BALDEN VS. TEMPLE. Ir a sheriff or gaoler suffer a prisoner to walk abroad, though with a keeper, it is an escape. A habeas corpus, to bring the body of a prisoner into court, authorizes the sheriff to bring out the body only for so long a time as is necessary for the execution of the writ. [202] execution. Br. Cro. 14. 210, 3 Cr. 5. 1 Ro. BALDEN brought an action of debt against Sir Thomas Escape out of Temple, late sheriff of Buckingham, for an escape of one Escape. 45. Dy. Cockman, his prisoner in execution; and upon issue nihil 67.3 Co. 43, 44. debet, the evidence before me at Guildhall, London, was this, that one Shortsebury, gaoler to Sir Thomas Temple, having the said prisoner in execution, in his gaol at Alisbury, suffered him to walk abroad in the said town, yet for the most part with a keeper: whereupon I directed the jury, and so they found against the defendant as an escape; (1) for though the sheriff may remove his gaol from one place to another within his bailiwick, yet he must Plo. 35. b. 1 keep it and his prisoners within it, and not suffer them to 460. Hetl. 34. go at large out of the prison, though himself be attending 808. on him, without an habeas corpus from some court of justice. And let keepers of prisons beware when they receive an habeas corpus from the chancery, or any other court, bearing teste in the end of a term, to have the body of one in execution, in the court the next term, that they do not, by colour of such writs, suffer the party to go at large, all the mean time, (as is sometimes practised;) for the writ warrants no more but that he be brought out of prison only for that purpose, and only for so much time as in judgment of law shall be convenient and necessary for the execution of the writ, and no more, which in privilegiis odiosis must ever be strict. (2) (1) See 3 Co. 43, Boyton's case. 9 Johns. 329, Palmer v. Hatch, S. P. See also Bac. Abr. tit. Escape. B. (2) If a habeas corpus be granted to bring a person into court, and the sheriff let him go into the country, it is an escape. And though he is not bound to bring him the direct way, for fear of being rescued, yet he ought not to carry him round about a great way for the accommodation of the party; if he doth, it is an escape. 1 Mod. 116, Mosedell's case. Cro. Car. 14. Anon. [202 a] 1 Ro. 901, 402. Br. Escape. 45. Plo. 36. a. Dy. b. 1 Le. 119. 1 Cr. 240, 255, 2 Cr. 659. Syd. 330. Ant. 60. 2 Cro. 659. SHERIFF OF ESSEX'S CASE. If a prisoner be permitted to walk abroad by one sheriff, and returns into custody, and afterwards escapes in the time of another sheriff, the latter sheriff is not liable for the escape. 'BEFORE me, at Guildhall, upon an action of debt against the sheriff of Essex, upon an escape, it fell out thus upon evidence, that the prisoner having been in execution, was willingly let go out of prison by the gaoler, and then came into the gaol again, and so remained in the gaol till the time of another sheriff, and then escaped; whereupon this action was now brought.' And I directed, that this sheriff was not answerable to this action; for when the prisoner was let to go abroad voluntarily, by the gaoler, the execution was utterly discharged, so as he could not lawfully be taken again, nor judged in execution by law, though the party would yield himself unto it, or the creditors so allow him. And therefore the next sheriff cannot be chargeable with him, nor answerable for him as in execution; neither can two sheriffs be answerable, simul et semel, for two escapes out of one and the same execution, at the same time. (1) (1) This case is denied to be law in 1 Vent. 269, James v. Pierce, and the contrary doctrine seems to be settled. See 1 Saund. 35 n. (1). Bac. Abr. tit. Escape, E. 1. 6 Mod. 183, Grant v. Southers. 4 Johns. 469, Rawson v. Turner. ANONYMOUS. If one taken upon a cap. escape, and the sheriff die, and a new sheriff be made, and then that same person be taken upon another cap. procured by the creditor, for the same cause, and escape, such second arrest is unlawful, and the second sheriff is not liable for the escape. That AND at the same time another trial fell out thus. upon a capias ad satisfac. one was taken in execution by the undersheriff, who took money of him for the execution, and let him go, and this he concealed from the plaintiff, and then the sheriff dieth; a new sheriff being made, the same that was undersheriff before, became undersheriff 8 Co. 142. a. 2 to him also, and procureth the plaintiff to take out a new [202 b] capias ad satisfac. against the party, upon which he was arrested again, and escaped. And I directed, likewise, that the new sheriff was not answerable to this action, because the second taking in execution was never lawful. (1) (1) Later decisions have been contrary. 1 Show. 174, Buxton v. Home. 1 Mod. 194, Compton v. Ireland; and the doctrine of these later decisions is established by Stat. 8. and 9. W. 3. c. 26. Cro. 3. 2 Leo. 164, 165, 188, Yelv. 42, Sem 84, 85. 