Justin Day, Appellant, against William Sweetser, Appellee, 2 Tyl. 283

Curia. On perusal of the files at our chambers, we noticed that the defendant Sweetser was not sheriff at the term of rendering the final judgment, nor ever after, having gone out of office on the 1st December, 1796. A question may arise whether he could be answerable for the safe keeping of a prisoner within the County gaol after his commission had expired. Certainly he could not, if he had regularly delivered over such prisoner under the keys, to his successor in office.

How this was, does not appear; but as the Court are with the defendant on the two points made, it will not be necessary to investigate this subject.

The statute provides, “ that when any person shall be attached upon mesne process, and shall be committed agreeably to this act, and shall be in gaol at the term final judgment shall be rendered against him, shall, unless the plaintiff in said action, within 15 days after rendering final judgment as aforesaid, charge him with execution, be discharged from confinement.” On the first point, the Court consider, that in all civil cases, where there has been a commitment upon mesne process, the creditor must be prepared to charge the debtor in execution within 15 days next after the rendering final judgment against him, or he will lose his lien on the sheriff as keeper of the gaol, whether the debtor be de facto a prisoner at. the term at which final judgment shall be rendered, or not.

If the debtor has been legally committed, and not legally discharged, he is, in contemplation of law, in the sheriff’s custody within the prison. William C. Harrington, for the plaintiff. Daniel Chipman, for the defendant. Upon the second point, the Court consider that there is a distinction between a commitment upon a writ of execution, and a commitment upon mesne process.

In the former case, the sheriff is at all events, excepting the prisoner is admitted to the liberties, and is legally discharged, to keep his prisoner in salva et arcta custodia, in order, as the books express it, “ to compel him the more speedily to pay his debt, and make satisfaction to his creditor.” But in case of imprisonment on mesne process, the sheriff is obliged to have his prisoner amenable within the prison to the creditor’s execution, within the 15 days next after rendering the final judgment. If he does this, he is secure against an action for an escape.

When an execution is delivered to any other officer than the sheriff himself, or to the gaoler, being a deputy sheriff, a general non est is not evidence sufficient to charge the sheriff with an escape; for it is reasonable that there should be evidence of a demand of the debtor’s body by such officer at the gaol. The plaintiff now moved to enter a new suit, and had leave. Plaintiff nonsuited. Note. The several opinions of the Court in this cause were predicated on the construction of the act of the 27th of November, A. D. 1791, entitled, “

an act relating to mesne processes;” which act was repealed on the revision of the statutes by the general repealing act of the JOth of November, 1797, with a saving clause as to all matters and things done during its existence. But it will be observed, that the

section of the act of 1791, above quoted, is grafted into the judiciary act, passed March 2, 1797, and forms verbatim et literatim the 36th

section of this act. How far the opinions of the Court above reported will apply to the

section in its present connection with other sections of this act, and other statutes, must remain for future discussion....Reporter.