to assign the bond, Stamper v. Milbourne, 7 T. R. 122, Men[*484] dez v. Bridges, 5 Taunt, 325; nor that the sheriff's officer refused to arrest the deft. in the original action, if notice was given him that the party was in his county: Watson, Shff. 128. But where the sheriff, having a writ against G. B., arrested M. B., who was the real debtor, and, at the time of contracting the debt, had represented himself as G. B., it was held, that the sheriff, having been informed of these circumstances, while the real debtor was in his custody, was not bound to detain him; and, therefore, no action could be maintained against the sheriff for an escape: Moogans v. Bridges, 1 B. & A. 647. Recaption.] The sheriff may show that, though the party had been at large, yet he was retaken previous to the return of the writ, Atkinson v. Matteson, 2 T. R. 172; and, where the party escapes without the privity of the sheriff, he may be retaken before or after the return of the writ: Com. D. Escape, E. There cannot be a recaption for the fees due to the sheriff after the party has been discharged out of custody, by consent of the plt.: Willing v. Gord, Str. 909; and where the sheriff had put in bail above, and discharged the deft. without a bail-bond, they may surrender him: R. v. Butcher, Pea. Rep. 226; Evans v. Swele, 2 Bing. 271; Berchere v. Colson, Str. 876.

ESCAPE ON FINAL PROCESS.

FORM OF REMEDY FOR, 484.

FORM OF PLEADINGS, 485.

EVIDENCE FOR PLAINTIFF, 487.

EVIDENCE FOR DEFENDANT, 489.

Form of Remedy.

The form of remedy by action, for an escape on final process, is debt or case: Cro. J., 289. At common law, no action of debt lies against a gaoler for an escape out of execution, but only an action on the case, 2 Inst. 382; in which case the creditor might recover damages for the officer's misconduct. But the stat. of West. 2 & 1 R. 2, c. 12, gave an action of debt against the warden of the Fleet, sheriff, or gaoler, to recover at once the sum for which the prisoner was charged in custody: see 2 T. R. 132. Debt lies by the statutes, as well where the escape is negligent as where it is voluntary, 2 Str. 827, 2 H. Bl. 108; but it lies not against a sheriff for omitting to arrest a party on a ca. sa. when he had an opportunity; and, in that case, plt. should declare in case: 2 W. Bl. R. 1048; 2 W. Bl. R. 113. Debt is the most preferable form of remedy, when maintainable, as the plt. is entitled to recover the whole debt and the sheriff's poundage: Bonafous v. Walker, 2 T. R. 129; Alsept v. Eyles, 2 H. Bl. 113; 2 W. Bl. R. 1048. Whereas, in an action upon the case, he will recover such damages only as the jury are inclined to give, Bonafous v. Walker, 2 T. R. 130; and, moreover in the action of debt, the Statute of Limitations is no defence: Jones v. Pope, 1 Sid. 306.

The sheriff's remedy against the party escaping, where he has sustained damage, is by action on the case against him for such damage: Watson on Sheffs., 142. As to when the sheriff may retake the deft., see ib., 141.

By 1 Anne, st. 2, c. 6, s. 2, a remedy is given against sheriffs who permit the escape of persons who have been retaken on an escape-warrant authorized by that act.

With respect to the party by whom this action may be

brought, the *proper person is the plt. or plts. in the original [*485] action. The nominal plt., in an action for mesne profits, may

sue for an escape on a judgment therein: 2 M. & S. 473. An executor may maintain the action for an escape in his testator's lifetime: Ld. Raym. 973; 6 Mod. 125, s. c. On an escape on a judgment obtained by plt. as an administrator, he may sue in his own personal right: 2 T. R. 126. The hundred may sue for an escape in a judgment obtained by them: Fitzg. 296. If, while the deft. be in custody of the sheriff, in an action at the suit of A., a writ be lodged in the office of the sheriff, at the suit of B., and the deft. escape, B., as well as A., may sue for the escape: Barton v. Sutton, 1 B. & P. 24; Salk. 273.

The action should be brought against the superior, and not the inferior, officer or gaoler who permitted the escape: see cases in Watson, Shff., 144, 5. The 59 Geo. 3, c. 64, renders the warden of the Fleet liable for an escape in vacation. Where there are two sheriffs, who suffer an escape, and one dies, the action lies against the survivor; or, if, pending the action, one dies, the action survives: Cro. Eliz. 625. If the old sheriff, at the expiration of his office, omit to turn over a prisoner, by assignment, to the new sheriff, he is liable for an escape: 3 Rep. 71, b., and see, further, Watson, 145. By 3 G. 1, c. 15, s. 8, in case of the death of the sheriff, the under-sheriff is liable for escape after that time. Neither the heir nor executor of the sheriff are liable: Dyer, 271, 322, a.; 1 Ld. Raym. 399.

Form of Pleadings.

