Jansen v. Hilton — 10 Johns. 549

Majority

p. 557

Levi Jansen, Esq. late Sheriff of Ulster, Plaintiff in error, against Benjamin Hi lton, Defendant in error.

ALBANY,

March, 1813.

Headnote

By the act relative to gao!s(sess. 24« c. 91 o) passed 30th JvLarch, 1801, the/íóer» ties are merely anextension of the walls of theprisun, and if a prisoner, who has given to the sheriff a bond for the liberties, voluntarily goes beyond the limits, his bond is forfeited, and the sheriff may retake him on fresh pursuit, and recommit him to close custody, or bring an action on the bond.

And where such prisoner goes beyond the liberties, without the privity or consent of the sheriff, and an action is brought against the sheriff for an escape, he may plead a recaption on fresh pursuit, or voluntary return before suit brought, in bar of the action, in the same manner as if there had been no liberties established, and the escape had been from the walls of the prison ; the duty of the sheriff as to escapes, and his defence of recaption and voluntary return before suit brought, remaining the same as before the statute relative to gaol liberties; and before the act of the 5th Jiprih 1810. (Seas. 06, e, 187o) See the next ch???, Marry v« Jflandejh

THIS cause came up, on a writ of error, from the supreme court. Hilton brought an action of debt, in the court below, against Jansen, sheriff of Ulster, for the escape of Edward Eltinge from the limits of the gaol liberties ; being in execution on a judgment obtained in August term, 1807, in favour of Hilton, for 810 dollars and 50 cents, debt, and 115 dollars and 43 cents, damages and costs. The writ was returned in August term, 1809. The declaration contained six counts. After stating the

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judgment against Eltinge, his arrest on the ca. sa., the taking tí? a bond by the sheriff for the liberties, and his letting him go at, large, See. within the limits, it charged various escapes, voluntarily and wilfully made from the limits, from the 1st of February, 1808, to the 20th of June, 1809, The plaintiff in error pleaded, 1. Nil debet, on which issue was joined in November term, 1809. In August term, 1810, in consequence of the act passed the 5th of April, 1810, he obtained leave of the court to add special pleas * and he pleaded to each count. 2. That Ellinge had returned within the limits of the gaol liberties of the county, before the suit was brought against the sheriff. These pleas were unaccompanied by an affidavit of the sheriff that the escape was without his consent, knowledge, or privity. To each of the special pleas there was a general demurrer and joinder.

The cause was tried at the Ulster circuit, in September, 1810, on the general issue of nil debet, and also on a venire to assess the damages on the demurrers to the several, pleas, in case judgment should be given thereon, for the plaintiff, by The supreme court. At the trial, the plaintiff below proved the facts stated in the declaration, the extent of the liberties of the gaol, and that Eltinge, while a prisoner on the execution, had been seen with a gun, in pursuit of game, at least a mile beyond the limits. Bail was given to the sheriff, and the prosecution commenced against him after the act of the 28th of March, 1809, under which the sheriff could assign his bond to the plaintiff, and to an action on which, if assigned, the debtor, or his surety, could not (according to the decision of the S. C.) plead a return to the limits before bringing the action. A verdict was found for the plaintiff fop the amount of his debt and damages, as stated in the execution.

The cause, on the demurrer to the special pleas, was argued before the court below, in February term, 1811, and judgment given for the plaintiff, as in the case of Dash v. Van Kleeck, Sheriff of -Albany ; the points in both the cases being precisely similar, and it being agreed by the counsel for both parties, that the decision in that cause should be deemed, and it was accordingly so considered by the supreme court, as a decision in the present case.

