Stone v. Woods

Van Ness, J. delivered the opinion of the court. If the sheriff has the body of the defendant, after an arrest upon mesne process, at the return day of the writ, it is said to be sufficient. But if the defendant escape at any time thereafter, the sheriff is liable to an action. I do not discover that there is any distinction whether the escape be voluntary or negligent; neither do I conceive that any such distinction can exist, for the sheriff is equally liable in the one case as in the other. (1 Saund. 35. n. 1. 2 Wils. 294.) The case of Plank v. Anderson and another, (5 Term Rep. 37.) relied on by the defendant’s counsel, is essen-. tially different from this ; though it is not very easy to discover precisely the ground upon which that case was decided. There the jury found that the plaintiff had mot been delayed or prejudiced in his suit. And Lord [187] Kenyon says, “ that the exigency of the writ was performed, so far that the defendant was forthcoming, when the plaintiff called upon him to answer his demand.” The circumstances were peculiar, and great stress was laid upon the finding of the jury. The plea in the present case does not come up to the finding of the jury, in the one just mentioned. Whether the plaintiff has sustained any damages by reason of the escape, cannot be a question for the court, but must be determined on the trial, by the jury. This being an action on the case, for an escape on mesne process, the damages are uncertain and at large ; and whether the plaintiff will be able to give such evidence, as will entitle him to recover from the defendant the whole or any part of his demand, cannot be determined, on the facts stated in this record. The question now is upon the sufficiency of the fourth plea, which in my opinion is no bat- to this action. The court below awarded double costs against the plaintiff. This was evidently not within the statute, (24 sess. c. 47. s. 1.) which authorises double costs only, when a verdict shall have passed for the defendant, or the plaintiff shall have become nonsuited, or suffered a discontinuance. The provision does not extend to the case of a judgment upon demurrer, and the statute, in awarding double costs, being penal, must be taken strictly. The judgment below must be reversed. Judgment reversed.