By the Court,
Savage, :G. J:It was contended at the circuit and upon the argument of this case, that the plaintiff having brought a suit for a voluntary escape, had elected to consider Hopkins out of custody; and having done no act to affirm the imprisonment of Hopkins after his commitment to prison, he is now at liberty to consider Hopkins as legally in custody at his suit, when the escape took place for which this suit is prosecuted. The judge at the circuit overruled the defence, and allowed the plaintiff to recover for the amount endorsed on the ca. sa. and interest from the docketing the judgment to the commencement of this suit.
On the question of interest, the judge erred. The statute (1 R. L. 425, s. 9,) makes the sheriff answerable Jor the debt and damages for which the prisoner w;as committed. This was so decided in Rawson v. Dole, (2 John. Rep. 454,) and in Thomas v. Weed, (14 Johns. R. 255,) wuqre .itris stated, that the plaintiff had bis election to bring debt upon the statute and recover what the statute gives ; or to bring case at common law, and recover the true amount of his damages, whatever they may be. Had case been brought, the defend*402ant might have shewn circumstances of mitigation, by reasoe of which, the plaintiff might perhaps have recovered but nominal damages. There is, therefore, no hardship in the case. The statute allowing'interest on judgments, does not affect this question. The same question was determined by this court in the cause of Bridge v. King, decided in 1826. But a new trial is not necessary to give redress for this error.
It becomes necessary therefore, to examine the principal ground of defence. Did the commencement of the suit for a voluntary escape of Hopkins, determine the plaintiff’s election to consider him out of custody ? If so, he was not a prisoner at the suit of the plaintiff at the time of the escape for which this suit is brought.
The ca. sa. upon which Hopkins was imprisoned, was returnable at the the 'Nov. term, 1823, of the common pleas. The writ in the action for the voluntary escape, was returnable at the October term, 1823, of this court. The escape for which this suit is brought, first took place in the winter of 1824. Between a voluntary and a negligent escape, there is a striking difference as regards the rights of the sheriff. His liabilities to the plaintiff are the same in both cases. There is, however, a difference as to the remedy. In case of a negligent escape, if the prisoner return before suit brought, the escape is purged and he is of course a prisoner again at the suit of the plaintiff But in case of a voluntary escape, although the prisoner return before suit brought, the escape is not ipso facto purged as in case of a negligent escape ; but the plaintiff may prosecute for it. He may however affirm him in prison at his suit, but such affirmation will not be presumed. It requires some positive act; either new process, or notice that the prisoner is received again as a prisoner at the plaintiff’s suit. The sheriff’s rights, however, in relation to the prisoner, are very different. In case of a negligent escape, the sheriff may pursue and retake the prisoner ; in case of a voluntary escape, be cannot without authority from the plaintiff: yet it seems, in case of a voluntary return of the prisoner, the sheriff may receive him into custody, but cannot detain him without the authority or as*403Deni of the plaintiff. These principles, if I mistake not, are found established by the decisions of this court. The case of Lansing v. Fleet, (2 Johns. C. 3,) was an action by the sheriff against one of his deputies on his bond of indemnity, alleging the escape of one Hicks. Hicks had been first arrested by another deputy, (Merritt,) who voluntarily suffered him to go at large, after having been in custody about an hour. Two days after, Merritt arrested Hicks again, and delivered him to the defendant, who received him and from whom he escaped. On a verdict for the plaintiff, subject to the opinion of this court, the case was very ably discussed by Radcliff, Kent and Benson, justices, who differed only upon the question of what authority from the plaintiff was necessary to authorize a sheriff to detain a prisoner who submits to a recaption after a voluntary escape; Radcliff, justice, holding that the prisoner must be considered in prison at the suit of the plaintiff of course, without some positive act of the plaintiff, determining his election to proceed against the sheriff: the other justices maintaining, that without some positive authority from the plaintiff, the sheriff cannot retake or detain the prisoner; and Kent, justice, adopts the language of chief justice Wilmot, (2 Wils. 295,) that after a voluntary escape and voluntary return without authority from the plaintiff, he is not a prisoner at the plaintiff’s suit, although locked up every night. In Thompson v. Lockwood, (15 Johns. R. 258,) Spencer, justice, says, that 86 the case of Lansing v. Fleet, settles the point, that after a voluntary escape, the sheriff cannot lawfully retake or detain a prisoner, unless the plaintiff in the execution shall issue a new process; nor can he detain on the surrender of the prisoner himself, unless the plaintiff in the execution does some act shewing his election to hold him on the old process.” There is but one exception, which is the case of transfer from an old to a new sheriff. It is not material in this case, to consider what act on the part of the plaintiff is sufficient, after an escape, to waive the remedy against the sheriff and affirm the debtor in custody, as no such act is pretended. According to the doctrine, then, in the case of Lansing v. Fleet, Hopkins, on *404the supposition that there had been a voluntary escape, and a subsequent recaption or return, without the authority of the plaintiff, was not a prisoner at the suit of the plaintiff when the escape took place which is the subject of this suit, nor had he been such prisoner at any time after the voluntary escape. The fact, however, of such voluntary escape, is not established by proof, unless the act of the plaintiff in bringing an action for such escape, is an admission on his part, that such an escape had taken place, and that he was cognizant of the fact.