It will be seen, from a reference to the report of the case of Dash v. Van Kleeck, { 7 Johns. Rep. 477 ,)thatthree of the judges {Kent, Ch. J., {Thompson, J. and Van Ness, J.) were of opinion that the act of the 5th of April, 1810, could not be applied to a suit commenced prior to the passing of that act; and that the other two judges {Spencer, J» and Yates, J.) were of opinion that the

p. 559

ái-'í extended to escapes, or suits brought for escapes, prior to the passing of the act, and that such a construction of it would not render it unconstitutional, as being an ex post facto law, or as impairing the obligation of contracts. By the 3d section of the act, (sess. 33. c. 187.) entitled an act concerning escapes, and for other purposes, it is enacted, “ That nothing contained in the act entitlede an act relative to gaols,’ passed the 30th of March, 1801, or in the act entitled 6 an act rendering bonds taken for the gaol liberties assignable, and for other purposes,’ passed March, 28, 1809, shall be so construed as to prevent any sheriff, coroner, or other officer, in cases of escapes, from availing himself, as at common law, of a defence arising from a recaption on fresh pursuit, and a returning of the prisoner, within the custody of such officer, before an action shall be commenced for the escape.” This act, it was stated, was passed in consequence of the decision of the supreme court in Tillman v. Lansing. ( 4 Johns. Rep. 45 .)

The reasons for the decision of the supreme court, assigned by the Chief Justice, were the same as those given by a majority of the judges in the case of Dash v. Van Kleeck, and by the court in Tillman v. Lansing.

E. Williams, for the plaintiff in error.

The escape must be either voluntary or negligent, or what, since the case of Tillman r. Lansing, is called a statute escape, a species of .escape not known at the common law. It was the sheriff’s duty to pursue the prisoner and retake him-; and at common law, unless the escape was voluntary on his part, he might plead fresh pursuit and recaption or recommitment, as a complete defence to an action against him for the escape. Has this right been taken away from the sheriff by any statute? The case of Tillman v. Lansing will be relied on to show that such right has been taken away, by the construction given to the statute relative to gaol liberties ; but in that case, there were sufficient grounds for the decision of the court, without going so far as to take away the sheriff’s right at common law; and the question as to his right to recommit a prisoner who had transgressed the limit», was not decided. The act concerning sheriffs, passed the 20th of March, 1801, (sess. 24. c. 28. 22.) recognises the right of the sheriff, and regulates the manner of his pleading a recaption on fresh pursuit. But it will be said, that the ad relative to gaols, (sess. 24. c. 91.) passed the 30th of March, 1801, virtually repeals the former act. It confirms

p. 560

the establishment of gaol liberties, and makes it the duty of the sheriff to permit the prisoner to go at large within the liberties, on his giving sufficient security, by bond, not to go beyond the limits of the gaol liberties. The latter act was passed ten days after the former, and contains no expression indicating that any repeal was intended by the legislature, who in that session were engaged in reenacting the revised laws.

A repeal of a statute by implication is not favoured. It is never admitted, but in case of absolute necessity.^[8] Any seeming repugnance is not sufficient to justify a repeal of a former statute by implication. The object of the first act in establishing gaol liberties, was for the health and convenience of the prisoner'; there was no intention to increase the sheriff’s responsibility. Before the passing of the act relative to gaols, a sheriff might, if he saw fit, have permitted the prisoner to go at large, within the liberties, on his giving security; but by that act it was made his duty to grant that liberty, on a proper and sufficient bond being tendered to him. This was the great object of the act. There ' is no inconsistency or repugnance between the duties prescribed by that act, and the right of the sheriff to retake on fresh pursuit. Because the prisoner was entitled to remain free and unmolested within the liberties, after giving the requisite security, it does not follow that the right of the sheriff to retake the prisoner who goes beyond the liberties, on fresh pursuit, is taken away. The plaintiff ■has a right to retake the prisoner; and unless the bond given by the prisoner is a satisfaction of the debt, and makes the sheriff a creditor of the prisoner, the sheriff must have the same right of recaption. If the sheriff’s power of recaption has been taken away by the statute, the plaintiff’s right must also be taken away.

In Tillman v. Lansing, the court say the only remedy of the sheriff is on the bond; this was before the bond was made assignable. Now, since the bond has been made assignable, shall the plaintiff, who has also the right of recaption, have the additional remedy over by an action of escape against the sheriff? That the sheriff should have the right to retake a prisoner who escapes from the liberties, on fresh pursuit, is reasonable; it is calculated merely to restrain the prisoner from an abuse of the privilege given by law, and intended for his ease and comfort; and not to tempi or to enable him to escape with impunity. The law is silent as to the creditor, or his rights. By the act of the 28th of March, 1809, an additional security is given to him, by means

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yf an assignment of the bond. If the sheriff had the power to prevent the escape, he must, also have the power to retake the prisoner. If he has no power to prevent the escape, why is he to fee made liable for not preventing an act, which he had no power to prevent ? As it regards the creditor and debtor, there is no necessity for the construction given to the act by the case of Tillman v. Lansing* As it respects the sheriff, we contend that while the prisoner remains within the liberties, the sheriff has no ¡restraint over him; but beyond the limits, the sheriff possesses, and may exercise, all his common law rights. That the sheriff may look to his bond for his indemnity, is no denial of his right to retake the prisoner.

