#### *Vanmeter and Another v. Giles Governor, for M’Neill.

November, 1842,

Kiclmiond.

(Absent Stanaim),* J.)

Prison Bounds Bond -Sufficiency of Bond.—A prison bounds bond is taken payable to the sheriff, his certain attorney, his heirs or assigns, and the execution debtor having broken the bounds in the time of the same sheriff, the bond is by him assigned to the creditor: Hepd, such bond and assignment are good and snfiicient in law to render the obligors responsible to the creditor, and the sheriff is not liable for the escape.

Same—Same—Condition for E^eturn of Debtor.—Prior to the 1st of January 1820, the law did not require that bonds given for the prison rules should be conditioned for the return of the debtor to close prison at the end of a year.

Same—Who flay Assign. †-—A prison bounds bond *270made payable to the sheriff and his successors in office, may be assigned to the creditor by the sheriff who took it, or by a succeeding sheriff, according as the debtor’s escape may be in the time of the one sheriff or the other: per Baldwin, J.

Same—Same—Qutere.—Whether, if a prison bounds bond were made payable to the sheriff and his representatives, or to him alone, it would be assignable by him, or, in the event of his death, by his executor or administrator, after an escape of the debtor from a succeeding sheriff?

Escape—Declaration for Taking Defective Bounds Bond —Assignment of Breaches.—In debt on official bond of sheriff, breach assigned is, that the sheriff permitted relator’s debtor in execution to escape, by wrongfully accepting from him a defective bond, erroneously purporting to be a prison bounds bond, and that the relator, from the erroneous and defective form of the said bond, was unable to recover his debt by virtue thereof, but was cast in an action brought by him founded upon the same: but declaration makes no proferí of such bond, nor vouches the record of the action alleged to have been brought thereon, nor gives any further description of the bond or of thé action. On general demurrer to the declaration, Held, the assignment of the breach is insufficient.

Same—Plea That Debtor Was Duly Admitted to Bounds —Oyer.—In debt on official bond of the sheriff of H. assigning for breach that the sheriff permitted the escape of a debtor in execution "under a ca. sa. from the superior court of H the defendants plead that the debtor gave bond according to law, with good security, to keep the prison rules for the county of H. and thereupon betook himself to the prison rules for said county, without this that he escaped in any other manner. The bond (of which profert is made in the plea) is with condition that the debtor shall keep within the prison bounds prescribed by the superior court of H. Plaintiff takes oyer of the bond and demurs to the plea. Held, as the bond, made part of the plea by oyer, shews that the debtor was admitted to the proper bounds, the defect if any in the allegations of the plea is thereby cured.

Same—Verdict and Judgment—Special Finding under Statute.—In debt on official bond of sheriff, assigning for breach the escape of a debtor in his custody, no judgment can be entered on verdict against defendants, unless it be expressly found (as prescribed by the statute 1 Rev. Code, ch. 136, § 3), that the debtor escaped with the consent or through the negligence of the sheriff, or that he might have been retaken and the sheriff neglected to make immediate pursuit.

Debt, in the late superior court of law for Hardy county” "in the name of William B. Giles governor of Virginia, successor in office of John Tyler, who was successor of James Pleasants, who was successor of Thomas Mann Randolph, who was successor of James P. Preston, (the said plaintiff suing at the relation of Strawder J. M’Neill) against Isaac Vanmeter, Edward Williams and Samuel M’Mechin, upon the official bond executed by the said Vanmeter as sheriff of Hardy county, and by the said Williams and M’Mechin as his sureties. The bond bore date the 10th of November 1819, and was in the penalty of 10,000 dollars, payable to James P. Preston governor and his successors in office, with a condition in the usual form. The declaration set forth the execution of the bond by the defendants, recited the condition, and then proceeded to assign breaches thereof substantially as follows:

1. It was alleged that in October 1819, Strawder J. M’Neill the relator recovered judgment in' the superior court of Hardy against a certain George Neville for 1251 dollars 41 cents with interest thereon from the 5th of *July 1819 till paid, and the costs of suit, subject to a credit for 700 dollars paid the 8th of September 1819, on which judgment he sued out a writ of capias ad satisfaciendum against Neville, directed to the sheriff of Hardy and returnable to January rules 1820, and before the return day thereof delivered the same to Vanmeter, then the sheriff of Hardy, to be executed, who, before the return day of the writ, by virtue thereof arrested Neville by his body, and kept and detained him in his custody from thence until he the said sheriff, afterwards, to wit, on the 15th of November 1819, without the leave or license and against the will of the said M’Neill, to whom the amount of principal money, interest and costs aforesaid was still wholly unpaid and unsatisfied, suffered and permitted the said Neville to escape and go at large, and he did then and there escape and go at large whithersoever he would out of the custody of the said Vanmeter sheriff as aforesaid.

