
    Stone against Woods, Sheriff, &c.
    Where a prisoncr arrested on a mesne process^ after a judgment in the suit, but before execution, escaped, but voZuntaniy returned on the same day, it was held, that1 the™heriiF makes ano difthT'esaipe was negligent. If the Sheriff after an arrest on mesne process, has the body of the defendant, at the return day of the writ, it is sufficient, '1'he act giving double costs in suits against sheritis and otlici oiiiccis^ does not extend to the case of a judgment for the defendant, on, demurrer,
    
    THIS cause came before the court, on a writ of error from the court of common pleas of Washington county The plaintiff brought an action on the case for an escape. 1 ° . in the court below. The declaration set forth, that one . . _ ’ . Uriel Clary, was indebted to him, &c. and that a captas , 7 . , . ad respondendum^ in December, 1806, was issued against the said Clary, &c. directed to the defendant, commanding him to take the said Clary, so that he might have his body, before the judges and assistant justices of the court of common pleas, of Washington county, on the first Tues-
      
      Stay of March, 1807, &c. which writ was, on the 2 6th of January, 1807, delivered to the defendant, as sheriff of the county of Washington, to be executed, &c. and the defendant, afterwards, and before the return of the writ, to wit, on the 18th of February, 1807, arrested the said Clary, and had him in his custody, &c. that by virtue of the said writ and arrest, &c. the plaintiff, afterwards, recovered judgment in the said court, against the said Clary, for 139 dollars and 90 cents damages ; that after-wards, to wit, on the 25th of July, 1807, the defendant, at, &c. wilfully and voluntarily suffered the said Clary to go at lai-ge, out of his custody, &c. he, the plaintiff, being wholly unsatisfied for his damages, &c. The defendant pleaded four pleas :
    
    
      1. Not guilty.
    2. That after the commitment of Clary, on the writ, at the suit of the plaintiff, he, on the 25th of July, 1807, forcibly broke the gaol, and escaped out of the defendant’s custody; and that afterwards, before the exhibiting the bill of the plaintiff, and before the defendant had any notice or knowledge of the escape, he privily returned into the custody of the defendant, and ever since hath continued in his custody, &c. which escape, &c. and this he is ready to verify, &c.
    3. That the said Clary, on the 25th of July, 1807, forcibly broke gaol and escaped out of the defendant’s custody, without his knowledge or consent, and that the defendant immediately made fresh pursuit after him, &c. until, afterwards, to wit, on the 25th of July, 1807, and before the exhibiting the plaintiff’s bill, he retook the said Clary, and detained him in his custody, by virtue of the said commitment, at the suit of the plaintiff; and still detains him in custody, &c.
    4. That Clary, forcibly and against the knowledge and will of the defendant, broke prison and escaped, on the 25th of July, 1807, and afterwards, on the same day, privily returned into the prison, and has ever since remained in custody, &c. and that the defendant had not then, nor hath he since, received any execution at the suit of the plaintiff against the said Clary, &c. with a verification, &c.
    To the second plea, the plaintiff replied that Clary did not privately return, &c. and issue thereon.
    To the third plea, the plaintiff replied, that the defendant did not make fresh pursuit, &c. to retake the said Clary, in manner and form, &c. and issue thereon.
    To the fourth plea, there was a general demurrer and joinder. The court below gave judgment for the defendant, on the demurrer; and as the suit was against the defendant, as sheriff, they adjudged the plaintiff to pay double costs. On this judgment, the writ of error was brought.
    
      D. Russel, for the plaintiff in error,
    contended that the demurrer to the fourth plea was well taken. It is not alleged that the return of the prisoner was before action " brought. Again, the judgment of the court below was' erroneous in awarding double costs. This is not a case within the statute directing double costs, where a verdict is found for the defendant, in a suit against a sheriff or other officer,  The act speaks only of a verdict after a trial. Nothing is said of a judgment on a demurrer, in favour of a defendant who is an officer.
    