The case of Rowson v. Turner, (4 Johns. R. 469,) proves, that when a new sheriff receives a prisoner from his predecessor, he is bound to detain him, notwithstanding a voluntary escape in the time of his predecessor. And also that a prosecution and judgment for such escape, against the former sheriff is a bar to an action against the new sheriff for a subsequent escape. Van Jfess, justice, who delivered the opinion of the court, says, “ He, (the plaintiff) ought not to be allowed to proceed against the sheriff for the escape, and at the same time hold the prisoner in execution.” In this case, the. plaintiff had proceeded to judgment; of course, the fact of the voluntary escape had been proved. In the case of McElroy v. Mancius, (13 Johns. R. 122,) the court, referring to the case of Ramson v. Turner, considers it as deciding that the bringing a suit is the determination of the plaintiff’s election, which he had, either to consider the prisoner out of custody or in execution. The case of a new sheriff receiving a prisoner from his predecessor, it has been observed, is an exception to the general rule, as to the legality of his detention after a voluntary escape without authority from the plaintiff the reasons for which need not here be stated.
From the principles established in the latter case, it follows that the bringing a suit against the sheriff is an election on the part of the plaintiff to consider Hopkins out of custody. It would be idle for a plaintiff to prosecute the sheriff for an escape, when in truth .no escape had happened; but is the commencement of such a suit to conclude the plaintiff? The commencement of a suit seems to be an assertion by *405the plaintiff that a right of action exists, that an escape has taken place. It is also the determination of the election of the plaintiff to look to the sheriff and of course not to pursue the original defendant. But suppose the plaintiff had gone to trial in the former suit, and had failed in proving a voluntary escape, the fact would then be established that no such escape had been made; could he then maintain this action, or must he again charge Hopkins in execution ? If this suit could not be maintained, it would follow, that when a suit is brought for an escape, the plaintiff affirms his debt- or out of prison; and during the pendency of such suit, the debtor may depart from the gaol with impunity. If the plaintiff fails in his suit, he has no further remedy against the sheriff but must purstie his remedy against the original debtor. Where a debtor escapes from prison, confined on execution, the plaintiff may prosecute the sheriff and at the same time take execution against the property of the original debtor. There is no inconsistency in the two remedies ¡ and where a party has two remedies, he may pursue both, "though he can have but one satisfaction. (8 Johns. R. 366.) But in the case cited, this court said that in Rawson v. Turner, the election of one remedy was incompatible with the pursuit of the other, as the one remedy was upon the ground that the other had ceased. During the pendency Of ah action for an escape, the plaintiff may take the property, but not the person of his debtor. If he cannot take a new execution against the person of his debtor,- and legally imprison him during the pendency of an action for a previous escape, it would follow, that if the debtor was so imprisoned and escaped, no action would lie. I am of opinion, therefore, that by prosecuting the sheriff for a voluntary escape, the plaintiff elected to consider Hopkins out of custody. That suit Was brought before the return of the process against Hopkins. The imprisonment of Hopkins, therefore, subsequent to the commencement of that suit, could not operate in favor of the plaintiff; nor was Hopkins in truth a prisoner at the suit of the plaintiff though, in the language of Ch. J. Wilmot, he were locked up every night: that Hopkins not be-5 *406ing' a prisoner at the suit of the plaintiff, there could be no escape ; that after a prosecution for an escape, the plaintiff cannot retain the original defendant in custody upon the same process; and if he fails in that suit, he must re-commit his debtor, and a new escape must take place, before a suit can be brought against the sheriff.
New trial granted.