Special capias ad refpondendum, returnable in eight days of the purification. It appeared at the trial, that W. M., being in the cuftody of the fheriff's officer at the fuit of another creditor, the plaintiff's writ was ferved on him on the 11th January, returnable the 20th; that to prevent his being fent to gaol, another writ, as mentioned in the fecond count, was, with the plaintiff's confent, iffued on the 20th, returnable as there mentioned. That a writ of habeas corpus cum caufa, tested the 28th November preceding, returnable immediately before a judge of B. R., was iffued and delivered to the fheriff fome little time previous to the 20th January, for removing W. M. into the cuftody of the marshal, but that in fact he was not brought up nor committed till the 21st April, being the day before the effoign day of Eafter term, after which the plaintiff filed a declaration against him. That from the time of the first arrest till the commitment W. M. remained in the custody of the fheriff's officer. There was a verdict for the plaintiff; but the jury found that he had not been delayed or prejudiced in his fuit; and the question was referved, Whether, under these circumftances, the plaintiff was entitled to recover? Afterwards, upon a motion to fet afide the verdict and enter a nonfuit, Lord Kenyon, C. J. was of opinion that the exigency of the wric was performed; fo far that the debtor was forthcoming when the plaintiff called upon him to anfwer his demand. Buller, J. remarked, that this action on the cafe is founded on the damages fuftained by the creditor; if no damage be fuftained he has no cause of action. That the time within which a fheriff muft carry a prifoner to gaol, is at the return of the writ, afterwards he keeps him at his peril in cafe the creditor is delayed; but in this cafe the jury have exprefsly found that he was not delayed or prejudiced, and therefore he thought the plaintiff had no caufe of action. The rule to enter a nonfuit was made abfolute. Planck v. Anderson and another, Sheriff of Middlefex, Mich. 33 G. 3. 5 Term Rep. B. R. 37. (F. 3) What Action lies against the Sheriff, Gaoler, 10Vin. 103. &c. And what of his is liable to answer for Efcapes. And how. 1. MOTION for an attachment against a gaoler for a voluntary escape of one in execution for obftructing an excife officer in the execution of his office; but the court refused to grant it, there being no precedent for that purpose: but they ordered him to fhew caufe why there fhould not be an information. Gaoler of Shrewsbury's cafe, Mich. 9 G. 1. Str. 532. 2. It was held that debt lies, by 1 R. 2. c. 12., as well where the efcape is negligent as where it is voluntary. Stonehouse v. Mullins, Trin. 4 G. 2. Str. 873. 3. Upon a motion for leave to file an information against a gaoler it appeared that he had permitted a perfon, committed H 2 upon S.C. 10Vin. but not fame Abr. 89. I. point, The diftinc tion between an action of debt and on the cafe is this; at common law an action on the cafe only lay upon an attachment for nonpayment of cons, to go at large. A Rex 4. Upon an action of debt brought against a fheriff for the escape of a prifoner taken in execution, it was infifted on the part of the defendant, that the jury were not bound to find the whole debt; that debt or cafe will lie, but that cafe would never be brought if the whole must be recovered in an action of debt. To which it was anfwered by the court, that in an action of debt, which goes for a specific thing, the whole must be recovered or nothing. So are the precedents in Raf. 171. I Saund. 35. against the Sheriff or 2 Saund 100. and Alford v. Tatnel, 1 Mod. 170. Hawkins and gaoler for another, Affignees, &c. v. Plomer, Hil. 16 G. 3. Blackst. 1048. an escape in which cafe the creditor might recover damages for the officer's misconduct, but till he had a right to recover the debt against the original debtor. But the ftature gave an action of debt against the theriff or gooler to recover at once the fum for which the prifoner was charged in execution. Now they being affirmative ftatutes, did not take away the common law remedy, fo that the creditor has his election; but if he adopt the latter, he must recover the whole fum (a). Per Buller, J. in Bonafous v. Walker, Mich. 28 G. 3. 2 Term Rep. B. R. 129. Vide ante, letter (F), pl 4. (a) That which the creditor would have recovered against the prifoner; namely, the fum indorfed on the writ, and the legal fees of execution, vide ftat. Weftm. 2. (13 Ed. 1. c. 11.) 1 R. 2. c. 12. 10Vin. 103. 5. An action was brought in the Exchequer against the sheriff for the escape of a person who had been in his cuftody, at the fuit of the plaintiff, on mefne procefs; the fheriff moved that the proceedings might be ftayed, on payment of the fum fworn to and cofts; but this was refufed, for the court were clearly of opinion that the plaintiff was entitled to proceed against the fheriff for the whole fum due to him from the original defendant. Gabel v. Perchard, Hil. 35 G. 3. Anftr. 