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without an Habeas Corpus, or other proper process of removal, to go out of it, although he himself, or a keeper, be with such prisoner, he will be guilty of an escape.a Many Acts of Parliament seem framed on the notion that a prisoner for debt, for instance, must be taken to the common county gaol: in other words, that there is but one gaol. But the law, as laid down in the old books, is not, I think, altered in this respect.
"In all civil causes," says Sir M. Hale," the Sheriff is to be responsible, or the gaoler at election; as if the gaoler or bailiff of a Sheriff suffers, either voluntarily or negligently, an escape of a person imprisoned for debt, the Sheriff is chargeable with an action upon the escape; for the gaoler or bailiff is the Sheriff's Sheriff's officer or minister, and gives him security. But if the gaoler, liability for being placed there by the Sheriff, voluntarily suffers a felon in his custody to escape, this, in as much as it reacheth to life, is felony only in the gaoler that was inmediately trusted with the custody, not in the Sheriff. But whether the escape was voluntary or negligent, yet the Sheriff may be indicted for it, so as to subject him to a great fine and imprisonment for the offence of his gaoler, though not to make him guilty of felony. For the escape must be voluntarily permitted in him that permitted it, which could not be in the High Sheriff, though it were such in the gaoler, for he was not privy to it, and therefore could not do it felonicè; but it was a negligent escape in him in trusting such a person with the custody of his prisoners, that would be false to his trust; and, therefore, the Sheriff shall pay, but not corporally suffer, for the miscarriage of his gaoler. But if the gaoler were a gaoler in fee, as anciently constables of castles were, the Sheriff should not answer in any kind for the default of such gaoler or constable; but now, by the stat. of 14 Eliz. c. 10, and 19 Hen. 7, c. 10, gaols of counties are rejoined to the counties. But for escapes committed by gaolers of gaols in particular franchises, as the Gatehouse at Westminster, belonging to the Dean and Chapter of Westminster, escapes there permitted concern, not the Sheriff, but the particular gaolers and lord of the franchise." The whole of this passage is given, but it must be received with caution. For in general, indeed under no circumstances, it would seem, can the Sheriff be punished criminally for the acts of the gaoler. Again, in civil matters, the maxim respondeat superior applies, and the superior alone can be sued.
By 3 Geo. 1, c. 15, s. 10, "none shall buy, sell, let, or take to farm, the office of gaoler of any county or shire in England or Wales, or contract for, promise, or grant, for money, or other reward or benefit, the said office or place; nor give, take, promise, or receive any other consideration whatsoever for the said office, directly or indirectly, by themselves or any person in trust for them, or for their use, under the penalty of 500l."
a See Williams v. Mostyn, 7 Dowl. 39.
b Balder v. Temple, Hob. 202; Dalt.
c 1 Hale, P. C. c. 51.
The Sheriff may discharge him at his pleasure; and if he refuse His relation to quit possession for 48 hours after due notice to him in that to the High behalf, he may be ejected in manner pointed out by the 27th sect. of the stat. of 4 Geo. 4, c. 64.
By the Bankruptcy Consolidation Act, 12 & 13 Vict. c. 106, s. 274, it is declared," that 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 the High Sheriff is answerable for the civil acts of the gaoler, he would do well to take good security from him.
Security from Gaoler.
and E. E. of
KNOW ALL MEN BY THESE PRESENTS that we O. B. of are held and firmly bound unto A. B. of Esq. High Sheriff of the county of W. in the sum of £- of good and lawful money of Great Britain to be paid to the said Sheriff or his certain attorney executors administrators or assigns for the true payment whereof we bind ourselves jointly and severally our and each of our heirs executors and administrators firmly by these presents sealed with our seals. Dated this
WHEREAS the above named A. B. hath been by H. M.'s warrant of appointment bearing date the day of A.D. 18-appointed High Sheriff for the county of W. aforesaid and hath at the request of the above-bounden O. B. authorised nominated and appointed him the said O. B. to be his gaoler or keeper of the gaol in and for the said county of W. during the Sheriffalty of the said A. B. with full power and authority to execute the said office in as large and ample a manner as any former gaoler or gaol-keeper have or hath heretofore lawfully executed the same. Now THE CONDITION OF THIS OBLIGATION IS SUCH that if the said O. B. do and shall from time to time and at all times so long as the said A. B. shall continue High Sheriff of the said county keep in safe custody as well all such prisoners as are now in the said county gaol as all and every prisoner or prisoners which at any time or times hereafter shall be committed sent or delivered to the said O. B. from or by any other person or persons having lawful power and authority in that behalf. And also if the said O. B. do give his attendance upon the said Sheriff at the assizes and general gaol delivery and general quarter sessions of the peace to be holden in and for the said county. And also if the said O. B. attend aid and assist the said High Sheriff his Under-sheriff or Deputy at all and every time and times when any execution shall be done within the said county upon any person or persons. And lastly, if the said O. B. his heirs executors administrators and every of them do and shall save defend and keep harmless and indemnified the said A. B. his heirs executors and administrators and every of them of from and against all and every escape or escapes of any prisoner or prisoners now or hereafter in his custody and from and against all and all manner of action and actions suits fines issues amerciaments forfeitures and all other costs and damages whatsoever which at any time or times hereafter shall or may arise grow or happen to be brought upon the said Sheriff for or by reason of any act or acts of nonfeazance misfeazance or malfeazance of the said O. B. or for any other cause relating to the said office of gaoler and keeper of the said county as aforesaid then this obligation &c.
