
    Koones vs. Maddox.
    June, 1827.
    An action of debt for an escape can be maintr.it'c J^p.gainsl a sheriff, who having arrested a defendant on a capias ad satisfaciendum, permitted him to go at large until the return, day of the writ, although the sheriff then brought the defendant into court.
    Appeal from Saint-Mary’s County Court. Action of debt for $219 95, against the appellee, formerly sheriff of that county, for an escape. The declaration staled, that in Saint-Mary’s county court, at March term 1819, D Koones, (the appellant.,) and II. Koones, in the lifetime of H. Koones, recovered judgment against a certain E. Wilder for $177 02 debt, $350 damages, and $6 65 costs. That on the 20th of March 1820, a writ of capias ad satisfaciendum was issued on the said judgment, directed to the defendant, (the appellee,) the then sheriff of the county. That on the 1 st of April 1820, the said execution was delivered to one T. W. Morgan, he then being the lawful deputy of the defendant, &c. That Morgan, being such deputy of the defendant, on the 1st of May 1820, by virtue of the said writ, arrested and took in execution the said Wilder, and permitted him to go at large and escape, &c. whereby an action accrued to the plaintiff to demand and have, of and from the defendant, the said sum of $219 95 above demanded, being the debt, damages and costs, and charges aforesaid, &c. The defendant pleaded nil debet, and issue was joined.
    At the trial the plaintiff proved that judgment was obtained in Saint-Mary’s county court by the plaintiff, and H. Koones his partner, in the lifetime of the said H. at March term 1819, for $177 02 debt, with interest, &e. and costs, against a certain Edward Wilder. That the said judgment was kept regularly alive; and on the 20th of March 1820, a writ of capias ad satisfaciendum was issued against Wilder, and delivered to Maddox, the defendant, then being the sheriff of the said county; and that Wilder was arrested by virtue of the said writ on the. 1st of May 1820, by Maddox, sheriff as aforesaid, and by him on the,same day set at liberty, and permitted to go at large, nobody being with him, Wilder, from that period until the 8th of August in the same year, when Wilder was brought into court by Maddox, sheriff as aforesaid, and ordered by the said court to be discharged from the custody of Maddox, sheriff as aforesaid — he Wilder, having petitioned for the benefit of the insolvent laws of this state. That when the writ of capias ad satisfaciendum was delivered to Maddox, sheriff as aforesaid, it was accompanied by written instructions from the plaintiff’s attorney, directing, that so soon as Wilder was arrested and taken on the .said writ, he should be put into close confinement,,anti there detained until regularly and legally discharged. The plaintiff then prayed the court to instruct the jury, that they must find for the plaintiff. But the Court, [Key and Plater, Á. J.] refused to give such instruction. The plaintiff excepted; and the verdict and judgment being for the defendant, the plaintiff appealed to this court.
    The case was argued at June term last before Buchanan, Ch. J. and Stephen, Archer, and Dorsey, J.
    
      Causin, for the Appellant,
    contended, 1. That a sheriff is liable to an action for a voluntary escape upon process of execution. 2. That he was liable to the full amount of the debt. The action of debt is given against a sheriff for an escape. Jones vs Pope, 1 Saund. 38. A sheriff is liable, in an action of debt, for an escape upon process of execution for the whole sum due by the original debtor — debt, interest and costs; in other words, he stands in the place of the original debtor. In support of this position the court are referred to Hawkins vs Plomer, 2 W. Blk. 1048, 1050. Bonafons vs Walker, 2 T. R. 132, 133. It is admitted, that in cases of escape upon mesneprocess, if the sheriff have the party in court at the return day of the writ, his liability is discharged; but it is denied, that in a case of voluntary escape upon final process, as the present is, that any act of the sheriff can purge the escape. Ravenscroft vs Eyles, 2 Wils. 295. Jones vs Pope, 1 Saund. 35, (note.) Atkinson vs Matteson, 2 T. R. 172. Thus, according to the British adjudications, it appears that the appellee is liable for the whole debt due by Wilder to the appellant. It remains only to be shown, that the statute which regulated the decisions referred to, has been acted under, and obtains in this state. In order to establish this position, the court are referred to Kilty’s Report of Statutes, 221. Statutes made at, Westminster, 1 Rich. II, ch. 12. 2 West. 13 Edwd. I, ch. 11. Pulver vs M‘Intyre, 13 Johns. Rep. 503. Kellog vs Gilbert, 10 Johns. Rep. 220; and French vs O’ Neale, 2 Harr. & M‘Hen. 401.
    
