
    Philip Colby versus Enoch Sampson.
    If a coroner, having an execution against a deputy gaoler, arrest him, and me sheriff is not at the gaol, nor any keeper authorized by him, the coroner leaving his prisoner at the gaol-house, is discharged, and the sheriff is guilty of an escape.
    This was an action of the case against the defendant, a coroner of the county of Hancock, for misfeasance in his office in the service of an execution issued upon a judgment recovered by the plaintiff in the Court of Common Pleas, for the county of Kennebeck, against one John Minott, a deputy sheriff of the county of Hancock. The declaration contained three counts, in which the misfeasance of the defendant was laid three different ways: That he arrested Minotts body, and suffered him to escape: — That he might have arrested Minott, but neglected so to do:— and that he would not * serve the execution, nor make [*311 ] any lawful return thereof, but falsely returned that he had arrested Minott, and committed him to the gaol-house in Castine.
    
    The cause came before the Court upon a statement of facts, in which the judgment, execution and delivery thereof to the defendant were agreed; and it was further agreed, that Minott was himself the deputy gaol-keeper under the sheriff; that the defendant arrested Minott, and carried him to the gaol-house (the sheriff being himself out of the state at the time, on his own private business), and left a copy of his precept in the house with Minott; that Minott was never confined in the gaol, but continued to live in the gaol-house, pursuing his ordinary business, as if not arrested or committed; that said execution remains wholly unsatisfied; and that Minott is, and was at the time, embarrassed and without visible estate.
    
      If the Court should be of opinion upon these facts, that the plaintiff was entitled by law to recover in this action, the damages were to be assessed by the Court; and if otherwise, the plaintiff was to become nonsuit.
    The cause was briefly spoken to at this term by Bridge, for the plaintiff, and Wilde, for the defendant.
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

From the facts before us in this case, we are tc decide whether the defendant was guilty of a misfeasance in his office, for which he is liable in this action.

The execution was properly directed to the coroner, as the judgment debtor was a deputy of the sheriff . For by the statute of 1783, c. 43., executions are to be directed to the sheriff or his deputy, unless a party, and then the direction is to be to the coroner. The coroner has no gaol, and can commit only to the county gaol, of which, by law, the sheriff is the keeper. On this account, executions against sheriffs are against their estates, [*312] *but not against their bodies, because they cannot be committed. When, therefore, a coroner has arrested on execution, he, like a constable, can only carry the prisoner to the gaol, and offer to deliver him with a copy of the precept. If the sheriff refuse to receive and safely keep him, or if the sheriff is not there, nor any keeper appointed by him, to receive and confine the prisoner, the coroner has done his duty; and if afterwards the prisoner go at large, it is the escape of the sheriff.

In the present case, the sheriff was not at the gaol, nor any deputy, to receive and confine Minott. For Minott being the only gaol-keeper, he could not receive and confine himself. Minott must be considered as escaping, but the escape was committed by the sheriff; because he had no person there to receive and confine the prisoner; upon the same principle that if a sheriff make a prisoner of the gaol-keeper, and give him the keys, it is the escape of the sheriff. For the prisoner, by being the keeper and having the keys, is no longer imprisoned or restrained of his liberty. And every liberty given to a prisoner, not authorized by law, is an escape. Upon this state of facts, the coroner is guilty of no misfeasance, but the sheriff is answerable for the escape .

Plaintiff nonsuit.

Note. The Chief Justice observed, after the opinion was delivered, that as the action was case, and not debt for an escape, the Court were not obliged to give the whole debt as damages, but might assess such sum as should be adjudged reasonable, under all the circumstances of the case 
      
      
         Sed vide Gage vs. Graffam, 11 Mass. 183 — 184.
     
      
      
        Gage vs. Graffam, 11 Mass. 183.
     
      
      
         Burrill vs. Lithgow, 2 Mass. 526. — Brooks vs. Hoyt, 6 Pick. 458.
     