#### WILLIAM A. LASH & AL. ADM’RS. &c. vs. LEONARD ZIGLAR.

Where, on a judgment recovered, the defendant is committed in execution to the Sheriff, either upon a ca. so. or upon an order ofcommitment on his petition for the benefit of the insolvent debtors law and his failure to entitle himself thereto, and the Sheriff volwntarily permits him to escape, the Sheriff is liable for the debt, even though he may afterwards retake his prisoner.

The plaintiff in such a case may affirm the prisoner in prison at his suit; but such affirmation will not be presumed; it requires some positive act.

The plaintiff cannot, in his action against the Sheriff, for such voluntary escape, recover more than the amount of the debt, costs and interest, at the lime of the escape.

Where the plaintiff had two judgments against the deiendant, and it appeared from the records that the defendant was ordered into custody only on one, the Sheriff is liable for the amount of that one alone.

Where a plaintiff, having two judgments against the same defendant, brought his aetion against the Sheriff for an escape and declared on both the judgments, Mdthat though he could not recover on one, he might on the other, judgment.

The case of Dowd, v. Seawell, 8 Dev. 185 cited and approved.

Appeal from the Superior Court of Law of Rockingham County, at the Spring Term, 1845, his Honor Judge Caldwell presiding.

*703This was an action of debt for an escape, brought by the intestate of the plaintiffs against the defendant, late Sheriff of Stokes, for the escape of one Thomas S. Martin. The declaration contained two counts; one for a voluntary, and the other for a negligent, escape. The defendant entered the following pleas; 1st. Nil debet; 2ndly. That Thomas S. Martin escaped from prison, without the knowledge or privity of the defendant and against his will, and that the defendant freshly and diligently pursued Martin and retook him on the 8th of September 1843, before the commencement of this action, and had him detained in execution for the debt of the plaintiff, then and there continually until December Term, 1843, of Stokes County Court, when he was discharged by the judgment of the said Court; 3dly. That Martin escaped without the knowledge &c., and the said Martin on the 8th of September 1843, voluntarily returned into the custody of the defendant, before the commencement of this action, and that the defendant had him continually in custody in execution for the debt of the plaintiff then and there, from that day until December Term 1843, of Stokes County Court, when he was discharged out of custody by the order and judgment of the said Court. To these pleas, replications were entered. It appeared from records, introduced by the plaintiff, that the plain* tiff’s intestate had obtained two judgments against one Thomas S. Martin, at December Term of Stokes County Court 1841, one for $ 1714 72, the other for $ 928 62-|-; .and for the want of bail he was committed by the Sheriff to the jail of the said county and was turned over to the defendant, when he came into the office of Sheriff. Thereafter he gave notice to the plaintiff's intestate, and notices to other creditors, of his intention to avail himself of the insolvent debtor’s act, having filed a schedule with that view. An issue of fraud was made up by the plaintiff’s intestate in one case, the case of the larger judgment, and, the jury finding fraud on the part of the said Martin, he was, at June Term 1843, of Stokes County Court, adjudged by the Court tobe imprisoned, until the next County Court or until he should make a full and fair disclosure of his *704property and effects. As to the several acts of escape alleged, it appeared, that on the evening of the day, when the said judgment on the issue of fraud was rendered, and after it was rea¿ere¿} the said Martin was seen at a drinking shop in German ton (the county town) in a different direction from that leading from the court-house to the jail, unaccompanied by any officer, but how long he remained there did not appear; that, shortly afterwards, the defendant, who had been Sheriff from September 1842 and was then Sheriff, was heard to inquire for him, and in a short time was seen taking him to jail. It further appeared, that the room of the jail, set apart for •debtors, was below stairs and that the door opened into a passage, running through the jail, secured by two outer doors, •and that the rooms up stairs called iron cages, having passages between them and the main walls, were set apart for criminals ; ■that the said Martin, on the next day after his commitment, was seen up stairs, looking out of the window grates, which he could not have done, had he been confined in either of the iron cages; that, on Thursday night after the Court, he made his escape; that a deputy and some members of the defendant’s family went in pursuit the next day and returned the •same day without Martin ; how far they went did not appear. It was further in evidence, that, some days thereafter., the defendant went in pursuit of him, and, on his return said he had been to Patrick Court House in Virginia, a distance of about (thirty miles, where he had seen the said Martin, but was afraid to take him, as he was told it would be unlawful, and ■said further that the said Martin would be back, or had promised to be back, by the next September Court. The Friday .or Saturday before September County Court, the said Martin was brought to Germanton by a deputy of the defendant, and, after sitting some time in the family-room of the jail, was committed to close prison.

