pass and false imprisonment, Cameron v. Lightfoot, 2 W. Bl. 1190; Tarlton v. Fisher, 2 Dougl. 671; Moore v. Chapman, 3 H. & M. 260; nor an action on the case, Magnay v. Burt, 5 Adol. & El. N. S. 392, 48 Eng. Com. Law Rep. 393. The privilege is considered not of the person attending the court, but of the court which he attends; and redress is to be had by motion to that court.

If a court having power to do so order the discharge, and the sheriff, though such order is made known to him, still detains the party in custody, such detention is a new trespass and false imprisonment, in the same manner as if there had been a new caption. Magnay v. Burt, 5 Adol. & El. N. S. 395, 48 Eng. Com. Law Rep. 395.

3. On what principle action lies against sheriff for not arresting, or for permitting an escape. It must be shewn that plaintiff was entitled to sue out the process. If he was so entitled and the escape was under mesne process, what he may recover.

The principle on which an action lies against the sheriff for a neglect of duty in not arresting, or in permitting an escape, is clearly laid down in Jones v. Pope, 1 Saund. 38 b. It is not simply because one sues out a writ directed to the sheriff and delivers it to him that he can bring an action for not obeying it; but because he has in mesne process a cause of action, in final process a judgment, which gives him an interest in the writ and creates a duty in the sheriff towards him. Although the sheriff-whose province it is not to examine the act of court but to obey it-is excused for executing a writ issued without a cause of action in the one case or a judgment in the other, and may be punished by the court for disobedience as a contempt, yet there is no duty from the sheriff to the party suing it out unless he was entitled to do so. It is essential therefore for him in an action against the sheriff for disobeying the process to shew in the case of final process that he had a judgment in his favour and to shew in the case of mesne process that he was a creditor or had a cause of action. The title of any one to sue out the new species of ca pias founded on the statute of 1 & 2 Vict. c. 110, depends upon his being a plaintiff in a suit as well as having a cause of action. Parke, B. 3 W. H. & G. 588.

Though in the case of mesne process there may have been a cause of action, the jury may take into consideration all the circumstances of the case and give less than the demand. Smith v. Hart, 2 Bay 395. The common law remedy is by

action on the case in which the jury are to assess for the plaintiff the damages which he has in fact sustained. Burrell v. Lithgow, 2 Mass. 526. The question is, what has the plaintiff lost in consequence of the escape. Potter v. Lansing, 1 Johns. 223; Van Slyck v. Hogeboom, 6 Id. 270; Russel v. Turner, 7 Id. 189; Brooks v. Hoyt, 6 Pick. 468; Fitler v. Beckley, 2 W. & S. 458. To ascertain what he has lost it is advisable for the plaintiff besides giving evidence of his process, to shew for what amount he had right of action in the original suit, the condition of the defendant in that suit when the process was delivered to the sheriff and his condition when the action is brought against the sheriff. Tempest v. Linley, Clayt. 34; Peake's N. P. 608; 2 Stark. (edi. of 1837) 740.

In England, it is considered the creditor has no cause of action when no damage is sustained, and that none is sustained when the jury find that in point of fact the plaintiff was not delayed or prejudiced; in such case there is not a recovery even of nominal damages. Planck v. Anderson &c. 5 T. R. 37. In one case it was said that if there was a breach of duty the law would presume some damage. Barker v. Green, 2 Bingh. 317, 9 Eng. Com. Law Rep. 419. But the case of Planck v. Anderson was not cited, nor the question as to the sheriff's duty discussed. The same weight is not given to Barker v. Green, as to Planck v. Anderson. The latter was followed in Williams v. Mostyn, 4 M. & W. 145. It does not appear in either of these cases that judgment had been obtained in the original suit before action was brought against the sheriff; in the last as in the first of them, the plaintiff before judgment against the party could not maintain his action upon proof of the escape alone; the mere fact that after the return day the party was out of jail, with a sheriff's officer, was not enough without some proof of damage.

