Stone v. Woods

Where a prisoncr arrested on a mesne process^ after a judgment in the suit, but before execution, escaped, but voZuntaniy returned on the same day, it was held, that1 the™heriiF makes ano difthT'esaipe was negligent. If the Sheriff after an arrest on mesne process, has the body of the defendant, at the return day of the writ, it is sufficient, '1'he act giving double costs in suits against sheritis and otlici oiiiccis^ does not extend to the case of a judgment for the defendant, on, demurrer,

THIS cause came before the court, on a writ of error from the court of common pleas of Washington county The plaintiff brought an action on the case for an escape. 1 ° . in the court below. The declaration set forth, that one . . _ ’ . Uriel Clary, was indebted to him, &c. and that a captas , 7 . , . ad respondendum^ in December, 1806, was issued against the said Clary, &c. directed to the defendant, commanding him to take the said Clary, so that he might have his body, before the judges and assistant justices of the court of common pleas, of Washington county, on the first Tues-Stay of March, 1807, &c. which writ was, on the 2 6th of January, 1807, delivered to the defendant, as sheriff of the county of Washington, to be executed, &c. and the defendant, afterwards, and before the return of the writ, to wit, on the 18th of February, 1807, arrested the said Clary, and had him in his custody, &c. that by virtue of the said writ and arrest, &c. the plaintiff, afterwards, recovered judgment in the said court, against the said Clary, for 139 dollars and 90 cents damages ; that after-wards, to wit, on the 25th of July, 1807, the defendant, at, &c. wilfully and voluntarily suffered the said Clary to go at lai-ge, out of his custody, &c. he, the plaintiff, being wholly unsatisfied for his damages, &c. The defendant pleaded four pleas : 1. Not guilty. 2. That after the commitment of Clary, on the writ, at the suit of the plaintiff, he, on the 25th of July, 1807, forcibly broke the gaol, and escaped out of the defendant’s custody; and that afterwards, before the exhibiting the bill of the plaintiff, and before the defendant had any notice or knowledge of the escape, he privily returned into the custody of the defendant, and ever since hath continued in his custody, &c. which escape, &c. and this he is ready to verify, &c. 3. That the said Clary, on the 25th of July, 1807, forcibly broke gaol and escaped out of the defendant’s custody, without his knowledge or consent, and that the defendant immediately made fresh pursuit after him, &c. until, afterwards, to wit, on the 25th of July, 1807, and before the exhibiting the plaintiff’s bill, he retook the said Clary, and detained him in his custody, by virtue of the said commitment, at the suit of the plaintiff; and still detains him in custody, &c. 4. That Clary, forcibly and against the knowledge and will of the defendant, broke prison and escaped, on the 25th of July, 1807, and afterwards, on the same day, privily returned into the prison, and has ever since remained in custody, &c. and that the defendant had not then, nor hath he since, received any execution at the suit of the plaintiff against the said Clary, &c. with a verification, &c. To the second plea, the plaintiff replied that Clary did not privately return, &c. and issue thereon. To the third plea, the plaintiff replied, that the defendant did not make fresh pursuit, &c. to retake the said Clary, in manner and form, &c. and issue thereon. To the fourth plea, there was a general demurrer and joinder. The court below gave judgment for the defendant, on the demurrer; and as the suit was against the defendant, as sheriff, they adjudged the plaintiff to pay double costs. On this judgment, the writ of error was brought.