delivered the opinion of the Court. It appears to me, that the Court below erred. The case of Westby v. Skinner and Catcher, (3 Co. Rep. 71. and Cro. Eliz. 365.) is the leading case upon this subject; and a correct understanding of that case, will show that there was no escape here. The bill of exceptions states, that the prisoner. Brown, had never left the limits; that he had kept the condition of his bond; and unless the omission, by the old sheriff, to assign him over to his successor, was, per se, an escape, there was no foundation for the action. In West-by’s case, the debtor was in the defendant’s custody, on two executions; one in favour of Dighton, the other in favour of Westby. The debtor was delivered over by the defendants, on their going out of office, by indenture, to the new sheriffs, on the execution at the suit of Dighton, alone, omitting Westby's execution; and, after this assignment, the debtor escaped. It was unanimously resolved, by the Court, that the delivery of Bustard, the debtor, to the new sheriffs, as in execution at the suit of Dighton only, he was thereby out of the custody of the old sheriffs; and he could not be in custody of the new sheriffs, on the plaintiff’s execution, because he was not delivered to them, nor they charge^ with him, on that execution. It was further resolved, that, till the prisoners are delivered to the new sheriffs, they remain in custody of the old sheriffs, notwithstanding the new letters patent, the writ of discharge, and the writ of delivery. This case has been very much misconceived: thus, in Buller's Nisi Prius, 68. which is generally very correct, the case of West-by is supposed to decide, that if the old sheriffs omit to deliver over any of the prisoners, it is an escape. Other elementary writers have fallen into the same mistake, as to the points really decided in Westby's case, and the principle of that decision. The opinion of the Court is so clearly expressed, that language can scarcely make it plainer. The old sheriffs having assigned the prisoner, on one of the two execn*73lions against Mm, had parted with the custody of him; but the new sheriffs having received him on one of the execulions only, had not the custody of the prisoner on the execution of which they had no knowledge; so that he was out of custody on that execution, as respected both the old and new sheriffs, and, consequently, it was a legal escape. But that very case decides an important point, which controls and governs this case; that until the prisoners are delivered to the new sheriff, they remain in custody of the old sheriff, notwithstanding the commission of the new sheriff, and the writ of discharge and delivery.
In this case, then, Brown, who was never assigned, or delivered to the new sheriff, remained in the custody of the plaintiff in error, and it is not pretended that he ever escaped. Whilst the law required prisoners in execution to be kept in arcta et salva custodia, within the four walls of the prison, there might be some question, whether delivering over the gaol and all the prisoners, except one or more, the old sheriff had any such control over those not delivered over, as that they might be considered in his custody. It would be liable to the objection, that it was a divided authority; but under the existing law, where the debtor charged in execution has a right to demand the gaol liberties, when he gives security and is admitted to these liberties, (which was the prisoner’s case,) all conflict of power, over a prisoner thus circumstanced, between the old and new sheriff, ceases, and then there exists no difficulty in the case.
In fact, the right of the old sheriff, to turn over his prisoners on civil executions, to his successor, is for his own safety and security ; for we have seen, by the decision in JVest fo/s case, that until that is done, the prisoners remain hr the custody of the old sheriff. There is, then, no want of authority on the part of the old sheriff, to l’etain the custody. The principle is unquestionable, that when a sheriff has once begun to execute a writ of execution, he has, after he goes out of office, a right to complete the performance of his duty. This consideration shows, that when the law authorizes the old sheriff to assign over his prisoners on execution, to his successor, it is that he may be exonerated from airy further charge or responsibility. The rule is introduced for the benefit of the *74old sheriff, and he may, if he pleases, waive the advantage of it. Whether the old sheriff could commit the prisoner, if he ascertained that the sureties were bad, is another and distinct question; and should it be answered in the negative, it decides nothing as to the present case. It may be, that he could not commit to the gaol of the county 5 and this would be one of the risks and inconveniences in not assigning the prisoner. It was asked, whether, if Brown actually escaped, the old sheriff would be liable ? Undoubtedly, he would be; for, as regards this prisoner, he is to be deemed, to all intents and purposes, as in the custody of the old sheriff.
Judgment reversed.