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the King's Bench permitted a prisoner in execution to escapez who afterwards returned to prison again. The marshal died, and his successor permitted the same person to escape again. It was holden, that the second marshal was liable for this escape, and that the escape permitted by his predecessor did not discharge him. If the prisoner, being out on baila, come and surrender himself by entering Reddidit se, in discharge of his bail in the judge's-book, and the plaintiff's attorney accept him in execution, and file a committitur, the marshall is not chargeable for an escape without notice, either by serving him with a rule, or entering a committitur also in his book. The bailiff of a liberty b, who has the execution and return of writs, is liable to an action of debt for an escape, if he remove a prisoner in his custody in execution, to the county gaol, situate out of the liberty, and there deliver him into the custody of the sheriff.

Declaration. If a prisoner escape in Essex, and is seen at large in Hertfordshire, the venue may be laid in Hertfordshire. The plaintiff must set forth in his declaration the recovery by that judgment upon which the writ of execution issued, and allege that the judgment is still in full force and unsatisfied: but it is not necessary to set forth the pleadings previous to the judgment; for it is but inducement to the action. Beginning with the judgment, and stating briefly,“ quod cum recuperasset,is sufficient. It is sufficients to allege that the writ directing the arrest was duly indorsed for bail, without adding “by virtue of an affidavit made and filed of record.” The plaintiff must aver and shew in evidence, not only the escape of the prisoner, but that he was previously lawfully detainede. If upon a judgment by an intestatef, his administrator brings a scire facias and has judgment, whereupon a ca. sa. issues, and the defendant is taken, and permitted to escape, in an action against the sheriff for such escape, the plaintiff may declare briefly on the judgment in the scire facias, without setting forth all the proceedings at length. If a prisoner in the custody of the sheriffs, is brought by habeas corpus before a judge, and committed to a different custody, e. g. to the custody of the marshal of the King's Bench, who suffers him to escape, in an action against the marshal for such escape, it must be averred in the declaration, that the commitment was of record, otherwise it will be bad on special demurrer: for the prisoner is not in point of law in the marshal's custody until the commitment is entered of record (106).

z Lenthal v.Lenthal, 2 Lev. 109. e Per Bayley, J. Brazier v. Jones, 8 B. a Salk. 272.

and C. 130. b Boothman v. the Earl of Surry, 2 T. f Per Cur. in Gold & others v. Strode, R 5.

Carth. 146. c Walker v. Griffith, M. 25 G. 2 Bull. g Wightman v. Mullens, 2 Str. 1220. N. P. 67.

recognised in Turner v. Eyles, 3 Bos. d Nightingale v. Wilcoxson, in error, and Pul. 461.

10 B. & C. 202.

Pleadings. If the prison be on fireh, or be broken open by the king's enemies (107), and the prisoners escape,

this will excuse the sheriff; but it is otherwise if the prison be broken open by the king's subjectsk (108). If a prisoner in execution escape without the assent of the sheriff, and he make fresh suit, and retake him before any action brought against him, this will excuse him : but by stat. 8 and 9 W. 3. C. 27. s. 6. he cannot give this in evidence, but must plead it specially, and must likewise make oath that the prisoner made such escape without his privity or consent. By this plea it must appear, that the recaption was before action brought, otherwise it will be bad on demurrerm (109): for if the party at whose suit the prisoner was in execution, bring his action against the gaoler for an escape, and, after action brought, the gaoler retake him on fresh suit, this will not bar the action

1 1 Rol. Abr. 808. (E.) pl. ).
m Stonehouse v. Mullens, Str. 873.

h i Rol. Abr. 808. (D.) pl. 6.
i Id. pl. 5.
k Id. pl. 7. cites 4 Rep. 84. See also

Elliott v. D. of Norfolk, 4 T. R. 789.
5 Burr. 2812.

(106) It is not stated in Strange's report, whether the party committed had been taken on mesne process or in execution : but, from the case of Wigley v. Jones, 5 East, 440, it appears that the case in Strange is not law, unless it be understood of a commitment of a prisoner in execution ; for commitments on a writ of habeas corpus of persons in custody on mesne process, are not properly capable of being entered of record, either by themselves or as part of any other record or proceeding.

