The opinion of the court was delivered, January 4th 1869, by
Agnew, J.
All of the assignments of error in this case can be disposed of by following in order the propositions of the plaintiff in error.
It is alleged that the sentence did not contemplate imprisonment. This is made to turn upon a criticism of the word “ custody,” as a mere keeping watch or care of the person, and not an imprisonment. But this is not so. This word is used in, and is a part of, a sentence of the court upon a conviction of a misdemeanor, and is to be interpreted accordingly. This sentence is a final order of the court in the nature of execution: Snyder v. Commonwealth, 1 Penna. 94; Eby v. Burkholder, 17 S. & R. 10.
It is a material part of the sentence, “ and be in custody until this sentence is complied with;” that is, until the fine and costs are paid, and the lying-in expenses and sum awarded for support, and the bond given to indemnify the township. Now, clearly, this is a sentence to imprisonment until the defendant shall comply with the sentence, or be discharged in due course of law. It is [325]*325admitted, if the language had been “ committed until sentence is complied with,” it would mean imprisonment. But what greater force has the word “ committed ?” It seems to me it is not so great as “custody.” Committed to what? Undoubtedly to custody ; and this is the common form of sentence: “ and that you be committed to the custody of the sheriff until this sentence be complied with.” Custody here means strict custody — areta custodia. A discharge from prison under such a commitment makes the keeper of the prison liable: County of Schuylkill v. Reifsnyder, 10 Wright 446. And he cannot justify, even under a discharge by the county commissioners: Schwamble v. The Sheriff, 10 Harris 19.
The rule in civil cases is, and in criminal it is certainly not less strict, that it is the sheriff’s duty to keep every prisoner taken by him by virtue of a writ of execution in salva et arota custodia, for if the sheriff allow a defendant arrested by him on a ca. sa. to go at large for the shortest time, either before or after the return-day of the writ, without consent of the plaintiff,'it is an escape for which the sheriff is answerable: Watson’s Sheriff 135, 7 L. Lib. 97.
The next position is that Jane McGarvy, the prosecutrix, is not named in the sentence as the person to whom the lying-in expenses'and maintenance should be paid, and therefore the action cannot be maintained for her use. The sentence is not precise in this respect, and it would be better always for the court to specify at once the person to whom the lying-in expenses and maintenance already accrued are to be paid, as this form of sentence has some advantages. See Sheffer v. Rempublicam, 3 Yeates 39. But it is settled that the sentence need not name the party: Goddard v. Commonwealth,,6 S. & R. 282; Helling’s Executors v. Directors of the Poor, 3 Harris 412.
In the last case Judge Rogers said: “ This (omission) however, is not a fatal defect, as we will intend it to be payable either to the mother or to another, who, in case of her decease, may take her place. It was not regarded as error in Goddard v. Commonwealth, where the sentence was in the same form and adjudged to be good.” Her interest in the sentence is viewed as only collateral : Philippi v. Commonwealth, 6 Harris 117. The record of the indictment and conviction, in which Jane McGarvy appears as prosecutrix, we regard as sufficient, therefore, in an action on the sheriff’s bond, to show her interest in the sentence.
In regard to the next proposition, the character of the escape and the proper cause of action, we discover no difficulty. The escape as a matter of fact has been found by the jury, and the evidence of it was ample. If Jane McGarvy had an interest in the sentence (and this we have shown), the sheriff became liable to her by reason of his breach of duty to pay her the sums she was entitled to under the sentence at the time of the escapé. [326]*326They are easily ascertained by reference to the sentence itself. That this breach of duty fell within the protection of the bond is clear from its terms, the last clause of which is, “ and shall and do from time to time and at all times during his continuance in the said office, well and faithfully execute and perform all and every of the trusts and duties to the said office appertaining.” The very point has been decided in Snyder v. ■ Commonwealth, 1 Penna. 94, that a breach of duty in not committing a person convicted of fornication makes the sheriff liable on his official bond to the mother for the amount to be paid to her for maintenance. See also Karch v. Commonwealth, 3 Barr 269. Then, by the 4th section of the Act of 28th of March 1803, decided to be still in force, Commonwealth v. Rainey, 4 W. & S. 186, any one aggrieved may institute an action of debt or scire facias on the recognisance, or of debt on the bond of the sheriff and his sureties, and have judgment and execution for his damages.