522. (F. 4) Actions; brought where (a). (a) Vide Trial, let. (H. a 2), &c. IF Fa man escape in Effex, and be seen at large in Hertfordshire, the plaintiff may lay his action in Hertfordshire. Walker v. Griffiths, Mich. 25 G. 2. Bull. Ni. Pri. 67. 10 Vin. 106. (H) Gaols. In what Places Prifoners may be (a) Vide the kept (a). cafe of the prifon of the K. B. Str. 678. Rules K. B. Eaft. 30 G. 3. 3 Term Rep. B. R. 583. v. Sir John Dyneley, SP. Fowles I. AFTER fentence paffed on a defendant, who had been found guilty of a confpiracy, he moved (on affidavit of his being indifpofed) that he might be admitted to the benefit of the rules. Sed per cur.-We never do it for one in execution, which differs from the cafe of perfons committed for high treafon, who have been bailed on account of illness. Rex v. Kinnufley and another, Trin. 5 G. 1 Str. 193. -Str. 1122. 2. The court was moved to deprive one in cuftody on an ex◄ communicato capiendo of the benefit of the rules; but on confideration and search for precedents they refused to do it. Rex v. Buckland, Hil. 7 G. 1. Str. 413. 3. One committed for a contempt moved to have the benefit of the rules, but it was denied. Cafe of Landon v. Jones, Mich. 2 G. 2. Str. 817. 4. So where the defendant was in execution for a forgery, and was to lie a year according to the ftatute. Hayes's cafe, Trin. 2 G. 2. Vide Landon v. Jones, Str. 817. (I) What Remedy the Sheriff has. 1. MOTION to discharge defendant out of cuftody of the marshal, the plaintiff having fent an order for his dif charge. Upon a rule to fhew caufe the marfhal infifted that the defendant had broke the prifon and let out himself and another prifoner, who was in execution for 500/.; and that though the plaintiff's difcharge came whilst he was out of prifon, yet he had fince re-taken him for his fees, and had charged him in cuftody with a declaration for the efcape of the other. But there being no cafe to warrant the gaoler's re-taking for fees, and the plaintiff in the action being fatisfied, the court held the re-taking to be illegal, and confequently the delivery of the declaration to him was void, and the marshal ought to difcharge him. Willing v. Goad, Trin. 5 G. 2. Str. 908. 2. If a fheriff voluntarily permits a prifoner to escape, and he in confequence is obliged to pay the debt, he may maintain an action for money paid, laid out, and expended, against the pri foner; for he is difcharged as against the plaintiff in the action. Morris v. Berkeley, Worcester Lent affizes, 1765, coram Yates, J. who faid that the fame point had been fo ruled by himself and Gould, J. on the Western Circuit. Efpin. Ni. Pri. 612. 3. F. being a prifoner in the cuftody of the warden of the Fleet, on mefne procefs, at the fuit of H., a written authority. came from H. to the warden to difcharge him out of his cuftody; but the warden's deputy having doubts as to the authenticity of the difcharge, applied to H. to know if it were his hand-writing; H. confeffed it to be his writing, but faid he had been impofed upon by F., and countermanded the authority. Notwithstanding which the warden, at the inftance of F., fuffered him to go at large afterwards H. brought an action against the warden for an escape, and recovered 300/. Upon which the warden brought an action as for money paid, laid out, and expended, against F., to recover back the money he was fo obliged to pay. But Lord Kenyon, C. J. was of opinion that the warden had been guilty of a breach of his duty in permitting F. to escape, and therefore ought not to be permitted to come as a plaintiff into a court of justice; whereupon he was nonfuited. A new trial was after H 3 wards 10 Vin. 107. wards moved for, but refufed. Eyles v. Faikney, Eaft. 32 G. 3. Peake's Ni. Pri. Cafes, 144. (n. a). (K) Writ and Count. How. I. THE plaintiff need neither produce the ca. fa. nor the copy of it, but the return of it is fufficient, and the ca. fa. need not be set forth in the declaration. But if it be set forth with a fcilicet, that it iffued on fuch a day, it may be doubtful whether he ought not to prove the ca. fa. with the true tefte; otherwise against the fheriff the warrant is fufficient evidence, though it would not be fo for him. Tildar v. Sutton, Pafc. 2 Ann. per Holt, Guildhall. Johnfon v. Gibbs, Executor, 1698, per Holt, Bull. Ni. Pri. 66. 2. In an action of escape against the marshal it was alleged that the prisoner was furrendered to him at the Chief Juftice's chambers, in the parish of St. Bride's, whereas it appeared upon the evidence to be in the parish of St. Dunstan's. But Fortescue and Raymond, Juftices, held it well enough, this being debt, and the furrender the only thing material, and that it differed from the cafe of trespass where every part of the declaration is defcriptive. Oates v. Machen, Trin. 10 G. 1. Str. 595. 