
    AT A CIRCUIT COURT, AT NEWTOWN,
    JUNE 1800.
    CORAM, SHIPPEN, CHIEF JUSTICE, AND YEATES.
    Stephen Shewel, who survived Joseph Shewel, against Joseph Fell, Esquire, late sheriff of Bucks county.
    In debt against a sheriff for an escape, evidence that he did not arrest the prisoner till three days after the return of ca. sa. (which he had returned in custody,) is not admissible.
    The stat. of 13 Ed. 1, c. 11, & 1 Ric. 2, c. 12, concerning escapes, extend to Pennsylvania.
    In debt for an escape from ca. sa. the jury must find the whole debt and costs.
    Debt 933l. 14s. yd. for an escape. Plea nil debet and issue.
    It appeared, that the plaintiff as surviving partner, recovered judgment against Robert Shewel, and issued a fieri facias thereon to August term 1795, which was returned “nulla bona.” He' afterwards took out a capias ad satisfaciendum, returnable to August term 1796, debt 928I. 7s. 2d. costs 5I. 7s. 5d. which was returned by the now defendant then sheriff “ cepi corpus et committitur." This ca. sa. issued on the 18th July 1796 but it did not appear when the defendant received it.
    It was proved that Robert Shewel was seen at large, walking by himself in Newtown, on the 3d day of August term 1796; and in the afternoon of that day he was confined in gaol. He applied during the term for the benefit of the insolvent act, and upon giving notice to his creditors, his discharge was opposed by the plaintiff’s counsel, but it was then declared that the escape was intended to be insisted on. The court on argument, discharged him, without taking the escape into consideration.
    
      *The defendant offered to shew, that he did not take Robert Shewel on the ca. sa. until the 3d day of the term, being on Wednesday; but the counsel of the plaintiff excepted thereto, as it would contradict the sheriff’s return. It was said also, that this should have been pleaded and the plaintiff might have demurred thereto, or taken issue thereon. In the latter case, it was possible the evidence might be admitted.
    In support of the testimony, the defendant insisted, that a fa-vourable construction was to be put on escapes which are so highly penal to sheriffs and gaolers. 3 Co. 44, a, b. A sheriff cannot arrest a party after the return of the writ. 2 H. Bla. 29. And he cannot be charged with an escape, before he has taken him by a legal authority. 2 Bac. 236. If he arrests him on Sunday, he is not so chargeable. 6 Mod. 95. 1 Salk. 78. Where a sheriff returned on a ca. sa. quod ccpit corpus, and on debt being brought against him for the escape, he pleaded quod non ar-restavit, on which issue was taken; it was adjudged, that the sheriff was not estopped by his return, though the court might amerce him. Mitchel v. Henning, cited by counsel arguendo.-2 Rol. Rep. 57, 58. S. C. 10 Vin. 117, pi. 36. It would seem therefore, that the sheriff’s return is not conclusive, but that the same may be avoided by other proof.
    Per Cur. In the last case, the plaintiff’s counsel took issue on the point of the arrest, which let in the proof. But he certainly might have demurred to the plea. The admission. of the testimony contended for would be productive of the most injurious consequences to suitors. The sheriff in effect denies hereby his own return on record. If on a fieri facias, he indorses “goods “levied, to the value of the debt and costs,” or “levied, sheriff “for debt and costs,” it cannot lie in his power to disaffirm his returns. Even if one becomes security to the sheriff in a bail bond, he shall not be allowed to say that the sheriff did not arrest the principal. 1 Stra. 444, 643. The sheriff by his indorsement on the ca. sa. has concluded himself, as to his having the person of the debtor in his custody, on the return day of the writ. The evidence must be overruled.
    The defendant’s counsel then contended, that this was a hard action, founded on two antiquated statutes, the extension whereof to this state was highly questionable. At common law, casonly lies for an escape, wherein the jury might on a full consideration of all circumstances, give such damages as the party had really sustained by the misconduct of the officer. The first statute which gave an action of debt in such a case was 13 Ed. 1, *c. 11, (called Westm. 2,) and the second was 1 Ric. 2, c. 12, which, though it mentions only the warden of the 19*] fleet, yet has been extended by construction to all gaolers. Under this latter statute, it is said, that the party who suffers by the escape, shall have the same remedy against the gaoler which he had against the debtor. 2 Term Rep. 132.
    
