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. Rex 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 him twelve months after without a sci. fa. Lenthall v. Gardener, post, 69. And so though the plaintiff has recovered against the gaoler, if he did not recover the whole of his debt. Collop.v. Brandley, Ibid.

But after an involuntary escape, if the party return, and surrender before action brought, the officer shall be excused. Chambers v. Gambier, Comy. 554. Bonafous v. Walker, 2 T. Rep. 126.

After a negligent escape, the gaoler may retake the prisoner at any time, but if after the escape plaintiff sends a discharge before recaption, the gaoler cannot retake him for his fees. Willing v. Goad, 2 Stra. 908.

For the escape of a prisoner in execution, the law has provided another remedy, viz. by action of debt on the statute of Westm. 2. (13 Ed. 1.. 11.) and 1 Ric. 1. 12.

CHAPTER VI.

OF CASE FOR MISBEHAVIOR IN AN OFFICE, TRUST, OR DUTY.

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 sheriff's and other judicial and ministerial officers.—It is the proper remedy for all false returns by a sheriff (a). Bag's Case, T. 13 Jac.

(a) The office of sheriff is both judicial and ministerial, but in his judicial capacity no action will lie against him for misconduct. Metcalfe v. Hodgson, Hut. 120. But it will lie for a false return, an escape, or rescue, and for extortion, und so for an informal or improper execution.

And so it will for default in exe @uting writs.

So for suppressio teri, as well as

allegatio falsi. R. v. Lyme Regis Cor-
poration, 1 Doug. 145. (149).

An action for misbehaviour in the
office of sheriff must be brought
against the high sheriff, though the
under sheriff or bailiff be the per-
son actually guilty. Cameron v. Rey-
nolds, Cowp. 403.

No action lies against a sheriff upon a promise to execute a bill of sale to the plaintiff's nominees, for

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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 in the county of Middlesex, 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] 1 Saund. S7.) 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
to execute a bill of sale at an ap-
praised value. S. C.

(a) Case lies by a judge in the
colonies against the governor for ma

liciously suspending him from his office, without a reasonable cause. Sutherland v. Murray, cited in 1 T. R. 538.

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, J 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 in the sheriff's court against one who was then in the counter upon a former plaint, and the sheriff permitted him to escape, A. may bring this action against the sheriff, for, by entering the plaint, and charging the defendant in the counter, he is actually in custody of the sheriff. Jackson v. Humphreys, Salk. 273.

And so will this action lie where a court not having jurisdiction, orders an officer to discharge a prisoner. As where the county justices order the discharge of an insolvent debtor at an improper adjournment

of the general quarter sessions under the act of 37 Geo. 3. c. 112, the court (agrecable to the rule laid down in the Marshalsea Case, 10 Co. 76.) held the proceeding coram non judice, and that the prisoners discharged was an escape, for which the officer was held liable at the suit of a creditor. Brown v. Con pton, 8 T. Rep. 424, by which decision the case of Orby v. Hales, 1 Ld. Raym. 3, was over-ruled; the creditor, however, in such case may retake the prisoner on an escape warrant. Vide Anon. Salk. 273.

. Jackson,

[ 66 ]

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 Raym. 1 Stra. 595.

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 Aun. 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, Exon. 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. 1 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. (b)

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.-Jackson 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

If

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

(b) 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 sheriff,

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 arrested 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 know

ledge.

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 no 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 against 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, and before the return A. is taken in execution by C. and then escape, B. may sue the sheriff for an escape, though A. was never taken at the suit of B. Benton v. Sutton, 1 Bos. & Pull. 24.

(a) The sheriff is not bound to carry a person arrested on mesne process to prison at the return of the writ, but may keep him in his custody without subjecting himself to an action by the plaintiff, provided that the plaintiff be not thereby delayed or prejudiced in his suit. Planck v. Anderson, 5 T. R. 37.

12

And

(b) Traitors or rebels, for against them he may raise the posse comitatus, 33 Hen. VI. 1.

(c) As to this point, see the cases collected in the last chapter, pa. 63 a. n. (b).

(d) On the authority of this case it was ruled in Bonafous v. Walker, 2 T. R. 126, that under a count for a voluntary escape, plaintiff may give evidence of a negligent escape.

(e) A voluntary escape must be with the consent of the gaoler. Ridgeway's Ca. 3 Co. 52. But a negligent escape must be without his knowledge or consent. Alsept v. Eyles, 2 H.