On the part of the defendant it was insisted, that the several escapes alleged, if escapes at all, were negligent; and, for (the purpose of accounting for the said escape from jail on ■Thursday night, he introduced witnesses, who testified, that *705there was some appearance of violence about the facing oí the door of the debtor’s room and also to the guard over the bolt" of the door, but none of them testified, that the lock, or any door, or any part oí the jail was actually broken. And for the defendant it was also insisted, that there had been a fresh pursuit and recaption, before suit was brought; it appearing that the' said Martin was re-committed on the 11th of September, and the suit was brought on the 14th of the same month. And it was also insisted for the defendant, first, that, under the judgment of the County Court of Stokes, at June Term, 1843, the said Martin was not in execution ; secondly, that, if in execution, it was only in one case or under one of the judgments offered in evidence, as to which the issue of fraud was made up and tried, and that the plaintiff could not recover for both, and, having joined them, he could not recover for either ; thirdly, that the judgment of the County Court was not such a judgment, as required the defendant to commit the said Martin to jail, and therefore that the said Martin was not in custody.

The last points raised were reserved by the Court. As to the several escapes alleged, the court charged, first, that, if the jury believed that, if Martin was in custody of the defendant after this judgment, and was permitted by leave to go to the grog shop, as deposed to, such conduct in law amounted to a voluntary escape; and secondly, if there was a room in the lower story of the. jail, set apart for the commitment of debtors, as deposed to, and the defendant allowed Martin to go out of such room and be up stairs, that such conduct would amount to a voluntary escape; and upon the third point the court charged, that if Martin escaped from the jail on the Thursday, as deposed to, and did so by the connivance of the defendant, such conduct would amount to a voluntary escape. On this last point, however, the court left it to the jury to say; whether the escape from jail was voluntary or negligent, and charged, that, though the escape should be a negligent one, still it did not appear, if the evidence was to b,e believed, that the defendant had made such fresh pursuit and recaption, as *706would excuse him. On the first question of law reserved, the “court was of opinion, that Martin was in execution, according' to the spirit and intent oí the act of Assembly, and that the judgment of the County Court was such a judgment, as required the defendant to commit the said Martin, and he was therefore in lawful custody. On the other question the court was of opinion, that in cases of escape, the sheriff became the debtor by assumption of law, and as both judgments had been sued .on, and an issue had only been made on one, and there being an escape in but one case, the plaintiff could not recover. The jury having found á verdict in favor of the plaintiff on his count for a voluntary escape, the court directed the verdict to be set aside and a nonsuit entered. From this judgment the plaintiff appealed.

Kerr and Iredell for.the plaintiffs.

Morehead and Waddell for the defendant.

Daniel, J.

The plaintiffs intestate issued two writs in debt against one Thomas S. Martin, who was arrested, and for want of bail was put in jail. Judgments were obtained on the said two writs against Martin, one for $1,714 72, the other for $928 62J, and costs. Martin escaped from the sheriff's custody, and the plaintiffs have brought this action of debt against the defendant, the sheriff, to recover the amount of both judgments, for his permitting the said escape. The declaration contains two counts, one for voluntarily permitting Martin to escape, contrary to the statute; the other, for negligently permitting Martin to escape, contrary to the statute. Plea — nil debet. As to the smaller judgment, there is no evidence, that the plaintiffs ever moved the court, after the rendition of the same, that Martin should stand committed in satisfaction of it. We may therefore lay so much of the case as relates to that judgment, out of our consideration, as there never was a commitment of Martin in satisfaction of it, after it was rendered ; and, of course, an action of debt, under the statute, could not be maintained against the sheriff, for Martin’s escape as to that judgment. As to the larger judgment, *707it appears, that Martin petitioned in this case to be relieved from his imprisonment, by taking the oath of insolvency. He filed his schedule of property, and the plaintiffs made up an issue of fraud as to the same in this case. On the trial of the issue, Martin was brought into court by the defendant, to see and aid in the trial of the same. The jury found the said issue against Martin; and the court thereupon immediately made the following order in that cause, in the presence of Martín and the sheriff, who then held him in custody : “It is considered and adjudged by the court, that the defendant be imprisoned, until the next term of this court, and thereafter Until he make a full and fair disclosure and surrender of his money, goods, and effects.” The judge was of opinion, that the above order of the court was a commitment of Martin in execution, for the satisfaction of the judgment, which the plaintiff had recoved against him, and in which case Martin had petitioned the court to be relieved under the insolvent law. Martin was imprisoned by the defendant, as sheriff, in close jail, subsequent to the above order; and it must be taken, that he was imprisoned under the said order, although a copy of it was not lodged by the plaintiffs with the sheriff, after it was made. The sheriff was, at the time the above order was made, in court, with Martin as his prisoner; and he must be considered, as having legal notice that the character of the imprisonment was changed by force of the above order from that for the lack of bail, to that of commitment in final execution on the said judgment. This court agrees with his Honor upon this point, for the reasons aforesaid.

