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Whether it be of one kind or the other the creditor may, by the by creditor. 8 & 9 W. 3, c. 27, s. 7, retake such prisoner by any new

With assent


capias or ca. sa., or he may sue forth any other kind of execution on the judgment, as if the body of such prisoner had never been taken in execution. In other words, the creditor has his option to proceed against the debtor or against the Sheriff.a

With the assent of the creditor the prisoner may be lawfully of creditor, discharged; but assent after-given, it is said, will not make it an escape with the consent of the creditor; if so, notwithstanding subsequent assent, he has his remedy against the Sheriff; or he may retake the party.c

Escape from special bailiff. Without


Arcta custodia.

The permission or assent of the gaoler is, as regards all civil remedies, the assent of the Sheriff.d

The Sheriff is not liable for an escape from a special bailiff appointed by the plaintiff himself.

If one be arrested on a capias issued under 1 & 2 Vict. c. 110, and be permitted to go at large without a bail-bond or without making the required deposit, still if bail above be put in within the eight days, as no actual damage can arise, no action will lie against the Sheriff; on the other hand, if one taken in execution be at large for ever so short a time, as well before as after the return of the writ, it is an escape. An attachment for nonpayment of money is deemed mesne process within this rule.g

When the prisoner is, in point of fact, a prisoner, and it is sought to charge the Sheriff with a constructive escape, as for having given his prisoner a greater degree of liberty than the law allows, by taking him beyond the boundary of the county, and the like, very great difficulties often arise. The general rule is, as above stated, that if a person taken in execution be at large for ever so short a time, as well before as after the return of the writ, and even if he be in company with and under the control of a follower of a Sheriff's officer, before he be taken to prison, it is an escape. But this degree of strictness in the custody of a prisoner is comparatively relaxed when the Sheriff has his prisoner, as he may by hab. corp., bankruptcy warrant, and the like, in a foreign jurisdiction, as in another county. The question in the latter case seems to be not whether the custody is more or less strict; but this, namely, has the Sheriff had more than a convenient time to obey the writ? If not there is no escape; if yea, then there is. What is a convenient time seems a question for the Court.1 The Sheriff is not guilty of an escape by taking his prisoner to a


a Ravenscroft v. Eyles, 2 Wils. 294; Bac. Abr. Escape. (C.)

b See Pope v. Jones, 1 Wms. Saund.
35 a.

Scott v. Peacock, 1 Salk. 271.
d Wilkinson v. Salter, Cas. Temp.
Hardw. 310; ante, p. 26.

e De Moranda v. Dunkin, 4 T. R.

Posterne v. Hanson, 2 Wms. Saund.

51; Jones v. Pope, 1 Ib. 356, n. (ƒ) Randell v. Wheble, 10 Ad. & E. 720.

Lewis v. Moreland, 2 B. & A. 56. h Benton v. Sutton, 1 Bos. & Pul. 24; cited in Jones v. Pope, 1 Wms. Saund. 35 a, n. (d).

Boyton's ca. 3 Rep. 43; Hawkins v. Plomer, 2 Wms. Bl. 1048; Nias v. Davis, 4 C. B. 459: see also Dalt. App. ch. 7. s. 1.

lock-up house if that be a fit place. If the officer take one arrested on a capias or on a ca. sa. out of his bailiwick, the Sheriff





is chargeable for an escape. If on a judgment against two, both be One of taken in execution and one escape, the Sheriff is liable though the several other continue in prison. The case of husband and wife stands escaping. on the same footing. If the officer receive the amount indorsed Discharge on the writ, and before payment to the execution creditor release the debtor, there is an escape; for in the execution of this writ a &c. payment to the Sheriff is no discharge of the debt as against the creditor. If a keeper refuse to show prisoner to his creditor after one day's notice, such refusal is an escape. If on the return of a hab. corp. cum causá, the officer does not return all the causes, or returns them falsely, it is an escape in law. If the outgoing Sheriff do not turn over and transfer, as required by the 3 & 4 Wm. 4, c. 99, a prisoner, it is an escape in law.h

If, while a person is lawfully in the Sheriff's custody at the suit of A., a ca. sa. be lodged against the prisoner at the suit of B. and he escape, A. or B. may sue; for if the Sheriff have several writs against the same party and arrest him on one of them, he is deemed in custody under all, provided the first arrest be not illegal by the wrongful act of the Sheriff.k

If a Sheriff have in his custody several persons in execution and die, the Under-sheriff acting as quasi High-Sheriff under the 3 Geo. 1, c. 15, s. 8, and the successor are bound to take notice of all executions against any persons he finds in the gaol, for there is no person to transfer them or to give him notice.1

It is an escape though the process be erroneous. But not if it Erroneous be a void judgment or a void writ." An escape can only be from a process. state of lawful detention. It cannot, for instance, be on a tortuous arrest, as in a wrong county, or the like."