The right of Jane McGarvy to sue on the bond in the name of the Commonwealth, and to add herself as a party aggrieved, seems to be clear.
The next point in the natural order of their consideration is the right of action of the plaintiff against the sureties, and the measure of liability. This proposition has been partly answered in what has been said under the last head. The official bond covers the duty to be performed by the officer in such a case; the escape is a breach of that duty; the law gives a right of action to the party aggrieved and as often as injury shall happen: Act of March 28th 1803, § 4; Act 14th June 1836, § 6, articles 9 and 11. The plaintiff, Jane McGarvy, is such a party; the measure of the liability of the bail to her is the sum which would be payable to her under the sentence, and this sum can be shown by the whole record of the indictment, conviction and sentence. But it is alleged that, the sureties in the official bond cannot be sued until the liability of the sheriff has been first fixed by a suit against him or his personal representative, where the action survives. The authorities relied on for this proposition are the cases deciding upon the character of the liability of sureties in administration-bonds : Commonwealth v. Evans, 1 Watts 437; Myers v. Fretz, 4 Barr 344; Commonwealth v. Wenrick, 8 Watts 160; Commonwealth v. Stub, 1 Jones 150.
But the principle upon which all these casfes were rested, was the contingent character of the liability in an administration-bond, on the ground that the liability'of the administrator or executor himself cannot be converted into an absolute one, on proof of anything less than a devastavit. But in a suit against the administrator and his sureties for the faithful execution of a power to sell real estate for the payment of debts, and account for and pay over the proceeds, it was held that the liability of the sureties is direct, [327]*327and it is not necessary the administrator himself should he first sued: Stewart v. Moody, 4 Watts 169. In this case that of Commonwealth v. Evans is referred to and distinguished on the very ground I have mentioned. This would be sufficient for the point before us, but there are numerous cases showing that the liability of the sureties of a sheriff is direct, and suit may be brought upon it whenever a breach occurs: Shannon v.
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The opinion of the court was delivered, January 4th 1869, by
Agnew, J.
All of the assignments of error in this case can be disposed of by following in order the propositions of the plaintiff in error.
It is alleged that the sentence did not contemplate imprisonment. This is made to turn upon a criticism of the word “ custody,” as a mere keeping watch or care of the person, and not an imprisonment. But this is not so. This word is used in, and is a part of, a sentence of the court upon a conviction of a misdemeanor, and is to be interpreted accordingly. This sentence is a final order of the court in the nature of execution: Snyder v. Commonwealth, 1 Penna. 94; Eby v. Burkholder, 17 S. & R. 10.
It is a material part of the sentence, “ and be in custody until this sentence is complied with;” that is, until the fine and costs are paid, and the lying-in expenses and sum awarded for support, and the bond given to indemnify the township. Now, clearly, this is a sentence to imprisonment until the defendant shall comply with the sentence, or be discharged in due course of law. It is [325]*325admitted, if the language had been “ committed until sentence is complied with,” it would mean imprisonment. But what greater force has the word “ committed ?” It seems to me it is not so great as “custody.” Committed to what? Undoubtedly to custody ; and this is the common form of sentence: “ and that you be committed to the custody of the sheriff until this sentence be complied with.” Custody here means strict custody — areta custodia. A discharge from prison under such a commitment makes the keeper of the prison liable: County of Schuylkill v. Reifsnyder, 10 Wright 446. And he cannot justify, even under a discharge by the county commissioners: Schwamble v. The Sheriff, 10 Harris 19.
