We are inclined to think the true construction of the statute is as contended for by the counsel for the defendant ; that this remedy by a second execution can not be taken, except in a case where the sheriff might be charged for the escape; and that, at any rate, it must be issued before the escape is purged by the return. This construction is strengthened by the phraseology of the statute in relation to a second ca. sa. It is, that the plaintiff may retake the defendant by a new ca. sa.; or sue forth any other kind of execution. Now, how can he retake the defendant where he has already returned into custody, and remains there ? This can only be where there is a continued escape ; and we think a remedy by any kind of execution must depend on the same condition. There is nothing in the statute making a distinction; and giving a ft. fa. where a second ca. sa. would not lie.
We do not mean, however, to be understood as finally determining the question. The party may still go to his sci. fa. if he chooses ; and we do mean to say, that on a question so important, that is the proper course.
The motion must be granted without costs.
Rule accordingly.
Woodworth, J, was absent.