
    JONATHAN CADY versus ZIBA HUNTINGTON.
    The sheriff is not liable for an escape upon mesne process, if he commit the body at any time before the writ is returned.
    CASE, for escape on mesne process. The cause was submitted to the decision of the court upon a statement of facts, in which it was agreed that the plaintiff sued out a writ against one John Griffin, and delivered it to the defendant, who arrested Griffin, and returned upon the writ that he had arrested him, and bailed him to Ziba Huntington.; that at the court, where the writ was returnable, the defendant surrendered Griffin in court, who was thereupon committed to prison by order of court ; but he was afterwards discharged by the court upon a habeas corptis, at the same term, and the action against Griffin was entered, and judgment rendered in it upon default for the plaintiff, and execution issued, but has never been satisfied.
    The cause was submitted without argument, and the opinion of the court was delivered by
   Richabdson, C. J.

At common law the sheriff might, if he pleased, suffer a prisoner in his custody upon mesne process to go at large without sureties; but it was at his own and when he had voluntarily suffered such prisoner to go at large, he might retake him at any time before the return of the writ. 2 D. & E. 172, Atkinson vs. Matteson & al. 5 Johnson 182, Stone vs. Woods. — 5 D. & E. 37, Planck vs. Anderson & 37. When a bail bond was taken, the sheriff might cancel the bond upon a surrender of the principal at any time before the return of the writ 6 D. Sf E. 753.-7 D. & E. 122. — 1 Bos. & Pul. 125. And in case the sheriff had the body in court upon the re- . turn of the writ, the exigency of the writ was answered¿ and no action lay for an escape. 1 Saunders 35, note 1.— Tidd’s Prae. 207 & 255. The English capias ad respon-dendum is the same as ours. Tidd P. Forms 40. — 1 Laws of N. H. 92 . And in case the sheriff has the body in court upon the return of our writ, the exigency of the writ is answered. In an action for an escape on mesne process, the declaration must allege that the defendant in the original suit did not appear at court. 2 Chitty PI. 299. — A. Prec. 289. It is, therefore, very clear, that this action cannot be maintained. The defendant had the body of Griffin in court at the return of the writ, which 'was all that the writ required of him. Judgment for the defendant. 
      
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