      Skinner and Foot, contra.
    The question is whether an action can be maintained, for a negligent escape, on mesne process, where the ■ prisoner returns on the same day, after a judgment, but before an execution.
    A sheriff may give what indulgence he pleases to a prisoner on mesne process, provided he has him in prison at the return of the writ, so as to answer the plaintiff in the suit, The reason why the sheriff is made liable for an escape, is that the plaintiff has been delayed or injurecL If there is no delay or prejudice to the plaintiff, there can be no damage ; and without damage there is no ground for an action. The plea does not expressly state tho.T. the return of the prisoner was before action brought, hut that it was on the same day, and before any execution issued. Why is a defendant set at large, on bail ? Merely to place the plaintiff in the same situation, as if the prisoner had remained in the custody of the sheriff. It is enough if the prisoner is forthcoming to answer in execution. After execution, the sheriff cannot show the prisoner any indulgence. Such is the common law. Does the statute then make any difference ? The words of the act are, “ if at any time the keeper of any prison shall permit or suffer any prisoner committed to his custody, either upon contempt or mesne process, or in execution, to go, or to be at large out of his prison, except, &c. every such going, or being out of the prison, shall be adjudged and is hereby declared to be an escape.” The act speaks only of permissive or voluntary escapes The case, therefore, of a negligent escape remains, as it stood before, by the common law, and the sheriff is hot liable to an action, unless the plaintiff has been prejudiced by the delay. The pleadings state a negligent escape only.
    As to the double costs. The act says, “ if a verdict shall pass for the defendant, or the plaintiff shall become nonsuit or suffer discontinuance, the defendant shall be entitled to double costs.” The present case, if not strictly within the letter, is clearly within the intent and meaning of the act.
    Shepherd, in reply.
    1. The common law doctrine does not extend so far as to permit a sheriff to suffer his prisoner to be at large after the return of the writ, though before judgment. It is confined to cases where the writ is not returned ; and the court, in the cases cited, merely say, that it is enough if the sheriff has the prisoner td answer the exigency of the writ. The short time during which the prisoner was at large, cannot vary the question. If he was at large for any time, however short, there was an escape, and the plaintiff’s right of action became vested; and the court cannot here take upon them to decide on the amount of the damages he has sustained.
    The act by declaring what should be an escape, manifestly intended to give the party a right of action for such escape. The words of the act, “ if the keeper shall permit or suffer the prisoner to go at large,” &c. evidently comprehend negligent, as well as voluntary escapes.
    2. The act, in giving double costs is penal, and must be taken strictly. The case of a judgment on a demurrer, is not mentioned; and the defendant could not, therefore, be entitled to double costs.
    
      
      
        1 Stra. 423 2 Stra. 873. 294.
    
    
      
       24 sess. c. 7. s. 1.
    
    
      
      
         5 Term Rep. 37. 2 Term Rep. 172. 3 Bl. Com. 290. 415. Esp. Dig. 606.
    
    
      
       24 sess. c. 28. s. 20.
    
   Van Ness, J.

delivered the opinion of the court. If the sheriff has the body of the defendant, after an arrest upon mesne process, at the return day of the writ, it is said to be sufficient. But if the defendant escape at any time thereafter, the sheriff is liable to an action. I do not discover that there is any distinction whether the escape be voluntary or negligent; neither do I conceive that any such distinction can exist, for the sheriff is equally liable in the one case as in the other. (1 Saund. 35. n. 1. 2 Wils. 294.)

The case of Plank v. Anderson and another, (5 Term Rep. 37.) relied on by the defendant’s counsel, is essen-. tially different from this ; though it is not very easy to discover precisely the ground upon which that case was decided. There the jury found that the plaintiff had mot been delayed or prejudiced in his suit. And Lord Kenyon says, “ that the exigency of the writ was performed, so far that the defendant was forthcoming, when the plaintiff called upon him to answer his demand.” The circumstances were peculiar, and great stress was laid upon the finding of the jury. The plea in the present case does not come up to the finding of the jury, in the one just mentioned. Whether the plaintiff has sustained any damages by reason of the escape, cannot be a question for the court, but must be determined on the trial, by the jury.

This being an action on the case, for an escape on mesne process, the damages are uncertain and at large ; and whether the plaintiff will be able to give such evidence, as will entitle him to recover from the defendant the whole or any part of his demand, cannot be determined, on the facts stated in this record. The question now is upon the sufficiency of the fourth plea, which in my opinion is no bat- to this action.

The court below awarded double costs against the plaintiff. This was evidently not within the statute, (24 sess. c. 47. s. 1.) which authorises double costs only, when a verdict shall have passed for the defendant, or the plaintiff shall have become nonsuited, or suffered a discontinuance. The provision does not extend to the case of a judgment upon demurrer, and the statute, in awarding double costs, being penal, must be taken strictly.

The judgment below must be reversed.

Judgment reversed.  