cer, for an escape on mesne process, is case: 1 Saund. 37-38, n. 2; 2 Inst. 382. It seems that case lies for an escape on an attachment for non-payment of money: Lewis v. Morland, 2 B. § A. 56. As to escape warrant, see 1 Anne, c. 6.

Form of Pleadings.

DECLARATION.] The venue is transitory: Griffith v. Walker, 1 Wils. 336. It is necessary to allege that the plt. had a cause of action against the deft. in the original action, or deft. may demur, 2 Lev. 85, 4 T. R. 611,2 Saund. 150; and, in laying a time to such fact, in order to avoid an unnecessary statement of different days, it is advisable to insert the teste of the writ, or the day it issued; and the former is preferable. The subject-matter of the debt, and a promise to pay it, have been usually stated, but this seems to be unnecessary; and it suffices to allege generally that the plt. had a cause of action, without minutely stating it, as in an action against deft. himself: Com. D. Pleader, 2 P. 1, & E. 18; 8 T. R. 127. It is not necessary to state the precise sum due: 2 Lev. 85. If the nature of the debt be stated, it must be proved as stated; as, if the declaration state the debt to be for goods sold, it must be so proved, 2 Esp. N. P. C. 476; and if, in that case, it should appear they were sold on credit, it would be a variance, 5 Esp. Rep. 102; see Pea. Rep. 117. Where it is expected that the sheriff will suffer judgment by default, it is often advisable to state the nature of the debt more fully, as some evidence may thereby be avoided: 2 Chit. Pl. 738, n. c. When the party proceeds in an inferior court, it should be stated that the debt accrued within the jurisdiction, though the omission will be aided after verdict: Bentley v. Donnelly, 8 T. R. 127; 2 Saund. 109, n. 2. The issuing and delivery of the process against the original deft. is next stated. This must agree with the facts; a material variance would be fatal. The observation and cases collected, ante, 188-9, as to the statement of the writ in an action on a bail-bond, will be here applicable. In addition to those cases, it has been held, that, where a latitat in trespass with an ac-etiam was stated to be a latitat in a plea of trespass, the variance was held fatal: Gunter v. Cleyton, 2 Lev. 85; B. N. P. 66. On the other hand, where it was stated that the plts. sued out an attachment of privilege, by which said writ our said lord the king commanded the defts., &c., to attach A. B., &c., to answer the said plts. in a plea of trespass on the case, to the damage of the said plts. of £30, &c." and the writ produced did not contain the words, "to the damage, &c." it was held no variance: Cousins v. Brown, M. & M., C. N. P. 291. As to the statement of the endorsement for bail, see ante, 189. The allegation that the debt was sworn to is unnecessary, and should be omitted, as it requires proof as stated: Wilcoxon *v. Nightingale, MSS. [*480] C. P., Hilary Term, 1828, so held on demurrer; and see 1 Burr. 330; 1 B. & P. 281; 2 Moo. 60. As to the statement of the delivery of the writ to the sheriff, &c., see ante, 189.

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In an action against the sheriff, it is usual to insert three counts in the declaration: 1st., for an escape; 2dly., for not arresting the deft. when there was an opportunity; and, 3dly, for not assigning the bail-bond on request, when, indeed, it is supposed there has been such bond. In the VOL. I.

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count for an escape, it must be alleged that the original deft. was arrested, and that the sheriff, against the plt.'s license, permitted the escape. An averment in this respect that the sheriff voluntarily permitted the escape will be supported in evidence by proof of a negligent escape, and so vice versa: 1 Vent. 217; 3 Keb. 55, s. c. 2 T. R. 126. It suffices to state that the sheriff had not the body of deft. in court at the return of the writ, without further stating the default in appearance: Cro. El. 289; 2 B. & P. 561. In an action against a sheriff for not arresting the deft. when he had an opportunity, it should be alleged that the deft. was within the sheriff's bailiwick, and might have been arrested if the sheriff had chosen so to do, and yet the sheriff would not arrest. It is not necessary in such action to aver that the sheriff had notice of the deft.'s being in the bailiwick: 5 D. & R. 95.

PLEA.] The plea of the general issue will, in this action, in general suffice, as in other actions on the case: ante, 344-5.

Precedents.

FOR AN ESCAPE ON MESNE PROCESS.