The rule in civil cases is, and in criminal it is certainly not less strict, that it is the sheriff’s duty to keep every prisoner taken by him by virtue of a writ of execution in salva et arota custodia, for if the sheriff allow a defendant arrested by him on a ca. sa. to go at large for the shortest time, either before or after the return-day of the writ, without consent of the plaintiff,'it is an escape for which the sheriff is answerable: Watson’s Sheriff 135, 7 L. Lib. 97.
The next position is that Jane McGarvy, the prosecutrix, is not named in the sentence as the person to whom the lying-in expenses'and maintenance should be paid, and therefore the action cannot be maintained for her use. The sentence is not precise in this respect, and it would be better always for the court to specify at once the person to whom the lying-in expenses and maintenance already accrued are to be paid, as this form of sentence has some advantages. See Sheffer v. Rempublicam, 3 Yeates 39. But it is settled that the sentence need not name the party: Goddard v. Commonwealth,,6 S. & R. 282; Helling’s Executors v. Directors of the Poor, 3 Harris 412.
In the last case Judge Rogers said: “ This (omission) however, is not a fatal defect, as we will intend it to be payable either to the mother or to another, who, in case of her decease, may take her place. It was not regarded as error in Goddard v. Commonwealth, where the sentence was in the same form and adjudged to be good.” Her interest in the sentence is viewed as only collateral : Philippi v. Commonwealth, 6 Harris 117. The record of the indictment and conviction, in which Jane McGarvy appears as prosecutrix, we regard as sufficient, therefore, in an action on the sheriff’s bond, to show her interest in the sentence.
In regard to the next proposition, the character of the escape and the proper cause of action, we discover no difficulty. The escape as a matter of fact has been found by the jury, and the evidence of it was ample. If Jane McGarvy had an interest in the sentence (and this we have shown), the sheriff became liable to her by reason of his breach of duty to pay her the sums she was entitled to under the sentence at the time of the escapé. [326]*326They are easily ascertained by reference to the sentence itself. That this breach of duty fell within the protection of the bond is clear from its terms, the last clause of which is, “ and shall and do from time to time and at all times during his continuance in the said office, well and faithfully execute and perform all and every of the trusts and duties to the said office appertaining.” The very point has been decided in Snyder v. ■ Commonwealth, 1 Penna. 94, that a breach of duty in not committing a person convicted of fornication makes the sheriff liable on his official bond to the mother for the amount to be paid to her for maintenance. See also Karch v. Commonwealth, 3 Barr 269. Then, by the 4th section of the Act of 28th of March 1803, decided to be still in force, Commonwealth v. Rainey, 4 W. & S. 186, any one aggrieved may institute an action of debt or scire facias on the recognisance, or of debt on the bond of the sheriff and his sureties, and have judgment and execution for his damages.
The right of Jane McGarvy to sue on the bond in the name of the Commonwealth, and to add herself as a party aggrieved, seems to be clear.
The next point in the natural order of their consideration is the right of action of the plaintiff against the sureties, and the measure of liability. This proposition has been partly answered in what has been said under the last head. The official bond covers the duty to be performed by the officer in such a case; the escape is a breach of that duty; the law gives a right of action to the party aggrieved and as often as injury shall happen: Act of March 28th 1803, § 4; Act 14th June 1836, § 6, articles 9 and 11. The plaintiff, Jane McGarvy, is such a party; the measure of the liability of the bail to her is the sum which would be payable to her under the sentence, and this sum can be shown by the whole record of the indictment, conviction and sentence. But it is alleged that, the sureties in the official bond cannot be sued until the liability of the sheriff has been first fixed by a suit against him or his personal representative, where the action survives. The authorities relied on for this proposition are the cases deciding upon the character of the liability of sureties in administration-bonds : Commonwealth v. Evans, 1 Watts 437; Myers v. Fretz, 4 Barr 344; Commonwealth v. Wenrick, 8 Watts 160; Commonwealth v. Stub, 1 Jones 150.
