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In the return of a rescous, it is not necessary to aver the place where the rescous was made, if the place of the arrest be shewn, for the rescous shall be intended to be in the same place.--It seems as if such a return is traversable. Rer v. Clark et al. T. 29 Car. 2. Dy. 212. S. P.

See more of the misbehavior and liability of sheriffs and their of

ficers, in cases of escape under execution, in the next chapter.

retake bim twelve months after with- After a negligent escape, the gaoler out a sci. fe. Lenthall v. Gardener, may retake the prisoner at any time, post, 69. And so though the plain- but if after the escape plaintif sends ciff has recovered against the gaoler,' a discharge before recaption, the if he did not recover the whole of 'gaoler cannot retake him for his his debt. Collap.v. Brandley, Ibid. fees. Willing v. Goad, 2 Stra. 908.

But after an involuntary escape, For the escape of a prisoner in if the party return, and surrender erecution, the law has provided anbefore action brought, the officer other remedy, 'viz. by action of debt shall be excused. Chambers v. Gam- on the statute of Westm. 2.(13 Ed.1., bier, Comy. 554. Bonafous y. Wal. 11.) and i Ric. 1. 12. ker, 2 T. Rep. 126.



[ 64 ]

ANOTHER action which may be brought for an injury affecting a man's personal property, is trespass; but as that lies likewise for an injury affecting his real property, I shall defer what I have to say upon it to the next book, and proceed in the present place to take notice for what misbehaviour in an office, trust, or duty, an action on the case will lie.

As to sheriffs and other judicial and ministerial officers. It is the proper reinedy for all false returns by a sheriff (a). Bag's Case, T. 13


(a) The office of sheriff is both allegatio falsi. R. v. Lyme Regis Cor. judieial and ministerial, but in his poration, 1 Doug. 145. (149) judicial capacity no action will lie An action for misbehaviour in the against him for misconduct. Metcalfe office of sheriff must be brought V. Hodgson, llut. 120. But it will

But it will against the high sheriff, though ihe lie for a false return, an escape, or

under sheriff or bailiff be the perrescue, and for extortion, und so for

son actually guilty. Cameron v. Rey. ap informal or improper execution. nolds, Cowp. 403.

And so it will for default in exe- No action lies against a sheriff cuting writs.

upon a promise to execute a bill of Se for suppressio teri, as well as sale to the plaintiff's nominees, for

Jac. I. 11 Co. 38. So if a mayor, &c. return a good cause to a mandamus, the matter of which is false; though now by 9 Ann. c. 20. s. 2. the party may in many cases traverse the return, and is not put to his action.-Walker v. Griffiths, M. 26 Geo. 2.

(Note; an action for a false return ought to be laid either iu the county of Middleser, where the return is, or in the county where it was made.)

So for a wilful misbehaviour in a ministerial office, by which the party is damnified; as denying a poll to one who stands candidate for an elective office (such as bridge-master;) and it need not be averred in the de. claration, that he would have been chosen if the poll had been taken. So for refusing to take his vote at an election. So for not returning him who is duly chosen.---Turner v. Sterling, M. 23 Car. II. 2 Vent. 25. 2 Lev. 50. S. C. nom. Starling v. Turner. (a)

If my servant be robbed, and he go to a justice of peace, and pray to be examined touching the robbery, and the justice refuse to examine him, so that I am thereby damnified, and cannot proceed against the hundred, I may have an action against the justice.-Green v. Buckle Church Hund. T. 32 Eliz. 1 Leon. 323.

If a sheriff or any other officer suffer any person who is arrested, or taken in execution, to escape, the party at whose suit, &c. may have a special action on the case against him; (Dr. Drury's Ca. E. 1610. 8 Co. 241.) and it is necessary to set forth all the formalities required by law in other cases ; (Gold v. Strode, T. 2 W. & M. Carth. 148.) and therefore, if upon a judgment by a testator, his executor bring a sci. fa. and have judgment, whereupon a ca. sa. issues and the person is taken and escapes; in an action against the sheriff the plaintiff may declare

briefly upon the judgment in the sci. fa. (Jones v. Pope, M. 18 Car. II. [ *65 ] i Saund. 37.) But if he declare that he sued out a writ of * execution,

without setting forth any judgment, it will be an incurable fault; for by this means the defendant loses the benefit of pleading nul tiel record. (Burton v. Eyre, M. 1611. Cro. Jac. 289.) · But though error be in the process, the sheriff cannot take advantage of it.-Martyn v. Hendeye, Sty. 232.