2. After setting forth, in like manner as before, the judgment recovered by M’Neill against Neville, the writ of capias ad satisfaciendum sued out thereupon and delivered to Vanmeter the sheriff, and the arrest of Neville by virtue of that writ, it was alleged that the said sheriff detained Neville in his custody, in execution as aforesaid, from the time of his arrest until he the said sheriff, “afterwards, to wit, on the---day of —---, by wrongfully taking and accepting of said George Neville a defective bond, erroneously purporting to be what is commonly termed a prison bounds bond according to the statute in such case made and provided, and erroneously purporting to bind the said George Neville to keep within the prison rules and bounds of the county court of Hardy for one year, without the leave or license and against the will of said Strawder J. M’Neill, permitted the said George Neville to escape and go at large whithersoever he would out of the custodv of him the said Isaac Vanmeter, being the sheriff as aforesaid, the *said sum of money being wholly unpaid to said Strawder J. M’Neill, relator; and that the,said relator, from the erroneous and defective form of said bond called a prison bounds bond, and through the default of said Isaac Vanmeter in his office of sheriff in taking the said bond, *271was unable to recover the said debt by virtue of said bond, but was cast in an action brought by him founded upon said pretended prison bounds bond, and was subjected to pay a large sum in costs of said suit, *viz.”*&c.

To the breaches so assigned in the declaration, the defendants put in general demurrers, in which the plaintiff joined.

Two special pleas were also filed by the defendants.

1. The first plea admitted the rendition of the judgment, and the issuing of the capias ad satisfaciendum thereupon, as set forth in the declaration, and that the said writ having been placed in the hands of George S. Craigen deputy of the defendant Vanmeter sheriff of Hardy, he the said deputy, by virtue thereof, and before the return day, arrested the said Neville and held him in his custody: and then the plea averred, that after Neville was so arrested and in custody, “he the said Neville, according to the act of the general assembly in such case made and provided, tendered to the said George Craigen, deputy sheriff as aforesaid, bond for the prison rules and bounds laid out for said county, and then and there executed a bond with good and sufficient security to keep the bonds and prison rules for the county of Hardy in due form of law, and then and there, in virtue of said bounds bond so executed as aforesaid, the said George Neville betook himself to the prison rules and bounds for said county of Hardy according to the statute in such case made and provided, which said bond so executed as aforesaid is now here shewn to the court, and together with the assignment endorsed on the back thereof, is in the words and figures *following, to wit:” (here the prison bounds bond, and the assignment of the same, were set out in the plea) ; “which is the same supposed escape in the plaintiff’s declaration mentioned; without this, that said George Neville went beyond the custody and immediate control of the sheriff, after taking him as aforesaid, in any other manner. And this the defendants are ready to verify. Wherefore they pray judgment” &c.

The prison bounds bond, incorporated as aforesaid into the plea, was dated the 28th of December 1819, and signed and sealed by George Neville, Charles Bobb and George S. Craigen, who thereby acknowledged themselves to be held and firmly bound unto Isaac Vanmeter sheriff of Hardy county in the sum of 1201 dollars 80 *cents, to*be paid unto the said Isaac Vanmeter sheriff as aforesaid, or to his certain attorney, his heirs or assigns. The condition recited that the body of George Neville was now in the jail of Hardy county by virtue of an execution issued &c. (describing the writ of capias ad satisfaciendum aforesaid, the amount of which, including the sheriff’s commission and his fees for making the arrest and taking the bond, was stated to be 600 dollars and 90 cents,) and that the said George Neville was desirous ! to take the prison bounds as laid off or alj lotted and prescribed by the superior court of law for said county of Hardy; and provided “that if the above bound George Ne-ville shall well and truly keep within the prison bounds as prescribed by the said superior court of Hardy, as the law requires, and not depart therefrom until released by due course of law, then the above obligation to be void, or else to remain in full force and virtue of law.”

