NOTE. Under the Revised Statutes of Massachusetts, the action of Debt is abolished for an escape, whether negligent or voluntary. ch. 97, sec. 71.'

By sec. 72, the plaintiff in such case, may have an action against the officer to recover such damages as he shall have suffered by the escape.

Against jailer for suffering an escape of debtor on execution.

For that whereas the plaintiff, by the consideration of our justices of &c., holden at &c., on &c., within and for our county of &c., recovered judgment against one C, of &c., for the sum of $-, damage, and $-, costs of the same suit, as by the record thereof, in the same court remaining, appears; and afterwards, on &c, the plaintiff sued out our writ of execution thereupon, in due form of law, directed to the sheriff of our said county of &c., or his deputy, commanding them among other things, that of the goods, chattels or lands of the said C, within their precinct, to cause to be paid and satisfied unto the plaintiff at the value thereof in money, the aforesaid sums, with $-more for our said writ of execution; and for want of goods, chattels, or lands of the said C, to be by him shown unto them, the said sheriff or deputy, or found within their precinct, to the acceptance of the plaintiff, to satisfy the sums aforesaid, to take the body of the said C, and him to commit unto our jail, in &c., in our said county of &c., and to detain him in our said jail, until he should pay the full sums abovementioned, with the said sheriff's or deputy's fees, or that he should be discharged by the plaintiff, the creditor, or otherwise by order of law. And afterwards, on &c., at &c., the plaintiff delivered the said writ of execution to one A, then and ever since one of the deputies of the said D, in and for our county of &c., to be duly executed by him, the said A. And thereafterwards, on &c., by virtue of said writ of execution, and for want of goods, chattels or lands of the said C, by him shown, or to be found as aforesaid, the said A took the body of the said C, and committed him to our said jail, in &c. aforesaid, to the custody of the said D, then and ever since keeper of our jail, to be by him there detained, till the said C should pay the full sums abovementioned, or be otherwise discharged as aforesaid; yet the said D, the duty of his office of keeper of the said jail as aforesaid, not regarding, did not detain the said C in our said jail; but by his negligence, suffered the said C to escape from our said jail, and go at large where he would, without the consent and against the will of the plaintiff, he being then and still

unsatisfied of his damage and costs aforesaid, whereby an action hath by law arisen to the plaintiff, to demand and have the aforesaid sums, amounting in the whole to $-, of the said D; yet, though requested, he hath not paid the same, but refuses and neglects so to do.

Against deputy, for serving writ in which he was a party defendant, &c.

For that, on &c., at &c., one J M, for value received of the plaintiff, indorsed over to him a promissory note, under the hands of S B and the said N, bearing date the day of &c., by them given to the said J M, or his order, in

months from the date thereof, with lawful interest for it afterwards, if not then paid; and by the same indorsement, appointed the contents of said note, then unpaid, to be paid to the plaintiff, who afterwards, viz. on &c., at &c., the said

months being expired, gave the said S B and the said N due notice thereof, and then and there requested them to pay him the contents of said note, which they neglected to do; wherefore the plaintiff, afterwards, viz. on &c. took out of the clerk's office of our [Court of C. P.] for said county, our writ of capias or attachment, in the form by law prescribed, against the said S B and the said N, who then was, and ever since hath been, a deputy-sheriff of our said county of &c., returnable into our said court, held at &c., within and for our said county of &c., on &c., directed to any coroner of our said county of &c., or his deputy, and no otherwise directed, commanding such coroner or deputy to attach the goods or estate of the said S B and the said N, to the value of &c., and for want thereof to take their bodies if to be found in his precinct, and them safely keep, so as to have them before our justices of our said court, then next to be held at &c., within and for our said county of &c., on &c., to answer to the now plaintiff, in a plea of the case, for not paying him the said sum of &c., with the interest aforesaid. And the said N, afterwards, viz. on &c., perceiving that our said writ was taken out as aforesaid, and subtilely contriving to defeat the plaintiff's suit aforesaid, and to defraud the plaintiff of the aforesaid $, and of the aforesaid interest for it, and to expose him not only to the costs of his suit aforesaid, but also to the payment of costs to the said S B and N, at &c., craftily got into his hands, our writ aforesaid; and afterwards, viz. on &c., in our said county, served the same writ on the said S B and N, by attaching a dwellinghouse and

acres of land of the said S B, and by attaching a cow of the said N, and giving each of them a summons; and wrote his said service and doings thereon, and subscribed the same by the name of "J N, Deputy-Sheriff;" and afterwards returned the said writ, so served, into our said court, when and where it was returnable as aforesaid. And the plaintiff, supposing the same writ to be duly served by a coroner of our said county, or his deputy, entered his said action in our said court, held as aforesaid. And the said S

B appeared in our said court, to answer to the plaintiff in his said action, and finding said writ was not served by such coroner as aforesaid, or his deputy, but was served by the said N, without being directed to a deputy-sheriff of our said county of &c., alleged and showed the same to our said court, and prayed that the same writ might be dismissed, for want of a good legal service, and for their costs to be allowed them; whereupon our said court then and there gave judgment accordingly, and allowed the said S B for bis costs. And the said S B hath since sued out our writ of execution upon the said judgment, and the plaintiff hath thereupon been compelled to pay that sum with &c. more for the same writ, and hath also, by reason of the aforesaid fraudulent management and intermeddling of the said N, lost his own costs and expenses in that suit, besides much time in commencing and so far prosecuting his said action, and hath also been ever since delayed in recovering the debt aforesaid. R. DANA.