Declaration.] It must be shown the escape was on final process; and, for this, it is necessary there be an allegation that a judgment was recovered. The mere averment of quod cum recuperasset has been held sufficient, without a prout patet per recordum, as the gist of the action is the escape, and the commitment only inducement: Waites v. Briggs, 2 Salk. 565; 1 Ld. Raym. 35, s. c.; Eden v. Lloyd, Cro. Eliz. 877. The judgment should be stated accurately, but it suffices if the judgment be substantially proved as stated. Where the plt. alleged that the judgment was recovered as of Trinity Term, " as appears from the record," and the proof was of judgment in Easter Term, it was, nevertheless, held good, as the words " as appears by the record," might be rejected as surplusage: Stoddart v. Palmer, 3 B. & C. 2; 4 D. & R. 624, s. c.; Purcell v. Macnamara, 9 East, 157; Phillips v. Shaw, 4 B. & A. 435; 5 ib. 964, s. c. So, where a declaration stated, "that the plt., in E. T. 5 G. 4, recovered in the K. B. against one H. W., as by the record appeared, that in T. T. in the same year such proceedings were had in the said court, that it was considered the plt. should

have execution against the said H. W. for the damages aforesaid, as by the record of the said last-mentioned proceeding still remaining in the said court appears, and therefore, on, &c., in T. T. in the same year, the said H. W. was committed to the custody of the marshal, in execution and escape," the original judgment was proved, and that a commititur issued thereon, but no judgment in sci. fa. was proved: it was held sufficient, the latter judgment being immaterial: Bromfield v. Jones, 4 B. & C. 380; 6 D. & R. 500, s. c. But, though an allegation of this nature be merely inducement, yet, in some cases, strict proof of it will be necessary, as where, in a declaration for an escape, it was alleged, "that one S. S. was arrested and gave bail, and that afterwards bail was .put in before a judge at chambers, as appears by the record of the recognizance," it was held, plt. was bound to prove bail put in as alleged, and that such allegation was not established by production of the filazer's book, wherein it appeared that the recognisance was taken before a single judge, when there also was producd an examined copy of the entry of recognisance of bail, by which it appeared that the recognisance was

taken before the court at Westminster: Bevan v. Jones, 4 B. [*486] & C. 403; 6 D. & R. *483, s. c. And so an allegation with a

prout patet, &c., that the plts., by the judgment of the court, recovered against the bail, is not proved by the production of the recognisance of bail and the sci. fa. roll, which latter concluded in the common form; as the proof was merely of an award or judgment of execution by the court, and not a judgment to recover: Phillips v. Mangles, 11 East, 516. Stating the judgment to be on certain "promises and undertakings," when it was only on a "promise and undertaking," would be a variance: semb. Edwards v. Lucas, 5 B. & C. 339; 8 D. & R. 98. Stating a judgment in the K. B. to be recovered "in the Court of the Bench," would be bad: Mill v. Pollon, 1 Moo. 19; 7 Taunt. 271,

S. C.

In an action against the sheriff, after stating the judgment, the writ, and delivery thereof to the deft., should be stated accurately. As to what a variance, see ante, 485. Correctly stating the writ in substance will suffice. The word "damage," when the writ is damages and costs, is not a variance: Phillips v. Bacon, 9 East, 298. The writ may be described as issued to the sheriff, naming him: Batchellor v. Salmon, 2 Camp. 525. Though it be stated that the deft. was sheriff, after the return of the writ, it is no variance, though the deft.'s shrievalty expired before the return: Semb. 3 D. & R. 483.

In an action against the marshal or warden, the mode in which the original deft. came into their custody, if stated, should be correctly so. If he was in custody under a committitur, the same should be stated to be of record: Wightman v. Malleus, 2 Str. 1226. According to the language of the entry of the committitur, a reference to the record of the committitur should be made, to avoid a special demurrer, though the omission of it would be cured by verdict: Barnes v. Eyles, 8 Taunt. 512; 2 Moo. 561, s. c.; Turner v. Eyles, 3 B. & P. 456; and see 3 D. & R. 597. Where a declaration alleged that the prisoner was, by habeas corpus, brought before a judge of K. B., by him committed to the custody of the marshal, "as by the said writ of habeas corpus,

and the said commitment thereon, now remaining in the said court, more fully appears," such allegation was not proved by evidence of a commitment by a judge of K. B., but not filed of record: Turner v. Eyles, B. & P. 456; Wigley v. Jones, 5 East, 440. If a prisoner be removed by habeas corpus from the King's Bench to the Common Pleas, the plt. need not show a process in the Common Pleas against the prisoner: Gambier v. Wright, 2 Str. 950; Com. D. Escape, C.

A negligent escape may be given in evidence under a count for a voluntary escape: Bonafous v. Walker, 2 T. R. 131; 1 Vent. 211.

Plea.] In an action of debt for an escape, the plt. may plead nil debet, by which plea the whole declaration will be put in issue, and the sheriff may, under it, set up any matter of excuse except recaption, or the voluntary return of the deft. to custody.