    
      C. Dorsey, for the Appellee.
    It is conceded that an action of debt for escape upon final process, after arrest and before the return day, is given to the creditor in England against the sheriff by a liberal expansion of the language of the statute of 1 Rich. II, ch. 12. By the common law no such action was given. The remedy was case, grounded upon the official misfeasance of the sheriff, where damages were recovered, and not of necessity the debt due from the debtor, and on which he was in execution. Jones vs Pope, 1 Saund. 38. The right of the creditor in this state to sustain the action, depends on the question, whether the statute of 1 Rich. II, at the time of the declaration of rights, “had by experience been found applicable to the local and other circumstances of the colony.” 3d Section of the Bill of Rights. The statute of the 1 Rich. II, chap. 12, gives to the creditor the action of debt against the warden of the fleet, upon an escape out of execution. The “ Warden of the Fleet” is the gaoler of the Fleet Prison. The liberal construction, therefore, of the statute is, that when a debtor is committed to the “gaoler” in execution, and he suffers him to escape, an action of debt may be sustained. The policy of the English courts soon expanded the statute; and by a principle of construction familiar to their courts of enlarging the remedy in all cases of “like evil,” extended it to all prisoners, and to all sheriffs and gaolers. In the case referred to by the counsel for the appellant, of Hawkins vs Plomer, 2 W. Blk. 1048, the court applied the action of debt for an escape, “where there was no commitment (upon final process,) permitted, before the return day.” Thus progressively expanding the remedy in conformity to the commercial spirit of the nation, to afford to the creditors every facility of recovering their debts, and based upon that maxim adopted in the “rudeness of early times of qui nonhabetin crumana ndt in corpore,” a principle reprobated by the' liberal feelings of these times. The legislative records furnish sufficient evidence that the colony deemed the statute of 1 Richard II, chap. 12, inapplicable to the local and other circumstances of the colony; for we find that in 164.2, ch 42, within 12 years after the charter, they passed a law, “providing some rule for execution.” By which they enacted, that “if the sheriff, after there is a prison built, suffer a party in execution to go at liberty out of prison, without consent of the chiefest creditor, he shall be liable as in case of escape.” This law was permitted to expire. In 1669, ch, 5, another law was passed, entitled, “An act for the relief of prisoners taken in execution;” this was repealed by 1676, ch, 2. The provisions of this bill cannot be ascertained from any of the compilations. In 1676, ch. 17, it is provided, “that when persons are taken in execution for debt, or on mesne process, the sheriff shall keep them by such means, and in such manner, as prisoners in England are, and may he restrained.” This law was to be in force for three years, and was afterwards continued by several reviving acts until 1692, when a new law was passed, which was afterwards repealed. These old acts of legislation show that after prisons were built, the sheriff should not suffer prisoners to go at large without the assent of the chiefest creditor, thus modifying the statutory law of England. This, however, was abandoned, being found inconsistent with the interest of the colony, and precluding the smaller creditors deriving any benefit from a Ca. Sa. They then adopted the whole English system, and incorporated it in their laws. But the experience of a few years convinced them that the rigid system fitted for a commercial country, was not “applicable” to an infant colony, that required the aid of all for the protection of all, and that it could not permit its weakness to be added to by the confinement of its citizens in the prisons. The court have by this trial an abandonment of the English principles — a legislative declaration that the statute of 1 Rich. II, ch. 12, was not found applicable to the colonist. If the affirmative declarations of the colonial legislature sustain the position, that at that time the English system was repealed, it is contended that the court have no evidence that the system was afterwards recognized by the people, the legislature, or the judiciary. It is contended, that this court have no other criterion of deciding, that a statute has been deemed applicable to the local and other-circumstances of the state, than a decision of a court recognizing .the statute. In Whittington v Polk, 1 Harr. & 
      
      Johns. 250, the court say, that “it does not appear to the court there can be any other safe criterion by which the applicability of a statute to our local and other circumstances, can be ascertained and established, but that of having been used and practised under in this state.” The court also say, that the statute of 32 Henry VIII, ch. 2, does not exlend to this state, “the court, not knowing of any judicial decision by which the same has been adopted and introdued into this state as the law thereof.” In Dashiell v Attorney-General, 5 Harr. & Johns. 403, the court say, that Kilty’s Reports of the Statute, was compiled, printed and distributed, under the sanction of the state, for the use of its officers, and is a safe guide for exploring an otherwise very dubious path. In the above report the compiler notes, that the Statute of 1 Rich II, ch. 12, has been deemed applicable; yet he says, that the practice has been, (not under the statute,) but to sue either in ease, or on the sheriffs bonds, where the damages are under the control of the jury; and he refers to no instance within his recollection of an action of debt. Neither the judicial records of this state, nor the recollection of the oldest practitioner, furnish a case of an action of debt; grounded on an escape permitted after an arrest upon final process, and before the return day, and where the sheriff has produced the body on the return day. This universal silence on a subject which necessarily must have arisen somewhere in the state in each and every week for upwards of a century, and where passion, revenge and interest, must have prompted to fix a liability on the sheriff, is a strong argument to prove, that in the opinion of the profession no such action can be sustained. In Le Caux v Eden, 2 Douglass, 525, Buller, Justice, states there is no case wherever it has been holden that such an action (not this action,) can be sustained, and if it could lie, there are •such “frequent opportunities” for it, that it must have happened in every day’s practice, or some instances must at least be in the memory of those who have had long experience in Westminster Hall; but there is not the smallest trace, or even - dictum in any court of England, and this silence is a strong argument against such an action. Where a plantation or colony is settled by English subjects, all the English laws then in force are transferred to the colonies, subject, however, to such 
      restrictions and modifications as shall be adopted by their own provincial judicature, as compatible with their local and other circumstances. 5 Jacob’s Law Dictionary, tit Plantation, 159, It is contended, that the admitted absence of any judicial decision on tho liability of the sheriff in a similar case, and of the action of debt for an escape, affords a strong presumption that the provincial judicature refused to sustain the doctrine contended for, and modelled the doctrine of escape according ico the universal practice of this state. It is, therefore, contended, that the universal and long cor,t;nued practice of the officers of suffering a debtor arrested upon a final process to go at large till the return day of the process, has established a common law which the court ought to respect. The state has a common law unknown to the common law of England. Two instances now occur. A sheriff in England grants replevin, and takes bond. Here the clerk does it, without statute, and is sustained by usage. In England the court never grants a retorno habendo till judgment. Here the court grant it before judgment, without statute; the statute only regulating the practice. But if the court say that the English doctrine prevails, then there is no evidence that the statute 1 Rich II, ch. 12, has ever been introduced, and the party’s remedy against the sheriff’ must be grounded on the common law — An action on the case, or on the sheriff’s bond.
    
      Curia adv. vult.
    
   At this term,

JUDGMENT REVERSED  