But the principle upon which all these casfes were rested, was the contingent character of the liability in an administration-bond, on the ground that the liability'of the administrator or executor himself cannot be converted into an absolute one, on proof of anything less than a devastavit. But in a suit against the administrator and his sureties for the faithful execution of a power to sell real estate for the payment of debts, and account for and pay over the proceeds, it was held that the liability of the sureties is direct, [327]*327and it is not necessary the administrator himself should he first sued: Stewart v. Moody, 4 Watts 169. In this case that of Commonwealth v. Evans is referred to and distinguished on the very ground I have mentioned. This would be sufficient for the point before us, but there are numerous cases showing that the liability of the sureties of a sheriff is direct, and suit may be brought upon it whenever a breach occurs: Shannon v. Commonwealth, 8 S. & R. 444; Carmack v. Commonwealth, 5 Binney 184; Beale’s Executors v. Commonwealth, 11 S. & R. 299; Snyder v. Commonwealth, 1 Penna. 94; Wolverton v. Commonwealth, 7 S. & R. 273; Beale v. Commonwealth, 7 Watts 187; Commonwealth v. McCoy, 8 Watts 153; Karch v. Commonwealth, 3 Barr 269; Ricketson v. Commonwealth, 1 P. F. Smith 155. Nor is there anything in the objection that the escape is a tort on part of the sheriff, and does not survive. This is disposed of by the fact that the liability of the sureties is direct, and therefore the action lies against them as survivors, whether it survive against the sheriff’s estate or not. But undoubtedly it does survive, for two reasons.
In the first place the action is not in tort but debt, and this is a distinction fully recognised: Shuler v. Garrison, 5 W. & S. 455; Duncan v. Klinefelter, 5 Watts 141; Karch v. Commonwealth, 3 Barr 269. The statute (1 Richard 2, cap. 12) gives an action of debt for an escape, and enacts that the amount of the judgment shall be recovered. ■ In an action at common law, which is in case, damages only are recovered. But in the case before us the law makes the bond a security for the breach of duty, and gives an action of debt directly upon it, and the sentence of the court affords the measure of liability.
In the second place, the Act of 24th of February 1834, § 28, has changed the common law in regard to actions for torts, and now the executor or administrator can be sued in all.personal actions which might have been maintained against the decedent in his lifetime, except actions for slander, for libels, and for wrongs done to the person.
The last proposition contended for is that the discharge of the prisoner as an insolvent debtor is conclusive that all the requirements of the law had been complied with, and therefore that he had suffered the three months’ imprisonment demanded by the law in a case of fornication and bastardy before he could make application to be discharged from custody. But this has two answers: First, the application was not made until the 10th of September 1866, while the sentence was passed upon the 9th of June 1866, making an imprisonment of one day more than three months, and non constat that the sheriff had not reimprisoned the defendant within the day he escaped, so that the full term of imprisonment had expired at the time he petitioned to give bond. [328]*328In civil cases the officer may re-arrest for a negligent escape, though he cannot after a voluntary escape. But in criminal cases it is different. There the public have an interest in' the imprisonment, and even the officer who permitted the escape can retake the convict: Schwamble v. Sheriff, 10 Harris 19.
And in the second place, insolvency is no answer by the sheriff to an escape. He is bound for the salva et arcta custodia, and his liability is incurred at the moment of the breach of his duty, and the statute gives the action of debt for the breach, so that the subsequent discharge is no answer to the action. It will not do to encourage laxity of duty or collusion with the prisoner, by holding that if the prisoner, whose ownership of property cannot always i be followed by the evidence, can afterward be discharged under the insolvent law, it will condone the escape permitted by the sheriff; nor should the sheriff be exposed thus to the influence of powerful and wealthy relatives on behalf of the prisoner.
But in addition to these reasons it has been decided that insolvency is no answer to an escape: Wolverton v. Commonwealth, 7 S. & R. 273; Karch v. Commonwealth, 3 Barr 269.
Upon the whole case, finding no error, the judgment is affirmed.