A retaking, or fresh pursuit, must be specially pleaded; according to 8 & 9 W. 3. c. 27, s. 6, "no retaking, or fresh pursuit, shall be given in evidence, on trial of any issue, in any action of escape against the marshal, &c., unless the same shall be specially pleaded; nor shall any special plea be received, or allowed, unless oath be first made in writing, by the deft., and filed in the proper office, that the prisoner, for whose escape such action is brought, did escape without his consent, privity, or knowledge:" 2 W. Bl. R. 1059; 1 Tidd, 703. A voluntary return of a prisoner after an escape, before action brought, is equal to a retaking, on fresh pursuit, and must be specially pleaded: Bonafous v. Walker, 2 T. R. 126. And, in framing a plea of the recaption, or of the voluntary return of the deft. before action brought, it is necessary to allege that such recaption or return was before action brought; otherwise the plea will be defective on demurrer: Stonehouse v. Mullins, Str. 873. If the declaration allege that the escape was volun- [*487] tary, recaption, on fresh pursuit, is a good plea, without traversing that the escape was voluntary, as plt. may show, in his replication, that the escape was voluntary, if he mean to rely on that fact: 1 Vent. 211, 7. In a plea of recaption, or of volutary return of the deft. to custody before action brought, it is necessary for the sheriff to allege, that the deft. was detained in prison from the time of such recaption, or return, to the commencement of the action against the sheriff, or until the deft.'s legal discharge: Chambers v. Jones, 11 East, 406; Meriton v. Briggs, 1 Ld. Raym. 39; 1 B. & P. 413; Willis v. Gambier, Prac. Reg. 199.

Precedents.

See form of precedent in debt against sheriff for an escape under a ca. sa., 2 Chit. Pl. 416; against marshal for an escape, where prisoner was committed in execution, ib., 419; against warden, where prisoner was removed by habeas corpus to the Fleet, and the original was in K. B., ib., 421; and the like where the original action was in C. P., and prisoner brought up before court, and recommitted, ib. 423. See various pleas and replications in debt, 3 Chit. Pl. 957 to 961-1170.

Evidence for Plaintiff.

Judgment in Original Action.] The plt. must prove the judgment whereon the ca. sa. issued; as to proof of which, see post, "Judgment." As to what a variance, ante, 485.

Issuing and Delivery of Writ.] In an action against the sheriff, this must be proved, and may be so by an examined copy of the writ, with the sheriff's return endorsed thereon, B. N. P. 66, 2 Phil. Ev. 231; Stark. Ev. 1346; though, where no return appears to have been made, and notice to produce the writ have been served, parol evidence of its contents will be admissible: Watson's Sheriff, 148; see ante, 486, as to variance.

The Arrest.] In an action against the sheriff, the arrest must be proved in the same manner as in escape on mesne process, ante, 482. If the sheriff has returned cepi corpus, it may be proved by an examined copy of the judgment, writ, and return; but, if no return has been made, the warrant to the bailiff, and the arrest by him, may be proved, Stark. Ev. 1346; and it must appear that the party arresting was empowered with authority so to do, Blatch v. Archer, Cowp. 65. But the arrest will be good, though the party making it be not seen by the deft.; nor is any exact distance prescribed: ib. Where the party to be arrested is already in custody of the sheriff, at the suit of another creditor, the mere delivery of the writ to the sheriff is sufficient evidence of an arrest: B. N. P. 66; Salk. 274. By 8 & 9 W. 3, c. 26, s. 9, "if any person, desiring to charge another with any action or execution, shall desire to be informed by the marshal of the K. B., or warden of the C. P., or his deputy, or by any other keeper or keepers of any other prison, whether such person be a prisoner in his custody or not, every such marshal, warden, or keeper, shall give a true note in writing thereof, to the person requesting the same, or his attorney, on demand; and, if such person be an actual prisoner in custody of such keeper, such note shall be taken as evidence of the fact: B. N. P. 68. If the deft. plead no escape, the fact of the arrest will be admitted: B. N. P. 67. Where a prisoner is in custody of the marshal, and is to be charged with a King's Bench execution, a rule is obtained from the marshal to acknowledge the deft. to be in his custody, and such acknowledgment is evidence of the arrest; and

so, if the prisoner is in custody of the warden of the Fleet, and [*488] is charged with a Common Pleas or Exchequer writ, a *habeas corpus is obtained, the return to which will be evidence of his being in custody: Stark. Ev. 1346; Pea. Ev. 422.

The Escape. The escape may be proved by persons who have seen the prisoner at large after the arrest, even for however short a time, and either before or after the return of the writ: Hawkins v. Plomer, 2 W. Bl. 1049: Balden v. Temple, Hob. 202; Platt v. Locke, Plowd. 35. The being out of the custody of the party arresting will be an escape, as where the bailiff of a liberty, after an arrest, removes the prisoner to the county gaol, situate out of the liberty, and delivers him into the custody of the sheriff, Boothman v. E. of Surrey, 2 T. R. 5; or, if the prisoner, previous to his being taken to prison, be allowed to go about to settle his affairs, though in the custody of a bailiff's follower, it will be an escape, Benton v. Sutton, as the prisoner is no longer in the custody of the party by whom payment of the debt might be enforced: ib. But the prisoner will not be deemed to be out of the custody of the sheriff, if he carry him to a lock-up house within his own bailiwick, and keep him there fourteen days before the return of the writ; and it will be no escape, though it might be otherwise, "if there were particular indulgence or