1823.

IBBOTSON

TYNDALL.

fendant was already in custody at the suit of the Crown: and although he might have been discharged from the extent, still that the sheriff was bound to keep him in custody at the suit of the plaintiff; and the only effect of the amendment was to exonerate the sheriff, who had not only made an improper return to the writ, but allowed the defendant to escape, through the negli gence of one of his officers.-An attachment was accordingly issued against the sheriff for not bringing in the body of the defendant, after a rule had been served on him for that purpose.

Under these circumstances, the learned Serjeant contended, that the attachment could not be supported; as the defendant being in custody at the time the plaintiff's capias issued, it might not have been founded on a bona fide debt, nor to the amount for which it was sued out at all events, the sheriff was deprived of any remedy he might otherwise have had, by taking a bail-bond as a security. Besides, if the attachment should be allowed to stand, the sheriff would be liable to pay the plaintiff the full amount of the debt and costs, without even having an opportunity of inquiring into the nature of his demand on the defendant. In the last Term a question arising out of the same circumstances as the present, came on before the Court of King's Bench, who excused the sheriff from returning the writ, on his acknowledging that the defendant was once in his custody, but that he was now at large; and they left the plaintiff to his remedy by an action for an escape.

Mr. Serjeant Pell now shewed cause, and submitted, that the attachment had been regularly issued, as the sheriff was bound to bring in the body of the defendant; and as the rule which had been regularly served on him for that purpose, had never been discharged, but still continued in full force; and that as the under-sheriff had caused an improper return to be made in the first instances

which the Court would not allow to be amended, that the sheriff' stood in the same situation as he was placed before that amendment was prayed. He observed, that the present motion to set aside the attachment, was founded on an affidavit of the under-sheriff alone; and that the gaoler and his deputy were altogether silent as to the nature of the escape of the defendant, and in what manner it was effected.

Mr. Serjeant Vaughan, in support of the rule, contended, that as the defendant was actually in custody under the extent, at the time the sheriff received the plaintiff's writ, it merely operated as a detainer; and the sheriff returned in terms, that he had him in custody. Besides, he was deprived of the benefit of taking a bailbond. At all events, the plaintiff's only remedy against the sheriff is by an action for an escape; for in the case of Ex parte the Sheriff of Worcestershire, in a cause of Barber v. Tyndall (a), the Court of King's Bench, in the last Term, excused the sheriff from returning the writ, on an acknowledgment that he had the defendant once in his custody, and that he was then at large. Here, the sheriff has been guilty of no misconduct; and as the defendant escaped through the inere

(a) M. T. 3 Gen 4.—Mr. Campbell obtained a rule, calling on the plaintiff to shew cause why the sheriff should not be excused from returning the writ in this cause, on his acknowledging that the defendant was once in his custody, but that he had lost the writ, and that the defendant was then at large. It appeared, that on his being brought before Mr. Baron Wood, he ordered him to be discharged out of custody as to the extent; and that the undersheriff hack appended all the writs and detainers which he held against the defendant to the return of the writ of habeas, under which he was brought up; and that the turnkey, on such order being made, allowed him to go at large.

Mr. Alderson shewed cause, and submitted that the Court could not deprive the plaintiff of his remedy against the sheriff; and they ordered that the sheriff should acknowledge that the defendant was once in his custody, but that he was then at large; as that would meet the justice of the case, and leave the plaintiff to his action for an escape.

1823.

IBBOTSON'

V.

TYNDALL.

1823.

IBBOTSON

V.

TYNDALL.

ignorance of the gaoler or his deputy, the plaintiff's only remedy is by an action for an escape. As to the gaoler or turnkey's having made no affidavit as to the nature or circumstances under which the defendant was allowed to go at large; if they had done so, they might have criminated themselves, and the sheriff would have been entitled to proceed against them for their negligence. At all events, if the attachment is allowed to stand, the plaintiff would be entitled to recover from the sheriff the full amount of his claim on the defendant without any further inquiry or investigation; which would not be only a hardship upon him, but altogether unjust.

