being found beneficial, it was continued to try title. But in England they are still obliged to adhere in some measure to the old forms, and have respect to those principles upon which the action was primarily introduced. But the action of ejectment introduced in this country has been held in toto fictitious. Indeed a late statute has stripped it of all its fictions. The doctrine held in England cannot therefore apply here. The nominal plaintiff cannot be considered here even as a trustee for his lessor, and there can be no doubt that here the lessor in ejectment may maintain an action for the mesne profits: but in England they are bound by precedents coeval with the action itself, and which their Courts suffered to foster a novel but beneficial action. In this government the reason of those precedents fail, and their authority with it. Here the nominal plaintiff is merely so. John Doe or Richard Lackland might as well have been inserted in the writ as Darius Chipman—this person in esse. In recovery had by Doe or Lackland, if execution issues in their names, and money is collected, to whom does it enure? who shall receipt the money to the sheriff when collected? In the present case, must the lessor be driven to the old doctrine of uses and trusts to recover it from this real nominal plaintiff? The lessor of the plaintiff must respond the costs if he fail in his suit, and why not bring his action to receive if he recover? The practice has been various in the several Counties in this State; but it has been most usually practised in nonsuit on ejectment, for defendant to take out execution against the lessor though in some Counties the defendant has taken out his execution for costs against the no Chipman V. Sawyer. Vermont Stat. vol. 1. p. 90. Chipman V. Sawyer. Vermont Stat. vol. 1. p. 68. Ibid. p. 69. minal plaintiff, and obtained a mere formal non est tó be returned upon it, and then brought a scire facias against the lessor, in which he was obliged to declare that he had caused the execution to be presented to the said John Doe, to be by him satisfied, risum teneatis. But in no case, where the name of some inhabitant of this State, of legal age, has been inserted in the writ as nominal plaintiff, has any writ of execution upon nonsuit, discontinuance, verdict, or failure of the lessor, been issued against that questionable heteroclite personage, a real nominal plaintiff. If judgment for costs in the original suit had gone the other way, and defendant had brought a suit against my brother Chipman, we should have heard him declare, that the Darius Chipman, nominal plaintiff, was a mere John Doe; a nominal fictitious being, and not Darius Chipman, the substantial suitor, who now sturdily demands our property. The fifth exception, which includes the third, is founded on our own statutes. The 37th section of the judiciary act provides in substance, that when a sheriff of a County in which there is no legal gaol, holds an execution against a person residing within his bailiwick, he shall have power to commit such person to the gaol in some one of the nearest counties. In section 40th of the same act, it is enacted, "that in all cases wherein persons shall be committed to gaol under the directions of this act, who shall escape therefrom, the County from which such prisoner was sent shall be liable to pay all damages and costs to the person or persons who shall be injured by such escape." Chipman V. Sawyer. Vermont Stat. And in confirmance of this, the act relating to gaols and gaolers, section 4th, enacts, "that the sheriffs of the several Counties in this State, shall be liable for all escapes made from the gaols in the Counties to vol. 1. p. 280. which they severally belong, excepting such prisoners as are committed from some other County." Here the statute is so express that it needs no comment. But further, in the proviso to the last cited section, it is provided, that when such sheriff shall make it appear that the escape was made through the insufficiency of the gaol, the County and not the she- Ibid. riff, shall be liable. This applies to the third exception. And further, in a second proviso to the same sec- Ibich tion, it is enacted, "that when any action shall be brought against any sheriff for the escape of any prisoner, such sheriff may, on trial of the cause, produce evidence of the circumstances, situation and property of the prisoner when such escape was made, and all the circumstances attending such escape, and the creditor shall recover no more than his reasonable and just damages which he shall have sustained in consequence of such escape, and his legal costs." But it may be said, the question returns, what sheriff and County are here intended? Surely the sheriff and County wherein the debtor resided when arrested on the execution. In this case, the sheriff and County of Franklin, not the sheriff and County of Chittenden, for we have already seen that the 4th section of the act regulating gaols and gaolers, when establishing a liability in sheriffs for escapes, excepts the sheriff from any liability for the escape of such prisoners as may be committed from some other County. Chipman V. Sawyer. Daniel Chipman, e contra. If all advanced by the defendant's counsel be true relating to the first and second exceptions in demurrer, advantage ought to have been taken in error, and not here. But it is observable, the first exception would not operate even in error; because by will executor may maintain ejectment, and to reverse the judgment it ought to be shewn, that executor can in no possible case maintainejectment. To the fourth exception, that the action cannot be maintained by the nominal plaintiff in ejectment, we observe, that it is true in actions of this kind a fictitious person is frequently introduced; but Judge Bl. Com. vol. 2. Blackstone says it ought to be a real person. But if p. 202. there be a real person, as in the present instance, the case cited from Burrow is in point, and puts it beyond all doubt. It shews that the action of ejectment may be brought each way; for in case of a fictitious plaintiff, the recovery is substantially for the lessor; when a real person, he recovers to the use of the lessor. The case of Aslin v. Parkin is not grounded merely on precedents, but is supported by the reason of the thing operating on all the Judges of England. That this mode of action is now put out of use by the late statute, can be no reason that a party should not have his remedy when pursued by existing laws. With respect to the third and fifth exceptions, that the sheriff of Franklin County is in this case liable, we reply, that the sheriff is liable at common law for all escapes; and this is affirmed by the 4th section of the act relating to gaols and gaolers, already read. · The argument that the sheriff or County of Franklin is liable, proves too much; for then the sheriff and County of Chittenden would in no case be liable for the escape of prisoners committed from a foreign County; for it must be admitted, that the statute imposes some liability on the sheriff or County where every commitment is made legally. Chipman V. Sawyer. vol. 1. p. 68. The 37th section of the Judiciary act, which em- Vermont Stat. powers the sheriff of a County where there is no gaol, to commit prisoners to some gaol in another County, makes it absolutely "the duty of the keeper of the gaol to receive such person or persons, and commit or keep him, her or them, within said gaol." Here is a strong liability imposed by the statute upon the present defendant, sheriff of Chittenden County. To avoid this liability, it is necessary to shew that it has been done away by this or some other statute, or by some decision of this Court; which is not even attempted. Reliance is had upon the 4th section of the act relating to gaols and gaolers, which has an exception of persons committed from other Counties. This does not discharge the sheriff of Chittenden County from his general liability, and does not extend to voluntary escapes. If this were so in the case of negli gent escapes, the County of Franklin or its sheriff must be always liable, let the conduct of the sheriff of Chittenden, or the laches of that County in neglecting to repair their gaol, be what they may. When a prisoner is committed from some other County to the gaol in Chittenden County, the sheriff may say, "In obedience to the statute I have received such prisoner, have committed and kept him within my |