ished by fine and imprisonment. And the sheriff shall answer for him. 2 Hark. 134, 5, 6.

2. But the principal jailer is only fineable for the voluntary escape of a felon suffered by his deputy; for no man shall suffer capitally for any crime, but he who is actually guilty of it. Ibid. 135.

3. But for a negligent escape suffered by his bailiff, the sheriff is as much liable to answer, as if he had actually suffered it himself; and the court may charge either the sheriff or bailiff for it. And if a deputy jailer be not sufficient to answer a negligent escape, his principal must answer for him. Ibid.

4. But it will not be felony if the prisoner be permitted to escape, when no felony was committed. 2 Inst. 592.

II. IN CIVIL CASES.

1. WHAT SHALL BE AN ESCAPE.

1. An escape from the bounds of the prison, without the jailer's Knowledge, is not a voluntary escape. 2 Term. Rep. 126.

2. An action lies for an escape, if he permits his prisoner to go at large, though he afterwards returns. 3 Co. 44. 1 Rol. 806. 1. 13. Though he returns the same day, and afterwards plaintiff proceeds to final judgment. Ravenscroft v. Eyles, 2 Wils. 294.

If the defendant, being taken in execution, be afterwards seen at large for any the shortest time, even before the return of the writ. 2 BI. Rep. 1048.

Though he does not go out of the same county. Or out of the town where the jail is. Ibid. 1. 24. Though he has a keeper with him. 3 Co. 44. a. 20. Plowd. 37. Hob. 202.

1 Rol. 206. 1. 15. Hob. 202.

1 Rol. 806. 1. 17,

Or upon any habeas corpus be permitted to go at large in the country. Semb. Cro. Car. 14. 3 Co. 44. a. Mo. 257, 299. Per Hale.

1 Mod. 116. Hard. 476.

Or if upon a habeas corpus ad testificand; he goes before and stays a long time after the assizes. Semb. 1. Mod. 116.

3. If after judgment, and before any charge in execution, a prisoner is rescued, when brought out on a habeas corpus; it is not a good excuse for the sheriff, in an action of escape, and he shall answer it to the plaintiff. Crompton v. Ward. Str. 429.

4. If a prisoner is removed by habeas corpus, from B R to C B, and escapes, plaintiff in an action of escape need not set out the process in C B, against the prisoner. Gambier v. Wright. Str. 951.

5. If the recaption is after the action brought, it is still an escape. Stonehouse v. Mullins. Str. 873.

6. So an action lies for escape, where the prisoner was arrested by process out of an inferior court.

7. Though it be pleaded that the cause of action arose out of the jurisdiction, and that the officer had notice of it before the return of the writ: for the officer cannot examine that matter. Comy. Rep. 153. Higgison v. Sheriff.

Though the judgment was erroneous, or for one who sued without

colour. 3 Mod. 324.

63. Cro. El. 164, 576.

Carth. 148. 5 Mod. 413. 8 Co. 142. 2 Bul.
Yel. 42. cont.

8. So an action lies for an escape, though he was convicted for felony, before judgment and execution against him, and continued in prison for the felony'; for until he be executed for felony, he is charge. able to the party Sav. 63. 1 Leo. 276. 2 Lev. 84.

9. A rescue has been held to be no excuse for a jailer, charged with a wilful and voluntary escape. (5 Burr. 2812.) The whole court thought it a very HARD case, but that the authorities were too strong to be resisted.

10. So where a mob, riotously and by force, demolished a jail, by which the debtors escaped, it was held that the sheriff or jailer was answerable. 4 Term. Rep 789.

But by the laws of Virginia, "no judgment shall be entered against any sheriff or other officer, in any suit brought upon the escape of any debtor in his or their custody, unless the jury who shall try the issue shall expressly find that such debtor or prisoner did escape with the consent, or through the negligence of such sheriff (or sergeant) or his officer or officers, or that such prisoner might have been retaken, and that the sheriff (or sergeant) and his officers, neglected to make immediate pursuit." 1 Rev. Code, p. 119, sect. 3.

Provided, that where a sheriff or other officer shall have taken the body of a debtor in execution, and shall wilfully and negligently suffer him to escape, an action of debt may be maintained, &c. Ibid.

11. An action of debt will lie against a sheriff of a county, for an escape, if the jailer discharge a prisoner who was in execution, although such discharge was ordered by the sessions, under the insolvent act, but it appeared that the sessions had no jurisdiction at the time of making the order. (8 Term. Rep. 424. Brown v. Compton. I Salk. 273. pl. 5.) And the case of Orby v. Hales (1 Ld. Raym. 3. 4 Mod. 353.) was held not to be law. G See The Marshalsea case (10 Co. 76. a.) as to the different effects of an officer acting under the judgment of a court having jurisdiction, and not having jurisdiction. See also, Cro. Car. 395. 1 Str. 711. 2 Str. 1002. 2 Wils. 382. 2 Str. 994.

