#### Hart v. Lanier.

T I From Franklin. J

When the sheriff returns to a writ of capias ad respondendum that the defendant broke custody before he reached the jail, he cannot be proceeded against as bail; for sheriffs are not, by law, compelled to’be special bail against their consent, and here the return shows that the sheriff did not mean to be bail.

This was a sd. fa. to charge the defendant as special bail of one Freeman Downs. At the time of the service" of the writ, which the plaintiff issed against Downs, the defendant was sheriff of Franklin. The writ was returned by the defendant to Franklin County Court, September term, 1819, endorsedExecuted, and broke custody before got to jail;” signed by the defendant as sheriff. The plaintiff offered the record of the judgment in evidence; and the Court, on inspection, adjudged that the defendant is not Jiable as bail, that there is no record *245of such liability, and gave judgment accordingly, with costs, and from this judgment there was an appeal.

Taylor, Chief Justice.

The act specifies two cases,

wherein the sheriffs shall be chargeable as special bail: one is, where he returns no bail; the other, where the bail returned is held insufficient, then upon exception taken to it, and notice to the sheriff, he shall be liable. When a sheriff suffers the party to go at large without bail, he is not liable to an action for an escape, provided he have him on the return of the writ; but if he have him not then, or afterwards suffers him to go at large, without proper authority, he is liable to an action. This is the law of England, because no provision is made there for the sheriff’s becoming bail; hut according to our law, if the sheriff suffers the party to go at large, he is not liable to an action for an escape, although he have not the body on the return of the writ; but must be proceeded, against as special bail, in which case he may make a surrender at any time before final judgment. When the defendant is arrested, and escapes on the way to prison, it evidently was not the intent of the sheriff to make himself liable as bail; he meant to secure the body; and every presumption of his becoming bail is excluded by the fact, that the escape was against his will. Whether the escape was made under such circumstances as would amount to a rescue, either by the party himself, or by others, for which the sheriff would not be liable on mesne process, is not now in question; the only inquiry being, whether, when he returns an escape, he can be proceeded against ns bail. I am of opinion he cannot.

Hall, Judge.

The act of 1777, ch. 115. sec. 16. does not impose it upon sheriffs to become special bail against their consent; and in this case the sheriff has not elected to become bail; so far from it, that he was about to put Downs in jail for want of bail, when he broke custody. *246He becomes bail when he lets Ms prisoner go at large w^kout taking bail at all; or without taking sufficient bail, and exception is taken for that cause at the Court which the writ is returnable. But this is neither of those cases, and, therefore, cannot be within the act of' assembly; of course the sheriff cannot be subjected as bail by this scire facias. It has been said, that if the sheriff is not considered as bail, but subject to an action for the escape, he looses the benefit of making a surrender. 1 Hay. 224. That is true, if he would be liable for the whole of the plaintiff’s debt in an action for the escape; but that may not be the case. The jury, in such action, mil be governed by circumstances. Suppose, for instance, it should be proved that the defendant, who escaped, was insolvent, it would, no doubt, influence the-jury in making up their verdict. From this view of the case, I think judgment should be entered for the defendant. 1 Hay. 485.

And of this opinion was Judge Henderson.