      Our local situation differs greatly from England, which is an old settled country. Our sheriffs have not the castles and fortresses of the ancient viscounts. The strictness of practice to which the officers of Great Britain have long been accustomed, would ill suit our government. It is apprehended, that these principles were supported by the late Chief Justice, in the case of Benjamin Fuller v. James Ash, esq. tried in bank, September term 1795, wherein the defendant’s counsel took great latitude, and gave in evidence without opposition, the intentions of the creditors to release captain Southern, the prisoner, his great indigence, the insufficiency of the gaol, and fresh pursuit made after him. A verdict was there given for the defendant, with liberty to move for a new trial. But the matter has been since dropped.
    Why ought not the jury here to be left at liberty to find what damages they conscientiously-deem to be just ? The only question would be in justice, has the plaintiff sustained any loss by the misconduct of the defendant in office ? Robert Shewel was so poor that nothing could be extracted from him on the ft. fa. Two days earlier confinement would not have added to his ability to pay this large debt. In an action against an attorney for negligence, by reason whereof the plaintiff’s debtor was superseded from the custody of the marshal, there was a recovery of 500I. damages, instead of 3000I. the whole debt, according to a former verdict, had in the same cause. Russel v. Palmer, 2 Wils. 328. And it is well observed by Erskine, that it is strange the nature of the action should alter the right of the parties, or the law upon the subject. Though formerly the'courts were rather strict in actions of debt, it is not now necessary that the plaintiff should recover the whole sum demanded. 2 Bl. Rep. 1221. Doug. 6, 703, n. 4. 2 Term Rep. 129. If this had been an action on the case for the same cause, it cannot be denied but that the jury might give only nominal damages. At law in an escape against the marshal, he has the prisoner’s equity, and may give in evidence his poverty, &c. 2 Vern. 89. If the court should incline against the defendant on both points, it is requested, that the same should undergo a further investigation, before all the judges.
    
      E contra, for the plaintiff.
    A more full discussion before all # -, *the court, is not objected to, in any shape which may be J deemed proper, on account of its importance.
    As to the statutes of Westm. 2, and x Rich. 2, c. 12, there can be little doubt of their extension. They have always been practised under; and it is of as much moment to the citizens of Pennsylvania to restrict the officers of justice to a proper discharge of their respective duties, as to the subjects of Great Britain. Those acts are highly fitting to our local situation. No determination was given by the court in the case of Fuller v. Ash, and the verdict has been thought to rest on the insufficiency of the gaol, after repeated notice to the commissioners of Philadelphia county, and the declared intentions of the prisoner’s creditors to enlarge him. Escape lies either against the sheriff or gaoler. 1 Salk. 18. One in custody and seen at large afterwards, the sheriff is chargeable for the debt. He should be kept in arcta et salva custodia; his confinement is his punishment, and the only satisfaction he makes to his creditor. 3 Bl. Com. 415. Debt lies against a sheriff for an escape to recover the whole debt and damages, if a defendant taken in execution be afterwards seen at large, for any the shortest time, even before the return of the writ. 2 Bl. Rep. 1048. In this case, Russel v. Palmer was cited by the defendant’s counsel, but De Grey, C. J. remarked-, thereon, that it was not the case of an escape. Ib. 1050. Besides that suit was not brought in debt, but case. The reasoning of Erskine is contradicted by Buller, J. in the page cited and the following one. The true ground is, that “ the statutes gave an action of debt against the sheriff or “ gaoler, to recover at once the sum for which the prisoner was “charged in execution.”
    The dictum of the Lord Chancellor in 2 Vern. 89, can only refer to an action on the case brought for an escape on mesne process; in which it is clear that the officer may take advantage of his prisoner’s inability to pay. A voluntary escape cannot be purged by a fresh pursuit. 3 Term Rep. 392.
   Shippen, C. J.

in his charge to the jury, observed, that this possibly might be a hard case on the sheriff. But the policy of the law has introduced general regulations, which must necessarily govern all cases, though in the event, individuals may be affected thereby with some degrpe of rigor. All officers in public employments, who receive emoluments for their services, are bound to perform their relative duties under certain penalties. The office of sheriff is of the utmost importance to the due administration of both criminal and civil justice in governments constituted like our own. ■ It is his duty to perform his several *functions with firmness and integrity, and faithfully to r*. execute all process directed to him, without favour or [*21 affection. He has no power arbitrarily to constitute himself a judge of the rights of suitors, and disappoint judgments and executions. Should such a practice prevail, and receive the sanctions of courts and juries, the injurious consequences attending it are very evident.

