Aldis Lovell vs. Thomas Bellows, 7 N.H. 375

Richardson, C. J., delivered the opinion of the court. At the common law, case was the proper remedy for an escape, either upon mesne process or execution. The statutes of Westminster 2, and of Richard II., cap. 12, gave debt for an escape upon execution. Case still lies for an escape on execution,but debt does not lie for an escape on mesne process. 2 Chitty's Rep. 454, Robertson vs. Taylor; Atkinson vs. Bellows, Cheshire, May, 1807. These are conceded by the plaintiff’s counsel to be well settled general rules of law on this subject.

But it is contended, that the statute regulating prisons has changed the rule with respect to escapes happening through insufficient prisons, and made debt in that case a proper remedy for an escape upon mesne process.

The words of the statute which are supposed to have this effect are these : “ that in case of the escape of any prisoner £ committed for debt, through the insufficiency of the gaol ‘ or prison in any county, the sheriff shall stand chargeable £ to the creditor or person to whose use any forfeiture was £ adjudged, or any debt, damages or costs awarded against ‘ such prisoner, for the full amount of such debt, damages ‘ and costs.” .

And the question is, whether a person committed on mesne process is a. person committed for debt, within the true intent and meaning of this clause in the statute? , ’ • The same statute provides that if the gaoler, either voluntarily or by negligence, suffers any prisoner committed for debt td escape, he shall be liable to pay the debt. These provisions, as has been justly remarked by counsel, were intended to regulate prisons, and have no reference to escapes before commitment,, which remain as,at the common law.

If the sheriff arrest a, debtor by virtue of an execution, and suffer him to escape before commitment to prison, he is liable at common law for the whole debt, and an action of debt lies. 2 Bl. R. 1048, Hawkins vs. Plomer; 2 Chitty’s R. 454. It was, then, to be expected that the statute, if it made any provision on the subject of escapes of prisoners committed in execution, would provide that the sheriff should be liable for the debt, and stand in the place of the prisoner.

It is not to be supposed, that in such a case a distinction would be, made between an escape before and after commitment., No reason, is perceived why there should be a distinction. - . But if the sheriff arrest a debtor by virtue of mesne process, and suffer him to escape before commitment, he is only liable to such damages as the creditor may have sustained ; and casé, but not debt, lies.

And the legislature having left such escapes as at the common law, it was hardly to be expected that they would provide in the: statute that for escapes on mesne, process after commitment the sheriff should be liable for the whole debt. . 'The statute provides, that if the gaoler Suffer a prisoner for debt to escape, he shall be liable for the debt. Who is a prisoner for debt, within the meaning of the statute ?

In common parlance, a person arrested by virtue of a Writ, and committed for want of bail; in an action of trespass, for breaking and entering a close ; for an assault and battery ; for taking and carrying away goods ; or in an action on the case ; for a libel or for slander ; or diverting water from Ms neighbor’s mill, .would hardly be considered as a prisoner for debt. In these cases there is no debt. The. prisoner is committed, not for a debt, but for want of bail. When a prisoner is committed in execution he is'. committed for a debt.

The judgment has created a debt, whatever may have been the form of the action in which it was recovered. No reason can be imagined why the sheriff should be made liable for the whole debt in case of an escape upon mesne process after commitment, and be left only liable for the actual damage in case of an escape before commitment.

To.construe the terms, “prisoner committed for debt,” to embrace prisoners committed on mesne process, is not only giving them a meaning which they do not usually have in common parlance, but is extending their meaning so as to embrace cases not within the terms, without any sound reason whatever. If we construe the terms to mean prisoners in execution, it leaves the law with respect to escapes on mesne process uniform and consistent.

The creditor will in all cases, whether the escape be before or after commitment, recover the damage he has sustained by thé fault or neglect of the gaoler, — which is all that in reason he ought to recover. When the law made it the duty of counties to erect and maintain sufficient gaols, they became responsible for any damages any person might sustain by reason of a neglect of this duty. They would have become so liable by the principles of the common law, without any provision in the statute on the subject. But their liability is to a certain extent regulated by the statute.

If there had been no provision by statute, the creditor could in no case recover of the county any more than his actual damage. But as the sheriff was liable for an escape by his negligence, of a prisoner in execution, for the whole debt, it was to be expected that the legislature would make the county liable in such a case to the same extent. And this is done in language still more decisive and explicit than is used with respect to sheriffs. If the sheriff’ permits an escape of a prisoner committed for debt, he is to be liable for the debt.

But in case of the escape of any prisoner committed for debt, through the insufficiency of the gaol, the county is made liable in an action against the sheriff to any person to whose use any forfeiture was adjudged, or any debt, damages and costs awarded against such prisoner, for the full amount of such debt, damages and costs. That this language applies only to commitments in execution is too clear to admit a doubt. The terms, forfeiture adjudged, and debt, damages or costs awarded, can have no application to commitments on mesne process.

And if the sheriff is made liable in case of an escape on execution, for the whole debt, no sound reason is perceived why the county should not be made liable to the same extent in case of an escape on execution through the insufficiency of the gaol. But if, in case of an escape on mesne process, the sheriff is to be liable only to the actual damages sustained, what sound reason can be imagined why the county should be made liable to a greater extent in case of an escape on mesne process through the insufficiency of the gaol ?

By confining the meaning of the terms, “prisoners committed for debt,” to prisoners in execution — which is the plain and obvious meaning — all the rules of law on the subject of escapes will be uniform and consistent. In all cases of escapes on mesne process, either the sheriff or the county will be liable to make good the damages sustained by the escape. In all cases of escapes upon execution, the sheriff or the county will be liable to pay the debt. The sheriff and the county will be placed on the same footing, and the law will not be liable to the reproach of making a distinction where there is no difference.

We are, on the whole, of opinion that in case of an es-capé upon mesne process, through, the insufficiency .of the gaol, the county is only liable to make good the actual damage. sustained by the person at whose suit the prisoner is committed. . ■ ' - . ■ But it is said, that notwithstanding the county is only thus liable, debt may he sustained. ...

Debt is the proper action, whenever, the demand is for a sum certain, or is capable of being readily reduced to a certainty : but it is-not-the proper action/ when the demand is rather for unliquidated damages than, for money, unless the performance of the' contract is secured by a penalty. 1 Chitty's Pl. 101; Buller's N. P. 167; 3 Levinz 429; Douglas, 6; 2 D. & E. 29. In Bullard vs. Bell, 1 Mason 296, Mr. Justice Story says the true test is whether the sum to be recovered has upon the contract itself a legal certainty.

Debt does not lie on any collateral undertaking, when the sum is uncertain and sounds merely in damages. But it is otherwise when the action is brought to recover a determinate sum. 5 Pick. 100; 3 D. & R. 165; 1 Chittfy's Rep. 619, note. No case is to be found in which debtjyasuver maintained for unliquidated.damages resulting from neglir genee. We are, therefore, of opinion that there must be Judgment for the defendant. Parker, J., having been of counsel did not sit.