In the United States the action against the sheriff has usually been deferred until judgment was obtained against the defendant in the original suit. Though the party was in prison under a capias ad respondendum, an escape after such judgment has been deemed sufficient to give a right of action to recover some damage. Stone v. Woods, 5 Johns. 182. Whether the action against the sheriff be for a false return of arrest made and bail taken, or for taking insufficient bail, or for an escape, or for any other negligence, in either case a judgment obtained against the defendant in the original suit, which has proved unavailing, has, in Massachusetts or New York, been deemed prima facie evidence of the measure of the plaintiff's injury. It may however be met by proof that the

plaintiff has not suffered from the officer's neglect--for example, impeaching the judgment on the ground of fraud, or shewing the insolvency of the party against whom that judgment was obtained, as well when suit was brought against him as since. Then the verdict against the sheriff will be only for nominal damages. Weld v. Bartlett, 10 Mass. 470); Young v. Hosmer, 11 Id. 89; Nye v. Smith, Id. 188; Shackford & wife v. Goodwin, 13 Id. 187; Rich &c. v. Bell, 16 Id. 294; 9 Johns. 302; Patteson &c. v. Westervelt, 17 Wend. 543.

4. When the action is against an officer for not serving ca. sa., or permitting debtor taken under it to escape. In addition to the common law remedy by action on the case, statute gave an action of debt.

An officer to whom a ca. sa. is delivered, should serve it with reasonable diligence. If he fail to do so, the creditor has a right of action against him for his breach of duty. Though there should be no proof of the plaintiff's having sustained any damages, he will be entitled to recover at least nominal damages. Clifton v. Hooper &c. 6 Adol. & El. N. S. 468, 51 Eng. Com Law Rep. That is, unless on the defendant's part there be adduced evidence requiring a different result. Walker v. Haskell, 11 Mass. 177.

A debtor in execution must be kept in prison, and not allowed to go out. Plowd. 36; Balden v. Temple, Hob. 202; Small's case, 2 Bul. 148; Dalton 561; Boyton's case, 3 Rep. 44, a.; Roll. Abr. 806; Buller, J., 5 T. R. 40. It is considered that as well before as after the return of the writ, the creditor has a right to have the debtor's body in jail; that the escape of the debtor for ever so short a time is necessarily a damage to him; and that an action lies for such escape. Hawkins &c. v. Plomer &c. 2 W. Bl. 1048; Parke, B., 4 M. & W. 153. The decisions in the United States proceed on the same principle. If after the debtor is taken in execution he should be at large, an action will lie against the sheriff for an escape, notwithstanding the debtor is brought into court at the return day of the writ. Koones v. Maddox, 2 Har. & Gill 106.

At common law the remedy for an escape from custody under execution as well as under mesne process, was by action on the case for such damages as the plaintiff may have sustained by reason of the escape. It has indeed been suggested that for an escape from execution there might be brought at common law an action of debt. Plowd. 35; 2 H. Bl. 113.

But Lord Coke thinks otherwise. He considers that debt was

given by the statutes of 13 Edw. 1 (Westm. 2) and 1 Rich. 2, c. 12, 2 Inst. 382. And this is the received opinion. Dyer 322, b.; Bonafous v. Walker, 2 T. R. 126.

The established doctrine in England is that for an escape from execution an action lies though the escape be involuntary; that nothing will be an excuse but the act of God or the king's enemies. Alsept v. Eyles, 2 H. Bl. 108. It is no defence that by the act of a mob the jail was demolished and the prisoner rescued. Elliott v. Duke of Norfolk, 4 T. R. 789. The insufficiency of the jail is no legal excuse. It is so considered in South Carolina. Smith v. Hart, 2 Bay 395.

5. State of the Virginia legislation and decisions as to escapes. Action of debt for an escape abolished in this

state.