For that whereas, heretofore, to wit, on, &c. (teste of writ, or day it issued), at, &c. (venue), one E. F. was indebted to the said plt. in a large sum of money, to wit, the sum of £——, of lawful, &c., for and in respect of divers causes of action before then accrued to the said plt. against the said E. F.; and, being so indebted thereupon, he, the said plt., for the recovery of the said debt, afterwards, to wit, on the day and year aforesaid, sued and prosecuted out of the court of our said lord the king, &c. (State the issuing of the writ, the endorsement for bail, the delivery to the sheriff, and the arrest, and which may be done in the same way as ante, 188, in a declaration on a bail bond, after which proceed as follows :) Yet the said deft. so being sheriff of the said county of as aforesaid, not regarding the duty of his office as such sheriff, but contriving and intending wrongfully and unjustly to injure the said plt., and to delay and hinder him in and from the recovery of his said debt, afterwards, and before the payment of the same, or any part thereof, to wit, on the day and year last aforesaid, at, &c. (venue), aforesaid, without the leave or license, and against the will, of the said plt., suffered and permitted the said E. F., to escape and go at large wheresoever he would, out of the custody of the said deft., so being such sheriff, as aforesaid. And the said plt. in fact, saith, that the said deft. had not the said E. F. in the said court of our said lord the king, before the king himself (or, "of the Bench,"), at the return of the said writ (or, "precept"), according to the exigency thereof, but therein wholly failed and made default, nor did the said E. F. then appear there; whereby the said pit, hath been and is greatly injured and delayed in the recovery of his aforesaid debt, and is likely to lose the same; and thereby, also, he, the said plt., hath lost and been deprived of the means of recovering his costs and charges by him incurred, paid, laid out, and expended in and about his said suit, so commenced and prosecuted against the said E. F., as aforesaid, amounting together to a large sum of money, to wit, the sum of £, to wit, at, &c., aforesaid.

COUNT FOR NOT ARRESTING DEFT. WHEN THERE WAS OPPORTUNITY.

(Proceed as pointed out in the preceding precedent to the end of the statement of delivery of writ to sheriff, and then as follows: And the said plt. in fact saith, that the said E. F., at the time of the delivery of the said last mentioned writ (or, "precept") to the said [*481] deft., so being sheriff of "the said county of as aforesaid, and from thence, until the return of the said last-mentioned writ (or, "precept”) was within the said sheriff's bailiwick, and the said sheriff, at any time during that period, might have taken and arrested the said E. F., by virtue of the said last-mentioned writ (or, " precept"), at the suit of the said plt., if he would so have done; yet the said deft., so being sheriff of the county of, as aforesaid, not regarding the duty of his said office, but contriving and intending wrongfully and unjustly to injure the said plt., and to delay and hinder him in and from the recovery of his debt last aforesaid, did not, nor would (at any time before the return of the said last-mentioned writ [or, "precept"], (although often requested so to do), take, or cause to be taken, the said E. F., as, by the said last-mentioned writ (or, " precept"), he was commanded, but therein wholly failed and made default, and the said E. F. did not appear, &c. (Same as in the preceding precedent to the end.)

FOR NOT ASSIGNING A BAIL-BOND.

(Proceed as in the count, ante, 480, to the end of the statement of the arrest, and then as follows:) And the said plt., in fact, further saith, that the said E. F., being so arrested and in custody of the said deft., so being such sheriff, as aforesaid, under and by virtue of the said writ, for the cause aforesaid, he, the said deft., as such sheriff, afterwards, and before the return of the said last-mentioned writ, to wit, on the day and year last aforesaid, at, &c. (venue), aforesaid, took bail for the appearance of the said E. F. in the said court, at the return of the said writ, according to the form of the statute in such case made and provided; and he, the said deft., on that occasion, then and there, to wit, on the day and year last aforesaid, at, &c. (venue), aforesaid, took of the said E. F., and two other persons, as his sureties or bail, according to the form of the said statute, a certain bail-bond, in the penal sum of £, of lawful money of Great Britain, conditioned for the appearance of the said F. F., at the time and place aforesaid, to answer to the said plt. in the plea and bill aforesaid. And although the said plt. did afterwards, and whilst the said deft. was such sheriff, as aforesaid, to wit, on, &c. (day of request, or about it), at, &c., aforesaid, request the said deft. to assign the said bail-bond to him, the said plt., according to the form of the statute in such case made and provided, and although the said plt. was then and there ready and willing, and then and there offered, to pay to the said deft. the costs payable to him, the said deft., in that behalf, according to the form of the said last-mentioned statute, yet the said deft, so being such sheriff, as aforesaid, not regarding the duty of his said office as such sheriff, nor the statute in such case made and provided, but contriving and wrongfully and unjustly intending to injure the said plt. in this behalf, and to hinder and prevent him from bringing any action or actions on the said writing obligatory, and to deprive him of the means of recovering the damages aforesaid, did not nor would, at the said time when he was so requested, as aforesaid, assign the said bail-bond to him, the said plt., but, on the contrary thereof, then and there wholly refused, and hath from thence hitherto wholly neglected and refused, so to do, and, by means of the premises last aforesaid, he, the said plt., hath been and is hindered and prevented from bringing any action or actions on the said writing obligatory, and hath been and is deprived of the means of recovering the said damages, and is likely to lose the same, to wit, at, &c., aforesaid.