DEPUTIES IN LONDON.
By the 3 & 4 Will. 4, c. 42, s. 20, the Sheriff of each county in
shall be resident, or have an office, within one mile from the Inner Temple Hall, for the receipt of writs, granting warrants thereon, making returns thereto, and accepting of all rules and orders to be made on or touching the execution of any process or writ to be directed to such Sheriff. A delivery of a writ, &c., to such a deputy is, in effect, a delivery to the Sheriff himself. No mention is made in the Act of the time or form of naming a deputy for such purposes; a reasonable time will therefore be allowed for that purpose. For any laches, in that behalf, he would be liable in damages to the party aggrieved; as if an arrest was lost by such non-appointment or the like.
W. to wit. Sir G. M. Bart. High Sheriff of the county aforesaid to M. A. gentleman, greeting: I do hereby nominate constitute and appoint you to be my deputy for the receipt of writs granting warrants thereon making returns thereto and accepting of all rules and orders to be made on or touching the execution of any process or writ to be directed to me as Sheriff as aforesaid.
By the stat. 1 & 2 Ph. and M. c. 12, s. 3, for the more speedy delivery of cattle taken by way of distress, every Sheriff of shires (being no cities nor towns made shires), must, at his first county day, or within two months next after he has received his warrant, depute, appoint, and proclaim in the shire town within his bailiwick, four deputies at the least, dwelling not above 12 miles one distant from another, who shall have authority, in the Sheriff's name, to make replevies, and deliverance of such distresses in such manner and form as the Sheriff may and ought to do; upon pain that every Sheriff, for every month that he shall lack such deputy or deputies, shall forfeit for every such offence 51.
There must be an appointment to satisfy the statute, and the mere acting, as replevin clerk, will not suffice. The appointment may be without deed or writing; but it is generally made by a minute in the Court Book at the first County Court day. Proclamation of the appointment seems to be necessary. An advertisement is usually inserted in the county newspapers of the times and places of holding the County Courts for the ensuing year; also of the names and places of abode of persons appointed Replevin Clerks.
He is appointed by the Sheriff. The appointment (when made) is, in general, done by a minute in the Court Book. If the Undersheriff reside at a distance from the place of holding the Court, the Sheriff should depute some attorney at the place to do so. The Under-sheriff is, in the 11 Hen. 7, c. 15, called Shire-clerk, or the Clerk of the County. But the County Clerk here meant is the Clerk of the County Court-the Under-sheriff's deputy.b
a 4 Co. 33.
b Dalt. ch. 115.
His judicial duties are next for review.
THIS Court was, for centuries, the chief criminal Court of the kingdom. Its business is now wholly done in the Court of Quarter Sessions; being so, it is useless to pursue the inquiry further.
THIS Court has shared the fate of the Torne as respects its former jurisdiction; both Courts seem, originally, to have had jurisdiction over criminal and civil matters. In the course of time, howIts ancient ever, this in practice was confined to civil pleas. The reason usually character. assigned is, that the bishop was judge therein, together with the sheriff; and, by the common law, he was not to intermeddle in matters of blood; and Pleas of the Crown were, before the New County Court was established, as unknown in it, as if they had never formed a component part of its business; being confined to civil disputes between subject and subject, of a limited extent; exercising, in general, a jurisdiction concurrent with, but sometimes exclusive of, that of the superior Courts.b
Both this and the Torne are, at common law, incident and inseparable from the office of Sheriff. His duties are, in general, of a ministerial, and not of a judicial nature. He is the Registrar of the Suitors or freeholders, who are the real Judges there.d In Pleas of the Crown, and in Exigents, the Sheriff and
a See 2 Hawk. P. C. ch. 10; 2 Hale's P. C. ch. 9; Dalt. ch. 105; Colebrooke v. Elliott, 3 Burr. 1860.
b Co. Litt. 168; Dalt. ch. 109; 3 Bl. Comm. 35.
d Dalt. ch. 109; Tunno v. Morris, 2 C. M. & R. 298; Pitcher v. King, 9 Ad. & E. 290; Jones v. Jones, 5 M. & W. 523; Bradley v. Carr, 3 Sc. N. C. 521; Tinsley v. Nassau, 2 C. & P. 582; Brown v. Gill, 2 C. B. 861.