
    John D. Murray vs. G. S. Peay—The same vs. the same—John Robertson, et al., vs. George S. Peay.
    A defendant arrested under a era. sra,., who gives the usual bond, for the bounds, and without rendering in a schedule, or satisfying the debt, breaks the bounds, may, by the Act of Assembly of 1839, be re-taken; or the plaintiff may proceed against the security on the bond: and if the security is insufficient, he may have his action against the Sheriff', who shall be ultimately liable.
    It is not necessary to have the order of a Court, in addition to the ordinary process of law, which the plaintiff has a right to have issued for the purpose of caption; but, if the Sheriff should refuse to obey the usual process, the Court will, upon a rule, enforce it.
    Before Earle, J., at Fairfield, Fall Term, 1840.
    His Honor made the following report:
    The defendant, Peay, having been arrested on the writs of capias ad salisfaciendum, in the several cases above stated, gave the usual bonds for the bounds, and afterwards, without rendering a schedule, or satisfying the sums for which he was confined, went without the bounds.
    On the return of a rule, which was served upon him, to show cause, the counsel for the plaintiff moved for an order of the Court to direct the Sheriff to re-take the defendant, and to confine him within the walls of the jail.
    Conceiving that the course proper to be pursued by the ^plaintiff, is plainly pointed out by Act, and that the interposition of the Court was unnecessary, I refused to grant the order, from which decision the parties appeal, and renew their motion in the Court of Appeals, upon the following ground;
    Because, from the facts set out in the suggestions, and admitted by the defendant, he had forfeited his right to the prison bounds, and incurred the penalty prescribed by the order; and the proceedings were proper to ascertain and establish it in judicial form, and the order legal and necessary to impose the penalty upon the defendant.
    
      Mr. Smart, for the motion,
    cited the third and seventh sections of the Prison Bounds’ Act, 
       ; and contended that from these sections, the plaintiffs were entitled to coniine the defendant in jail, and sue on the bond, lie cited 3d M’Oord’s Rep. 429.
    He contended also, that until the schedule be filed, the Commissioner of Special Bail could not hear the case, and cited the 11th section of the Prison Bounds’ Act, and 1 Hill’s Rep. 432.
    
      Mr. M’ Call, contra,
    cited Tidd. 960.
    If a party escape, or be rescued, he may be sued with a second execution.
    
      
       5 Stat. 78. An.
      
    
   Curia, per

Earle J.

The Act of 1839, re-enacting the provisions of the Prison Bounds’ Act of 1788, in the same words, declares that, “upoman escape, the plaintiff may either proceed against the defendant, to rc-rake him, or against his security; or in case the security should prove deficient, against the Sheriff, who shall be ultimatety answerable in damages for such escape.” The application of the plaintiff is to direct the Sheriff to re-take the defendant and confine him within the four walls of the jail. The order of the Court is surely not necessary to enable the defendant to be re-taken. The order of the Court is of no superior efficacy to the ordinary process, which, by authority of law, the plaintiff has a right to have issued, for the purpose of recaption, and would, therefore, be a superfluous interference. If the Sheriff should refuse obedience to such process, the Court, upon a rule, *would enforce it. It would be idle, as well as endless, for the Court, in anticipation, to make orders requiring public officers to do their duty. To require the Sheriff to confine the defendant within the four walls of the jail, would be to prejudge a question which may not be considered entirely clear, whether on such a recaption the defendant would be entitled again to the benefit of the bounds? When re-taken, the defendant will be in custody of the Sheriff, with such rights as the law gives him. It is always mischievous, as there is good reason for saying that it is incompetent, for the Court to interfere before hand, with its advice upon a point of law; to express an opinion before a case has arisen. The course of the plaintiff being plainly pointed out by law, we must leave him to pursue it; and also leave the Sheriff and the defendant untrammeled by any expression of opinion, as to the duty of the one, or the rights of the other.

See Mack & Smith vs. Garrett, 10 Rich. 80. An.

The motion is therefore refused :

the whole Court concurring. 
      
       11 Stat. 31. § 29. An.
      
     