HALIFAX,

APRIL TERM, 1795.

#### Swepson *v.*Whitaker.

An action will not lie against (lie Sheriff for an escape upon mesne process : lie ought to be proceeded against as bail, under the act ot ■ 1777, *Rev. c.*115, s. 16 and 69.

This was an action for an escape upon mesne process. The Defendant was the Sheriff, and *Linton.*rite Defend* ant in a former action at the suit of *Sioepson,*was, sur* rendered in court by his bail, and committed, as the Plaintiff alleged, to the Sheriff, the present Defendant.— Títere was no record of this commitment, and it was objected it could be proven no other way, the surrender having been made in court. It was also objected, that the* an action for art escape on mesne process will lie in England. h will not in this State. By the act of 1777. c. 2, *s.*16 and 7ti, the Sheriff arresting, is deemed to be the bail himself, where he does not return bail; and by *s.*20, upon-a surrender made by the hail, the Sheriff is to receive the body ami hold the Defendant in custody, as if bail had never been given; now, if bail had never been given, the Sheriff might have discharged the D> fondant without bait, and up'reby have become bail himself, or he might have committed him to prison, l.'he. circumstance of commit ting the Defendant to prison, cannot place the Sheriff in any worse simafion than he was in, after having him in custody and before actually committing him — tlie Defendant is his pi isoner as well in the one case as in rhe other; if therefore, his discharging the prisoner out of his custody before an actual imprisonment, will only make the Sheriff liable as bail, by parity of icason, his discharging the Defendant from an actual imprisonment w ill have the same operation : the Plaintiff in the action is not more injured in the one case than in the other — for if the Sheriff is held to be the baii in both cases, then, the Defendant is in the power of the court, and the Plaintiff may proceed in the action — then if the Sheriff be bail as well in the one case as in the other, he ought not to be liable to an action for ari escape on mesne, process, because in this action the Sheriff can only discharge himself, by a recaption before the action brought against him ; whereas, if he be proceeded against *258ag bail by a *sci.fa.*he may, by s. 20, retake his prisoner, and surrender him to tiie roue in discharge of himself, at any time before final judgment against him — .and in fact the Defendant in the present case did retake Üu-*ion*at d put him in prison, and liad him in court to answer lhe Plaintiff’s.action, if he would have proceeded against him.

*Per curiam,*

Ashe and Williams

Upon the last point, we arc of opinion, that the action for an escape upon mesne process, will not lie against the Sheriff, in this case; lie ought to be proceeded against, as b dito proceed against hint in this manner, is to deprive him of many advantages. And, there was judgment for the *Defendant.*— Ex *relatione.*

Note. — But if thr Sheriff, to a writ of *capias ad respondendum,*returnon escape, this negatives the supposition of his having come bai , mil n action for tlu escape will lie. *Tuton v Sheriff of Wake, post*485. Indeed in such case, it seems the only proper remedy.—*Hart*v. *Lanier,*3 *Hawks,*244.