Yet where an action was brought against the marshal of K. B. for not receiving a copy of a declaration against a prisoner per quod he lost

it is no part of the office of sheriff liciously suspending him from his to execute a bill of sale at an ap- office, without a reasonable cause. praised value. S.C.

Sutherland v. Murray, cited in 1 T. ra) Case lies by a judge in the R. 538. colonies against the governor for ma.

his suit; it appearing that the declaration was tendered at the prison, before the bill was filed, the plaintiff was nonsuited, though it was strongly insisted that an officer could only take advantage of process being void, and not of its being voidable.-Ekins v. Ashton, Mid. 1752,

per Lee, C.J.

And where a ca. sa. was executed on a judgment given in an inferior court in debt upon a bond made extra jurisdictionem, and an escape, the court held no action would lie for the escape ; because coram non judice. ---Anon. 1689. Mar. 8. (a)

Case will lie for the party against the sheriff, for an escape suffered upon an outlawry or mesne process; for though the party is in custody merely at the suit of the king, and the plaintiff has no interest in his body, yet he cannot have his outlawry reversed without security first given to appear to a new original.- Cook v. Champness, E. 4 Geo. 2. Fitzg. 265. Bonnet v. Stokeley, Cro. Eliz. 652. S. P.

If the plaintiff declare that he had J. S. and his wife in execution, and that the defendant suffered them to escape, and the jury find specially, that the husband only was taken in execution (it being a debt due from the wife before coverture), and that he escaped, he shall have judgment; for the substance of the issue is found. Roberts v. Herbert, M. 1660. Sid. 5.

So if both baron and feme be taken in execution, and the feme be suffered to escape, an action will lie, though the baron continue in prison-1 Rol. Abr. 810, (F.) pl. 5.

So if the jury find that J. S. was taken by the former sheriff, and that he was legally in the custody of the defendant, who suffered him to escape. (King v. Andrews, M. 1615. Cro. Jac. 380.) So if they find he was taken on an alias ca. sa. where the plaintiff declares on ca. sa. (Foster

(a) So where A. levied a plaint of the general quarter sessions under in the sheriff's court against one who the act of 37 Geo. 3. c. 112, the was then in the counter upon a for- court (agrecable to the rule laid mer plaint, and the sheriff permitted down in the Marshalsea Case, 10 Co. him to escape, A. may bring this ac- 76.) held the proceeding coram non tion against the sheriff, for, by enter- judice, and that the prisoners dising the plaint, and charging the de- charged was an escape, for which the fendant in the counter, he is actually officer was held liable at the suit of in custody of the sheriff. Jackson a creditor. Brown v. Con pton, 8 T. v. Humphreys, Salk. 273.

Rep. 424, by which decision the And so will this action lie where case of Orby v. Hales, 1 Ld. Kaym. 3, a court not having jurisdiction, or- was over-ruled; the creditor, how ders an officer to discharge a pri- ever, in such case may retake the prisoner. As where the county justices soner on an escape warrant. Vide order the discharge of an insolvent Anon. Salk. 273. debtor at an improper adjournment

1. Jacksan,

v. Jackson, Hob. 55.) So if the escape be proved on another day, if it be before the action commenced.-King v. Andrews, sup.

So if it be alledged that the prisoner was surrendered to him in the · parish of B. and it is proved to be in the parish of A. for the surrender

is the material thing, and it differs from trespass, where every part of the declaration is descriptive.-Oats v. Machin, T. 9 Geo. 2, per Raymi

1 Stra. 595. [ 66 ] The plaintiff need neither produce the ca. sa. nor the copy of it,

but the return of it is sufficient, and the ca. sa. need not be set forth in the declaration. (Tildar v. Sutton, E. 2 Avn. per Holt, Guildhall. Salk. MSS.) But if it be set forth with a scilicet, that it issued on such a day, it may be doubtful whether he ought not to prove the ca. sa. with the true teste; otherwise against the sheriff, the warrant is sufficient evidence, though it would not be so for him.-Johnson v. Gibbs, Exod. 1698, per Holt. Salk. MSS. (a)

The confession of the under-sheriff is evidence against the sheriff, because in effect it charges himself.—Yabsley v. Dobley, T. 9 W. III. i Raym. 190.