In Bonafous v. Walker,^[8] it was held, that an escape from the rales of the prison, without the marshal’s knowledge, was not a voluntary escape, and though the marshal might take security, on granting the rules, that made no difference, and he might still plead a recaption on fresh pursuit, or a voluntary return before action brought. But in England, the marshal was merely empowered, or permitted, to let the prisoner go within the rules of court. Here the sheriff is obliged to grant the liberties, on tender of sufficient security. There the marshal might at any time imprison the debtor, or he might at all times keep him in clone custody; here the sheriff can only do so when the prisoner has violated his engagement, and gone beyond the liberties.

To allow the right of recaption to the sheriff does not place the creditor in a worse, but in a better situation. He will have not only the bond, but the body also of the debtor. In the case of Dash v. Van Kleeck, it seems to have been the opinion of the court that if the sheriff should retake the prisoner, he could not recommit him, but must set him at large again within the liberties, if a new bond was offered. But the sheriff is not obliged to take a new bond. That he should have the power to recommit the prisoner who has transgressed the liberties, is just and reasonable ; it is for the interest of all parties, and will tend to promote good faith in prisoners.

If the sheriff has no control whatever over the prisoner, after taking a bond for the liberties, on what principle will an action for. an escape lie against him ? The action is, in form, an action of debt, but it is, in effect, for a tort or misfeasance. If the sheriff had no right to restrain the prisoner, he can be guilty of no neglect or

p. 562

misfeasance, if the prisoner escapes. He must have the power to restrain, or he cannot be liable for not exercising such power.

The proviso to the 6th section of the act (sess. 24. c. 91.) says, “ that nothing in the act contained shall be construed to exonerate the said sheriff, in case any such prisoner shall escape and go at large without the said limits.” If he is to be made responsible by this proviso, he must have the right to retake the prisoner, and so exonerate himself. Or is he to be held responsible because he does not pursue and bring back the prisoner who escapes, yet, at the same time, not be allowed to plead the pursuit and recaption, ‘ in excuse and exoneration.

The same section of the act prescribes the form of the condition to a bond taken for the liberties. It is, that he “ shall remain a true and faithful prisoner, and shall not, at any time, nor in any wise, escape or go without the liberties,” &c. But can he be considered a true and faithful prisoner, if he can violate this condition with impunity, and go beyond the limits, at his pleasure, without any power in the sheriff to bring him back? In the cases which have arisen on this subject, it has been frequently said, that the limits of the gaol liberties are a mere extension of the four walls of the prison. if so, all the rights, duties, and responsibilities of the sheriff must remain the same, as if the prison walls were not thus extended. The 20th section of the act concerning sheriffs, &c. (sess. 24. c. 28.) declares what shall be deemed an escape; and it is on that section that the plaintiff below grounds his right of recovery; but there the sheriff is supposed to have the right to restrain the prisoner.

The ad; of the 28th March, 1809, (sess. 32. c. 148.) authorizes an assignment of the bond, and declares a recovery on it to be a bar to any action against the sheriff for any negligent escape. Negligent escape is a technical term, and when used by the legislature, it must be in its common law sense; and all the power attached tó the sheriff, in case of a 7iegligent escape, by the common law, must be considered as given by the statute.

In Dash v. Van Kleeck, the court below recognise and confirm the former decision in Tillman v. Lansing, as sound law, and decide the case wholly on the law, as they understood if, prior to the 5fh April, 1810; regarding that act as not intended by the legislature, to apply to escapes, or suits existing before it was passed, on the ground, that if it was to be applicable in such cases, it would be an ex post facto law, and,

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therefore, unconstitutional. But that act was passed for the very purpose of preventing the courts from giving a construction to former acts of the legislature, which they were never intended to bear. It was a mere declaratory act. The case of Calder & Wife v. Bull,^[8] in the supreme court of the United States, is decisive, to show, that the prohibition in the constitution of the United States, respecting tie post facto laws, applies only to crimes and penalties. ■

Sudam, contra.

