By the Court,
Savage, Ch J.It would seem to be unnecessary to enter into an argument, or produce an authority to show that the court below are right; but as respectable counsel has argued the case with apparent confidence, it may be proper to show what the law always was on this point, and that it has undergone no change.
The defendant is sued for an escape. The very term escape presupposes that the person escaping has been within the custody and under the control of the officer. The debtor is placed in jail as a means of compelling payment of his debt to the plaintiffs. The officer must have the debtor in his custody, before there can be any default on his part. How could the new sheriff in this case prevent the escape 1 He never had any control over the prisoner. You might with as much propriety put a ca. sa. into the sheriff’s hands, against a person he never saw, and sue him immediately for an escape, because the man was at large, and the sheriff could not catch him. But it is argued that the prisoner was committed to the former sheriff, and has never been discharged; and as the limits are but an enlargement of the four walls of the prison, the prisoner was within the walls on the 2d January, 1832, when the old sheriff surrendered, and the defend*503ant accepted the office. It is true that fictions of law are sometimes indulged ; always however for the advancement of justice, and never when they will produce injustice. It was the doctrine of the common law, that the old sheriff must deliver by indenture all the prisoners in his custody upon execution, and till such delivery by him, they remain in custody of the old sheriff, and he shall be responsible for them. Bacon's Abr. tit. Sheriff, I. This point was expressly decided in the case of Hempstead v. Weed, 20 Johns. R. 64. The whole subject is there fully discussed, as to the liability of the old and new sheriff, and renders any further remark upon it unnecessary.
It is said, however, that the revised statutes have changed the law on this subject, and subjected the sheriff having charge of the jail to responsibility. The legislature have changed the phraseology, and have converted common law into statute law; and this, I believe, is the extent of the operation of the revised statutes on this subject. The revised laws, in so far as they are applicable to this case, 1 R. L. 425, § 19, directed that every person, arrested upon execution, should be committed to the custody of the sheriff to whom the writ was directed; and if any such sheriff should permit any such person to go out of prison, without the assent of the plaintiff, he should be answerable for the debt and damages for which such person was committed. The language of the revised statutes on the same subject is as follows : 11 If any prisoner, committed to any jail in execution in a civil action, shall go or be at large, without the boundaries of the liberties of such jail, without the assent of the party at whose suit such prisoner was committed, the same shall be deemed an escape of such prisoner, and the sheriff having charge of such jail shall be answerable therefor to such party.” 2 R. S. 437, § 63. This section manifestly presupposes that the person escaping had first been committed to the jail of the sheriff, before the sheriff having charge of such jail shall be answerable. But neither the letter nor the spirit of this section make it necessary to decide that the sheriff shall be answerable for the escape of a person who never was in his custody, and therefore never was in his jail; much less is it proper to prosecute the *504i present sheriff" for an escape committed before he came into office. The. prisoner had escaped previous to the first of January ; for he states himself, that on the 1st, 5th, and 7th of that month, he was in the vicinity of Boston, more than 100 miles from the jail of which the defendant became the keeper after the prisoner had escaped.
The revised statutes, 2 R. S. 438, art. 5, give directions how, in case of an election of a new sheriff, the old sheriff shall leave the office, and the new one succeed. The provisions of the statute are not materially variant from the common law. It is made the duty of the old sheriff to assign to the new sheriff the jail, the prisoners, and all papers relating them, and all process not executed, nor begun to be executed. Such was the duty of the old sheriff at common law, and such was the practice. There is only this difference : It was said in Hempstead v. Weed, that as the right of the old sheriff to turn over the prisoners was for his advantage, he might waive it if he pleased; under the statute, he has not now the liberty of doing so ; it is now his duty to assign to them; it is ffiso his duty to assign all process unexecuted. But suppose he neglects or .refuses to do so, is the new sheriff liable to an action for not serving a writ put into the hands of his predecessor, but not delivered over to him 1 Most certainly not; and yet a right of action in such a case would rest on the same principle upon which this action does—that the parly must look to the sheriff in office. The common law considered the prisoners in the custody of the old sheriff until assigned to the new; the revised statutes retain the same principle. If the mere transfer of the office transferred the prisoners, and made the new sheriff liable for the escape of all the prisoners, whether formerly transferred or not, then the assignment, itself is a very idle proceeding. But it is not so ; the sheriff is not answerable for prisoners not assigned to him; nor for omitting to serve process not delivered to him. As to prisoners in close confinement, I give no opinion ; I speak of those who have given bail, and are supposed to be upon the limits. Until the assignment is executed, the new sheriff knows not who have been committed, and who have been discharged. The process authorizing their deten*505tion is not in his possession, but in that of his predecessor. TT 1 r" r „ He has no means of controlling such persons, and therefore is not answerable for them. The plaintiffs have a perfect remedy against the old sheriff, who cannot plead his failure to perform his duty as an excuse.
Judgment affirmed, with double costs.