Peters v. Henry

Spencer, J. delivered the opinion of the court. The error insisted on is, that the voluntary return of the prisoner within the limits does not purge the escape, and that to entitle the defendant to a verdict, he should have proved that the prisoner returned within the walls of the prison. This suit must have been brought under the idea, that the decision in Tillman v. Lansing, (4 Johns. Rep. 47.) had deprived the sheriff of the right of pleading a voluntary return of the prisoner, before action brought, in all cases, except when the escape was from the walls of the prison. But that decision proceeded solely on the construction of the statute of the 30th March, 1801, (Rev. Laws, vol. 1. p. 260.) and applies, only to those cases where a bond has been given by the prisoner for the gaol liberties. The principle is this, that by the prisoner’s going out of the limits, his bond becomes forfeited, without any right or power in the sheriff to retake him; and that, as the bond was not assignable at that time, the creditor would be remediless, in a great measure, unless the sheriff was rendered liable to him. In the opinion delivered in that case, the law is fully recognised, that a voluntary return of a prisoner, in ease of a negligent escape, before action brought, purges the escape. In the present case, there does not appear to have been any bond taken by the sheriff, of the prisoner, for the liberties, and that makes every difference between the cases. The question, in fact, is, whether permitting the prisoner, who is in on execution, to enjoy the liberties, is an escape in the sheriff; for if the liberties are to be considered the gaol of the county, in the case of a confinement on civil process, as much so as the four walls, then a negligent escape from them, and a return before [124] action brought, is a good defence. It is to be observed., that in this case the sheriff had not deprived himself of the right of recaption, which he had, when he took a bond for the liberties; that circumstance had a material influence on the decision in Tillman v. Lansing. It has been frequently decided, in this court, since the statute allowing gaol liberties, that the sheriff may let a prisoner in execution go within the liberties, without, taking a bond, which is for his indemnity 5 and this opinion is supported by the case of Bonafous v. Walker. (2 Term Rep. 26.) Ashhurst, J. says, in that case, that the statute, 8 and 9 Wm. establishing the rules, makes them “ to all intents and purposes the same as the walls of the prison.” If so, then the prisoners in execution are within the prison, whilst on the limits ; and as bonds have not been given, the sheriff’s right of recaption remains in full force; and a voluntary return before action being equivalent to a recaption, the prisoner was in custody, and no escape happened, for which the defendant is chargeable. The judgment must be affirmed. Judgment affirmed,