The opinion delivered by Mr. Justice Thompson, in the case of Tillman v. Lansing, was the unanimous opinion of the supreme court; and the judges who dissented from the judgment of the court, in Dash v. VanKleeck, do not question the soundness of that decision. One of them, however, observed that it was idle to talk of a vested right to sue the sheriff for an escape. The action of debt for an escape is not for a tort, but is on a specialty or statute contract. At common law, prior to the statutes of West. 2. and 1 R. II. c. 12. no action of debt lay against a sheriff or gaoler for an escape out of execution,^[4] but only an action on the case. In Jones v. Pops,^[5] it was decided that an action of debt for an escape of one on execution, was not within the statute of limitations, which shows that it could not be considered as a tort. So in Williams v. Cary,^[6] which was an action brought by the executor of Mellish against the sheriff for a false return, it was decided that it was not a personal tort, which dies with the person, but the right of action survived to the executor, for it was an injury to the estate. The injury vested a debt in the party wronged, which survived to his executor.^[7]

The act of 5th April, 1850, cannot be regarded as an explanatory act. It ought to be considered as prospective. It is the peculiar duty of the judicial branch of oar government to expound the law. It would be the perfection of despotism, if the same branch of government could both make and expound laws. Statutes declaratory of the common law, have been extremely rare in England; and scarce an instance can be found of a statute explanatory of a prior statute. Though on the - reading of the statutes of mortmain, the judges went directly against the intention of the legislature; yet, we find, no act was passed declaratory of the meaning of parliament, or that such a meaning or construction should prevail.

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The act of 1809, passed after the decision in Tillman v. Lan« sing, made bonds taken by sheriffs for the gaol liberties assignable, and recognises and confirms the decision of the court in that case.

The case of Bonafous v. Walker,^[8] cited, is in favour of the decision in Tillman v. Lansing ; for the 6th section of the act of 8 & 9 Km. III. c. 27., which authorizes the marshal to suffer prisoners to go within the rules, expressly provides that he shall have the right to retake a prisoner on fresh pursuit, and to plead it specially. The-granting the rules on taking a bond was an innovation on the common law, and it was requisite, therefore, by express words, to extend the common law privilege of recaption on fresh pursuit, to the sheriff. For, without such a provision, the sheriff could have no power to retake. This alone is enough to confirm the decision of the supreme court in Tillman v. Lansing.

If the sheriff can retake the prisoner and confine him to close custody, until a new bond is'given, the sheriff may recover on the first bond which has been forfeited the whole amount of the debt, keep the money in his pocket, and the debtor’s body for the creditor, arid in any action against him, exonerate himself by pleading recaption on fresh pursuit: For the creditor, after a voluntary or any other escape, may retake the prisoner on a new ca. sa. in the same manner, as if he had never before been charged in execution.

E. Williams, in reply,

said, that if this action was not for a tort, it might-as well be said also that an action for an escape on mesne process was founded on a contract; for the duty to have the prisoner ready to appear, &c. was equally a contract, as to keep him a faithful prisoner.

As to declaratory statutes, the legislature of this state had frequently passed them. The act relative to the military lands, for example, was equally retrospective in its operation, as that of the 5th April, 1810, could be, on the construction for which he contended. The course of descents, as established by the statute, was altered after the soldiers, the object of the act, were dead. The act also concerning negotiable notes is declaratory. The legislature have even declared the meaning of the constitution.

The 22d section of the.act relative to sheriffs, is copied from the 6th section of 8 and 9 Wm. III. c. 27. and that is.a conclusive answer to the argument drawn from the circumstance of the pro

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Viso as to a recaption being inserted in the English statute. Our law knows only two kinds of escape, voluntary and negligent ; and it is only where the party transgresses the limits, and there is a negligent escape, that the bond is assignable.

