
    Jones and Lee against Pemberton, Sheriff of Sussex.
    An action of debt for an escape is a transitory action, and the plaintiff may lay the venue in any county he pleases.
    This was an action of debt, brought against the sheriff for an escape. The venue was laid in Essex county, and, on a motion for the defendant to change the venue,
    
    
      I. Williamson, for the motion,
    produced the affidavit of defendant, which stated, that the cause of action, if any, arose in the county of Sussex, and not in Essex; that all his witnesses reside in Sussex, and, he believes, all the witnesses on the part of the plaintiffs reside there also.
    
      He then contended that the action of debt for an escape was a local, and not a transitory action, and that the venue ought to be laid in the county where the cause of action arose. 2 Lill. Abr. 782; Imp. C. B. 270; 1 Com. Dig. 170, title Action M. 12; Sherid. Pr. 37.
    The case of Bennion v. Watson and Elwicke, (Cro. El. 625) shews a distinction to exist between debt and case for an escape. The latter is founded on the tort alone; blit even in case, the action must be brought either in the county where the arrest was made or the escape took place. This is not the only instance in which an action of debt is a local action, even when another action which is transitory may be brought for the same cause. In Thrale v. Cornwall, (1 Wils. 165), the same distinction is taken between debt and covenant for rent, the former being held to he local, the latter transitory. 1 Bac. Abr. 56, S. C.
    
    
      M’ Whorter, contra,
    read the affidavit of Jones, one of the plaintiffs, stating, that he cannot have an impartial trial in Sussex, and denying that all his witnesses reside in Sussex.
    *Upon the general ground assumed by the plaintiff', that this action is a local one, it is contradicted by many authorities. Styles (Pr. Peg. 304-5) supports the doctrine, that an escape in one place is an escape everywhere. The distinction between debt and case is altogether a new one, and is not warranted by any decision. Nor is there any other foundation for the doctrine, that this action is local, than Lilly, to whom all the authorities cited refer. The case of Griffith v. Walker (1 Wils. 336), is very analogous. That was an action against the sheriff for a false return, and it was argued, that the venue was improperly laid, because not in the county of Radnor, of which defendant was sheriff and it wrns urged, that whatever acts the sheriff does in his office, must be done, or the law supposes them to be done, in his own county. The counsel for the plaintiff compared it to an action for an escape, which may be brought anywhere. And the court, in giving their opinion, say, the falsity of the return is the cause of action, and that which is wrong, is so universally and everywhere, like an escape.
    The case of Ludlam v. Liddel, in this court in April, 1786, was an action against the sheriff of Morris for an escape, and the venue was laid in Hunterdon.
    1 Crovipt. 109, mentions the old rule, that actions for escapes were local, but says, that now that rule is not observed.
   Per Curiam.

This is an application to the court, on the part of the defendant, to change the venue; and the ground principally relied upon in the argument is, that the action is in its nature local, and cannot, therefore, be brought in Essex. This ground, however it may be warranted by some expressions in the older writers, cannot be recognized as law at this day. This action is transitory in its nature, and; consequently, the venue may be laid in any county which the plaintiff may think proper to select. The question seems to be put at rest by the case of Platt v. Sheriff of London (Plowd. 35). That was an action of debt for an escape in the county of Surrey, and one of the grounds taken by the defendants was, that the arrest, being in London, where .alone they had authority, there could be no escape in Surrey, where they never could have arrested the prisoner. The answer given was precisely that which has been given here: “ if the sheriff lets one go at large in London, and *he goes into divers other counties, the party may have an action of debt against the sheriff in every county where he who is let at large shall go." A case in 30 H. 6, was cited, as in point. And judgment was given for the plaintiff. This case, solemnly argued, and deliberately decided upon this question, destroys the distinction which has been taken between debt and case, which in itself is utterly incomprehensible. In 1 Lili. Abr. 537, it is laid down generally, that an escape in one place is an escape in all places : for if a prisoner be once escaped and at large, it shall bo intended he is confined to no place, but may go at large where he pleases. So that for an escape, the party whose prisoner is escaped may bring his action for the escape in what county he pleases, for the action is not local but transitory. 1 Grompt. 109. In an action for an escape, it is not of cause to change the venue; escape is not a local action. This seems to have been the practice in our own courts. The rule must therefore be discharged.

Rule discharged.  