The assignment of the said bond was in the following terms: 1 ‘I Isaac Vanmeter, sheriff of Hardy county, hereby assign the within bond to Strawder J. M’Neill this 18th day of May 1820.” (Signed) “Isaac Vanmeter.” *2. By the second plea, the defendants said that the plaintiff ought not to have and maintain his action on the breach in the declaration assigning an escape, because they averred that after the execution of the writ of capias ad satisfaciendum mentioned in said breach, the defendant Vanmeter did not permit the said George Neville to escape, nor did he escape, out of the custody and care of the said defendant as sheriff, as the plaintiff in said breach had alleged, and thereof they put themselves upon the country.

The plaintiff, after taking oyer of the prison bounds bond whereof the defendants made profert in their first plea, demurred generally to that plea, and the defendants joined in the demurrer. On the second plea an issue in fact was made up.

The defendant Williams died pending the suit, and his death was suggested on the record.

At the September term 1831 of the circuit superior court of law and chancery for Hardy county (to which the cause had been transferred according to law), the couit, after argument of the matters of law arising upon the several demurrers aforesaid, overruled the demurrer of the defendants to the first breach assigned in the declaration, sustained their demurrer to the second breach, and also sustained the plaintiff’s demurrer to the first plea of the defendants. The issue of fact made up on the second plea was thereupon tried, and the jury returned a verdict in these words: “We the jury find for the plaintiff the debt in the declaration mentioned, to be discharged by the payment of 563 dollars 92 cents with interest thereon at 6 per cent, per annum from the 8th of September 1819 till paid, and the further sum of 5 dollars 72 cents with interest thereon from the 12th day of November 1820 till paid, damages.” Judgment was according^' rendered by the court, for the debt in the declaration mentioned and the costs of suit, to be discharged by the payment of the damages assessed as *'aforesaid for the relator, and the costs aforesaid, and such other damages as might be thereafter assessed upon a writ or writs of scire facias being sued out, and new breaches assigned of the condition of the writing obligatory in the declaration mentioned.

*272On the petition of the defendants Van-meter and M’Mechin, this court awarded a supersedeas to the judgment.

The cause was argued by Stanard and the attorney general for the plaintiffs in error, and C. and G. N. Johnson for the defendant in error.

The attorney' general said, the only question upon the demurrer to the. first plea was as to the sufficiency of the prison bounds bond; arid in deciding that question against the defendants below, the circuit court erred. The bond must have been considered insufficient. either because not taken to the sheriff and his successors in office, or because it does not provide for the return of the debtor to close prison at or before the expiration of one year from the date. It is true that in Meredith’s adm’x v. Duval, 1 Munf. 76, where the subject of the proper form of the bond is adverted to, judge Roane expressed the opinion that it ought to be taken payable to the sheriff and his successors in office: but that opinion is said, ini Rob. Pract. 68, to have been questioned in the case of Mayo v. Pleasants, decided by this court in November 1829. Without enquiring which opinion is correct, an error of judgment in the sheriff as to a matter not expressly determined by the statute, and on which even the judges of this court have differed, is surely not such an act of negligence as ought to subject him to liability. But the question itself is immaterial in this case; for here the bond was assigned by the sheriff to whom it was taken, he being still in office at the time of the assignment: and Meredith’s adm’x v. Duval decides that such an assignment of a bond taken payable to the sheriff,' *his certain attorney, his executors, administrators or assigns, would enable the creditor assignee to maintain an action against the obligors in the bond. The objection that the bond does not provide for the return of the debtor to close prison is equally invalid. Being executed on the 28th of December 1819, the bond is not affected by the statute in 1 Rev. Code of 1819, ch. 134, g 30, p. 535, prescribing that the condition of the prison bounds bond shall contain that provision; for that statute only went into operation on the 1st of January 1820. And by the preexistin g laws, though the sheriff was required to recommit the debtor to close prison at the expiration of the year, and was subjected to a fine in case of his failure to do so, the prescribed condition of the bond was merely that the debtor should not depart or 'go out of the rules or bounds of the prison to which he was committed. Statute of 1793, 1 Rev. Code of 1814, ch. 151, g 37, p. 428 [303] ; Acts of 1806-7, ch. 27, g 2, p. 16; Acts of 1812-13, ch. 26, g 10, p. 38; Acts of 1817-18, ch. 28, p. 30; 1 Rev. Code of 1819, ch. 135, p. 547.

