The opinion of the court was delivered by
Peck, J.
No time need be spent in discussing the question as to what constitutes an escape ; since the .defendant’s counsel con*389cede that allowing the prisoner to go out into the dwelling-house part of the jail building was not, upon the facts stated, an escape; and the plaintiff’s counsel are correct in claiming that if the going out of the building, July 30, 1869, to the blacksmith shop and to the store, a distance of a few rods, without the knowledge or consent of the jailor, and being absent a few minutes, under the circumstances stated, was an escape, it was in respect to the plaintiff, the jailor, an involuntary, or, as it is usually termed in law, a negligent escape, as contradistinguished from a voluntary escape.
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 *390was never out of custody after his commitment. The jailor has a right, as against the prisoner, to hold him in custody, and it is his duty to the creditor to do so. There is no ground, therefore, upon which it can be said that the escape which did not affect the legality of the imprisonment, or even give the creditor any right of action, absolved the town from its duty longer to furnish the necessary support to the prisoner, or to pay the plaintiff for furnishing it under compulsion of law. It is claimed that the rule allowing a sheriff to protect himself from liability for a negligent escape by showing recapture on fresh pursuit, or a voluntary return of the prisoner before action brought, is not the law in this state. It is suggested that it was by statute only that it prevailed in England. . But this was a defense at common law, of which the sheriff might avail himself under the general issue without pleading it; and by stat. 8 and 9 W. 3, chap. 27, § 6, it is provided that no retaking on fresh pursuit shall be given in evidence, unless it be specially pleaded, and accompanied by the oail of the defendant that the escape was without his consent, privity or knowledge. This statute does not give this defense, but simply recognizes its existence, and regulates the mode by which the defendant shall avail himself of it.
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*391ligent escape and before suit, is not a defense. _ But that was not a case of an escape from prison, but a departing from the liberties of the jail yard, to which the debtor had been admitted on giving a jail bond under the statute, for a breach of the condition of which the action was brought. The court in that case recognize the validity of such defense in case of a negligent escape from prison; but turn the case on the distinction between an escape from prison and a departing out of the liberties of the jail yard, under our statute, in violation of the express condition of the jail bond. Collamer, J., in that case says: “ Our jail yards then are not prison'limits, as in England or New York. An escape from the liberties of our jail yards, or prison liberties, is not a mere negligent escape from prison. It is a breach of the condition of the bond,” &c., and “ to such action a plea that the prisoner returned, would be no defense. ’ After such a departure the sheriff must look to the bond alone for security. He cannot retake the debtor, and has no control over him, nor can his return confer this power. The debtor is therefore, on his return, not subject to the liabilities, nor entitled to the privtheges, of an imprisoned debtor.” As that case is put expressly on the distinction between a departing from the liberties of the jail yard under our statute, and an escape from the jail or prison itself, it is, so far as it bears upon the case at bar, an authority for the plaintiff.
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.