As to the objection that the sheriff may sue on the first bond, and pocket the proceeds, while he has the debtor, whom he has retaken, in custody, it may be answered, that if the sheriff sues on the bond after he has retaken and recommitted the prisoner, he can recover nothing more than a compensation for the trouble and expense of recapture and recommitment. If the creditor demands an assignment of the bond, he may recover the amount of his debt against the security; but if he prefers having the body of the debtor in prison, and the sheriff sues on the bond, the expense and trouble of recapture are the only measure of damages. The sheriff is only to be indemnified, for the bond is taken only for his indemnity.

This, and the following case of Barry and another v. Mandell, were decided at the same time, and the opinions delivered by the members of the court were in reference to both.

This cause came up from a judgment of the supreme court, in an action of debt for the escape of Edward EUinge, from the liberties of the gaol of Ulster county, in which he was imprisoned on a ca. sa. in favour of the defendant in error, en a judgment obtained by him in 1807. There are several counts in the declaration, to which the defendant in the cause below plead nil debet, and atnorg ither pleas, that Edward EUinge, having been admitted to the liberties aforesaid, according to the statute in that case made and provided, wrongfully, without the privity or the knowledge of the defendant, escaped and went out of the limits; that he afterwards voluntarily and of his own accord, returned back again into the custody of the said defendant, and then and there always, afterwards, remained in execution.

The leading points discussed in this cause arise on two of the revised laws, one concerning sheriffs and their duties, passed the 20 th March, 180.,^[4] and the other relative to gaols, passed the 30 th day of the same month.^[2] The first of these comprises a variety of provisions of English statutes, from the 9 Edw. II. stat. 2. to the 8 & 9 Wm. III. and by its 23d section, the 7th section of the 27th chapter of the latter English statute is perpetuated, which

† † v„ Laes of New-York, v. 1 p. 358. 1 Rev. Laws Jones and Varick's cd. 407.

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enacts, that if any person charged in execution shall escape from prison, by any ways or means howsoever, the creditor shall have a new execution. The second is principally a compilation of pre- ■ existing statutes of this state. The 6th section is from the act regulating the liberties of the gaols, passed the 5th day of April, 1798.^[4]

Some distinctions have been attempted in argument, to be deduced from the order of time in which these revised laws were passed; there was only an intervention of ten days. The statutes which were re-enacted remained in force till those revised took effect; and whether the one or 1 the other was first passed, in the progress of the revision, depended on no preconcerted arrangement, for it v/as well known that no regard was paid to circumstances of that kind ; they were both parts of the same system, calculated to harmonize, and reduce to one point of view; every statutory provision relating to the same subject, and not, so far as the one was a mere substitute for the other, to vary their construction; and so it has been ruled in this court.

In the court below, the present cause was decided, as to the construction of the statute concerning the gaol liberties, on the authority of the case of Tillman v. Lansing, adjudged in that court in February term, 1809. /

The point discussed ,in the case of Dash v. Van Kleeck, and on which the opinion of the supreme court was given, was as to the effect of the statute of the “28th March, 1809, and the court decided on the question of the retroaction of that statute.

As the court below grounded their opinion in this case on that of Tillman v. Lansing, it may be well to examine what bearing it could have had in that court on the present cause; for the opinions of a tribunal so respectable merit great attention from this court, especially, where acquiescence has constituted them an authority during several years, to the subordinate courts of the state.

The defendant, in the suit in which the ca. sa. issued, had been in the habit of going beyond the liberties on Sundays, and this was known both to the sheriff and his deputy; there was no evidence that the sheriff had retaken him, or that he had voluntarily returned; this, therefore, without regard to the bond given to the sheriff, was clearly a 'voluntary escape, for with full knowledge - of it, the sheriff refrained from exerting his right and performing his duty of recaption, having an opportunity to do so. The escape was, therefore, by connivance and default of'the she

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■rifij for which the plaintiff insisted, and the defendant did not deny it, he was bound to respond, unless he, the defendant, was exempted by the statute from answering for a voluntary escape, as his counsel insisted. The court virtually decidedthat the statute did not exempt him, and thus far they decided on the point submitted; but they went on, and gave a construction to the statute incidentally, at large. In strictness, therefore, this judicial opinion was not so broad as it was afterwards laid down in the court below.

