IX. Debt against Sheriff, &c. for Escape of Prisoner in Execution-Stat. 13 Ed. 1. c. 11. 1 R. 2. c. 12.-What shall be deemed an Escape-Of Recaption By whom the Action for an Escape may be brought-Against whom-Declaration -Pleadings-Evidence.

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By the common law, sheriffs and gaolers were obliged to keep persons in execution "in close and safe custody;" but if such prisoners escaped, the only remedy which the creditor had against the gaoler, was, by an action upon the case, grounded upon the tort; for, at the common law, action of debt did not lie for an escape. The statute of Westminster the second (13 Ed. 1. c. 11.) first gave the action of debt against the gaoler, who permitted the escape of a person committed to prison by auditors for arrears of account. That statute, having authorised the commitment of the bailiff or receiver, in case he is found in arrear, proceeds thus, Et caveat sibi vicecomes vel custos (104), ejusdem gaola, sive sit in libertate sive non, quod per commune breve, quod dicitur replegiare, vel alio modo sine assensu (105) domini ipsum a prisonâ exire non permittat; quod si fecerit, et super hoc convincatur, respondeat domino de damno per hujusmodi servientem sibi illato, secundum quod per patriam verificare poterit, et habeat [dominus] suum recuperare, per breve (106) de debito [versus custodem]. Et si custos gaole non habeat per quod justicietur, vel unde solvat, respondeat superior suus (107), qui custodiam hujusmodi gaolæ sibi commisit, per idem breve (108).

(104) This act extends to all keepers of gaols, as well by wrong or de facto, as de jure. 2 Inst. 382.

(105) This assent may be by parol, and shall be a sufficient bar in an action of debt brought for the escape. 2 Inst. 382.

(106) Although this statute and the subsequent stat. 1 R. 2. c. 12. only mentions "per breve," yet a bill of debt lies also by the equity of these statutes. 2 Inst. 382.

(107) When a person, having the custody of a gaol of freehold or inheritance, commits the same to another, who is not sufficient, the superior shall answer for the escape of the prisoner. The mayor and citizens of London having the shrievalty of London in

The next statute on this subject is stat. 1 R. 2. c. 12. by which it is ordained, "that no warden of the Fleet shall "suffer any prisoner there being, by judgment at the suit "of the party, to go out of prison by mainprise, bail, nor "by baston, without making gree to the said parties of "that whereof they were judged, unless it be by writ or "other commandment of the king, upon pain to lose his "office, and the keeping of the said prison. And if any "such warden be attainted by due process, that he has "suffered or let such prisoner to go at large against this or"dinance, then the plaintiffs shall have their recovery against the warden, by writ of debt."

Though this statute is confined in terms to the wardens of the Fleet, yet it has been holden that sheriffs and other gaolers are within the equity of it.

On the preceding statutes, extended by a liberal construction, the action of debt against sheriffs and other gaolers, for original escapes out of execution, is wholly founded. It is observable, however, that these statutes being in affirmance of the common law, have not taken away the com mon law remedy by action on the case; and that it is at the election of the party to bring either the one or the other (109). There are, however, some advantages attend

a Plowd. 35 b.

b Burton v. Eyre, Cro. Jac: 289.

fee, and the sheriffs of London being guardians under them, and removeable from year to year, the mayor and citizens are the superiors; and, although the sheriffs appoint a keeper under them, yet he is not within the statute; for there cannot be two superiors within this act, but one superior and one inferior only. 2 Inst. 382. In Plummer v. Whitchcott, 2 Lev. 158. 2 Mod. 119. T. Jones, 60. S. C. the court were of opinion, that the warden of the Fleet in fee, having granted the office to A. for life, who permitted a prisoner in execution to escape, was responsible, A. not being sufficient at the time of action brought.

(108) It was said arg. in Plummer v. Whitchcott, 2 Lev. 159. that after this statute, and before the stat. 1 R. 2. c. 12., actions of debt were brought in other cases besides Account and 16 E. 3. Fitz. Dam. 81. Mich. 41 E. 3. pl. 1. 41 Ass. Bro. Escape, 28. were cited. And by Buller J. in Bonafous v. Walker, 2 T. R. 132. it was said, that this statute (13 Edw. 1. c. 11.) by a liberal construction had been holden to extend to all cases.

(109) An action on the case is the only remedy against the sheriff for the escape of prisoners who have been arrested on mesne process; the statutes 13 Edw. 1. c. 11. and i R. 2. c. 12. being confined to escapes out of execution.

ing the remedy given by statute, which make it more eligible than proceeding by the common law: First, the action of debt for an escapes, being founded on a debt created by law, without any lending or contract, is not within the statute of limitations, (21 Jac. 1. c. 16. s. 3.) which is confined to "actions of debt grounded upon a lending or contract, without specialty, and actions of debt for arrears of rent," whereas an action on the case for an escape falls within the general words, "all actions on the case," in that statute, and consequently must be brought within six years next after the cause of action: Secondly, when an action on the case is brought for an escape, the jury are at liberty to give such damages as they shall think right under all the circumstances of the case, and a small sum is frequently considered as sufficient in cases of great hardship against the gaoler. But where a prisoner escapes out of execution, and the remedy prescribed by the statute 13 Edw. 1. c. 11. and 1 Ric. 2. c. 12. is adopted, the gaoler is put in the same situation in which the original debtor stood, and the jury cannot give a less sum than the creditor would have recovered against the prisoner; namely, the sum endorsed on the writ, and the legal fees of execution.

Such is the law relating to original escapes out of execution; and by stat. 1 Ann. stat. 2. c. 6. s. 2. the same remedy is given against sheriffs, who permit the escape of persons who have been retaken on an escape warrant authorized by the first section of that act.