When a committitur is entered on the roll, it does not recite the judgment, as the defendant’s counsel insists. The prisoner is brought into court by the Marshall of the prison • then the order is entered at the foot of the judgment in the presence of the prisoner, on the said roll. And it only refers to the judgment, by stating, that he-is committed in execution for the debt and damages aforesaid, there to remain until the plaintiff be fully satisfied the said debt and damages. The entry of the committitur in the Marshall’s book, which is kept *708in the judgment office, is not essentially necesaary, although usually made; Arch. Forms, 474. The voluntary return of Martin to jail, before this action was commenced, does not prevent the plaintiffs from proceeding in debt against the sheriff, as the escape is found to be a voluntary one; and the sheriff had no power, as such, to retake or detain the prisoner. Littlefield v. Brown, 1 Wend. 398. 2 Wils. 295. The plaintiffs might have affirmed the prisoner in prison at his suit;but such affirmation will- not be,presumed; it requires some positive act; Ibidem.

The jury found a verdict in favor of the plaintiffs ; and-they found also that the defendant voluntarily permitted Martin to escape from his jail; and they further found in the said verdict, that the defendant doth owe $-; a sum covering both judgments, interest and costs, with interest up to the day of trial. This verdict was rendered, subject to certain points of law, which had been reserved by the court during the trial. The court, in deciding the reserved questions of law, was of opinion, that as the plaintiffs were entitled to recover against the sheriff for the escape, only the amount of the larger judgment, on which Martin had been ordered in execution, he could not have judgment for that sum, although the verdict was rendered subject to the opinion of the court as aforesaid, and although the plaintiff agreed to remit all the said verdict down to that sum. The court said, that as the plaintiffs in their counts demanded, as their debt under the statute, the amount of both judgments they had against Martin, and had failed on the trial, in shewing that they were entitled to demand any thing for the lesser judgment, they in law, could not have judgment against the sheriff for the amount of the one, on which Martin was in jail on execution, and was by the sheriff voluntarily permitted to escape, and he set aside the verdict and nonsuited the plaintiffs; who therefore appealed. On this point, we think that his Honor erred; and that the plaintiff, on remitting the verdict the amount only of his larges judgment against Martin, was entitled to have had a judgment in this action against ifie defendant for that sum. If an *709action of debt is brought oil a single bond, a judgment, or for a penalty in a statute or on a bond, the precise sum must be set out in the declaration, and the verdict must agree with that sum,* for if a recovery oí more or less were allowed, there would be a variance between the allegata and probata, and the declaration would convey to the defendant no information of the cause of action. But in the action oí debt, the exact sum is notin all cases to be recovered ; for if, from the nature of the demand, the true debt is uncertain, the sum may be set forth in the writ and declaration large enough to cover the real debt, and there shall be a verdict according to the truth and judgment thereon. It is to be observed, that this action of debt, by force of the statute, is on the judgments, but is a demand for so much money, as the plaintiffs have lost by the escape of their debtor, who was in custody under two several comonittiturs, made by the court, as the declaration alleges, on two several judgments against the debtor. The case is, therefore, like debt on two several bonds, in which each must certainly be described in the declaration correctly. But it is not essential to the recovery on one of them, that a recovery should also be effected on the other. It is not a question of pleading in itself, but merely a question of agreement or variance between the demands described in the pleadings and those given in evidence. There may be a recovery on one, if proved as laid,'and not on the other, because not proved as laid. For there is no surprize on the defendant nor any discrepancy in the record. The only objection to such a declaration is duplicity, and that is a defect, which can be taken advantage oí by special demurrer. Hancock v. Prowd, 1 Saund. 336. Mansel on Demurrer, 2. The sum demanded in the' declaration is large enough to cover the sums due on both executions; but the plaintiff on the trial failing to prove that his debtor was in execution on one oí the said judgments is not a reason, we think why he should not have a verdict and judgment for so much of his demand as the other judgment against the debtor called for, on which the said debtor was committed in execution, and the defendant thereafter permit*710ted him to escape. Dowd v. Seawell, 3 Dev. 185. We are ~°f opinion that the judgment of nonsuit must be reversed, and a judgment rendered for the plaintiff for $1,714 72. This could be done by modifying the verdict according to the agreement for taking it, subject to the opinion of the court. But it is not necessary to do so, as the plaintiffs, offer to remit the excess, and that is the simple mode.

We are of opinion, from several decided cases in New York on statutes similar to our own, that the plaintiffs cannot have interest by way of damages after the date of the judgment against Martin, although he might have had interest against Martin himself, up to the payment of the judgment. Thomas v. Weed, 14 John. Rep. 255. 2 Johns. Rep. 453, 454. 1 Wendell, 401.

We have not thought it necessary to enquire whether each of the several opinions given by his Honor, as to what constitutes voluntary escapes, be correct or not; as the jury have expressly found that “ the several escapes complained of were voluntary,” and there can be no doubt, that an escape from the jail “by the connivance of the sheriff” is a voluntary escape, as well as suffering the prisoner to go out of the actual custody of the sheriff to a tippling house in a different direction from the prison, at his liberty, instead of taking him to prison.

The judgment of nonsuit must be reversed, and a judgment rendered for the plaintiffs according to this opinion.

Per Curiam, Judgment accordingly.