Against sheriff for neglect of his deputy in service and return of a writ of execution.

For that whereas the plaintiffs, by the consideration of our justices &c., recovered judgment by the names and additions of J A and S A, both of &c., in the county of &c., tanners, against R, of &c. in the county of &c., trader, for the sum of $-damages, and $- costs of suit, by him in that behalf expended; and the said plaintiffs, at &c, on &c., purchased out of the clerk's office of our said court, our writ of execution upon the same judgment, directed to the sheriff of our said county of &c., or his deputy, wherein we commanded them severally, that of the goods, chattels, or lands of the said R, within their precinct, they should cause to be paid and satisfied to the said plaintiffs the sums of &c., and &c. more for our said writ of execution on the same judgment; and

the said sheriff and his deputy, in and by the said writ, were severally commanded that they should, for want of goods, chattels, or land of the said A, to be by him shown unto them or found within their precinct, to the acceptance of the said plaintiffs to satisfy the sums aforesaid, take the body of the said A, and him commit unto either of the jails in our said county of &c., to be there detained in their custody, until he paid said sums, with their fees, or should be otherwise discharged; and the said sheriff and his deputy, were therein further severally commanded to make return of the same writ of execution with their doings therein into the clerk's office of our said court of &c., within three months next following the date of the same writ; and the plaintiffs aver, that the said R, on &c., was, and long before was, and ever since has been, sheriff of our said county of &c., and in his said capacity was liable for all the malfeazance and misfeazance of his deputies; and the said plaintiffs, at &c., on &c., delivered the same writ of execution to T, of said etc., who then was, and ever since has been, a deputy sheriff of the said R, duly and legally qualified, and for whose conduct in the said office of deputy-sheriff, the said R was answerable for him, the said T, to serve, execute and return the same, according to our command therein given; now the plaintiffs aver, that the said R, neglecting his duty in his said office of deputy-sheriff, as aforesaid, totally neglected to serve, execute, and return the same writ of execution, according to our command therein given (except that he did serve the same for and receive thereon the sums of &c. and &c.) by means whereof the said plaintiffs have totally lost the benefit of their said judgment for the sums for which the said execution issued, (excepting the two sums last abovesaid,) in having lost their right to obtain an alias writ of execution to satisfy their said judgment.

For false return of execution, as satisfied only in part, &c. after receipt of the whole debt and costs.

SECOND COUNT. For that whereas the said plaintiffs, by the names and additions as aforesaid, by the consideration of our justices &c., recovered one other judgment against the said A, of &c., for one other sum of &c., damages, and one other sum of &c., costs of suit, by him in that behalf expended; and the said plaintiffs, at &c., on &c., purchased out of the clerk's office of our said court, his writ of execution, upon his said last mentioned judgment, directed to

the sheriff of our said county of &c., or his deputy, wherein we commanded them severally, that of the goods, chattels or lands of the said A, within their precinct, they should cause to be paid and satisfied to the said plaintiffs, the sums of &c., and &c. more for our said writ of execution on our said judgment last mentioned; and the said sheriff and his deputy were therein commanded, that they should, for want of goods, chattels or lands of him, the said A, to be by him shown unto them or found within their precinct, to the acceptance of the said plaintiffs, to satisfy and pay the sums aforesaid, take the body of the said A, and him commit unto either of the jails in our said county, &c., to be there detained in their custody until he paid said sums, with their fees, or should be otherwise discharged; and the said sheriff and his deputy, were therein severally commanded to make return of the same writ of execution, and the said last mentioned judgment, with their doings thereon, into the clerk's office of our said court of, &c., within three months next following the date of the said writ of execution and the plaintiffs aver, that the said D, on &c., was, and long before was, and ever since has been, sheriff of our said county of &c., and in his said capacity was liable for all malfeasance and misfeasance of his deputies. And the said plaintiffs, at &c., on &c., delivered our said last mentioned writ of execution to T, of &c., who then was, and ever since has been a deputy-sheriff of said D, duly and legally qualified, and for whose conduct in the said office of deputy-sheriff, the said D was answerable, for him, the said T, to serve and execute and return the same, according to our command therein given: Now the plaintiffs aver, that the said T, neglecting his duty in the said office of deputysheriff, did receive full and complete payment of the sums required or satisfied in said execution; yet did not return. the same according to the command therein given, but made the following false return, in the words following, viz. "I return this execution satisfied for the above sums of &c., in part for debt, and &c. in full for costs of this execution.. T, deputy-sheriff." All which is to the damage, &c. Albree et al. v. Bartlett, S. J. C. 1796. W. PRESCOTT.

Against sheriff for a false return of execution and neglect of duty in his deputy.

For that whereas the plaintiff, by the consideration of our justices &c., recovered judgment against one J S, of