(107) Rolle (and Dyer, from whom he cites,) say « fire which is the act of God,” which seems to mean fire by lightning. See Alsept v. Eyles, 2 H. Bl. 113. in which Lord Loughborough, delivering the opinion of the court, said, that was the law stands, nothing but the act of God or the king's enemies will be an excuse.

(108) After the gaols in the metropolis were destroyed by the rioters, in the year 1780, an act of parliament (20 G. 3. C. 64.) was passed to indemnify the gaolers from the consequences of the prisoners escaping.

(109) From a MS. note, it appears to have been a special demur. rer, assigning for cause “that a recaption after action brought was not pleadable in bar."

2 S



well attached before" (110). By stat. 3 & 4 W. 4. c. 42. s. 3. This action must be commenced and sued within six years after the cause of such action. It is a good defence”, that the sheriff discharged the prisoner by virtue of an order of the Insolvent Debtor's Court; and it is not necessary to shew that the proceedings upon which the order is grounded were properly taken, or that the insolvent was within the walls of a prison when he petitioned for his discharge. See 7th G. 4. c. 57. s. 81. If the plaintiff in his declaration set forth, that the defendant voluntarily suffered J. S. (whom he had in execution) to escape, the defendant may plead that he retook him on fresh suit, before action brought, without traversing the voluntary escape (111); for this allegation in the declaration is immaterial. The proper place for setting it forth, if necessary, is in the replication. If without the knowledge of the gaoler the defendant escapes !, and returns before action brought, the gaoler may plead this in bar", for it is tantamount to a retaking on fresh pursuit before action brought. But in a plea of subsequent return, it is necessary to allege a detention, and that it continued to the time of action, or that it has been terminated by legal means.

Evidence.—To support this action the following proof will be necessary; first, an examined copy of the record of the judgment; 2dly, the writ of capias ad satisfaciendum ; or in case the writ has been returned, an examined copy thereof, and of the returnt; 3dly, the delivery of the writ to the sheriff must be proved; and here it is to be observed, that, where the writ has been returned, the indorsement of such return on

n Harvey v. Reynell, 1 Rol. Abr. 808, 9 Chambers v. Gambier, Comyn's R.

9 (E.) pl. 2. W. Jones, 145. S. C. 554. S. P. Grey v. Gambier, Hill. 8 G. o Satfery v. Jones, 2 B. & Ad. 598. 2. Pr. Reg. C. B. 199. p Bovy's case, 1 Ventr. 211, 217. adj. r Bonafous v. Walker, 2 T. R. 126. on demurrer.

s Chambers v. Jones, 11 East, 406.
t See Tildar v. Sutton, Bull. N. P. 66.

(110) If the defendant escapes and fresh suit is made after him, and he dies before he is retaken, an action will lie, and the fresh suit is no excuse unless he be retaken, for he died at large out of gaol, Gilb. Execution, p. 85. Edn. 1763. cites Popham, 186; but the case there is put by counsel in argument, and does not appear to have been adjudged; the proposition, however, scarce requires an authority.

(111) Hence, under a count for a voluntary escape, the plaintiff may give evidence of a negligent escape. Bonafous v. Walker, 2 T. Ř. 126. ruled on the authority of Bovy's case.