In England, though the sheriff is distinguished by being required to be a freeholder of sufficient land in his county to answer the ¡dag and his people, and, of course, in legal intendment, of more ability to respond than other officers from whom such qualification was not exacted, and though liable to answer for all escapes, it was not thought expedient to compel a plaintiff to repose on his solvability only; but the right of recaption of the prisoner on ca. sa., as well as an execution against his estate, was explicitly reserved to the plaintiff by statute; and it is thesame here. This shows that escapes were not intended to be permitted to impair a creditor’s right to a pecuniary satisfaction; and if it could not impair those of the plaintiff, it seems to me to be within the equity of the principle, that the sheriff, in case of a negligent escape, which, notwithstanding the sense of the phrase, may happen in a case in which the utmost vigilance has been exerted, should be protected by "it.

The courts of Westminster-Hall have extended the liberties of their prisons by rules, which they vary, both as to their locality and extent, at discretion; and as long as a prisoner in execution remains within those liberties, no action can be maintained for his escape. Their provisions on the subject' have a strong analogy to ours. By the 8 and 9 Wm. III. c. 27. s. 1. prisoners in execution are required to be detained in the king’s bench or fleet prison, or within the rules of the same, anil the 5th section saves the securities given for the prisoner’s lodging within the rales, and makes them valid.

In an action for an escape from the rales, in the case of Bonafous v. Walker, Marshal of the Marshalsea, (2 Term Rep. 130.) Ashhurst, J. says, “the rales are, to all intents, the same as the. walls of the prison.” Buller, J. says, “ the escape is not volantary, unless it be with the consent or by the default of the marshal; but his allowance of the rules of the prison is no default of him,” because the law has given sanction to if, and it cannot be inferred

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from Ihence that he consented to the prisoner’s escape, because he took security that the prisoner should not go beyond the rules.

In that case the marshal was a perfectly free agent; he might have granted or withheld, at discretion, the indulgence of the rules; but he granted it at his peril. Here the peril is the same: the only shade of difference between the two cases being, that the sheriff here cannot refuse the liberties to a prisoner who offers him competent security; and it would seem, that in the gradual departure from the rigour of the ancient law, rather the effect of the progress of the human mind than of positive legislation, which subjected the unfortunate and fraudulent debtor, indiscriminately to the restraints of fetters or confinements within the walls of a prison,.at the will of an obdurate keeper, no disposition can be discovered to add to the heavy responsibilities of the sheriff; for though in the reign of George II. the case of Sir ■ William Rich excited an unusual degree of national sympathy and indignation, the statute of 2 Geo. II. c. 22. which was passed immediately after, contains no provision to give relief to prisoners at the expense of the officer. It is, therefore, satisfactorily to be inferred, that the common law provisions were deemed adequate to all the purposes for which they were devised; and there can be no valid reason for an intendment to the prejudice of sheriffs, it being the interest of the republic, and the duty of the court, to interpose a shield for the protection of an officer, who faithfully and cor- . rectly executed the duties required of him by law; and this seems corroborated by the last proviso of the 6th section of the act relative to gaols, that nothing in the said act contained “ shall be construed to exonerate the said sheriff in case any such prisoner shall escape or go at large without the said liberties.” This is a strong intimation that the going without the liberties is to be considered as an ordinary escape from the walls of the gaol, especially as the common law doctrine is not shaken by any express provision of those statutes, which doctrine was wisely calculated, on the one hand, to compel the officers to answer for a wilful or negligent escape, and on the other, to give them every protection essential to the due execution of the duties required from them; and this the ■ statute of the 5th of April, 1810, (sess. 33. c. 187.) as to all cases arising subsequent to its passing, has put completely at rest.

But it has been insisted, that the bond is the price of the liberty of the prisoner. I think not so ; the bond was the price tif his admission from a strailer to a larger place of confinement.

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not limited by bolts or bars, but by lines, which neither the laws, nor the moral feelings of an honest man, ought to permit him to violate.

The sheriff is compelled to take the security he may misestimate the ability of the bail; their circumstances may ma-= terially change after they have been accepted; they may prove insolvents after the escape; and, most assuredly, the bond, without satisfaction, could not be a fair price of the prisoner’s liberty, for, though the sheriff may be compelled to pay the debt, his indemnity may depend on a precarious or even desperate security.

