afterwards delivered the opinion of the Court, as follows:
From the facts stated in the declaration, it is contended by the defendant, that there appears no cause of action. The case is certainly a novel one ; but this circumstance can afford no answer, provided legal principles can be found to support it.
It is argued by.the counsel for the plaintiffs that as it appears that the prisoner, for whose escape this action is brought, when first arrested pleaded guilty before the magistrate ; and as an indictment was afterwards found against him, there was sufficient prooí that a conviction would have followed, had not the prisoner, by his escape, avoided a trial:—And that as the ch'-feudant, by the neglect of his deputy, deprived the plaintiffs of the power of realizing their right to the services of the prisoner, lo which they would have been entitled by the sentence of the *72Court against him, he, the defendant, was liable in damages, to the amount of the value of this right or prospect, which the jury have estimated at twenty dollars.
The first reply to this argument is, that though the prisoner pleaded guilty before the magistrate, yet on a trial by jury it might have appeared that this confession was improperly obtained ;—by the use either of threats, or persuasions, of such a nature as would have rendered the confession inadmissible as proof against him.
But another and decisive answer is, that as there was no conviction of the prisoner, no right to his service could possibly accrue to the plaintiffs ; because there could be no sentence without a previous conviction. Such is the language of the statutes which have been cited. It is provided that if a prison-keeper shall, through negligence, suffer any prisoner accused of any crime to escape, he shall pay such fine as the Justices of the Court shall, in their discretion, inflict. This fine is to be disposed of, for the use of the county in which the offence may have been committed. The escape being a public evil, the Sheriff, or rather the prison-keeper, is answerable to the State; but no right is given to any individual, by any Statute provision, to prosecute for the escape of a person charged with a crime, before conviction.
If this suit be compared to an action for the escape of a prisoner committed on mesne process in a civil action, it will throw some light on the question before us, and aid in forming the conclusion whether the plaintiffs have any right, at common law, to maintain the present action. If a plaintiff demand damages against a Sheriff for an escape on mesne process, he must prove a good existing cause of action, at the time of the commitment, against the prisoner who has escaped ; and unless he can establish such a cause of action, and shew that he has actually sustained damage, he can recover none. Alexander v. Macauley, 4 D. & E. 611. Gunter v. Cleyton, 2 Lev. 85. No action can be maintained for an escape on mesne process, unless the plaintiff could have maintained the original action against the prisoner. lie could not, for instance, anticipate a right of action, as by sueing a bond or note before it has become payable ; or a conditional bond before the contingency has happened, and *73committing the defendant to prison; and then, for the escape of a person committed under such circumstances, sustain a suit against the Sheriff; for in both the cases put, the action would not lie against the original defendant. Now, according to the argument of their counsel, can the plaintiffs’ supposed right of action, or rather their right to the service of the prisoner, be more perfect than the right of the plaintiffs in the cases which I have stated ? Had the present plaintiffs, at the time they commenced this action, any claim, or shadow of claim, against the prisoner ? We think the answer to these questions must be in the negative.
Still the plaintiffs contend that they have lost at least a prospect, or possibility, for which they are entitled to damages. But the truth is, they have not even lost so much; because the prisoner may still be arrested, tried, and convicted ; and the plaintiffs may then, by virtue of the sentence of the Court, realize all those advantages, and obtain all that compensation, for the supposed loss of which they are seeking damages in the present action.
Without pursuing the argument any farther, we are all of opinion that the action cannot be maintained. We know of no principles which can sanction it—and therefore
Judgment is arrested,