The verdict, he said, was defective in not finding expressly that the debtor escaped with the consent or through the negligence of the sheriff, or that he might have been retaken, and that the. sheriff neglected to | make immediate pursuit. 1 Rev. Code of 1819, ch. 136, g 3, p. 550; Hooe v. Tebbs, 1 Munf. 501; Johnson v. Macon, 1 Wash. 6.

The counsel for the defendant in error admitted that the validity of the bond in this case was to be determined by the law' as it stood before the 1st of January 1820, and that no condition providing for the debtor’s return to close custody was thereby prescribed; but they contended that the bond was defective because not taken to the sheriff and his successors in office, but to him, his heirs and assigns. Opinions of Tucker and Roane, *J., in Meredith’s adm’x v. Duval, 1 Munf. 79, 83, 84; Syme v. Griffin, 4 Hen. & Munf. 277; Sullivan v. Alexander, 19 Johns. Rep. 233. The decision in Meredith’s adm’x v. Duval was, that the- obligors in the bond were liable to the creditor, the assignee of the sheriff, in an action upon the assigned bond. No question arose, or could arise, whether the sheriff had discharged himself from responsibility to the creditor, by taking a sufficient statutory bond. The bond here is not a good statutory bond, and the sheriff ought consequently to be held liable. And this is the more reasonable, because the sheriff himself may maintain an action on the bond, and recover indemnity from the obligors.

The object of the first plea in this case was to shew that there was no escape, unless the debtor’s betaking himself to the prison bounds constituted an escape; and for that purpose it is necessary to shew that the debtor was lawfully admitted to the proper bounds. But the plea alleges that he was admitted to the bounds for the county of Hardy. If that allegation .be taken (as it should be) to mean that he was admitted to the bounds laid off by the county court of Hardy, the plea is fatally defective, as it shews that the execution issued from the superior court of the county, which must be presumed to have laid off its own prison rules, since it had the power by law to do so. Statute of 1792, 1 Rev. Code of 1814, ch. 66, g. 18, p. 107 [76] ; Acts of 1807-8, ch. 3, g 2, 20, p. 7, 10. And although the prison rules of the superior court may be the same with those of the county court, yet they are not hecessarily the same. At all events the plea does not expressly shew that the bounds to which the debtor was admitted were those prescribed by the superior court; and this defect or uncertainty in the allegations of the plea is not aided by the bond. The plea is insufficient in another respect. It ought to have shewn that the period for which the debtor was allowed the privilege of the *rules was the period limited by law, namely, one’ year from the date of the bond; but it does not shew this, nor what was done after the year. Under the declaration, the plaintiff might have proved an escape at any time before action brought; and here every' thing averred in the plea may be true, and still an escape have been permitted.

As to the supposed insufficiency of the *273verdict, the case of Johnson v. Macon proves nothing, for the verdict there was in favour of the defendant. In Hooe v. Tebbs, the court were divided upon the question whether the verdict was sufficient or not: judges Roane and Fleming held that it was not: but judge Tucker was of opinion that as the declaration expressly alleged that the sheriff voluntarily permitted the escape, the general verdict fpr the plaintiff amounted to an express finding of the truth of that allegation. And the principle of that opinion is conformable to right reason and the intendment of the law. The object of the legislature was to exempt the sheriff where the escape was not voluntary, and to make him liable where it was; not to regulate the form of the verdict. If such regulation had been designed, the method adopted would have been to set forth what should be the finding of the jury, as is done in the case of complaints for forcible or unlawful entries or unlawful detainers, 1 Rev. Code, ch. 115, 14, p. 458. Besides, the requisition of a special finding by the jury is contained in a statute which relates to actions brought directly for the escape, and the construction ought to be that such requisition is imperative only where an action of that kind is resorted to. The action here is for a breach of the official bond, a remedy given by a different statute, and in which the sheriff may even be rendered liable, though the escape was not with his consent or through his negligence. But he is only liable for such damages as the creditor 'x'has actually sustained (Perkins and others v. Giles governor, 9 Heigh 397) ; whereas in the action provided by the statute concerning escapes, 1 Rev. Code, ch. 136, *1*3, p. 550, he is subjected to liability for the whole amount due upon the plaintiff’s execution, without regard to the quantum of the actual damage resulting from the escape. There is good reason then for requiring that the consent or negligence of the sheriff shall be expressly found, where the consequence of the verdict is to be a recovery arbitrary in amount and penal in its character; but no reason at all for such a requisition, where the actual damage sustained is to be the measure of the recovery.