12. An escape from the rules of the prison, without the sheriff's knowledge, is not a voluntary escape. But under a count for a voluntary escape, the plaintiff may give in evidence a negligent escape. 2 Term. Rep. 126. Bonafous v. Walker.

13. And a voluntary return of a prisoner, after an escape, before action brought, is equal to a retaking on a fresh pursuit; but it must be pleaded. Ibid.

14. The difference between an arrest on mesne process and in execution is this; on the former the sheriff may permit the prisoner to go at large, provided he has him at the return of the writ; but in the latter case, if he voluntarily permit the prisoner to go at large, though only for a minute, he cannot afterwards retake him; in the former case, too, the sheriff may retake the prisoner after such permission. 2 Term. Rep. 172. Atkinson v. Matteson. See further on this subject, 2 Bl. Rep. 1048. 1 Bos, & Pull, 24. 2 H. Bl. 108. 5 Term. Rep. 37.

II. WHAT SHALL NOT BE AN ESCAPE.

1. But it will not be an escape, if the party never was in his custody. As if the old sheriff does not deliver him over upon such execution. 3 Co. 72. 2 Cro. 588. Poph. 85. 2 Lev. 54.

2. If he be arrested, but not actually committed to jail, the jailer shall not be charged for an escape. 1 Rol. 806. 1. 30.

3. So if a committitur be entered upon the roll, but the party is not taken. 1 Sid. 220.

4. So if a man bailed renders himself in discharge of his bail, and a reddidit se is entered in the judge's book, and a committitur entered with the proper officer; yet if a committitur be not entered with the marshal of B R, or a rule served upon him, he shall not be charged for an escape, though the bail be discharged. 1 Sal. 272, 3.

5. So if the entry be, that virtute of an habeas corpus to a judge of B R, debito modo commissus fuit mar; for that cannot be by virtue of the habeas corpus. 2 Sho. 17, 18.

6. It must appear that the commitment is of record; therefore, if it is laid that the prisoner was committed to the custody of the mar shal, at the suit of plaintiff, by A, one of the justices of the commonwealth, it is ill. Str. 1226.

7. If he be at the house of the jailer, but not within the prison. Cro Car. 210.

8. So it will not be an escape, where the prisoner was not in custody at the suit of the plaintiff. As, if he was taken by a capias utlagatum, or a capias pro fine; where a capias does not lie in such suit. 1 Rol. 810. 1. 30.

9. Or when he was not charged at the prayer of the plaintiff. Ibid. 1 Leo. 263.

10. Or was arrested and suffered to go at large, before the writ of execution was delivered to the sheriff. 1 Rol. 809. 1. 30.

11. Or upon a capias, where no capias was awarded by the court. Ibid. 1. 35.

12. So it will not be an escape, if he goes out of prison, by reason of a sudden fire in the jail. Ibid. 808. 1. 7.

13. Or the jail be broke by the commonwealth's enemies. Bro. Escape 10. 1 Rol. 808. I. 5.

14. Or the defendant be rescued upon a mesne process, before he was in jail. Mar. 1. 1 Rol. 807. 1. 35. 2 Cro. 419. 2 Lev. 144. 1 Rol. 389, 440.

15. Though the rescous be not returned. (2 Lev. 144.) Or if it be. 1 Rol. 140.

16. So if the defendant be retaken upon fresh suit, before the action commenced for the escape. (1 Rol. 808. 1. 50. 3 Cro. 52. 13 H. 7, 2. Godb. 434. F. N. B. 130. B.) Or voluntarily return. 2 Term Reft.

126.

17. Though the fresh suit was not begun till a day and a night after the escape. 1 Rol. 809. 1. 10. 2 Rol. 681.1. 50. 3 Co. 52. Mo. 660.

Poph. 41.

18. Though he did not retake him till he fled into another county. Bro. Escape 4. 3 Co, 52.

19. Though he was out of sight. Poph. 41. 3 Co. 52. 14 H. 7,

1. a.

20. Though he did not retake him till seven years after, if it was upon fresh pursuit. 13 Ed. 4, 9. a. Semb. Godb. 177.

21. So a voluntary return of a prisoner, after an escape, before action brought. is equivalent to a retaking on a fresh pursuit: but it must be pleaded. 2 Term. Rep. 126.

22. But fresh suit is no plea, where the escape was voluntary in the sheriff. 2 Rol. 283.

23. Or after an action brought, though before plea. Semb. 2. Rol.

283.

R. cont. Lat. 200.

24. So the sheriff shall not be charged for an escape, if the prisoner goes out of prison with the assent of his creditor. 2 Inst. 382.