If it appear in evidence that the prisoner was taken upon a void judg. ment, the plaintiff cannot recover; but it is otherwise in the case of an erroneous judgment.-Gold v. Strode, T. 2 W. & M. Carth. 148, ante 64, S. C. (6)

Note; where the court in which judgment was obtained had cognizance of the cause, the judgment is only erroneous; but if the court had no jurisdiction, it is void. · So where the defendant is taken on a ca. sa. issued after the year, and escapes, debt will lie against the sheriff, though the process erroneously awarded; for the sheriff may justify in an action of false imprisonment, and therefore may not set him at large.—Bushe's Case, T. 1590. Cro. Eliz. 188.

Note; that if A. be in custody at the suit of B. and a writ be delivered to the sheriff at the suit of D. the delivery of the writ is an arrest in law; and if A. escape, D. may bring debt against the sheriff for an escape.—Juckson v. Humphreys, T. 5 Ann. Salk. 274. (c)


(a) The indorsement of the non est inv. upon a ca. sa. is sufficient evidence of its delivery to the sheriff. Blatch v. Archer, Cowp. 63.

And it seems the indorsement of a bailiff's name on the writ is sufficient evidence that there was a warrant to

him in an action against the sheriff for an escape. Ibid.

(6) Vide Burton y. Eyre, Cro. Jac. 289. Shirley v. Wright, Ld. Raym. 775. Salk. 700.

(c) So where a ca. sa. against A. at the suit of B. is delivered to the


If the plaintiff declare, That whereas he had a good cause of action against J.S. and sued out a latitat against him, that the defendant arTested him, and suffered him to escape; he must prove a cause of action, else he will be nonsuited; though the cause of action need not be for the same sum mentioned in the declaration : but if the declaration be on a latitat in a plea of trespass, and the writ produced be in a plea of trespass, ac etiam billa £20, it will not support the declaration.—Gunter v. Cleyton, E. 25 Car. II. 2 Lev. 85. (a)

If the prison take fire, or be broken open by the king's enemies, by means whereof the prisoners escape, this will excuse the sheriff, (1 Rol. Abr. 808, pl. 5.); but it is otherwise if the prison be broken open by the king's subjects. (b)-Southcote's Case, E. 43 Eliz. 4 Co. 84.

If a prisoner in execution escape without the assent of the sheriff, and he make fresh suit and retake him before any action brought against him, this will excuse him :(c) but by 8 & 9 W. 3. c. 26. s. 6. he cannot give this in evidence, but * must plead it, and must likewise make oath, [ *67 ] that the prisoner made such escape without his consent, privity, or knowledge.

If the plaintiff in his declaration set forth a voluntary escape, the defendant may plead that he retook him upon fresh suit, without traversing the voluntary escape ; for the alledging it is in 110 wise necessary to this action, but should come in in the replication. Bovey's Case, E. 24 Car. II. 1 Vent. 211. (d)

Note; For a voluntary escape an action will lie agaiust the gaoler as well as against the sheriff, because he is a wrong-doer; but for a negligent escape it will only lie against the sheriff,--Lane v. Cotton, E. 12 W, III, Salk. 18. (e)


sheriff, and a warrant issues thereon, (6) Traitors or rebels, for against
and before the return A. is taken in them he may raise the posse comita-
execution by C. and then escape, B. tus, 33 Hen. VI. 1.
may sue the sheriff for an escape, (c) As to this point, see the cases
though A. was never taken at the collected in the last chapter, pa.
suit of B. Benton v. Sutton, 1 Bos. & 63 a. n. (b).
Pull. 24.

(d) On the authority of this case
(a) The sheriff is not bound to it was ruled in Bonafous v. Walker,
carry a person arrested on mesne pro- 2 T. R. 126, that under a count for
cess to prison at the return of the a voluntary escape, plaintiff may give
writ, but may keep him in his cus- evidence of a negligent escape.
tody without subjecting himself to (e) A voluntury escape must be
an action by the plaintiff, provided with the consent of the gamler. Ridge-
that the plaintiff be not thereby de- way's Ca. 3 Co. 52. But a negligent
layed or prejudiced in bis suit. escape must be without his know-
Planck v. Anderson, 5 T. R. 37. ledge or consent, Alsept v. Eyles,

2 H.

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