The decision sustaining the demurrer to the second breach assigned in the declaration was erroneous. Opinion of Roane, J., in Hooe v. Tebbs, 1 Munf. 507.

STANARD in reply.

The first plea alleges that the debtor, being in custody under an execution issued from the superior court of Hardy, gave bond in due from of law, with good security, to keep the prison bounds for the countjr of Hardy, and thereupon betook himself to the bounds for said county. This is in substance an averment that the party gave bond to keep within the rules of the superior court. But the bond is set out in the plea, and is made a part thereof by the plaintiff himself upon oyer; and it thereby appears that the bounds to which the debtor was admitted were the bounds prescribed by the superior court of law for the said county. Whatever imperfection or uncertainty might have existed in the allegation of the plea, taken by itself, is thus, completely removed by reference to the bond. In Meredith’s adm’x v. Duval, 1 Munf. 79, 82, a defect of the declaration was held to be cured by oyer of the bond declared upon. And less certainty is required in a plea than in a declaration, Co. Hitt. 303a. *A further objection is made that this plea contains no justification. The plea is treated as merely stating that the debtor executed a prison bounds bond and was thereupon admitted to the rules, and then it is said, that may be true, and yet, under the declaration charging an escape in general terms, an escape at any time before action brought may be proved. This is neither more nor less than to reject a part of a plea, and then to argue that the rest without that is bad. The absque hoc is not matter of protestation, it is matter of denial—of special traverse. Stephen on Pleading, 1st edi. p. 212. It denies the very fact and the whole fact charged, unless the matters averred in the plea shall be held sufficiently to establish the fact. Suppose issue had been taken on the plea, and it had appeared in evidence that at any time, within the year or after, the debtor broke the bounds or escaped, would not that have falsified the plea? But if it were necessary, it might be maintained, on the authority of Lyle v. Stephenson, 6 Call 54, that in an action against a sheriff for the voluntary escape of a debtor charged in execution, it is a good plea in bar simply to aver that the debtor was lawfully admitted to the prison rules under a lawful prison bounds bond, because the sheriff is thereupon by law discharged of the custody of the debtor. Nor is the law as settled in Hyle v. Stephenson at all affected by the subsequent act of 1806-7, ch. 27. Under that act, as under the preexisting law, the condition of the bond is general; and though the sheriff is required to recommit a prison bounds debtor to close jail at the expiration of a year from the date of the bond, and is responsible if he fail to do so, (1 Rev. Code of 1819, ch. 135, p. 547,) he is not responsible for the escape of the debtor; for, so long as the debtor remains within the bounds, there can be no escape; and if he breaks the bounds, the bond, which is general, protects the creditor. *The idea that the sheriff, if held liable to the creditor for taking this bond, may sue the obligors in his own name and for his own benefit, cannot be supported. The bond is on its face a public bond, not a private one enuring to the individual benefit of the sheriff; Roane, J., in Meredith’s adm’x v. Duval, 1 Munf. 84. If he is held liable, it must be for taking the bond without authority of law and contrary to the duty of his office, and therefore he can never be allowed to maintain a suit upon it for his own use. Syme v. Griffin, 4 Hen. & Munf. 277.