In Virginia, changes were made by the act of 1736, 4 Hen. Stat. 487, c. 7, § 2; the act of 1748, 5 Id. 519, § 11; and the act of 1753, 6 Id. 345, § 37. Under these acts was decided Johnson v. Macon, 1 Wash. 6, 4 Call 367. Under the act of November 24, 1792, (1 R. C. 1819, p. 550, c. 136, § 3,) was decided Hooe v. Tebbs, 1 Munf. 501. The latter was the case of a prisoner admitted to the liberty of the prison rules, from whom the sheriff was bound to take a bond, so that on it there might be an action, as in Meredith's adm'x v. Duval, 1 Munf. 76. The release of the sheriff upon a bond which was void, was an escape, for which an action would lie against the sheriff. Hooe v. Tebbs, 1 Munf. 501. Under like circumstances the action was maintained in Massachusetts. Whitehead v. Varnum, 14 Pick. 523. Taking the act regulating the action of debt as it was in Virginia under the Code of 1819, Daniel, J. considered that it was the purpose of the legislature to give that action where the escape was wilful or negligent, and that to maintain it, it was only necessary for the plaintiff to shew the escape; and that to defeat the action, it was incumbent on the sheriff not only to shew that the escape was tortious, but that fresh pursuit was made. In this opinion, Allen and Lee, J's. concurred. Stone v. Wilson, 10 Grat. 542, 547. The sheriff could not excuse himself for the escape of a debtor once taken into his custody under a ca. sa. by shewing simply that the county court had provided no jail in which to confine the debtor, S. C. 545; Gwinn v. Hubbard, 3 Blackf. 14; nor by shewing simply a tortious escape. At common law and under the English statutes the sheriff could defend himself in a case of negligent escape, only by shewing a recaption of the prisoner before action brought. The change

made in this regard by the Virginia statutes went no farther than to place proof by the sheriff of immediate pursuit or of the fact that the prisoner could not be retaken, when the escape is tortious, on the same footing with a recaption in England. Stone v. Wilson, 10 Grat. 546. No ca. sa. issuing in: Virginia on a judgment obtained since the Code of 1849 took effect, the action of debt for an escape no longer exists in this.

state.

6. Action of debt for an escape abolished in England and Massachusetts. Material difference often between what would be recovered in that action and what is recoverable in action on the case.

The action of debt for an escape is abolished in Massachusetts by the statute of 1833, c. 134, 14 Pick. 523; and in England by the statute of 5 & 6 Vict. c. 98, § 31. The only. action which now lies there against a sheriff for an escape on final process is an action on the case. This action was used even when there existed the action of debt against the sheriff for the recovery of the whole debt; for the statutes which gave the action of debt, being affirmative, did not take away the common law remedy. 2 T. R. 129; 1 Wms. Saund. 38, notes 2 & g. There is a material difference between the two forms of action as to the measure of recovery. In the action of debt not only from the words of the statutes of 13 Edw. 1, (Westm. 2,) and 1 Rich. 2, c. 12, but from the nature of the action-being for a definite sum-there was recovered what the original debtor was by the judgment bound to pay, Hawkins v. Plomer &c. 2 W. Bl. 1048; Bonafous v. Walker, 2 T. R. 126; Robertson &c. v. Taylor, 2 Chit, 454, 18 Eng. Com. Law Rep. 394; Shewell v. Fell, 3 Yeates 17, 4 Id. 47; Porter v. Sayward, 7 Mass. 377; Rauson v. Dole, 2 Johns. 454; Shuler v. Garrison, 5 W. & S. 455; with the addition sometimes of interest from the date of the writ against the sheriff. Whitehead v. Varnum, 14 Pick, 523. In the action on the case the jury are at liberty to give such damages as they think right under all the circumstances of the case. Grose, J., 2 T. R. 132; Colby v. Sampson, 5 Mass. 310; Jones v. Blair, 4 McCord 281; Fitch v. Walker, 1 Bailey 98. In the United States these damages have usually been in proportion to the injury sustained-the actual loss. Shuler v. Garrison, 5 W. & S. 455. If the action instead of being an action on the case against the sheriff be an action of debt on the sheriff's bond, the measure of recovery is the same as in the action on the case. The case of Wolverton &c. v. Hart &