Evidence for Plaintiff.

In Action for Escape.] In an action against a sheriff for an escape on mesne process, the cause of action in the original suit, the issuing and delivery of the writ to the deft., and the arrest and escape, must be proved.

There must be a debt due to the plt. by the party arrested at the time of the arrest, Alexander v. Macauley, 4 T. R. 611; White v. Jones, 5 Esp. Rep. 160; and the same cause of action must be proved as the plt. has stated in his declaration, Parker v. Fenn, [*482] 2 Esp. Rep. 476; though it need not be proved to have been for the specific sum mentioned in the pleadings: Gunter v. Cleyton, 2 Lev. 85; B. N. P. 66. Any evidence which would be admissible against the deft. in the original action will be evidence against the sheriff: 2 Camp. 188. An acknowledgment by the party after his ar rest, but previous to his escape, will be evidence of the debt against the sheriff: Sloman v. Herne, 2 Esp. Rep. 695; Rogers v. Jones, 7 B. & C. 86; 5 D. & R. 484; Williams v. Bridges, 2 Stark. 42. See ante, 479, as to variance in statement.`

The process must be proved as alleged in the pleadings: as to what is a variance, ante, 479. Where it was alleged that the party was arrested "under a writ endorsed for bail, by virtue of an affidavit now on record," but no proof of the affidavit was produced at the trial, the Court of C. P. held, that the plt. had been properly nonsuited: Webb v. Sheriff of Middlesex, 1 B. & P. 281; 2 Esp. Rep. 671. But, where it was alleged that the writ was marked for bail "by virtue of an affidavit of the cause of action of the plt. in that behalf, before then made, and

duly filed of record in this court, according to the form of the statute," it was held, a copy of the affidavit was sufficient to prove the averment: Casburn v. Reid, 2 Moo. 60. When it was alleged, in a declaration against the marshal, that the party was arrested and gave bail, that afterwards bail above was put in before a judge at chambers, "as appears by the record of the recognizance," that the party surrendered in discharge of bail, and afterwards escaped, this averment was held not to be proved by the production of the filazer's book, the entry therein importing that the recognizance was taken before a single judge, an examined copy of the entry of the recognizance of bail, stating that it was taken before the Court at Westminster, having also been given in evidence: Bevan v. Jones, 4 B. & C. 403; Wigley v. Jones, 5 East, 440. Where the pro

cess has been returned and filed, an examined copy of the writ and return will be evidence of the issuing and delivery: B. N. P. 66; Blatch v. Archer, Cowp. 63; Jones v. Wood, 3 Camp. 229, 397; 1 Esp. Rep. 269. Where the writ has not been returned, secondary evidence will not be admissible, after due search at the Treasury Office, and proof of its having been delivered to the sheriff or under-sheriff, or at the sheriff's office, and notice given to produce the original: 2 Phil. Ev. 222.

The escape must be proved, by showing directly that the party was in the custody of the sheriff or his officer, or else that the sheriff returned cepi corpus, and that party was at large after the return of the writ, Atkinson v. Matteson, 2 T. R. 172, Hawkins v. Plomer, 2 W. Bl. 1048; or that the bail has not been put in and perfected; or that it has been put in, but of a term subsequent to the return of the writ: Moses v. Norris, 4 M. & S. 397.

The sheriff must be connected with the officer who suffered the debtor to escape, or who refused to arrest him, by proving the issuing of a warrant from the sheriff's office to arrest the deft.: see post, “Sheriff.”

