
    Jones vs. The State, use of Orr.
    Appeal from Harford County Court Debt on a sheriff’s bond. The defendant, (now appellant,) pleaded genera! performance. The breath assigned in the replication was the voluntary escape of W. T. Haft, committed under an execution at the suit of T. Orr, at whose instance and for whose use this action was brought. Rejoinder, that Hull was retaken, &c. and was in custody when the writ in this cause issued. That the escape was without the knowledge, &c. of the sheriff. Traverse, voluntary permission to escape, &c. Surrejoinder, that Halt ivas not retaken, and did not remain in custody; that the escape was voluntary and wilful. Rebutter, that Hull did escape Without the knowledge, &c of the sheriff. Issue joined.
    At the trial the plaintiff prayed the opinion of the court, and their direction to the jury, that if the jury believed that the sheriff appointed the dwelling-house of Waller T. Hall as his prison, and that Hall was there confined, and that his dwelling-house was not part of the public gaol and prison of Harford county, and was not within the prison walls and prison bounds of the said gaol, that then there was proof of a voluntary escape. Of this opinion the Court, 0Hollingsworth, A. J.] was, and so directed the jury. The defendant excepted; and the verdict and judgment being against him, he appealed to this court, where the cause Was argued at December term 1813, before Chase, Ch. I. and Buchanan, Nicholson, Earle, and Johnson, J.
    in an action oi?t a sheriff's boht! for a voluntary cape of a debtoV committed to ?1i=£ custody of the sheriff under ais «ice* cu<,ion-'livid, that if the shenff appointed the chveííhif?-house of the ■debtor ai his pri»* sonj and the tie otar was there coin* filled, and hi» dwelling'-house ,was Hot part of the public gaoX and prison oi the eoltnty, and was not within the pu* son walls and prison hounds of tina .gaol, there was proof of a vobiH* lary escape*,
    
      Marlin and Kell, for the Appellant.
    The question is, whether a sheriff can permit a person, committed to his custody under a ca. sa. to be confined in any place but the public gaol of the county? They contended, that the com - mitment of a debtor in execution, being to the custody of the sheriff, and not to the county gaol, or any particular prison, it follows that the sheriff must fix upon the place of confinement within his bailiwick. The law has not provided that aiiy other person shall do it, nor does it declare the county gaol to be the place for such confinement. Sup pose there be no gaol in the county, or that it be insecure, of which the sheriff must judge, shall he not confine elsewhere? The opinion of the court below is in effect, that if a sheriff makes a debtor’s house his prison, and there keeps liliis. confined, yet the sheriff is guilty of an escape. They cited Imp. Off. Shff. 43, 67, 68, 147, 215. Boyston's Case, 3 Coke, 44. 1 And. 345. Latch's Rep. 16, 6 Bac. Ab. tit. Sheriff, (H 5,) 158. Husband vs. Cole. 1 Sid. 318. Dalton, 143. Rigewaic's case, 3 Coke, 52. Gilb. 80, 85. Dalton, 139. Imp. 220. Bonafous vs. Walker, 2 T. R. 126. Balden vs. Temple, Hob. 202. No injury can be sustained if the person is confined-, and from toe authority referred to in Latch, “confinement is the whole of the. debtor’s punishment, and of die creditor’s satisfaction.” Here it appears that the party neve? was out of confinement. It would then surely be a very rigid construction to make the sheriff'guilty of an escape, and in op • posed by the authorities referred to. Such a decioion cam be only authorised upon the principle that he vruoi confino prisoners for debt in the county gaol, and that is in direcS opposition to the authorities cited.
    
      Montgomery, (Attorney General,) and Harper, for the Appellee,
    referred to the stat. 32 Geo. II, ch. 22. 1 Backus's Shff. 152. The acts of November 1773, ch. 6, s. 11; November 1781, ch. 10, s. 5; and 1786, ch. 24, s. 5. 2 Bac. Ab. tit. Escape in Civil Cases, (B). 3 Blk. Com. 415. 3 Com, Dig. 492, 108. Ravenscroft vs. Eyles, 2 Wils. 294. Balden vs. Temple, Hob. 202; and Sheriff of Essex's case, Ibid 202.
    
    
      Curia add. vutL
    
   At tills term,

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