the writ", under the hand of the sheriff, will be sufficient evidence of the writ having been delivered to him. 4thly, A legal arrest under the writ must be proved; that is, an arrest either by the sheriff, or by the sheriff's officer, acting under the authority of a warrant duly signed and sealed by the sheriff. Regularly, in the latter case, the warrant ought to be proved; and for this purpose the plaintiff ought to subpena the officer, and give him notice to produce the warrant; in which case, if it be not produced, a copy, or parol evidence of its contents, will be admissible. The officer, when called to shew his authority, is a witness for all purposes and may be cross-examined as to the whole of the case, although he be the real party in the cause. It will be proper, however, to remark, that this strict proof of the authority of the officer is not always required, for in one casey the production of the writ, with the name of the officer indorsed, and proof of the usage in the sheriff's office to indorse on the writ the name of the officer to whom the warrant to arrest is delivered, coupled with evidence, that the person, whose name was indorsed, was the sheriff's officer, was holden sufficient, without the production of the warrant. But in Hill v. the Sheriff of Middlesex, Holt's N. P. C. 217, 7 Taunt. 8. it was holden that an examined copy of a writ returned and filed and the indorsement thereon, on which writ was indorsed the name of the bailiff employed to make the levy, was not evidence to prove who was the bailiff, there not being any evidence to shew that the indorsement was made by the sheriff's authority. And in Morgan v. Bridges, 2 Stark. N. P. C. 314. the same law was laid down by Abbott, J. Gibbs, C. J. however, in Hill v. Sheriff of Middlesex, Holt's N. P. C. 219. observed that it was the general practice to connect the sheriff and the officer by the production of the warrant, but although that was the formal, it was not the only way, and that any subsequent recognition by the sheriff would be equivalent to the production of the warrant. In order to constitute a legal arrest by the officer, the arrest must be by his authorityz; but it is not necessary that he should be the hand that arrests, or that he should be in the presence of the person arrested, or actually in sight, or within any prescribed distance at the time of the arrest. Lastly, the escape must be proved by shewing, that the prisoner, after the arrest, was at large ; whether before or after the return of the

u Blatch v. Archer, Cowp. 63.

y M‘Neil v. Perchard, 1 Esp. N. P. C. * Morgan v. Bridges, 2 Stark. N.P.C. 263. See also Blatch v. Archer, 315, Abbott, J.

Cowp. 63. and Jones v. Wood, 3

Campb. 228. z Cowp. 63.

writ is immaterial. The under-sheriff's confession of an escape will be evidence of the factz; because the under-sheriff gives the sheriff a bond to save him harmless, and therefore such confession goes in effect to charge himself. To prove a voluntary escape, the party escaping may be a witness, because it is a thing of secrecy, a private transaction between the prisoner and gaoler. Under a count for a voluntary escape, the plaintiff may give evidence of a negligent escapeb. Such is the evidence required to support this action in ordinary cases ; but, where the circumstances under which the party has been arrested are of a more complicated nature, and the declaration more special, other proof will of course be necessaryo: as if the debtor, being in the county goal, was charged with a writ of execution, by lodging it with the sheriff, it will be necessary to prove the fact of his so being in custodyd.

An acknowledgment of a debt made by a debtor after arrest, but before an escape, is evidence against the marshal in an action for the escape. In debt for an escapef; where the party who had been taken in execution by the sheriff, was afterwards brought up by habeas corpus, and committed to the custody of the marshal of the King's Bench, the declaration alleged that the prisoner was brought, by habeas corpus, before a judge of the King's Bench, and by him committed to the custody of the marshal, “ as by the said writ of habeas corpus, and the said commitment thereon, now remaining in the said court, more fully appears.” It was holden, that the production of the writ of habeas corpus, with the commitment of the judge indorsed thereon, but which appeared to have been brought from the office of the marshal, but had not been filed of record in the court was not sufficient to support this allegation : for, admitting it not to be necessary, that the commitment should be of record, in order to entitle the plaintiff to the action, yet the plaintiff having averred a commitment of record, he was not at liberty to prove any other species of commitment; for the commitment, though matter of inducement, was material, and the latter part of the averment, “now remaining in the said court," was not capable of being separated from the former part, or treated as an immaterial or

z Yabsley v. Doble, Ld. Raym. 190. d See stat. 8 & 9 W. 3. c. 27. s. 9.

See the remarks of Lawrence, J. on ante, p. 619. this case in Drake v. Sykes, 7 T. R. e Per Bayley, J. in Rogers v. Jones, 113.

7 B. & C. 89. a R. v. Warden of the Fleet, Salk. MSS. f Turner v. Eyles, 3 Bos, and Pul. 456. Bull. N. P. 67.

See Barns v. Eyles, 2 Moore, (C.P.) b Bonafous v. Walker, 2 T. R. 126. 561. c Peake's Evid. 392.

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