may be as indulgent as he pleases to the defendant. He may even put in bail for him, but at the return of the writ he must produce the body or the bail bond. In the argument in the case of Plumtree it is assumed as law, that the only sufBcient excuse which the sheriff can have for not bringing in the body, is the bail bond, which in that case he was allowed to put in himself before the return of the rule. — And it does seem to me, on a full examination of the authorities, that this is the law by which this case is to be decided. The facts as proved on the trial were that the prisoner, by false representations, induced the sheriff to grant him certain indulgences, of which he availed himself to escape. It might admit of doubt, if the case depended on negligence or vigilance, whether, after the notice that the defendant was about removing, the sheriff’s deputy did use every prudent precaution to prevent it. The plaintiff has no right to complain of the indulgence shewn to the prisoner. The law allows it not at the risque of the plaintiff’s responsibility. If it were necessary to assign a reason for this principle a sufficient one will be found in the fact, that after the arrest the prisoner is in the sole custody and possession of the sheriff and his assistants. In general none others could be called to prove how an escape was effected. It would be easy, by concert, to effect an escape, with the outward shew of much diligence to prevent it. The position of a sheriff is like that of a carrier, who for similar reasons is held to the strictest accountability. It is said that to hold the sheriff liable where he has been guilty of no negligence is against the spirit of the age. I know that to some every species of restraint on personal liberty to enforce legal liabilities is looked upon as a remnant, of a barbarous age. It may be so, but this Court has no power to make the law. I may be permitted, however, to say, that the harshness of the ancient law, so far as the debtor is concerned, has been almost entirely repealed. The object of imprisonment as now regarded is to compel the debtor to pay the debt or to surrender his effects to his creditor: and if he be honestly minded to do so, he may, by an assignment of his estate, be discharged, with very little restraint on his personal liberty. The motion for a new trial is granted.

Richardson and O’Neall, JJ. concurred.

Motion granted.  