#### WILLIAM BUFFALOW vs. JOHN B. HUSSEY, ADM’R.

A sheriff is not liable as special bail, after he has committed a defehdant on mesne process> though such defendant be permitted by him to go at large.

Where a scite facias was issued against a sheriff to charge him as special bail for a person sued at the instance of the plaintiff, and who had been, for want of bail, committed to jail in the sheriff’s county, and afterwards discharged as an insolvent by two magistrates : — Held, That the sheriff was not liable as special bail.

(The case of Montgomery v. McAlpin, 1 Ire., 463, cited and approved.)

This was á scire facias against E. E. Hussey, the intestate of the defendant, to subject him as special bail of one John W. Lewis, to the payment of a judgment against him in the Superior Court of Northampton, and the case was submitted to his Honor Judge Bailey, at the Spring Term, 1853, of said Court, upon the following facts agreed between the parties

<£ On the 5th day of May, 1851, the plaintiff issued his writ returnable to Fail Term, 1851, of the Superior Court of Northampton, against one John W. Lewis, of Duplin county, which came to the hands of E. E. Hussey, sheriff of said county, on the 31st July, 1851; and the said Hussey made return of the same as follows:

£££25th September, 1851, executed, and the defendant confined in the jail of my county, for the want of bail.’

££ Judgment by default, final for the. debt, was taken' against Lewis at the return Term 5 and thereupon a scire facias to charge the said Hussey as bail of Lewis issued, and was made known to Hussey by the coroner of Duplin county. The said Lewis- had been discharged out of the jail of Duplin county by two justices of the peace, as an insolvent debtor — the plaintiff being notified of his application for a discharge.

££ The said E. E. Hussey, before pleading to this scire facias, died intestate, and the defendant, as his administrator, was made a party in his stead.

££ If, upon this state of facts, his Honor is of opinion that the plaintiff is entitled to recover, then there is to be judgment for the plaintiff for the sum of $351., with interest on $300. from 26th *238April, 1852, and the sum of $7.86. costs formerly recovered, and the costs of this suit; but should his Honor be of opinion that the plaintiff is not entitled to recover, then there is to be judgment for the defendant for his costs,” &c.

And his Honor being >of opinion that the plaintiff was not entitled to recover, gave judgment for the defendant accordingly, and the plaintiff appealed to the Supreme Court.

Barnes, for the plaintiff,

Bragg, for the defendant.

Battle, J.

The judgment pronounced in the Court below, upon the case agreed was in our opinion correct. The defendant’s intestate as the sheriff of Duplin county was expressly authorized by the 54th section of the 31st chapter of the Revised Statutes, upon arresting the body of Lewis by virtue of the plaintiff’s writ, and upon the default of Lewis to give bail, to imprison him in his, the sheriff’s own county. After this, the sheriff had no power to take bail from his prisoner, and could not therefore become his special bail, as was decided in the case referred to by the defendant’s counsel, of Montgomery v. McAlpin, 1 Ire. Rep., 463. That case it is true,' differs from the one now before us, in the particular mentioned by the plaintiff’s counsel, that there the defendant in the writ was already in prison under a capias ad satisfaciendum, at the instance of another person, which was stated in the sheriff’s return. But it will.be seen that the Court, in the opinion delivered, did not advert to that circumstance. They say that a person who has been arrested, and given bail, may, upon being surrendered by his bail, give other bail according to the provisions of the 4th and 5th sections of the 10th chapter of the Revised Statutes ; but if in default of bail on his original arrest, he was committed to jail, he cannot afterwards be permitted by the sheriff to go at large upon bail. In such case, the only mode by which he can be discharged out of custody is to enter bail to the» action in the Court to which the writ is returnable, or by obtaining a rule of such Court for his discharge, as provided in the 54th section of the 31st chapter, above referred to. “ If the sheriff release the prisoner, or permit him to *239depart from prison, before such bail is put in as above, or there is a rule of Court to discharge him, the sheriff is guilty of an escape and of course he cannot be held liable as special bail. Whether the discharge of the prisoner by the two magistrates of Duplin county, under the circumstances stated in the case agreed, will be a legal defence for the shertiff in an action for an escape, it would be improper for us to decide, as no such question is now before us. It is sufficient for us to say, that the, proceeding against him as special bail cannot be sustained.

PeR CuRIam. Judgment affirmed.