From a

state of lawful cus

If a prisoner in execution escape, he may be retaken as already tody. ́stated, on an escape warrant,P or on a new capias or ca. sa., or the judgment creditor may issue any other kind of execution on the judgment as if his debtor had never been taken at all, or he may, at his option, proceed against the Sheriff for the escape. The Recapture by Sheriff. Sheriff may retake him on fresh pursuit if the escape be a negligent one; if it be voluntary he cannot.

If any keeper "take any sum of money, reward, or gratuity Penal con

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e Woods v. Finnis, 7 Exch. 363,

and cases; ante, p. 206.

f 8 & 9 Wm. 3, c. 27, s. 8.. Vin. Abr. Escape (A.) 33.

h Ib. (A.) 12; Com. Dig. Escape, b. Q.; ante.

Barton v. Sutton, 1 Bos. & Pul. 24; Bac. Abr. Escape (A.) 2.

Barrat v. Price, 9 Bing. 566; Robinson v. Yewens, 5 M. & W. 152.

1 Westby's ca. 3 Rep. 72, b.

m Vin. Abr. Escape (A.) 32.

" Ib. (F.) 20; Jaques v. Cæsar, 2 Wms. Saund. 101 h, h; Shirley v. Wright, 2 Salk. 700; Lane v. Chapman, 11 A. & E. 979.

o Vin. Abr. Escape (A.); Contant v. Chapman, 2 Q. B. 779.

P 1 Ann. st. 1, c. 6; 5 & 6 Ann.

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for escape




whatsoever, or security for the same, to procure, assist, or connive at or permit any such escape," he forfeits upon conviction 500l. and his office, and is ever after incapable of executing any such office.a

If one retaken on an escape warrant again escape, the Sheriff is liable.b

He is liable for the escape of one in his custody on a decree for the payment of a sum of money. So, by "The Bankrupt Law Consolidation Act, 1849," s. 274, "if any keeper of any prison, or any gaoler to whose custody any bankrupt or other person shall be duly committed, shall refuse to receive such bankrupt or other person, or shall suffer him to escape, every such keeper or gaoler shall forfeit 500l."


As to escape of Crown prisoners :— "It seems to be generally of keeper agreed (says Hawkins), that a voluntary escape amounts to the same kind of crime, and is punishable in the same degree, as the offence of which the party was guilty, and for which he was in custody; whether it be treason, felony, or trespass, and whether the person escaping was actually committed to some gaol, or under arrest only, and not committed; and whether he were attainted, or only accused of such crime and not then indicted nor appealed." An officer making fresh pursuit after such a prisoner may retake him at any time after, whether he find him in the same or in a different county, and semble he may do so, though it be not on fresh pursuit. Semble also after a voluntary as well after a negligent escape, a retaking before bill found relieves him.d "It seems clear (adds Hawkins) that every indictment for an escape, whether negligent or voluntary, must expressly show that the party was actually in the defendant's custody for a crime, action or commitment for it, and that it is not sufficient to say that he was in the defendant's custody and charged with such a crime, for that a person in custody may be so charged, and yet not be in custody by reason of such charge. And it seems also, that every such indictment must expressly show that the prisoner went at large, which is most properly expressed by the words evasit ad largum. Also, it seems necessary to show the time when the offence was committed, for which the party was in custody, not only that it may appear that it was prior to the escape, but also that it was subsequent to the last general pardon. Also, it seems clear, that every indictment for a voluntary escape must allege that the defendant felonicè et voluntariè A. B. ad largum ire permisit, and must also show the species of the crime for which the party was imprisoned; for it is not sufficient to say in general that he was in custody for felony, &c., for that no one can be punished in this degree, but as involved in the guilt of the crime for which the party was in his custody, and therefore the particular crime must be set forth, that it may appear that the principal is attainted for the very same crime,

a 8 & 9 Wm. 3, c. 27, s. 4.

b 1 Ann. st. 1, c. 6, s. 2; 5 & 6 Ann. c. 9.

c P. C. b. 2, ch. 19.

d The King v. Fell, 12 Mod. 227.

e P. C. b. 2, ch. 19, s. 14.

if it were felony, or that it was in truth committed if high treason. But it seems questionable whether such certainty as to the nature of the crime be necessary in an indictment for a negligent escape, for that it is not material in this case, whether the person who escaped were guilty or not."


The plaintiff in the original action is the proper party to sue for Party to an escape. The Sheriff must be defendant, except for a voluntary escape, when the officer may be charged as a personal wrong-doer. Where the escape was on a capias utlagatum, and an administrator sued qui tam, it was held good. When there are two Sheriffs who` suffer an escape, and one dies, the action lies against the survivor. If pending the action one die, the action survives.b

By 3 Geo. 1, c. 15, s. 8, in case of the death of the Sheriff, the Under-sheriff is liable for an escape during the time he acts under the statute.

