
    Johnson v. Macon.
    October Term, 1790.
    Escapes — Gist of Action — Proof.—In. an action for an escape, the actual escape forms the grist of the action, and therefore it must be proved by the plaintiff: but he is not bound to prove that it was with the consent, or through the negligence, of the officer; for this is to be presumed, unless a tortious escape "be shown, and that fresh pursuit was made.
    This was an action on the case, brought by the appellant in the District Court of Richmond, against the appellee formerly sheriff of Hanover county, for the escape of Parke Smith committed at the suit of the appellant, upon a writ returned “executed and committed to jail” by William Bentley deputy sheriff.
    The declaration sets forth the writ, service and return, that Macon kept an insufficient gaol; that he voluntarily and negligently suffered Smith to escape, and failed to take out an escape warrant against him, and to make fresh pursuit, by which the plaintiff had lost his debt, &c.
    Upon not guilty pleaded, the jury found a verdict for the defendant, and on the next day the plaintiff moved for a new trial, upon the ground of a misdirection of the court, (at the trial,) who instructed the jury to find for the defendant, but the motion was overruled, the court being of opinion, that *it was incumbent on the plaintiff to prove an actual escape by Smith from the custody, and by the consent or negligence of the defendant or his deputy, whereas the only evidence given by the plaintiff at the trial was the record of the suit against Smith, up to the judgment, and the oath of William Anderson the present high sheriff, that the said Smith was not at any time turned over to his custody by assignment from any former sheriff, together with the admission of the defendant, that when Smith was arrested, he the defendant was high sheriff of the county, and that Smith some years after resided in Charleston.
    To the opinion of the court, over-ruling the motion for the reasons above mentioned, the plaintiff excepted, and tendered a bill, which though not appearing to have been sealed, is made part of the record.
    Judgment for the defendant and appeal.
    
      
      Escapes. — The principal case is cited in Hooe v. Tebbs, 1 Munf. 506, 509; Stone v. Wilson, 10 Gratt. 540, 545. See Johnston v. Macon, 4 Call 367, and note.
      
      New Trial — Motion for — To What Court Made. — In Newberry v. Williams, 89 Va. 399, 15 S. E. Rep. 865, it is said, in Johnson it. Macon, 1 Wash. 4, Pendleton, P., expressed the opinion that a motion for a new trial, on the ground of misdirection, is never made to the trial court, but always to a higher court; and that it was certainly irregular and improper to make the motion to the same judge who gave the direction. This view, however, was disapproved in Guerrantv. Tinder, Gilm. 36, as being altogether too narrow.
      The power of the trial court to grant a new trial is now, and since the year 1850 has been, settled in Virginia by statute. Va. Code 1887, § 3392. And, before the decision in Guerrant v. Tinder, Judge Pendleton himself seems to have abandoned the position taken in Johnson v. Macon, in his opinion in Power v. Pinnie, 4 Call 411.
      The principal case is cited also in Bridgewater v. Allemong, 93 Va. 544, 25 S. E. Rep. 595; Bank v. Wad-dill, 31 Gratt. 478; Danks v. Rodeheaver, 26 W. Va. 290. See monographic note on “New Trials.”
    
   The PRESIDENT

delivered the opinion of the court. A motion for a new tria.1 upon the ground of misdirection of the judge at nisi prius is never make to the same judge, but to the court of Kings Bench. To make the motion to the same judge who gave the direction is certainly irregular, and improper. The exception ought to have been stated to the direction itself.

But as the exception states the direction of the judge, and the ground of it, so as to enable this court to decide upon the propriety of the opinion, we shall pass over the form, and enquire into the grounds of that direction.

The opinion is in part right, since the actual escape, is the gist of the action and therefore ought to have been proved, and in part wrong, so far as it required the appellant to prove the escape to have been with the consent or through the negligence of the sheriff, since the consent or negligence, tho’ made necessary by the act of Assembly, ought to be presumed, unless on the sheriffs parts a tortious escape be shewn, and that fresh pursuit was made. But it is unnecessary to decide this point, since that part of the opinion which was clearly right, will justify the subsequent direction to the jury, there being no proof of an actual escape.

The parole proof is, that Macon was high sheriff when Smith was arrested, and that Smith resided in Charleston some years after, which is certainly no proof of an actual escape from the defendant or his deputy.

The record proves him to have been in custody in June 1778, when Macon could not have been sheriff, as he was so *at the time of the arrest in January 1775, more than two years before. But Anderson swears, that Smith was not turned over to his custody by assignment from any former sheriff. Eet it in the first place he remarked, that Anderson was a very improper witness to exculpate himself. — But 2dly, Escapes which in England are fixed upon the sheriff from legal deductions, seem to be done away in this country, by the act of Assembly, which subjects the sheriff, only where the jury expressly find that the debtor escaped with the consent, or through the negligence of the officer. This a jury would hardly find, when it appeared that the debtor was in the actual custody of a succeeding sheriff, altho’ the formality of an assignment had been omitted.

Besides, tho’ no assignment were made, yet the other mode of transferring prisoners by entry on record might have been observed.

Judgment affirmed.  