As to the verdict, under the express lan*274guage of the act of assembly, and the decisions on the subject, the finding is clearly insufficient. In Hooe v. Tebbs, the same reasoning was offered in support of the verdict, that is employed to sustain the verdict here; and the issue there being not guilty, the response to that issue was a more direct finding of what the act requires, than results from the issue and verdict in the present case. There is no foundation for the distinction attempted between the action here and that in Hooe v. Tebbs. This, not less clearly than that, is an action for the escape of an execution debtor. And it is for the court to determine whether one rule shall be applied to an action against the sheriff for an escape, and another to an action against the sheriff and his sureties for the same cause. This court decided, in Perkins and others v. Giles governor, that the measure of damages in the action on the sheriff’s official bond is the same as in the action on the case; which was the form of action in Hooe v. Tebbs, where the special finding was held indispensable. It would be strange indeed if not only the sheriff, but his sureties, whose obligation is strictissimi juris (M’Dowell v. Burwell’s adm’r, 4 Rand. 317), should be held chargeable in the action on the official bond, upon less evidence or a finding less explicit than would be necessary to subject the sheriff *alone, in the action on the case, to precisely the same recovery. No distinction between the action of debt under the statute of escapes, and the action on the official bond, is at all to the purpose: to evade the authority of Hooe v. Tebbs, some substantial distinction must be found between the common law action on the case and the action on the official bond; and whether that authority is, at this distance of time, and after giving the rule of practice in all cases subsequently occurring; to be directly impeached and overruled, is a question submitted unhesitatingly, and without further remark, to the court.

The second breach assigned in the declaration was properly held insufficient. The allegation is merely that the sheriff, by taking a defective bond from the debtor, permitted him to escape, and that the relator, from the erroneous and defective form of the bond, was unable to recover his debt by virtue thereof, but was cast in an action brought by him founded thereon. There is no averment that the bond was void, or that it was decided by any court of competent jurisdiction to be so, nor is profert made of it, so that the court can judge whether it is so: it is not stated in what court the action thereon was instituted, who were the parties to that action, or when the judgment therein was rendered; no record is vouched, no sort of notice given by which the defendants may be enabled to answer the charge. Judge Roane’s opinion in Hooe v. Tebbs, 1 Munf. 507, is no authority in support of such an assignment as this. ,The bond taken by the sheriff in that case had been adjudged by the district court of Dumfries to be illegal and void, and the declaration expressly alleged that fact: and though judge Roane thought the decision of the district court wrong, and the bond not void, he held that the judgment, being in full force and unreversed, was conclusive to establish the liability of the sheriff. There is no resemblance between that case *and the case here alleged. The assignment is in truth every way and utterly defective. 1 Chitty’s PI. 354, 5; 2 Id. 181.

*

He had been counsel for the plaintiffs in error.

†

Prison Bounds Bond—Who May Assign.—See Mere*270dith v. Duval, 1 Munf. 76. See also, monographic *note*on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124, and monographic *note*on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.

BALDWIN, J.

The controversy in this case turned upon the validity of the bond for the prison rules taken by the sheriff. The question was directly and distinctly made by the first plea, which sets forth the bond and the prisoner’s consequent admission to the prison bounds, with a special traverse of any other escape. The plaintiff’s demurrer to the plea admitted that there was no other escape, and of course the only question presented was as to the validity of the bond.

The bond is objected to on the ground that it ought to have been made payable to the sheriff and his successors in office, instead of to the sheriff and his heirs and assigns; and the reason urged is, that in the event of an escape from a succeeding sheriff, the letter could not have assigned the bond to the creditor, as it is supposed the law contemplated. If we were to be governed by the letter of the statute, the bond could only be assigned by the sheriff who took it, the language of the law seeming to have been framed without adverting to the fact that the escape would not always be in the time of that sheriff; but the true meaning doubtless is that the assignment shall be made by the sheriff to whom the bond is made payable. Of course, if the bond were payable to the sheriff and his successors, and the escape occurred in the time of a successor, it would be competent for the latter to assign it to the creditor. So if the escape occurs in the time of the sheriff who took the bond, it is assignable by him, whether made payable to him and his successors, or to him and his representatives, or to him alone. Whether, if made payable to him and his representatives, or to him alone, it would be assignable by him, or, in the event of his death, by his executor or administrator, after an escape from his ^successor, I deem it unnecessary to enquire.. No such question arises in this case. The law does not prescribe to whom the bond shall be made payable; and it matters not to whom, if it performs its legal function of making the obligors responsible for the escape of the prisoner. In this case, the escape, if any, occurred in the time of the sheriff who took the bond; for it was assigned by him while sheriff to the creditor, as appears from the assignment on the bond incorporated into the plea; and it would be strange indeed if the mere possibility of an inconvenience, which in point of fact never occurred, were to have the effect of invalidating the bond, *275or subjecting the sheriff for an escape. Such a bond and assignment were expressly held to be good, and the surety for the bounds subjected thereupon, in the case of Meredith’s adm’x v. Duval, 1 Munf. 76.