Neither the heir nor the executor of the Sheriff can be sued for an escape before his death. But in a judgment obtained against the testator for an escape an action lies. An executor may sue for an escape in his testator's lifetime or in his own time. An administrator may sue in his own right on a judgment obtained by him as administrator.f

The remedy against the Sheriff is by action or attachment. Remedy. When the Common Law Procedure Act (15 & 16 Vict. c. 76) passed, the old common law form of case was the only form of action against the Sheriff on mesne or final process; the statutory one of debt having been abolished by the 5 & 6 Vict. c. 98, s. 31.o

The declaration for an escape on mesne process states the debt, summons, order, capias, indorsement for bail, the delivery to the Sheriff, the arrest, breach of duty and special damage. When the prisoner has escaped from custody under an attachment for* the nonperformance of an award, or for nonpayment of costs under a decree in equity, proper counts can easily be framed.h We often find other counts for not arresting the debtor when the Sheriff had an opportunity, for not assigning the bail-bond, and the like. We also find the word voluntarily, but this is superfluous. The declaration for an escape on final process states the judgment, the writ, indorsement, delivery, caption and escape. Additional counts may also be added if warranted by the facts, always keep- ́ ing in mind that counts ex contractu and ex delicto may now be joined in the same declaration.

The plea of not guilty operates as a denial of the neglect or default of the Sheriff or his officers, but not of the debt, judgment or preliminary proceedings. All matter which excuses or

a Barrett's ca. Cro. Jac. 657.

b Cro. Eliz. 625.

с 2 Wms. Exors. 1471.

d See Bonafous v. Walker, 2 T. R. 130; Jones v. Pope, 1 Wms. Saund. 35. e See Wheatley v. Lane, 1 Wms. Saund. 216 a.

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


See Jones v. Pope, 1 Wms. Saund.

h Brazier v. Jones, 8 B. & C. 124;
Blower v. Hollis, 1 C. & M. 393.
i 2 Wms. Saund. 155, n. (c).

Reg. Gen. Hil. T. 1853, 1 E. & B.





justifies the Sheriff must be specially pleaded. A re-taking on fresh pursuit; a voluntary return before action brought; that the prisoner's return was fraudulently prevented by the plaintiff'; that the escape was by the fraud and covin of the party really interested in the judgment; that the discharge was by virtue of an order of the Insolvent Debtors Court or Bankruptcy Protection Order; an order to discharge under the hand of the attorney in the cause; that the plaintiff himself had authorised his discharge; the Statute of Limitations and the like. If the declaration allege, as it usually does, that the escape was voluntary, re-capture on fresh pursuit is a good plea, without denying that it was voluntary, as plaintiff may show in his replication that it was so if he meant to rely on that fact. He cannot as a general rule avail himself of any error in the process below, of which the defendant below might have availed himself.f

How the matters of inducement, if in issue, are to be established at the trial and how the Sheriff is to be connected with the acts of the officer has been already explained. The escape may be proved by showing directly that the party was in custody, or by the Sheriff's return of cepi corpus, and that he was afterwards at large. The plaintiff is at liberty to give in evidence a negligent escape, under a declaration alleging it to be voluntary.h

In an action against the Sheriff for an escape on mesne process an admission by the defendant in the former action as to his liability, is evidence against the Sheriff. Indeed, as a general rule, whatever evidence would be sufficient to charge the original party in a suit against him, will also be admissible as evidence against the Sheriff. The indorsement of non est inventus or of cepi corpus on the writ is sufficient evidence of its delivery to him. The return of a cepi corpus proves the arrest. The relation of the officer and the Sheriff, the escape, &c., is proved by other evidence.

If the escape be on mesne process, plaintiff must prove that he has sustained actual damage, or been delayed in his suit thereby, otherwise he will fail altogether. The Sheriff is not liable for the whole debt, only for such damages as the plaintiff can show he has sustained. If the escape be on final process, plaintiff will recover such damages as the jury may give; he is, however, entitled to nominal damages under any circumstances.1

The discretion of the Court in setting aside an attachment against the Sheriff for the escape of a prisoner taken on a ca. sa. is to be governed by the principle laid down in an action for damages under the 5 & 6 Vict. c. 98, s. 31. In other words the true

a See Bonafous v. Walker, 2 T. R.

126, and cases cited.

b Norton v. Walker, 3 Exch. 488.
c Ante, p. 206.

d 1 Wins. Saund. 35.

e Ib.

f 2 Wms. Saund. 101 h, h.

Ante, p. 228.

h Wms. Saund. 37.

i Williams v. Bridges, 2 Stark. 42 see Coole v. Braham, 3 Exch. 183.

Ante, p. 254, n. (m).

1 Williams v. Mostyn, 4 M. & W. 145; Clifton v. Hooper, 6 Q. B. 476.

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