
    Wool against Turner, Sheriff, &c.
    NEW YORK,
    Oct. 1813.
    afterS*iie has arrested a defendant on execution, 2 oís miles11 reeí route *to r>l, ™ «‘'dev Goner might mea” thJf execution1-6 and also went with him that distance, er’íifous™°in order that he might get his necessary apseellis wife” before he went to gaol, it was held not to be an escape, it being no more than a reasonable indulgence, from laudable and compassionate motives. ...
    THIS was an action of debt for the escape of one G. Gardner, arrested by the defendant on a ca. sa. at the suit of the defendant, ^ # . for 165 dollars and 55 cents. The declaration was in the usual form. The defendant pleaded, 1. Nil debet; 2. Recaption on foes^ Pursuit; 3. A voluntary return by the prisoner, before action brought, &C.
    The judgment and execution were produced at the trial; and it was proved that the defendant’s deputy arrested the defendant named in the execution, at Petersburgh, in Rensselaer county, and that the defendant suffered him to vo at large until Monday ,, n. o a J thereafter.
    ®a tfie Pai‘t of the defendant, the deputy-sheriff, having been released by the defendant, testified that he arrested Gardner in J . the afternoon ,i of Friday, the 27th September, on the road to Petersburgh, who said he could not pay the money, and the deputy told him he must take him directly to gaol. Gardner said if he could go to Moses’ tavern, perhaps he might settle the execution. The deputy went to the tavern with him, and after waiting until it was dark, Gardner said he must go to gaol, and requested the deputy to go home with him, in order that he might get his clothes and see his wife; and Moses and two others signed a written agreement, which was produced, by which they became responsible in case he should break, or escape from the deputy, while going to his house, provided he was not retaken by the deputy, or delivered at Troy, so as to be taken on Monday. The deputy having gone with G. to his house, a person there deposited one hundred dollars with the deputy, as security, in case Gardner should escape. Gardner then took his clothes, and went out of the house to go to gaol; and after going a short distance, about two rods, he said he could not go any farther, and there made his escape. On the Monday following the deputy saw Gardner again, in the village of Troy, and arrested him, and carried him to gaol.
    The deputy, on his cross examination, testified that when he arrested Gardner, Moses’ tavern was about two miles out of the way to gaol, and the house of Gardner one mile farther; that he staid at the tavern until it was dark, and when Gardner escaped it was so dark that he could not see a person at ten feet distance.
    That after Gardner escaped, the witness returned directly to his own house, without going back or pursuing him, and relied on his indemnity; that when he met Gardner, on Monday, it was unexpected ; and that he afterwards returned the 100 dollars he had received.
    
      Gardner, being called as a witness for the plaintiff, testified that he was arrested about three and a half miles from the tavern, and that the agreement between the deputy, and him and his sureties, was, that he might go home until the next Monday, on giving security and depositing one hundred dollars ; that he did not ask the. deputy to go home to get his clothes, &c.; but the deputy went there to get the hundred dollars; and after the money was delivered to him, set out on his return home, and Gardner walked out of the house, about four rods, to have some conversation with him, when the deputy left him and took Ms horse and rode away, and, be, Gardner, returned to the house, and remained there publicly until Monday. Another witness testified that he signed the agreement, as security for Gardner ; that Gardner went out with the deputy, without his hat, and returned in a few minutes ; and the witness did not understand that he was to go to gaol. Two other witnesses also testified, that they understood the agreement to be, &at on giving the security and depositing the one hundred dollars, Gardner was to stay at home until Monday.
    
    The judge charged the jury, that going to the tavern, and from thence to Gardner’s house with the prisoner, was not an escape ; and that the only question was, whether credit was to be given to the deputy or Gardner ; that if Gardner staid at home with the consent of the deputy-sheriff, it was an escape for which the defendant was liable, otherwise not.
    A motion was made to set aside the verdict, and for a new trial.
    
      J. Russell, for the plaintiff,
    contended that there was a voluntary escape. The act (sess. 24. c. 28. s. 18, 19, 20.) concerning sheriffs, See. requires every person taken in execution to be kept in prison in close and secure custody. Any indulgence granted by the sheriff to the prisoner, incompatible with his duty, or which may increase the chance or facility of the prisoner’s escape, is, in law, an escape. In Benton v. Sutton,
      
       Chief Justice Eyre says, the effect of the process of execution is to'operate immediately, by the duress of imprisonment; and that cases might be put, where an officer, who should justify an indulgence, on the ground of the prisoner being always in his presence, the court would say it was an escape: as if the officer should wear the livery of the prisoner, and ride with him to a horserace, and he expressed a strong doubt, whether any distinction could be made between that case, and the laudable and compassionate one of accompanying the prisoner to his own house, for the purpose of obtaining the means of discharging the debt. In the same case, Butter, J. agreed, that in the instance put by the chief justice, of a sheriff’s going with his prisoner to a horserace, it would be an escape; and he saw no distinction between that and one originating from more laudable motives.
    It is laid down, that if a gaoler, on a habeas corpus, carry the prisoner round about a great way, for his accommodation, it was an escape.
    
    There was no evidence of recaption on fresh pursuit. The officer made no immediate endeavours to retake the prisoner; but relied on the security he had taken, for his indemnity; and he met the prisoner on Monday by accident.
    Again, the verdict of the jury was palpably against evidence.
    
      Foot, contra,
    said it would be a gross violation of humanity, to oblige the sheriff to take a prisoner to gaol, without any indulgence whatever; and what was to be a reasonable indulgence must be left to the discretion of the court to decide, in each particular case; and he commented at large on the facts of this case, to show that the indulgence granted by the deputy was not unrea-
    
      
      
        Plowd. 37. 3 Com.scape, (0.) 3 W. Bl. 1048. Hob. 202.
    
    
      
       1 Bos. & Pull. 24.
    
    
      
      
        2 Bac. Abr. Escape, B. 2.
    
   Per Curiam.

Going with the prisoner, the afternoon on which ho was arrested, two miles from the direct road to gaol, to a tavern, on the prisoner’s suggestion that the execution might, perhaps, be settled, and then going with the prisoner the same afternoon, one mile further to the prisoner’s house, to enable him to get his clothes and see his wife before he went to gaol, cannot be said to be an escape* The officer was only to take the prisoner to gaol with all convenient and reasonable diligence, and he was not to relax but for some laudable and compassionate purpose; and going to a tavern to see if the demand might not be satisfied, and then to the prisoner’s house for a very humane purpose, all within the space of a few hours, cannot be deemed an escape. A much greater relaxation, as to time, in the case of Benton v. Sutton, (1 Bos. & Pull 24.) was not, merely on that account, considered an escape. There was no error in the charge of the judge; but as to the question of fact, whether there was not a consent on the part of the officer to the prisoner’s escape that evening, the verdict appears to be decidedly against the weight of evidence, and ought to be set aside.

New trial granted on payment of costs,-  