(Dyeb, L, dissenting.) This is a petition against the county, upon the statute, claiming damages for the escape of a prisoner, through insufficiency of the goal, who was in execution for a debt due the petitioner. The statute provides, inter alia — “ That if any person, lawfully committed, shall break goal, and make his escape, by reason or means of the insufficiency of the goal, the damages sustained by reason of such escape, shall be paid out of the county treasury.” — "With a saving in the following words, viz.— “ That nothing in this act shall be construed to prejudice, or hinder any person or persons from recovering any expense, cost, or damage of the person or persons, or out of the estate of such person or persons, who shall break, or be aiding or assisting in breaking the goal, or who shall escape, or be aiding thereto, according to law; and when such remedy for satisfaction may be had, the county shall not be charged with, nor be ordered to pay the said expense, cost, or damage.”
*323Tbe defense is: —
1. That tbe escape was effected by tbe aid of persons without tbe goal, viz. James Hawley, and others named, who^ furnished the prisoner with implements for that purpose.
This cannot avail.— Public justice, and the peace of society are concerned, that prisoners should be securely kept; and that for every escape, not happening by fire, public enemies, or tbe providence of God, the builder, or keeper, of the goal shall be responsible. In England, tbe responsibility is in the same person, who both provides and keeps tbe goal. Here, by tbe statute, it is divided, but not lessened; tbe county, who builds and repairs, is responsible for the sufficiency of tbe goal, and the sheriff for tbe custody of it; and one or tbe other must answer for every escape, except in tbe cases above mentioned. It is no excuse for tbe county, that the prisoner broke out by tbe help of implements banded in at tbe window. It is their duty to provide a sufficient goal, which they do not, if prisoners can break out of it, with or without implements. If the goal is left accessible to persons without, and is of a construction and materials, that by the secret use of implements it can be broken, it is not that place of security which tbe law intends. It is tbe sheriff’s duty to defend the goal against open or riotous attempts; but it clearly devolves on the county so to build and secure it, that it shall not be liable to be broken secretly, and without tbe knowledge of a vigilant and faithful keeper; which, in this case, it appears they have not.
A further ground of defense stated, is — That the petitioner bath a remedy against the persons who aided tbe escape: — ■
*324If be bad bad knowledge of tbem, and they bad been of apparent ability, it would bave been bis duty, by tbe statute, to bave first sought bis remedy against tbem: But it appears from tbe pleadings, tbat be neither bad any knowledge of tbem at tbe time of commencing'this process, nor were they of any ability; nor is it suggested tbat the prisoner himself bad estate, within tbe knowledge and reach of tbe petitioner, out of which be might bave indemnified himself for tbe escape. Tie bad right, therefore, to bis remedy immediately against tbe county.
A third ground of defense, is — Tbat on fresh pursuit, by tbe sheriff, tbe prisoner was retaken, and is still in goal:—
It appears from tbe pleadings, tbat be was out some months, and not recommitted till after this suit was brought. —How far, however, a prisoner who goes at large three or six months can be said to be retaken on fresh pursuit, within tbe reason or letter of tbe rule, may not be material here; for tbe statute bath no saving for any recaption. If there has been an escape, tbe county is bolden. Tbe statute has some savings for tbe county, which tbe common law has not; in others, it may fall short.
Tbe common-law rule, however, would not help tbe defendants in this case: It goes only to recaptions before suit brought, Stran. 873, and upon plain reason; because, as tbe goaler bolds tbe body as a pledge for tbe debt, and to enforce payment, if be lets it go, tbe creditor is not obliged to wait to see whether be will retake it again, but has bis right of action against tbe goaler immediately; and having commenced it, and made bis election, be is not to be defeated by matter eae post facto. Here suit was brought before tbe recaption. Neither common law, or tbe statute, will, therefore, support this branch of tbe defense.
*325As to tbe equitable ground insisted on, that the debtor having taken the poor prisoner’s oath, his detention in goal would have been no benefit to the creditor: — It is against a statute provision, which enables the creditor, notwithstanding the oath, to detain the prisoner at his own expense, upon the ground that the detention still may, as it sometimes in fact doth, induce a disclosure of estate, and satisfaction of the debt. Such farther detention in goal is a mean the law has prescribed and given the creditor for the recovery of his debt; and it therefore subjects those, who through neglect of their duty, do in any measure deprive him of it, to the payment of the debt. Sheriffs neglecting to commit upon executions, are never excused, or abated in damages, because the debtor is poor. In England, the common action for escape of one in execution, is debt, in which, of course, without regard to the ability of the prisoner, the whole debt for which he was in execution is recovered. Execution is the end of the law. Laxness and insecurity here, render futile law proceedings, and the law itself.
We are, therefore, of opinion, that the replication of the petitioner in this case, is sufficient.
Note. — -This decision was afterwards reversed in the Supreme Court of Errors.