
    APRIL 28, 1802.
    James Graves v. John Walker.
    
      Upon a writ of error to reverse a judgment of the Court of Quarter Sessions of Pendleton county.
    
    Where a sheriff, having the defendant in custody under a capias, permits him to escape, the plaintiff in the capias can not maintain a joint action against the sheriff and the prisoner for the demand due from the latter.
   In this cause it appears that the judgment was taken by default against the defendant in the court below, and against Graves as sheriff, because he had left the defendant, on whom he had executed a capias ad respondendum., on the public ground, at a time when there was no public jail in his county; which this court is of opinion was illegally taken as to Graves. If Waller can recover the debt from Graves, it can only be ¡by a separate ac.tio.n against him for suffering the prisoner to escape.

Wherefore, it is considered that the said judgment of the court of quarter sessions for the county of Pendleton be reversed, and ■the suit be-remanded to the said count that it may-correct the common order conformably to the foregoing -opinion, so far-as it relates to the said Graves, and then enter up a judgment against the defendant in that cour.t as if he were in custody, and it is further considered that tbe said defendant Waller do pay unto the said plaintiff Graves his-costs in this behalf expende,d, which is ordered to be certified to the said court.  