1 think it extremely probable, as suggested by the counsel for the plaintiffs in error, that the objection to the bond taken in the circuit court was, that the condition does not provide for the prisoner’s return to custody at the expiration of one year from the date of the bond; and that it was sustained by the court without adverting to the circumstance that there was no law requiring such a condition prior to the act of the 25th of February 1819, 1 Rev. Code, ch. 134, *'i*30, p. 534, which took effect on the 1st of January 1820. The bond in question bears date on the 28th of December 1819, and of course was not taken under the provisions of that act. Preexisting laws, by which this case must be governed, though they required the sheriff to recommit the prisoner to jail at the expiration of the year, and subjected him to a fine for bis failure to do so, did not prescribe any other condition of the bond than that the prisoner should not depart or go out of the rules or bounds of the prison.

Besides the objections to the bond presented by the demurrer to the first plea, that plea has been supposed *by the counsel for the defendant in error to be moreover defective, inasmuch as the prison rules for which bond was given, and to which the prisoner was admitted, are described in the plea as the pyison rules and bounds for the county of Hardy, whereas the declaration and the plea itself shew that the execution against the prisoner issued upon a judgment of the superior court of that county. Whether this description in the plea, if we had nothing more to guide us, would be taken to mean the prison rules for the superior court, or, for the county court of Hardy, we need not consider; for the bond itself being incorporated into the plea, and shewing upon its face that it was given for keeping the prison rules of the superior court of Hardy, the general description is thereby controlled and rendered specific, upon the authority of Meredith’s adm’x v. Duval, above cited, in which a flagrant and otherwise fatal error in the declaration was cured by reference to the bond sued upon, which had been made part of the record by oyer thereof.

The question of the validity of the bond above considered, would also have been distinctly presented in, another shape, by the demurrer of the defendants to the second breach in the plaintiff’s declaration, if the bond had been set forth in that breach, or made a part thereof by profert and oyer. That not being so, we can only look to the breach itself, for the purpose of ascertaining whether that part of the declaration be good upon a general demurrer. The voluntary escape therein charged is referred altogether to the taking of a bounds bond, therein alleged to be defective and erroneous, but of which no profert is made or particular description given, though it is alleged that in consequence of the erroneous and defective form of the bond, the relator could not recover his debt, but was cast in an action brought by him founded upon the bond. Now it will be observed that there is no averment that the bond was void in law, or that it was held to be so by any court of x’competent jurisdiction. The substance of the allegation is that the relator was defeated in an action upon the bond; but against whom the action was brought, in what court, or by what decision, if any, the relator was cast, is not averred. The relator’s failure in his action could not subject the sheriff to an escape, unless it was by the judgment of a court of competent jurisdiction, between proper parties, and upon the ground of the invalidity of the bond. None such is averred. It may be, for aught that appears, and as the pleadings in this cause would seem to indicate, that there was no escape from the bounds at all, and the relator may have been defeated on that very ground.

The foregoing views, if correct, serve to shew that the demurrer of the defendants to the second breach of the plaintiff’s declaration was properly, and the plaintiff’s demurrer to the first plea of the defendants improperly, sustained by the court. There ought, of course, to have been no judgment for the plaintiff.

The judgment rendered for the plaintiff was moreover wrong, because the verdict did not expressly find that the prisoner escaped with the consent or through the negligence of the sheriff. Our statute concerning escapes is clear and explicit, that no judgment shall be entered against any sheriff in any suit brought upon the escape of any debtor in his custody, unless the jury who shall try the issue shall expressly find that the prisoner did escape with the consent or through the negligence of the sheriff, or that he might have been retaken, and that the sheriff neglected to make immediate pursuit. This peremptory mandate applies to all actions against the sheriff, and of course his sureties, of whatever nature or form, founded upon an escape; and if not strictly complied with, the defect cannot be supplied by any intendment or conclusion, in favour of a general verdict, from the pleadings or issue; as was held by this court in Hooe v. Tebbs, 1 Munf. 501.

*My opinion upon the whole case is, that the judgment of the circuit court ought to be reversed, the verdict set aside, the plaintiff’s demurrer to the first plea overruled, and judgment rendered for the defendants.

The other judges concurred. Judgment reversed.