ESCAPE, in law, is where one who is arrested gains his liberty before he is de livered by course of law. Escapes are either in civil or criminal cases; and in both respects may be distinguished into voluntary and negligent ; voluntary, where it is with the consent of the keep er; negligent, where it is for want of due care in him. In civil cases, after the prisoner has been suffered voluntarily to escape, the sheriff can never retake him, but must answer for the debt ; but the plaintiff may retake him at any time. In the case of a negligent escape, the she riff, upon fresh, pursuit, may retake the prisoner ; and the sheriff. shall be ex cused, if he has.him again before any ac tion brought against himself for the escape. When a defendant is once in custody in execution, upon a capias ad sa tisfaciendum, he is to be kept in close and sate custody; and if he be afterwards seen at large, it is an escape, and the plaintiff may have an action for his whole debt against the sheriff; for, though up. on arrests, and what is called mesne pro cess, being such as intervenes between the commencement and end of a suit, the sheriff, till the statute 8 and 9 Will. c. 27. might have indulged the defendant as he pleased, so as he produced him in court to answer the plaintiff at the return of the writ ; yet, upon a taking in execution, he could never give any indulgence ; for in that case confinement is the whole of the debtor's punishment, and of the satis faction made to the creditor. A rescue of a prisoner in execution, either in go. ing to gaol, or in gaol, or a breach of pri. son, will not excuse the sheriff from being guilty of, and answering for, the escape ; for he ought to have sufficient force to keep him, seeing he may command the power of the county. In criminal cases,
an escape of a person arrested, by elud ing the vigilance of his keeper before he is put in hold, is an offence against pub lic justice, and the party himself is pun ishable by fine and imprisonment ; but voluntary escapes amount to the same kind of offence, and are punishable in the same degree as the offence of which the prisoner is guilty, and for which he is in custody, whether treason, felony, or tres pass, and this whether he was actually committed to gaol. or only under a bare arrest ; but the officer cannot be thus punished, till the original delinquent is actually found guilty, or convicted by ver diet, confession, or outlawry ; otherwise it might happen, that the officer should be punished for treason or felony, and the party escaping turn out to be an man. But, before the convic tion of the principal party, the officer thus neglecting his duty may be fined and imprisoned for a misdemeanor. 4 Black. 129.
If any person shall convey, or cause to be conveyed, into any gaol, any dis• guise, instrument, or arms, proper to facilitate the escape of prisoners attaint ed or convicted of treason or felony, al though no escape or attempt to escape be made, such person so offending. and con victed, shall be deemed guiity of felony, and be transported for seven years. 16 Geo. IL c. 31.