f

charge one of several defendants taken on a joint ca. sa. the plaintiff cannot afterwards take any of the other defendants (102). So where the prisoner was discharged upon giving a fresh security to satisfy the judgment, which was afterwards defeated, on account of a mere informality; it was holden, that the judgment was satisfied and could not be set off against the demand of the prisoner 8. In conformity with this rule it was holden, that an agreement by the defendant h, on his being discharged out of custody with the plaintiff's consent, that the judgment should stand revived for twelve months, was null and void. So where a bond was conditioned for the surrender of a debtor who had been discharged out of execution, with the creditor's consent, on a certain day, so that the debtor might be again taken in execution, the condition was holden void. The ground on which these decisions proceed, being, that the judgment is satisfied by the discharge of the prisoner (once in execution) with the consent of the creditor, the creditor loses the whole benefit of his judgment, and is deprived of every remedy upon it, as well by action of debtk, or writ of execution against the goods, as by writ of execution against the person.

Such are the provisions of the common law: but, for the relief of debtors in execution for small debts, it has been enacted, by stat. 48 Geo. 3. c. 123. "that all persons in execution, upon any judgment obtained in any court, whether such court be or be not a court of record, for any debt or damages not exceeding twenty pounds, exclusive of the costs recovered by such judgment, and who shall have lain in prison thereupon for the space of twelve successive calendar months next before the time of their application to be discharged, may, upon application in term time to one of his majesty's superior courts of record at Westminster, to the satisfaction of such court, be forthwith discharged out of custody, as to such execution by rule of court. The word "damages" in the foregoing statute, comprehends damages for an assault. Winter v. Elliott, 1 Ad. & Ell. 24. Where the amount for which the party is charged in execution ex

f 6 T. R. 525.

g Jaques v. Withy, 1 T. R. 557.
h Thompson v. Bristow, Barnes, 205.

i Da Costa v. Davies, 1 Bos. and Pul. 242.

k Vigers v. Aldrich, 4 Burr. 2482. 1 Tanner v. Hague, 7 T. R. 420.

(102) But a discharge by act of law, as under an insolvent debtor's act, of one of several defendants taken on a joint ca. sa. has been holden not to operate as a discharge of the other defendants. Nadin v. Battie, 5 East, 147.

ceeds 201. although the original debt was less, but the excess is made up of interest, the party is not entitled to his discharge.

If a prisoner in execution" be discharged by the order of a court not having jurisdiction, the creditor may retake him on an escape warrant. By stat. 8 & 9 W. 3. c. 27. s. 7. “If a prisoner committed in execution shall escape thence, by any ways or means, the creditor, at whose suit such prisoner was charged in execution, at the time of his escape, may retake him by any new capias, or capias ad satisfaciendum, or sue forth any kind of execution on the judgment, as if he had never been in execution.

By whom the Action for an Escape may be brought.—If a writ of execution be delivered to the sheriff against A., at the suit of B., and a warrant made out thereon, and before the return of such writ A. is taken in execution, at the suit of C., and then escapes", B. may maintain debt against the sheriff, for the escape, although the party was not arrested under the writ at the suit of B. (103). So where A. levied a plaint in the sheriff's court of London P against B., then in the Counter in custody on a former plaint levied against him by C., and the sheriff permitted B., to escape; it was holden that A. might bring an action for the escape; for by entering the plaint, and charging the defendant in the Counter, he is in actual custody of the sheriff.

This action may be maintained by an executor for an escape out of execution in the time of the testator. If the plaintiff, in an action against an hundred', is nonsuited, and judgment entered against him for the costs, upon which he is taken in execution, and the sheriff permits him to escape, the hundred may bring debt against the sheriff for the escape. In an action for an escape of a prisoner who had been taken on a capias utlagatum after judgment, and the action being brought at the suit of the party only, it was objected that it

m Cooper v. Bliss, 3 M. & Sc. 797.
n Anon. Salk. 273. recognized by Law-
rence, J. in Brown v. Compton, 8
T. R. 424.

o Benton v. Sutton, 1 Bos.&Pul. 24.

p Jackson v. Humphreys, Salk. 273.

q Adm. by Holt, C. J. in Berwick v. Andrews, Lord Raym. 971.

r Hundred of Lauress v., Fitzg 296.

