When an imprisoned debtor departs from the liberties of the prison, it is a negligent escape in the sheriff. A recaption, on fresh pursuit, or a voluntary return by the debtor, before action brought, will excuse the sheriff; and he is not liable to an action for the escape. The sheriff, however, is not bound to receive the prisoner after such escape, but can, if he pleases, maintain an action against him on the bond to abide a faithful prisoner; for such departure from the liberties of the prison, is a breach of the condition of the bond.
.Whenever a man prevents an act from being done, lie shall suffer the consequence of it: he shall derive no advantage from its not being done. If the plaintiffs had, by force., detained the debtor out of the liberties of the prison, till they *476hud commenced a suit for the escape, against the sheriff*, it ⅛ conceded,!hat they could not sustain an action. Jlut it is said* ^is case, the plaintiff’s made use of.a lawful process for the collection of a debt, as they had good right to do ; which j usti-f£es the act'. The plaintiffs had no right to make use of the forms of law for ai1 imjw oper purpose. They had no right to arrest the body of the debtor, by an attachment, with the express view to prevent him from returning to the prison* and to charge the defendant with the escape. This is an abuse of legal process ; and if the plaintiffs be allowed to recover, they will be enabled to take advantage of their own wrong.
It has been insisted, that the charge of the court was incorrect ; that they should have charged the jury, not only that the debtor must return within the liberties of the prison, but that the sheriff must consent to receive him, in order to excuse him from the escape. But the charge of the court was correct. It is sufficient that the debtor had returned within the limits of the prison, before the suit was brought r and it will be presumed, that the sheriff consented to receive him, unless the contrary appears.
Hosmer, J.It is established law,'that fresh pursuit and recaption, before action brought, is a good defence against a demand for a negligent escape. That the one in the case before us, was of this description, is unquestionable. Most clearly, it was not a voluntary escape ; winch is an escape with the consent, or by default, of the sheriff. Bonafous v. Walker, 2 Term Rep. 131.
The voluntary return of a prisoner, is deemed equivalent to a recaption. It matters not whether the escape was fay a breach of the gaol, or by a departure from the limits. A return to the place of imprisonment, whether within the four walls, or within the gaol liberties, infers the same legal consequences. For a return to the limits, if the prisoner escaped from them, is. a return within the custody of the sheriff, and in contemplation of law, within the prison. Bonafous v. Walker, 2 Term Rep. 126. Peters & Gedney v. Henry, 6 Johns. Rep. 121. Jones v. Abbe, 1 Root 106. Undoubtedly, the sheriff may maintain an action on the bond given to him, conditioned that the debtor shall remain a faithful prisoner | although, after having escaped, the prisoner should return to the prison. The escape is an irreparable *477breach of the condition, and the damages will be liquidated according to equity. If the sheriff is subjected lo no disadvantage, they will be merely nominal. Gambier v. Larkin, Comyns 553. Freeman v. Davis & al. 7 Mass. Rep. 200. Abel v. Bennett, 1 Root 127. Lord v. Atwood & al. 2 Root 336.
As to the rat ape on the 3d of February, it must be considered precisely as if tiie prisoner had returned to the limits before the plaintiffs commenced t heir action. This he would have done, had he not been prevented by the restraint put upon him by the plaintiffs, with the unjustifiable intent of producing an escape, of which they might avail themselves. The plaintiffs would have taken advantage of their own wrong.
I can discern no legal difference between the creditor’s taking a prisoner by force from the limits to create an escape, and the forcible restraint of him, after his escape, to prevent his return. Nor is the case more favourable to the plaintiffs, by reason of their abuse of legal process, to achieve an object ⅛0 un justifiable. The charge to the jury, in my judgment, is entirely correct, and a new trial ought not to be granted.