
    Van Slyck against Hogeboom.
    ALBANY,
    August, 1810.
    An action of debt against a sheriff for an escape, lies only where the pri- , soner is in execution; and a prisoner is not in execution,unless on a ca. sa.
    
    r Where a person, surrendered into the custody , of the sheriff, by bail, escapes, an action of debt will not lie; for a person cannot be charged in execution without issuing a ca. sa. The proper remedy in such a case, . is an action on the case.
    
    But where in an action of debt the whole defence was let in, as if it had been an action on the case, and the ju« ry found for the plaintiff nominal damages only, the court refused to grant a new trial, merely to give the io costs as the defendant an opportunity to get rid of the suit, as he would be entitled verdict stood.
    THIS was an action of debt¡ for the escape of one Abrahain A. Van Alstyne, after judgment against him, in this court, and after he had been surrendered by his bail, but before he had been charged in execution by a ca. sa. The declaration was in debt, for the amount of the judgment. Previous to the surrender, a ca. sa. had been1 issued on the judgment, and returned non est inventus The cause was tried at the Columbia circuit, in December 1809. The judgment, the surrender, and the escape, being proved, the defendant was permitted to show the insolvency of Van Alstyne, to diminish the amount of the recovery. The jury found a verdict for the plaintiff, not for the debt, but for six cents damages, and no more.
    Amotion was made to set aside the verdict,for misdirection, and on the ground that the plaintiff was entitled to recover the whole amount of the judgment, in the action of debt, without reference to the solvency or insolvency of the prisoner.
    
      Woodward and Van Burén, for the plaintiff’.
    
      E. Williams, contra.
   Per Curiam.

The action here was misconceived. Unprisoner is in execution; (Laws, vol. 1. sess. 24. c. 28. s. 18. p. 212.) and under our law, a prisoner is not in execution, until a writ of execution against the body has been issued and delivered to the sheriff» We have never adopted the English practice of charging the defendant in execution, without the issuing of a ca. sa. (1 Salk. 272. Watson v. Sutton, 2 Burr. 1050.) The provision in the statute (Laws, vol. 1. sess. 24. c. 66. s. 13. p. 266.) requiring a prisoner to be charged in execution, within three months next after a surrender of his bail, subsequent to judgment, is conclusive, to show that a defendant is not in execution by virtue of the surrender. The action, therefore, for the escape, in this case, ought to have been an action upon the case, in which the measure of damages is open to the investigation of the jury, and not an action of debt, in which the whole judgment is to be recovered, or nothing. (2 Term Rep. 126. 2 Black. Rep. 1048.) But, as the defendant was here permitted to avail himself of every defence, equally as if the action had been case, and not debt, and as only nominal damages have been recovered, it is unnecessary to set aside the verdict, merely for the sake of giving the defendant an opportunity of getting rid of the suit; for, as the verdict stands, the defendant will recover costs. For that reason only, we allow the plaintiff to retain his verdict, and the motion, on the part of the plaintiff, for a new trial, is denied. der the statute, debt for an escape lies only when the

Motion denied  