The common law and such of the statute laws of England as were enacted before the settlement of the late province, applicable to our local situation, have been adopted here, both before and since the revolution. 1 Dall. St. Laws 133, 723. 2 Dall. Rep. 394. They form part of our code, under certain modifications sanctioned by the judicial authority. The English decisions, however, do not universally comport with our circumstances. Such is the case as to promissory notes, wherein we do not adopt their strictness of notice of non-payment by the drawers, so as to charge the indorsers. So the sheriffs in England are bound to see to the sufficiency of their gaols ; but it is presumed, that here, if they or their gaolers are in no default, but use every due and proper precaution to prevent their prisoners from escaping, and yet an escape takes place from the manifest insufficiency of the gaol, (as in the instance of log buildings of the frontier counties, &c.) the penalty could not be exacted; more particularly, where the commissioners of the county have been previously apprised of such defects.

At common law, case lies for an escape, wherein a jury assess damages, according to all the existing circumstances. Under the statutes cited at the bar, the plaintiff is entitled to recover in an action of debt for the escape of his debtor out of execution against the sheriff or gaoler, “ in the same manner as “he could have done against such debtor.” We have always understood, that these statutes have extended to this commonwealth, and that they have uniformly considered as beneficial general provisions, suitable to the state of our country. We can see no circumstances in the present instance which will justify a departure from the settled and established rules of law, but are bound to pronounce it to be an escape, for which the defendant is answerable for the whole debt and costs. It is the province of the court to judge in what cases the rules of the English common law should be relaxed. Should juries assume this power, the necessary consequence would be, that the utmost uncertainty must ensue from the fluctuating opinions of different sets of jurors in different counties. The strong inclination of our minds is, that the statutes of Westm. 2, and 1 Ric. 2, c. 12, extend here, and that the plaintiff in point of law ought to recover *his wife debt in the present action. But the court *22] will not be ashamed to retract their 'opinions at a future day, if they should find that they have conceived them erroneously.

The jury retired and staid together all night. Next morning they came into court, and said they found it impossible to unite in a verdict. They asked the court, if they might not judge of the escape and moderate the sum according to all the circumstances. They were told, the escape was a simple question of law on the facts being ascertained, binding on the court and their consciences. The court however recommended a compromise to the counsel, declaring that they felt as men for the defendants’ situation, though they would not shrink from their duty as judges. This was unavailing.

The court then told the'jury, that as at present informed, they persisted in their former opinion, that a verdict ought to be rendered for the plaintiff for the whole debt and costs.

The jury then again retired, and in the course of half an hour, found a verdict for the plaintiff for 933l. 14s. 7d., which the court publicly approved of.

Cited in 4 S. & R. 267 in support of the proposition that it is the province of the Court to judge in what cases the rules of the English Common Law should be relaxed.

Referred to in 2 P. & W. 169.

Cited in 5 Watts 144 to show that in debt, for the escape of one held in execution, the jury, if they find for the plaintiff, must find the, whole debt and costs.

Mr. T. Ross, pro quer. Mr. Condy, pro def.

This appeal was argued on three different days in the Supreme Court, viz.: December 30th, 1802; March 17th, 1803; and December 23d, 1803 ; and the judgment was afterwards affirmed by the whole court, March 24th, 1804.

Judgment was rendered for the plaintiff, on the verdict, without prejudice to the defendant, on appeal on the legal points. 1st, Whether the parol evidence as to the time of the arrest ought not to have been received ? 2d, Whether the statutes of Westm. 2, and 1 Ric. 2, c. 12, do extend to Pennsylvania? 3d, Whether the jury could not have awarded less than the original debt and costs ?  