remarkable  that  at  the  same  term,  the  question  was  also
before  the  Court  of  King's  Bench  in  Elliott  v.  The  Duke
of  Norfolk,  4  T.  R.  789 ;  in  which,  without  hearing  the
plaintiff's  counsel,  the  Court  sustained  a  demurer  to  a
plea,  that  a  mob  of  divers  persons,  riotously  and  felonious-
ly with  force  (tho  said  force  being  so  great  and  violent
that  the  defendant  could  not  resist  it)  demolished  the
prison  and  rescued  the  debtor  against  the  will  of  the  de-
fendant, and  although  he  did  as  much  as  in  his  power  lay
to  prevent  the  same.  It  is  thus  seen,  that  in  the  action
of  debt,  as  well  as  in  case,  the  officer  is  liable  for  either
kind  of  escape  ;  except  that  when  the  escape  is  only  neg-
ligent, the  action  will  not  lie  unless  brought  before  re-
caption, and  except  further  that  it  will  not  lie  at  all
when  the  escape  was  occasioned  by  the  Act  of  God,  or
the  public  enemies.  Although  these  positions  were  not
disputed  by  the  defendant's  counsel,  but  were  admitted  to
be  law  in  England,  yet  it  was  necessary  to  advert  to  them
particularly,  for  the  better  understanding  of  the  grounds
on  which  they  rest,  and  their  bearing  on  the  construction
proper  to  be  placed  on  our  statute.  For,  while  it  wai
admitted,  that  such  was  the  nature  of  the  escapes  for
whioh  the  common  law  gave  and  gives  the  action  on  tho
case,  and  for  which  debt  is  also  given  in  England,  by  her
statutes,  it  was  contended  in  argument,  that,  by  reason  of
the  difference  in  the  language  of  those  statutes  and  ours,
and  of  the  difference  in  the  condition  and  policy  of  the
two  countries,  ours  should  receive  a  different  construc-
tion— one  whereby  the  sheriff  is  to  be  liable  for  such  neg-
ligent escapes  only,  as  spring  from  **  actual  negligence,"
or,  from  **  gross  and  culpable  negligence,"  as  was  con-
tended for  in  another  another  case  against  this  defendant
at  the  present  term.  But  neither  the  one  nor  the  other
of  those  reasons  can,  we  think,  produce  the  effect  insisted
on.  So  far  from  it,  the  difference  between  the  enactments
«hews  an  intention  to  make  ours  the  more  explicit  against
the  sheriff.