What shall be deemed an Escape.-Let us next inquire in what cases an action of debt for an escape may be maintained. Escapes are either voluntary or negligent. Voluntary escapes are such as are by the express consent of the gaoler (110); negligent, where the prisoner escapes without the consent or knowledge of the gaolere. In either of these cases an action of debt may be maintained against the gaoler. Even circumstances of the escape having been without any default on the part of the gaoler, will not afford him any justification: the act of God alone, or that of the king's enemies, will be an excuse. If a defendant taken in execution

c Jones v. Pope, 1 Saund. 34.

d Bonafous v. Walker, 2 T. R. 126.

e Stonehouse v. Mullins, Str. 873.
f Alsept v. Eyles, 2 H. Bl. 108.

(110) If a gaoler retakes a prisoner in execution after a voluntary escape, he is liable to an action of false imprisonment." 3 Rep. 52. b. and per Grose J. in Atkinson v. Matteson, 2 T. R.

177.

be afterwards seen at large, for any the shortest time, even before the return of the writ, the sheriff will be chargeable for an escape (111); for it is his duty to obey the write, and the writ commands him to take the defendant, and him safely keep, so that he may have him ready to satisfy the plaintiff.

A sheriff's officer having, on the 27th of September, arrested a person, under a writ of ca. sa. returnable on the 7th of November following, carried him to a lock-up-house; and on the 2d of October permitted him to go in company with one of his (the officer's) followers, to his own house, for the purpose of settling his affairs; the day after, the prisoner was seen riding with the officer: it was adjudged, that the sheriff was liable for an escape; for the custody of the follower, after the writ had been once executed, amounted to nothing; and further, what was done by the follower was not done in execution of the writ (112).

Upon a habeas corpus to a gaoler, to bring a prisoner in execution before the court, the gaoler shall have a convenient time only for that purpose, and for carrying him back again to prison'; which, if he exceeds, it is an escape.

The sheriff is liable for the escape of a prisoner taken in execution on an erroneous judgment. So though there be error in the process, the sheriff cannot take advantage of it'.

g Hawkins v. Plomer, 2 Bl. R. 1048. Benton v. Sutton, 1 Bos. & Pul. 24. i Resolved by all the judges, Cro. Car. 14. (113).

k Gold v. Strode, Carth. 148.
1 Burton v. Eyre, Cro. Jac. 289.

(111) After an arrest on mesne process the gaoler may suffer the prisoner to go at large, provided he has him at the return of the writ. Atkinson v. Matteson, 2 T. R. 172. Hence in Noy, 72. a distinction is taken that in actions for escape on mesne process, the writ shall allege, that ad largum ire permisit et non compervit ad diem; but on process of execution ad largum ire permisit is sufficient. And so are the precedents, Rastal. 171.

(112) Process of execution being to operate immediately by duress of imprisonment, the party ought to be taken to prison within a convenient time. 1 Bos. & Pul. 27, 8.

(113) At the conclusion of the resolutions on this point, (Cro. Car. 14.) the judges admonished the warden of the Fleet, that under colour of writs of habeas corpus he should not suffer prisoners to go at large upon peril to be charged with escapes. See also Hob. 202. Hard. 476. Where a prisoner is removed by habeas corpus, if the officer take him out of the direct road, it is an escape. Per Buller J. in Benton v. Sutton, 1 Bos, & Pul. S.

So debt lies for an escape against the sheriff, who permits a prisoner taken under a ca. sa. to go at large, although the sheriff returns not the writ"; for there is a record of which the party shall take advantage, though the writ be not returned,

If a sheriff arrests a party under a ca. sa. who then pays the debt and costs, whereupon the sheriff permits him to go at large, the sheriff is guilty of an escape for which debt will lie; at least, where the sheriff retains the money, and does not pay it over immediately to the plaintiff'; for it is the duty of the sheriff to have the body to satisfy the plaintiff, and not to receive the money". The court, however, in this case, intimated a strong opinion, that if the sheriff' had, immediately upon the receipt of the money, paid it over to the plaintiff, they would have exonerated the sheriff.

Where the defendant is arrested on a ca. sa. issued upon a judgment, without a scire facias, after the year, and the sheriff permits him to escape, debt will lie against the sheriff for the escape; for though the process be erroneously awarded, yet it is sufficient for the arrest by the sheriff; and he might have justified in an action for false imprisonment, and therefore cannot set the prisoner at large. So where the writ of execution is returnable the term next but one after the teste, instead of the next term; the sheriff may be charged for an escape; because the writ, though erroneous, is not void, the party not having a day on such writ. So where a court not having jurisdiction, orders an officer to discharge a prisoner, and the officer obeys the order, he is liable in an action for an escape.

The stat. 37 Geo. 3. c. 112. authorized justices of the peace," at the first or second general quarter session, or general session, to be holden after the passing the act, or some adjournment thereof, to discharge insolvent debtors under certain circumstances." The justices in the county of S. "at a general quarter session holden by adjournment,' after the passing the act, but which appeared to have been an adjournment of a session holden before the act, ordered the gaoler of the sheriff's goal to discharge an insolvent, who was in the custody of the sheriff in execution. It was holden, that this adjourned session, not being an original

m Clipton's Case, cited by Periam, Cro. Eliz. 17.

n Slackford v. Austen, B. R. M. 52 G. 3. MS.

• Bushe's Case, Cro. Eliz. 188.

p Shirley v. Wright, Lord Raym. 775. Salk. 700. S. C.

q Brown v. Compton, 8 T. R. 424. in which Orby v. Hales, 1 Lord Raym. 3. was overruled.