
    Palmer against Hatch.
    NEW YORK
    Oct. 1812.
    Where a deputy sheriff arrested a defendant on an execution and left him in the custody oftwo brothers of the defendant, and went to serve othei process, and did not take him to gaol until the nexú day, it was held that this was an escape for which the sheriff was liable; the persons in whose custody the prisoner was left, having no authority to detain him in the absence of the deputy.
    THIS was an action of debt, for the escape of R. Usher, a prisoner, from the custody of the defendant, the late sheriff of Madison county, on an execution at the suit of the plaintiff. The cause was tried at the Madison circuit, in July, 1812, before Mr. Justice Spencer.
    
    The execution was produced with the return of the sheriff endorsed cepi corpus in custodia.
    
    It appeared that the deputy of the sheriff arrested Usher, on the return day of the ca. sa. and delivered him to the care of two brothers of Usher, in whose custody he remained until the next day, the deputy having left him, and gone on other business. Usher remained in the place where he was left, with his brothers, until 12 o’clock that night, when he went to his own house with them, and the deputy did not take him to gaol until the next day.
    The jury, under the direction of the judge, found a verdict for the plaintiff.
    A motion was made to set aside the verdict, and for a new trial, which was submitted to the court without argument.
   Per Curiam.

After the deputy had arrested Usher, he voluntarily left him in custody of two of his brothers, in order to go and execute other process. This was leaving the prisoner at large, and was clearly an escape; for the two brothers of the prisoner had no authority, after the deputy had left them, to detain the prisoner. The case of Benton v. Sutton (1 Bos. & Pull. 24.) is directly to this point, and the argument appears to be conclusive.

Judgment for the plaintiff.  