3 Cro. 576. utra. ble case. Plo. 36. a. 3 Co. 25, b, MANNERING vs. DENNIS. An issue upon a revocation of a conveyance, pursuant to a power reserved, is not of chancery jurisdiction. [203] SIR Arthur Mannering and his wife, one of the daughters 1 Roll. 381. and co-heirs of Sir Thomas Dennis of Devonshire, exhibited a bill in chancery against Gabriel Dennis; and the effect of the bill was this; that Sir Robert Dennis, father of Sir Thomas, in the eighteenth year of the queen, had conveyed the substance of his whole inheritance to the said Sir Thomas, for term of his life, and so on, and for default of issue male of him, and another brother of his, the land was limited to the father of Gabriel, and the heirs males of his body; and added a proviso, giving him power to make a revocation, by his writing, under his hand and seal, in the presence of two 'credible witnesses, &c. in ordinary form; and alleged that he had made such a revocation, and that the writing was extant, and therefore prayed process. The defendant denied the revocation; and so that was the mere issue, whether there were a revocation or not, which Gabriel Dennis laboured, by all means, to bring to trial at the common law; but was holden under injunction, till, by an accident, he got a slip, by the death of the party, out of the injunction, and had a trial by ejectione firma against Sir Henry Rawle, that had married the other daughter and heir, and had a verdict. against him upon that very point, and had judgment and execution of the manor of ; yet the Lord Chancellor renewed his injunction for all the rest, and pressed Causes improcourt of chan per for the cery. [203 a] to examination of witnesses; and so the cause was heard, divers days, before him and me, and Baron Altham, whom he called to his assistance; but he never came to consult with us what to do upon the hearing, but died. And then Sir Francis Bacon being made Lord-Keeper, he called me to his assistance again, Baron Altham being dead; and then question was made, by a former clerk of his, whether this case were a case examinable in chancery? And it was resolved by him, the master of the rolls and myself, that this cause was not fit for that court, but the common law; except all causes that were triable naturally by the common law, and by jury, should be made examinable and determinable in chancery, per testes; which were to confound jurisdictions, and to make the common law, and all the course of it, needless, and a handmaid to the chancery, and to take such causes as it pleaseth them to leave; and so this cause, after so long and tedious suit in chancery, was absolutely dismissed. Chancery cannot relieve CAVENDISH vs. WORS LEY. Chancery cannot relieve against a statute. SIR CHARLES CAVENDISH exhibited a bill in chancery against Worsley; and died, and his two sons, Sir William ute law. Chan. Cavendish and another, did likewise exhibit a bill of revi against a stat R. 228. vor against him; and the case came to this, that the grandfather of Worsley, being tenant for term of life, the remainder to the father in tail, the grandfather levied a fine of the land, threescore years past, to and the father also conveyed the land by bargain and sale, and so it came by mean conveyances to Sir Charles Cavendish; and in this case also the lord-keeper called me to his assistance; and we resolved, that Cavendish could have no relief in this cause, in this court, because, by statute, tenant in tail is disabled to bar or bind his issues, but by such means as the laws and statutes have allowed. SWAIN US. HOLMAN & ux. Husband and wife cannot surrender the wife's estate for life, so as to bind her if she survives. A surrender conditional, or revocable, or of a void lease, is not a good consideration for a second lease from the king. [203 b] Brownlow. in the king's court, of a for woman covert rendered. case. Co. L. 179. 2 Ro. 199. RICHARD SWAIN, esquire, brought an action of waste Dorset. against Thomas Holman, and Eliz. his wife, of certain Consideration mills in Sturminster, and declared of a lease thereof, made by queen Elizabeth, under the said Elizabeth the mer lease to a defendant, when she was sole, in the eighth year of her for herself surreign, and that the king granted the reversion unto him, Hutt. 7. mesme and then shows the waste. The defendants plead, that 309. b. Ant. they, being seised in the right of Elizabeth of the said estate, did, in the fortieth year of the queen, at Westminster, surrender tam totum jus, statum, titul. et interesse ipsius Eliz. quam. lit. patentes, &c. et super inde the queen, afterwards, eodem an. 40. reciting the demise and the surrender, (as aforesaid,) in consideration of the same surrender, did demise the same mills unto the said Elizabeth Holman, and two of her sons. The plaintiff maintained his declaration, and traversed, absque hoc, that the defendants did surrender tam totum statum, jus et interesse ipsius Eliz. prout, &c. [204] Whereupon issue was taken, and tried before me in Middlesex; and the jury found, that the defendant, being seised in the right of Elizabeth the wife, for term of her life, by the first letters patents, the queen, by the other said letters patents, did demise the said mentioned mills to the said Elizabeth, and to her said sons, Humfrey and Roger Holman, one after another, for life; and then find the said second letters patents, with recital of the former estate of Elizabeth, and that she had surrendered totum jus, &c. (as before ;) and in consideration of the said surrender, did demise the same of new to her, and her said two sons, one after another, prout; and they find, that the said second demise was made and had with the assent of the said Holman her husband, and that he payed the fine Judgment. of twenty nobles, mentioned in the said letters patents, |