
    Tracy and Van Rensselaer against Whipple, Sheriff, &c.
    ^TaS'^bem ?“l,,'cl.l,le|,e4 ,JY ]11& jjaijs awj WaS permitted by lh« sheriff to go at large within the gañí,1 on “giving accowlin^ to tiic statate> a"d a castt. at the suit of lhe plaintiff was afterwards deli-» vered to the she» talus'anewbondj a”t, orTthe next thovul’"! pcs; it was held, in an action for an escape, on the execution, that the mere delivery of the ca. sa. was not, ipso facto, et eo instanli, an arrest, so as to place the defendant in custody on the execution» and that the sheriff was not. ihible-.
    THIS xvas an action of debt for an escape. The cause xvas tried, at the Madison circuit, in Mail, 1811, before 7 ¡ J 7 7 Mr. Justice Tates.
    
    ... . , _ The plaintiffs gave m evidence a judgment recovered by them against one W. Weld, in August term, 1807, and a test. ca. sa. on whidh the defendant returned that he had taken Weld, and had him in his custody. On the 2d J May, 1808, Weld was surrendered by his bail to the cus- */. . _ „ "z . . _ tody of the sheriff, at the suit of the plaintiffs, and a bond in due form xvas given to the sheriff, for the liberties, on which Weld was suffered to go within the liberties of the gaol; and xvas xvithin them on the 13th July, 1803, when, at 8 o’clock in the evening: of that day, the ° J 
      
      test. ca. sa. was delivered- - to the defendant, at his house, within the liberties, Weld being, at that time, in £$ room adjoining to that in which the sheriff was éitting, ancj the door open between them. The sheriff was then attending to a sick child; and it did not appear that he knew that Weld was in the house. When the execution was delivered, the sheriff asked whether the plaintiff’s at» torney wished it to be served immediately, to which the person who delivered it, answered, that he did not know, but supposed it would make no difference, if it was not served immediately, or until the return day. Weld lived at a hoüse within the liberties, about 80 rods distant from the sheriff’s house; and_in the morning of the 14th July, he went a few rods beyond the liberties, but returned ia a few minutes. He was seen within the liberties until the 20th July, when he was committed to close custody on the ca. sa. and he was afterwards discharged under the act for the relief of prisoners, &c. by the court of t common pleas, in January, 1809.
    It appeared, also, that before' the delivery of the execution to the defendant, a writ had been taken out against him by the plaintiffs, for an escape on the execution, and a coroner requested to serve it the next morning; but that writ was afterwards quashed, and the present suit instituted.
    The jury, under the direction of the judge, found a verdict for the defendant.
    
      Platt, for the plaintiffs.
    The bond taken by the sheriff, for the liberties, was'not only for his security, during the debtor’s confinement on mesne process, but until he should be discharged by due course of law. The delivery of the execution, afterwards1, did not discharge the bond. The statute (sess. 24. c. 91.) says, that “it shall be the duty of the sheriffs to permit any prisoner who. shall be "in their custody on civil process only, to go at large within the liberties,” provided the prisoner shall ¡live a security by bond. It makes no distinction between J J .... 1 , mesne and final process. The statute did not intend that the sheriff should be obliged to take a new bond, or new security, whenever a ca. sa. was delivered to him.
    The defendant was in custody, on the surrender by his bail. An actual arrest on the ca. sa. was not necessary; but the delivery of the ca. sa. to the sheriff was a constructive arrest. And from the circumstances stated in the case, an actual arrest is fairly to be presumed. The debtor was in the house of the sheriff, and within his view, at the time the execution was delivered to him; and it is right to presume that he did his duty by arresting him.
    The defendant, then, having a bond as security for the liberties, this case is precisely within that of Tillman v. Lansing.
    
    
      Gold, contra.
    The decisions in England, as to constructive arrests, are applicable only where the debtor is in arc-ta custodia; not in a case like the present, where he is at large within the liberties granted by the statute. In Atkinson v. Jameson, the defendant had been arrested and was discharged on the same day, by the sheriff, who did not know that a detainer had been lodged in his office, at the time, at the suit- of another plaintiff; and the sheriff arrested the defendant the next day, and it was held that the second arrest was an original taking, and not a retaking after an escape.
    Again, the statute requires that the bond taken should be in double the sum for which the debtor is confined. Here the judgment was for 2,388 dollars and 6 cents, and the bond was for 4,000 dollars only. The present suit is for an escape from custody on a particular execution; and are the bail on mesne process to be held responsible for the increased risk of an escape on the execution ? It was enough, in this case, if the ca. sa. was returned with the prisoner in custody, at the return day thereof; and **" was immaterial where the plaintiff was" before. An arrest is not to be presumed, 'and no arrest at the time of the alleged escape has been proved.
    Platt, in reply,
    said the case of Atkinson v. Jameson was not applicable. There the writs were at the suit of different plaintiffs. The only point decided was, that the sheriff had no right of recaption after a voluntary escape. But in the present case, the execution is delivered' in the same suit between the same parties.
    There is no distinction between a person in arcta custodia, and a person within the liberties ; for the liberties are regarded as an extension of the walls of the prison. The debtor is still in prison,1 and the sheriff must be liable for his escape.
    
      
      
        1 Salk. 273. 3 Com. Dig. Execution, 302. 5 Co. 89. Esp. N. P. 605.
    
    
      
       4 Johns. Rep. 45.
    
    
      
       5 Term Rep. 28.
      
    
   Per Curiam.

Without considering the question whether the bond taken upon the surrender would operate after the prisoner was charged in execution, the court are of opinion, that the prisoner could not be considered, at the time of the escape, as charged in execution, so as to make the sheriff responsible for that escape, as of a prisoner in execution. The mere delivery of the execu-. tion to the sheriff, was not, ipso facto, and, eo instanti, an arrest, so as to place the prisoner in custody under the execution, by judgment of law. The doctrine in Frost’s case (5 Co. 89.) does not apply, when the prisoner is not in close custody, but at large upon, the liberties of the gaol. These liberties are, in many instances, very spacious, and it might be hours before the sheriff could find" the prisoner, so as to secure himself against the increased, responsibility which the escape of a prisoner in execution might create. The doctrine in Frost’s case is founded on the fact, that it would be a useless and idle act t® arrest a person already in the close custody of the officer. But a prisoner on the limits is not in such custody, and the sheriff can, on a new arrest, essentially change his condition, by requiring new security, or by confining llim.

The only question of fact, is, whether there was an actual arrest, or any ' act amounting to one, between the time of the delivery of the execution in the evening, and the prisoner’s escape the next morning. The case does not furnish any evidence of such an arrest. The presumption is rather the contrary, considering the situation of the sheriff’s family at the time, and the conversation which passed between the sheriff and the agent who delivered the writ. There would be no use, then, in granting a new trial, in order to have a jury pass upon that fact ; and though the cause was placed upon a different ground at the trial, yet when, upon the view of the whole case, the verdict appears to be correct, the motion for a new ferial ought to be denied.

Motion denied.  