3. In an action of escape against the warden of the Fleet, the declaration set out that W., being indebted to the plaintiff in 2001. for goods fold and delivered, he sued out a latitat against him, by virtue whereof he was arrested and committed to the marshal, from whence he was removed by habeas corpus before a judge of C. B., who committed him to the Fleet, charged with the plaintiff's latitat, and the plaintiff fued him to judgment, and then the defendant permitted him to escape. The plaintiff had judg ment. And upon error the defendant objected to the declaration, that the prifoner, being in cuftody in B. R., could not be taken from thence without fome procefs in C. B., which ought to be fet out, and without which the judge had no power to commit. But the court strongly inclined the declaration was well enough, but ordered an ulterius; however, Strange declined to argue it again for the warden, and the plaintiff had judgment. Gambier v. Wright, Trin. 6 G. 2. Str. 951. 4. In an action of debt for an escape, the declaration stated the prifoner to have been charged in execution, in cuftody of the late heriffs, who, at going out of their office on the 29th September, delivered the prifoner over to the defendants, who permitted him to escape. The defendants pleaded nil debent. It was infisted by the defendant's counsel that this plea had put the plaintiff to proof of his whole declaration; and as he had laid the particular day of the prifoner's being turned over, and not under a fcilicet, it was material to be proved. That the time when the old fheriffs quit their office and turn over their prifoners, is the 28th September, from which time the new fheriffs are chargeable; whereas the day day laid in the declaration is the 29th September. But Lord Hardwicke, C. J. over-ruled the objection, because the new sheriffs are not fworn till the 29th, and he thought they did not enter into their office till that time. Wilkinson v. Salter and another, Trin. 9 G. 2. Rep. temp. Hardw. 310. the court, take notice that Sir W.C. 5. In an action against the marshal for an escape it was laid, It was likethat the prifoner, being brought before Sir William Chappel, one of wife faid by the justices of our lord the king, at his chambers in Serjeants' Inn, that they was there committed to the cuftody of the marshal, at the fuit of could not the plaintiff, as by the faid commitment may more at large appear. The defendant demurred, and fhewed for caufe, that it did not appear the commitment was of record: and on argument the court held it ill; for he is not, in point of law, in the marshal's cuftody till the commitment is entered on record. Wightman v. Mullens, Eaft. 18 G. 2. Str. 1226. had any power to commit the prifoner, he being only filed one of the justices of the king, which every common juftice of the peace is. Str. 1226. 6. Action on the cafe against the bailiff of the borough of Southwark, for an escape upon mefne procefs; the declaration fets out the levying of the plaint, and proceedings in the borough court until the arreft; and that the defendant, A. R., in that action being in the now defendant's cuftody, he fuffered her to escape, to the plaintiff's damage. The plaintiff having obtained a verdict, it was moved, in arrest of judgment, that the declaration was ill, because it appears that the plaint in the court below was levied against two perfons, J. W. and A. R., but only one was proceeded against; fo that the plaintiff, by procefs against one only, could not have had the effect of his fuit below: to this it was anfwered, and refolved, per cur. That even fuppofing the plaint to be erroneous, yet the officer fhall not take advantage thereof in a collateral action as this is; and he may justify the arrest under the procefs; and he thall not be fuffered to say in this action that the plaintiff could not have had the effect of his fuit below. Bull v. Steward, Mich. 23 G. 3. 1 Wilf. 255. 7. Another objection was taken to the declaration in the cafe, (pl. 6.), that it did not allege in what manner A. R. was indebted to the plaintiff, but only in general that she was indebted; it might be upon a judgment, or fuch a debt as that court has no jurifdiction of; nor does it appear that the cause of action arose within the jurifdiction to this it was answered, and refolved, per cur. That this being after a verdict, they would fuppofe every thing proved at the trial which was neceffary to be proved; and that the caufe of action arofe within the jurifdiction, unless the contrary could be made to appear upon the face of the record. Bull v. Steward, ib. : ed that no 8. In an action of debt against a fheriff, the declaration ftated It was likea judgment, an arreft, and fubfequent efcape. At the trial it was wife objectobjected, that there was no proof of a ca. fa. being delivered to warrant way the sheriff; but Willes, J. held, and it was afterwards agreed by produced; the but it wa H 4 |