25. Though the assent be only by parol, it shall be a bar. Ibid. Dy. 275. a.

26. But an assent by parol, after an escape, does not discharge the sheriff. Dy. in marg.

27. So it will not be an escape, if the sheriff, upon a habeas corpus, brings his prisoner to the superior court, though he goes out of the direct way. 3 Co. 44.

Mo. 299.

28. So if he goes with a keeper to counsel, &c. when he is in execution for the commonwealth's debt, though not in the case of a common person, because the jailer may retake him. Sav. 29.

29. So if discharged upon an audita querela, though the writ be afterwards vacated. Mo. 354.

30. So if a prisoner, brought by habeas corpus, goes out of the cus tody of the sheriff, and returns the next morning, and appears at the return of the writ. Mo. 257.

So if a prisoner goes out of the rules of the prison, with the consent of the plaintiff, without a keeper or rule of court, upon an intent to agree with the plaintiff, and no agreement is made; yet the prison. er shall be discharged upon an audita querela (Sti. 117. Semb. cont.) if the plaintiff assents upon condition that it shall not prejudice his execution. Dy. 275. a.

III. WHEN HE SHALL BE RETAKEN, &c. AFTER AN ESCAPE.

1. If the prisoner escapes by negligence of the sheriff, the sheriff may retake him, and he shall not have an audita querela. 3 Co. S2. b. 1 Sid. 330. Mo. 660. Dub. Sho. 70. Adm. Sho. 177.

2. Or he may have an action on the case against the prisoner for his escape; whereby he becomes subject to the action of the party. 3 Co. 52. b. Mo. 660. Mo. 404, 597. Cro. El. 53, 237. 1 Leo. 237.

Lut. 64.

3. And this, before an action or recovery against the sheriff, as well as after. Mo. 660. Godb. 125. Cro, El. 53.

4. Though the party afterwards acknowledges satisfaction upon record; for that goes only in mitigation of damages (1 Leo. 237. Semb. cont.) if he does not shew specially how satisfied. Cro. El.

5. So if a prisoner escapes, and afterwards returns to the prison,

the plaintiff may admit him in execution, though he has a remedy against the sheriff. Cont. Hob. 202. 1 Vent. 269. 2 Lev.

109, 132.

R. acc.

6. Or may retake him by a new capias ad satisfaciendum, if the first be not returned and filed. 3 Cro. 52. b.

7. So he may retake him in all cases upon a negligent escape; for the sheriff may be insufficient. R. cont. Hob. 202. R. acc. 1. Sid.

330. 1 Vent. 4, 269.

8. So though the escape was voluntary by the jailer, and without his consent. 1 Sid. 330. 1 Vent. 4. 1 Lev. 211. 2 Mod. 136. 2 Jon. 21. Adm. Sho. 177. Semb. cont. Hob. 202.

9. So if a prisoner be dismissed upon a wrongful audita querela, he may be retaken, and shall be in execution. Mo. 354.

10. So after an escape, the plaintiff may have debt or a scire facias against the defendant, upon the former judgment. 1 Vent. 269. Cart. 212. 2 Jon. 21. Lut. 1266. Sho. 174, 249.

11, Though it was with his consent subsequent. (1 Salk. 271.) Though he paid the money to the jailer. 2 Jon. 97.

12. So if a man taken in execution be rescued, he may be retaken, or a scire facias lies against him. Cro. Car. 240.

13. But if the sheriff suffers a voluntary escape, he will not have an action upon the case against the prisoner. Mo. 597.

14. Or if he retakes him, the prisoner shall have an audita querela. 3 Co. 52. b. 1 Sid. 330.

15. After voluntary escape, the jailer cannot retake the prisoner; but after involuntary he may, without warrant, and upon a Sunday. Barnes 373. 5 Term Rep. 25.

16. So if the sheriff permits a voluntary escape, with consent of the plaintiff, he never can be retaken by the sheriff, or the plaintiff. Sho. 174. 2 Leo. 119.

17. If the consent of the plaintiff be precedent to the escape; otherwise, if subsequent. 1 Salk. 271.

18. Yet if A permits a voluntary escape, and quits his office to B, to whom the prisoner returns; B ought to retain him: otherwise it will be an escape in him. 1 Vent. 269. 2 Lev. 109. Semb, Mod. Ca.

183.

Semb cont. Hob. 202.

R. 2 Lev. 109.

19. Or if the offence descends to B. 20. And an action for the escape lies against A or B, if he also permitted an escape, at the election of the plaintiff. 2 Lev.

132.

21. A resists the service of an order of chancery, is committed for the contempt, goes at large, retaken on an escape warrant, and committed to Newgate; escape warrant superseded; the contempt not being for not obeying a decree, and A sent to the former prison.

Str. 99.

22. If a man escapes and returns again, and then commits a second escape, he cannot be taken up for the first escape, it being purged by his return. Str. 423.

23. So if he be discharged by agreement, after commitment upon an escape warrant, he shall not be afterwards retaken, Mod. Ca. 254,