43 Vt. 385 | Vt. | 1871
The opinion of the court was delivered by
No time need be spent in discussing the question as to what constitutes an escape ; since the .defendant’s counsel con
This alleged escape is relied on by the defendant’s counsel as a defense to that portion of the plaintiff’s claim for board and other expenses for the prisoner’s support which accrued after that date. The defendant has no interest in the judgment or execution by virtue of which the debtor was committed ; consequently can receive no detriment from the temporary escape in question. But it is claimed that the effect of such escape was to render the subsequent imprisonment of the debtor illegal, and hence that he was no longer “ committed to any jail,” or “ confined in any jail,” within the meaning of Gen. St., ch. 20, § 13, or § 36 of the same chapter, on which the action is founded, or which creates the duty and gives the right of action in cases of this kind. As the town had no interest in the judgment on which the debtor was committed, we may inquire what effect the escape and voluntary return have upon the status of the debtor as a prisoner, in reference to the relative rights, duties and obligations of the execution creditor, the. debtor, and the jailor, as between themselves. In case of a negligent escape, the jailor has a right to retake the prisoner on fresh pursuit, and return him to his former custody; and if he does so before action brought by the creditor for the escape, he is excused. So while the jailor has a right so to retake on fresh pursuit, the voluntary return of the prisoner after such escape and before action brought, is equivalent to a retaking on fresh pursuit. In neither case does the creditor acquire any right of action against the sheriff or jailor. Nor can the prisoner in either case set up his tortious escape against the will of the jailor to invalidate his imprisonment; but he is deemed to be still in custody by virtue of his original commitment. In legal contemplation he
But even if a voluntary return or recapture on fresh pursuit would not be a defense by the sheriff to an action by the creditor, or if the creditor in this case had commenced suit against the sheriff after the escape and before the return of the prisoner, so as to make the sheriff liable, it is not easy to see how that helps the defendant; for the mere fact that the sheriff is made liable^ to the creditor for an involuntary or negligent escape, does not deprive the sheriff of his right to retake the prisoner on fresh pursuit, or take him on his voluntary return, the sheriff never having voluntarily parted with the custody.' It is said in the books that in such case the sheriff may take him and imprison him for his own security till he pays the execution, or so much thereof as the sheriff is compelled to pay the creditor on account of the debtor’s escape. If the escape is by the consent of the sheriff or jailor, it is otherwise. We are referred by the defense to Jameson v. Isaacs, 12 Vt., 611, to show that a voluntary return after a neg
Judgment of the county court reversed, and judgment for the plaintiff for the support of the prisoner for the time up to the bringing of the suit, according to the case stated.