Lord Chief Justice DALLAS.-The defendant being in the custody of the sheriff under an extent in aid, a writ of habeas corpus was issued out of the Court of Exchequer to bring him up before one of the Barons of that Court. It was the duty of the sheriff to keep him in safe custody, either by himself or his officers; and he is responsible for their negligence or misconduct. It appears that the defendant was not only in custody under the extent, but at the suit of the plaintiff, by virtue of a capias, delivered to the sheriff whilst he was in such custody; therefore, the gaoler, or person entrusted by him, should not have allowed him to go out of custody, on his being merely discharged from the extent. Besides, neither of these persons have made any affidavit as to the circumstances under which he was suffered to go at large. Under these circumstances, I think the sheriff is responsible; and more particularly so, as neither of his officers or servants entrusted by him have shewn how the escape took place, or even that they had endeavoured to re-take the defendant. This case is distinguishable from that in the Court of King's Bench; as the motion there was founded on a different ground, viz. that the sheriff should be excused from returning the writ, and the Court made a rule accordingly.

Mr. Justice PARK concurred.

Mr. Justice BURROUGH.-I am clearly of opinion, that we ought not to interfere to assist the sheriff under the circumstances which have been disclosed to us: the gaoler or turnkey must be considered as his servants; and they have given no account whatever as to the nature of the defendant's escape. If the return had been amended as prayed for in the last Term, it would have been bad, and might have been quashed on motion. The plaintiff had a right to have the body of his debtor; and although it has been said that the sheriff was deprived of the benefit of taking a bail-bond, yet the friends of the defendant might have come forward, in case bail had been required; but it does not appear that any attempt was made on the part of the sheriff to put in bail: and if we were to leave the plaintiff to his remedy by an action for an escape, it would be not only unreasonable but unjust. This rule, therefore, must be

Discharged with costs.

1823.

IBBOTSON

v.

TYNDALL.

OFFLEY and others v. WEAVER.

MR. Serjeant Hullock, on a former day in this Term, obtained a rule nisi, that the Prothonotary might review his taxation of costs in this cause, and that the plaintiffs should refund and pay to the defendant, or his attorney, what sum, on such review, should be found to have been overpaid; and that the plaintiffs, or their attornies, should pay the defendant his costs occasioned by this application. He founded his motion on affidavits, which stated, that the defendant was arrested on the 13th November last, under a capias ad respondendum, issued out

Friday, Feb. 7th.

Where a debeing arrested, deposited the

fendant on

amount of the

debt, together

with 107. for

costs, with the officer, who

four days afterwards informed the plaintiffs' attorney of the and the under

circumstance,

sheriff afterwards wrote

him that the deposit had been made; notwithstanding which, the sheriff was ruled to return the writ, and a declaration was filed, and notice thereof served on the defendant;-Held that the plaintiff was entitled to the costs of those proceedings; as it was the duty of the sheriff to have paid the sum deposited into Court at or before the return of the writ, and which he had omitted to do.. VOL. VII.

20

1823.

OFFLEY

V.

WEAVER.

of this Court at the suit of the plaintiffs for 261., returnable in eight days of St. Martin, in the last Michaelmas Term, which sum the defendant's attorney immediately paid to the sheriff's officer, together with 107. for the costs; and at the same time instructed the officer to deposit the same immediately in the hands of the undersheriff, and request him to write immediately to the plaintiff's attornies for the amount of the debt and costs, in order that the same might be remitted them forthwith. That the defendant's attorney wrote them on the 17th, and informed them that he had paid the officer 267. for the debt, and 10l. to cover the costs in this action; and that the officer informed the plaintiff's attornies of having received those sums on the same day; and that on the following day the under-sheriff wrote to them, and stated that the defendant had deposited the sum of 361. in his hands, and requested them to send him an account of the debt and costs. They, however, on the 19th ruled the sheriff to return the writ, filed a declaration on the 21st, and caused a notice thereof to be served on the defendant, by which costs were incurred, amounting in the whole to 117. which the Prothonotary had allowed on taxation, a summons having been previously taken out by the defendant to stay proceedings, on payment of the debt and costs of the action.

Mr. Serjeant Pell now shewed cause, and submitted that the plaintiffs' attornies were perfectly justified in ruling the sheriff to return the writ, and filing a declaration, as the under-sheriff did not state the money to have been paid into his hands under the 43 Geo. 3, c. 46, s. 2; or that, at all events, it should have been paid into Court before or at the return of the writ, as required by that statute. Besides, the costs had been allowed by the Prothonotary; and he had a right to exercise a discretion, not only as to whether they were properly charged, but whether they had been legally incurred.