In an action for not arresting debtor, the original debt, the writ, and delivery of it to the sheriff, must be proved, as supra. The opportunity for the arrest must be fully shown, as also that the deft., or undersheriff, or bailiff, who has the execution of the writ, knew of the debtor's being within the bailiwick: 2 Phil. Ev. 222. It is the officer's duty to search and make the arrest. The usual proof, in such action, is, that the bailiff was informed where the debtor was. Notice to the undersheriff's agent in town, will not be sufficient notice to the sheriff: Gibbon v. Coggon, 2 Camp. 189.

In an action for not assigning the bail-bond, the original debt, and issuing and delivery of the writ, must be proved, as supra. The ar

rest, and giving the bail-bond, must also be proved, together [*483] with the demand and *refusal to assign the bond. Notice to produce the bail-bond should be given, and the service of such notice proved.

Damages.] The plt. is entitled only to such damages as a jury think fit to give him. Any special damage sustained by the escape should be proved. If the plt. prove his case, he will, at all events, be entitled to nominal damages: 2 Bing. 317.

ADMISSIONS OF UNDER-SHERIFF.] An acknowledgment of an escape by an under-sheriff, will be evidence in an action against the sheriff,

Yatsley v. Doble, 1 Ld. Raym. 190; but, on proof that inquiry had been made at the sheriff's office for the bail-bond, and the clerk had answered that there was no bail-bond, Ld. Ellenb. held it insufficient evidence to support the action against the sheriff: Mendez v. Bridges, 5 Taunt. 325. The bailiff's general conversation with any indifferent person is not evidence against the sheriff; but, where a thing is carried on by one quasi principal, what he says, in the course of the transaction, has been held, on great consideration, to be evidence against those he represents per Ld. Ellenb. North v. Miles, 1 Camp. 390. So, the mere admission of a sheriff's bond bailiff is not evidence, until he be identified with the sheriff, and the privity existing between him and the sheriff be established in the particular transaction: Drake v. Sykes, 7 T. R. 113; North v. Miles, 1 Camp. 389. Declarations made by a bailiff, while the debtor is in custody, are admissible against the sheriff for an escape: Bowsher v. Calley, 1 Camp. 391, n.; ante, "Admis

sions."

Evidence for Defendant.

In an action against the sheriff for an escape on mesne process, he may show that, although no bail-bond was in fact taken, yet that bail was put in and perfected, or that the party rendered himself before the time for bringing in the body had expired: Pariente v. Plumtree, 2 B. & P. 35. The sheriff may also prove, in defence, that the deft. in the original action was rescued, May v. Proby, Cro. J. 419; or that he rescued himself by force: Fermor v. Phillips, Holt, 527. The fact of the rescue having been effected, must be proved; the mere return by the sheriff, of a rescue, is not conclusive: Adey v. Bridges, 2 Stark. 189. If the rescue have taken place after the party has been within the walls of a prison, it will not be an available defence, except it be by the king's enemies: B. N. P. 68; Alsept v. Eyles, 2 H. Bl. 113. If the party escape by the prison taking fire, it will be a good defence: 1 Roll. Ab. 8os, D. Pl. 6. The sheriff may show that the party was arrested by the bailiff of a liberty on a mandate from the sheriff, in which case the bailiff alone is liable: B. N. P. 69; Noy, 27; 3 Wils. 309. But it will be no defence to show, that plt. was cognizant of the escape, and yet proceeded to judgment, but had not charged the debtor, who returned to gaol in execution: Ravenscroft v. Eyles, B. N. P. 69. In an action against the sheriff for an escape in not taking a bail-bond, he may show that good bail was put in and justified, in the room of bail before put in, who, by the practice of the court, were a mere nullity: Allingham v. Flower, 2 B. & P. 246. The sheriff will not be liable if a bail-bond have been given for deft.'s appearance at the return of the writ, though deft. do not appear, as it is peremptory on him to take bail, Posterne v. Hanson, 2 Saund. 61, Ellis v. Yarborough, 1 Mod. 227, Barton v. Aldeworth, Cro. El. 624; but it will be otherwise if he have not taken a bail-bond, or bail be not put in and perfected in due time, Fuller v. Prest, 7 T. R. 109, Webb v. Mathews, 1 B. & P. 225, Atkinson v. Mattison, 2 T. R. 176; and it will be no defence, if the sheriff have taken a bail-bond, if the deft. do not appear at the return of the writ, and the sheriff refuse