(103) If A. be in custody of the sheriff, at the suit of B., and a writ be delivered to the sheriff at the suit of C., the delivery of the writ is an arrest in law; and if A. escape, C. may bring debt against the sheriff for the escape. Salk. 274. cited in Bull. N. P. 66.

ought to have been tam pro domino rege quam pro seipso; but the prothonotaries certifying that the precedents had been both ways, the objection was disallowed.

Plaintiff having arrested a debtor by process out of an inferior court, cannot by habeas corpus ad respondendumt, remove him into the custody of the Court of King's Bench to answer to a new action there for the same debt.

Against whom the Action for an Escape may be brought.If husband and wife are taken in execution, and the wife is suffered to escape, although the husband continue in prison, yet an action will lie against the sheriff for this escape, in which action the whole debt shall be recovered." If the prisoner returns to prison after a voluntary escape, the plaintiff may admit him to be in execution; and if he be turned over to a new sheriff, &c. and afterwards escape, the plaintiff may bring an action against the new sheriff for such escape. Where a new sheriff is appointed, his predecessor ought to deliver over (104) by indenture all the prisoners in his custody, charged with their respective executions; and if he omit any it is an escape; but if a sheriff die, the new sheriff ex necessitate must at his peril take notice of all persons in custody and of the several executions wherewith they are charged. By stat. 3 Geo. 1. c. 15. (105) s. 8. "In case of the death of the high-sheriff, the under-sheriff shall execute his office, until another sheriff be appointed, and shall be answerable for the execution of the office in all things during that interval as the high-sheriff would have been, if living." The marshal of

s Moore v. Reynolds, Cro. Jac. 619, 620. recognized in Throgmorton v. Church, D. P. 1 Peere Williams, 693.

t Melsome v. Gardner, 1 Cowp, 116. cited per Ld. Tenterden, C. J. in Rogers v. Jones, 7 B. & C. 90.

u 1 Roll. Abr. 810 (F.) pl. 5.

x James v. Pierce, 1 Ventr. 269. in
which the case of a sheriff of Essex,
in Hob. 202. is denied to be law.
y Adj. in Westby's case, 3 Rep. 71. b.
z 3d Resolution in Westby's case
3 Rep. 72. b. affirmed on error in
Exch. Chr. Cro. Eliz. 366.

(104) An assignment of prisoners by an under-sheriff to the succeeding high-sheriff, (though not by indenture,) is a good assignment. Poulter v. Greenwood, Barnes, 367. 4to. Ed. But see Davidson v. Seymour, 1 M. & Malk. 34, where Abbott, C. J. held, that the new sheriff was not answerable for the escape of a debtor taken in execution in the time of his predecessor, and not delivered over to him by indenture. See also the note by the learned reporters.

(105) Repealed as to some of its provisions by 3 & 4 W. 4. c. 99.

the King's Bench permitted a prisoner in execution to escape 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 libertyb, 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 sufficient 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 detained. If upon a judgment by an intestate1, 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

z Lenthal v.Lenthal, 2 Lev. 109.

a Salk. 272.

e Per Bayley, J. Brazier v. Jones,8 B. and C. 130.

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

c Walker v. Griffith, M. 25 G. 2 Bull. N. P. 67.

d Nightingale v. Wilcoxson, in error, 10 B. & C. 202.

Carth. 146.

g Wightman v. Mullens, 2 Str. 1226. recognised in Turner v. Eyles, 3 Bos. and Pul. 461.

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).

Pleadings. If the prison be on fire, 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

h 1 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.

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

(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 "as 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.

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