
    *Waugh v. Carter.
    Saturday, June 22d, 1811.
    I. Oliice Judgment—Common Order Entered before Declaration Filed—Effect.—It is error sufficient to reverse an office judgment that the common order was entered before the plaintiff filed his declaration.
    a. Escape of Prisoner—Remedy.—A judgment cannot be entered against the defendant and sheriff, upon his return that the writ vras executed, and the defendant escaped; the proper remedy against the sheriff for an escape, being by a separate suit
    In an action of debt, in the Haymarket district court, on behalf of Moore F. Carter against Samuel Oliver and John Pash, the writ was returned by Alexander Waugh, deputy for James Waugh, sheriff of Fairfax county, “executed the 19th day of August, 1805, and the defendants escaped out of custody.”
    At the rules, in November, 1805, a common order was entered against the defendants and sheriff, which, in March, 1806, was confirmed ; and this office judgment, not being set aside at the ensuing May term, was confirmed against the defendants and James Waugh, the sheriff. The plaintiff’s declaration was filed in January, 1806. A writ of supersedeas to the judgment was awarded by a judge of this court.
   Saturday, June 22d, 1811.

JUDGE) BROOKE

pronounced the following opinion of the court:

“It seems to the court here that the said judgment is erroneous in this, that the office judgment was entered at rules before the plaintiff (now defendant) had filed his declaration ;(1) and in this, also, that the judgment was entered against the plaintiff (in error) as sheriff, upon his return that the said Samuel Oliver and John Pash had been taken and escaped ; the court being of opinion that the sheriff could not be made liable for an escape, but by a suit brought against him for that puipose.”(2) ? Judgment, therefore, reversed; all proceedings subsequent to the writ set aside ; and cause remanded to be further proceeded in.  