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 necesis in the replication. If without the knowledge of the gaoler the defendant escapes, and returns before action brought, the gaoler may plead this in barr, 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 actions, 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, o Saffery v. Jones, 2 B. & Ad. 598. q Chambers v. Gambier, Comyn's R. r Bonafous v. Walker, 2 T. R. 126. (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. R. 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 subpœna 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 authority; 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. x Morgan v. Bridges, 2 Stark. N. P. C. 315. Abbott, J. y M'Neil v. Perchard, 1 Esp. N. P. C. 263. See also Blatch v. Archer, 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 fact; 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 gaolera. Under a count for a voluntary escape, the plaintiff may give evidence of a negligent escape. 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 necessary: 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. See the remarks of Lawrence, J. on this case in Drake v. Sykes, 7 T. R. 113. d See stat. 8 & 9 W. 3. c. 27. s. 9. ante, p. 619. e Per Bayley, J. in Rogers v. Jones, 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. b Bonafous v. Walker, 2 T. R. 126. c Peake's Evid. 392. See Barns v. Eyles, 2 Moore, (C.P.) 561. , distinct averment (112). If the plaintiff declare that he had J. S. and his wife in executions, and that the defendant suffered them to escape, and the jury find specially that the husband only was taken in execution (it being a debt due from the wife before coverture), and that he escaped, the plaintiff shall have judgment, for the substance of the issue is found (113). Declaration for an escape stated, that the plaintiff in E.T. 5 G. 4. recovered against one H. W. £ as by the record appeared, that in Trin. T. in the fifth year aforesaid, such proceedings were had in the said court, that it was considered, that the plaintiff should have execution against the said H. W. for the damages aforesaid, according to the force of the said recovery by default of the said H. W. as by the record of the said last-mentioned proceedings still remaining in the said court appears, and thereupon, on, &c. in T. T. in the fifth year aforesaid, the said H. W. was committed to the custody of the marshal in execution for the damage aforesaid, and escaped. Plea, not guilty. At the trial, the plaintiff proved the original judgment, and that a committitur issued thereon, but he did not prove any judgment in scire facias. It was holden, that the allegation of the judgment in sci. fa. was immaterial, and that the word "thereupon," did not so connect the judgment, in sci. fa. with the commitment, as to make it necessary for the plaintiff to prove such g Roberts v. Herbert, 1 Sidf. 5. h Bromfield v. Jones, 4 B. & C. 380. (112) A different rule holds, where an action is brought for an escape after a commitment on a habeas corpus, of a person arrested on mesne process; there the "prout patet per recordum remaining in the court," may either be rejected as surplusage, on the ground of such commitments not being records, nor capable of becoming so; or, if considered as quasi of record, the allegation is sufficiently proved by the production of the writ, with the committitur annexed by the clerk of the papers of the King's Bench Prison, with whom, as servant of the marshal, such papers are usually deposited. Wigley v. Jones, 5 East, 440. (113) In debt for an escape against the marshal, it was alleged, that the prisoner was surrendered to him at the chief justice's chambers in the parish of St. Bride's, whereas it appeared upon evidence, that it was in the parish of St. Dunstan. But the judges held it well enough, this being debt, and the surrender (not the place of the surrender) being the only thing material, and that it differed from trespass, where every part of the declaration was descriptive. Oates v. Machen, Str. 595. at Nisi Prius, in Middlesex, coram Fortescue and Raymond, justices. judgment. Declaration against the marshal for escape alleged, that J. S. was arrested and gave bail, that afterwards bail above was put in before a judge at chambers, "as appears by the record of the recognizance;" that J. S. surrendered in discharge of the bail, and afterwards escaped. At the trial, the plaintiff produced the entry of a recognizance of bail, and the entry of special bail in the filazer's book; but the entry of recognizance imported, not that the recognizance was taken before a judge at chambers, but in court, and the entry in the filazer's book imported that bail was put in before a judge, but did not state whether it was put in at chambers or in court. It was holden', that the allegation in the declaration was not supported by the evidence. If the defendant plead no escapek, he cannot give in evidence no arrest, for the plea admits an arrest. X. Of the Statutes, and general Rules, relative to Actions founded on Penal Statutes. Of the time within which Actions on Penal Statutes must be brought. By stat. 31 Eliz. c. 5. s. 5. " All actions brought for any forfeiture upon a penal statute, whereby the forfeiture is limited to the king only, shall be brought within two years next after the offence committed. And all actions brought for any forfeiture upon a penal statute, (except the statute of tillage) the benefit whereof is limited to the king and the prosecutor, shall be brought within one year after the offence committed; and, in default thereof, the same shall be brought for the king, at any time within two years after that year ended. And if any action shall be brought after the time before limited, the same shall be void. Provided', that, where a shorter time is limited by any penal statute, the action shall be brought within that time." m وو This statute extends to all actions brought upon penal statutes, whereby the forfeiture is limited to the king, or to the king and the party, whether made before or since the statute. 2dly, If any offence prohibited by any penal statute be also an offence at common law, the prosecution of it as an offence at common law is not restrained by this statute. 3dly, The defendant may take advantage of this statute, i Bevan v. Jones, 4 B. & C. 403. k Bull. N. P. 67. 1 S. 6. m Tidd's Prac. 15. |