Suppose the sheriff to recover on his bond, and to prove insolvent, yet he leaves the plaintiff with unimpaired rights against his debtor; he may issue a new execution against the defendant or his estate, for the satisfaction to the sheriff is collateral; it can neither cancel nor diminish the plaintiff’s debt.

Neither positive law, nor necessary implication, have, in my opinion, taken from the sheriff the, to him, most essential corrective of negligent escapes, the power of fresh pursuit and recaption, and his inestimable defence, pleading those circum. stances in bar. The establishment of the liberties is a mere expansion of the gaol, and when a prisoner escapes thence, the sheriff may retake him, prosecute on his bond, and commit him to close custody; for the condition of the bond having been broken, the sheriff is not compellable to expose himself to the risk of subsequent escapes, in consequence of a bond which has been legally forfeited. Whether the bail became liable for the whole penalty, or for the damages sustained by the sheriff, by means of the escape, is not necessary to be brought into view; but whatever1 might have been the recovery, the plaintiff in the court below could dot identify his interest with it; he was not in privity with the parties, and he could have had no possible lien, or the remotest interest in it.

The plea, in this case, of the wrongful escape of EUing'e from the liberties, without the privity or knowledge of the defendant in the court below, and his voluntary return within the limits, before suit brought, and his there remaining in execution, appears to me A good bar to the plaintiff’s action; and, as to the sheriff, that it is as available as if the escape and return had been from and to the walls of the gaol. This construction of the statute could not, in my opinion, defeat, its intent, combining the interests! which a plaintiff is supposed to have in the personal restraint ©f it

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defendant in execution, with the enlargement of his prison. Iff , the prisoner went beyond the liberties, the sheriff might have prosecuted on the bond, if he sustained any damage by it, or reimprison him within the walls of the gaol. If he neither confined him, nor prosecuted on the bond, his subsequent escapes might; well be considered as voluntary, on the part of the sheriff, and would thus expose him to a recovery against him, of the whole amount of the debt for which the prisoner was confined. This afforded every reasonable security to the creditor, and held out a powerful inducement to the sheriff to exact a rigorous compliance with the condition of the prisoner’s bond.

In the manner in which I have considered this subject, it cannot be necessary to decide on the point determined in the supreme court, in the case of Dash v. Van Kleeck, on the retroaction of the statute of 5th April, 1810; of that statute both parties have attempted to avail themselves; the one contending that it established or declared a new rule, by which this case ought to be governed, as if arising after its passing; the other, that it is an evidence of what the law was before its passing. I decide on this question as if the statute of 1810 was not in existence, as I cannot discover that it has any application.

There are few statutes where the reasons of the legislature can be so satisfactorily ascertained. The highest common law tribunal of original jurisdiction has given an exposition to the statute, relative to gaol liberties, which it was obvious, bore with unusual pressure on the sheriffs and their officers. This excited a general sympathy, and under its influence a correction was promptly applied. Without entering into a consideration of the doctrine of retrospective laws, I have no doubt, if tending to subvert vested rights, that they are inconsistent with the most approved and most salutary principles of substantial justice; but if the evil intended to be remedied by the statute in question did, in fact, exist at the time of its passing, and if the decision in this case should be conformable to its provisions, though not grounded on its authority, it is useless to drag it into the case.

Upon the whole, 1 am of opinion that the judgment of the . court below ought to be reversed.

Platt, Wilkins, and Wendell, Senators, not having heard the argument of the cause, gave no opinion.

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All the other members (except one) present, concurring in the epinion of the chancellor, it was thereupon ordered and adjudged that the judgment of the supreme court be reversed, and that the said Benjamin Hilton take nothing by his writ; but that he and his pledges be in mercy, &c. And further, that the said Benjamin Hilton pay to the said Levi Jansen his costs, by him about his defence in the said supreme court expended, to be taxed, and that the record be remitted, &c.

Judgment of reversal.^[4]

* See infra, Barry v. Mandell.

Footnotes

* Laws of New-York, v. 1. p. 201.
* Laws of 1798, p 485. Lor, & And. ed.