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1797

desire of surrendering before they assigned, but the Plaintiff re-
fufed to accept.
ROOKE J. Of the fame opinion.

Rule absolute. (a)

TAYLOR

Shum and

Others.

BENTON V. SUTTON.

May 16th.

about with a follower of his

If a theriff's D EBT against the Defendant as sheriff of Surry, for an escape officer having of a prisoner in execution. This cafe came on to be tried taken a primer before Runnington Serjeant, fitting for Hotham Baron, at Kingpermit him to go fion Spring Allises 1797.

In a fuit, in which Benton was the Plaintifi, and one Evans before he takes the Defendant, a writ of capias ad jutisfaciendum, returnable on him to prison, it is an escape.

the 3d of November, was fued out on the ift of June against Qu. Whether it Evans, and delivered at the sheriff's oflice, and a warrant made would not have been an escape

out thereon to Donolly and Benton (the Plaintiff's father). Soon alfo, if the officer after a fimilar weit iflued againft Evans at the suit of one Tibcompanied him. bits, returnable on the 7th of November, and a warrant was made

out thereon to one Purkiss the theriff's officer: by virtue of which last writ Evans was arrested on the 27th of Setember, and carried to a lock-up house belonging to the officer. On the ad of O&ober he was permitted by Purkifs to go in company with one of his followers of the name of Isaacs, to his own house, for the purpose of settling his afleirs, and on the 3d was seen riding in St. George's Fields, in a chaise-cart, attended by the fame person. On these facts Runnington Serjeant, being of opinion that no escape had been made out, directed a nonfuit.

Shepherd Serjt. on this day fhewed cause against a rule obtained by Le Blanc Serjt., for setting aside the nonfuit and granting a new trial,

Shepherd. Evans was not arrefted under the writ at the suit of the Plaintiff, but under that at the fuit of Tibbits : a warrant was made out on the Plaintiff's writ, and put into the hands of Benton his father, with an injunction not to inforce it at that time: this laft fact came out upon the cross-examination. Though therefore the Plaintiff's capias al fatisfaciendum was lodged in the sheriff's office in the month of June, and Evans might consequently be confidered in execution at the fuit of both, and fo the present Plaintiff might maintain an action for an escape, yet the fact to

(a) Vide Peake's N. P. 238. Bourdillon v. Dalton and Others.

1797

BENTON

SUTION,

which I have alluded would be a sufficient answer, and though not mentioned in Mr. Serjt. Runnington's notes, might perhaps fave expence, if allowed to be proved now.

EYRE Ch. J. I fee no great force in that fact. When the Plaintiff first took out the warrant, he might not intend it to be executed; but on Evans being arrested at the suit of another, he might then intend it to be enforced. Evans being once in execution under other process, it would be very difficult to difcharge him from any writ in the office.

Shepherd. The law acknowledges but two kinds of custody. Cuftody of the gaol, and custody of the officer. When Evans was arrested he was taken to the house of the officer, not to the county gaol: and the supposed escape was his going with a ferFant of the officer to his own house, for about an hour. Now the cases on this point are, where the party had once been in gaol: as Balden v. Temple, Hob. 202. Platt v. Lock, Plovd. 35. So the case of Sir Miles Hobart and William Stroud, Cro. Car. 209. was decided on the ground of their having once been within the limits of the Gate-house Prison. For if a party has once been in gaol, he can never quit it without an escape in the sheriff. I admit that if Evans had ever been at large this would have been an escape: but the question is, whether he can be consi-dered as ever having been at large, when attended by a bailiff's ferrant. I contend that the bailiff had him always (if I may use the expreffion) in his manual poffeffion. It has never been held that an officer is bound to take a party to prison before the return of the writ; but he must keep him in fafe custody: while he is with the officer he is in safe cuftody, whether he be in the house, the street, or elsewhere. This is not like the case of Hackins v. Plomer, 2 Black. 1048. For there the pritoner was liated to be at large, and that means out of the custody of the officer, not merely out of the officer's house. Here there was no escape from gaol, for the prisoner was never there; and no escape from the officer, for the prisoner was as much in his custody at the time of the fuppofed efcape, as when he was in his houfe.

Le Blanc contrà. It is admitted that if Evans had gone alone, it would have been an escape; therefore it is admitted that an escape may as well take place before the return of the writ as afterwards. Put the case thus: May a sheriff's officer allow a prisoner to be at any time in any place, before the return of the writ, provided there be fome person appointed by the officer with him? If the Court allow this, they must say, that if the sheriff were to send

the

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1797.

BENTON

SUTTON.

the prisoner's father, or brother, or any other person, with him,
that would be arcia custodia. The distinction is between execu-
tion, and mesne process (a). On the latter, the sheriff may let
the prisoner go upon his honour or promise, and is not liable to
be punished, provided he have him at the return of the writ.
But with respect to the former, it is different; there if the bailiff*
voluntarily permit the prisoner to go at large, though only for a
minute, he cannot afterwards retake him. Atkinfon v. Mattifon,
2 T. R. 176. The writ of capias ad fatisfaciendum having a return
day as well as mesne process, the only distinction between them
would be destroyed, if a continued custody of the prisoner were
not inforced, for the purpose of making satisfaction to the Plain-
tiff by the duress of imprisonment. The confinement of the De-
fendant's person is the only means of compelling payment of the
debt; it is not therefore a sufficient custody, if the prisoner be
permitted to go about with the officer, Hob. 292. (6) much less
with a servant of the officer, Plowd. 35. Ifthe duress of imprison-
ment be relaxed more than is necessary to carry the writ into
execution in a convenient time and manner, I contend that it is
an escape. In Bl. 1048. the prisoner was never committed to gaol;
and the principal question was, whether there could be an escape
out of execution before the return of the writ; and it was held
there might. The house of the officer is the gaol, so long as he
keeps the prisoner there. For whatever place is necessary to secure
the prisoner, is for that purpose a gaol. In process of execution
the sheriff is liable in case of rescue, even before the prisoner is
carried to gaol. For it is said in Sir Thomas Jones, 197. “that the
“ custody of the bailiff is the custody of the sheriff; and if a pri-
“ foner be rescued out of the custody of the bailiff, the sheriff
“ should return it as a rescue out of his own custody.” So that the
only question is, whether Evans was at large or not, when the ser-
vant of the officer, having the warrant in his poffeffion, was with
him. But the bailiff cannot give authority under the warrant to
his servant; for the warrant is directed to a particular person.
Either caption or recaption must be in the legal presence of the
bailiff. It has been determined in several cases, and the rule of law
is perfectly clear, that he may allow another to lay hold of a party
in his presence, but not out of it. For there is no such thing as
an absolute delegation of his authority to a third person. Here
then Erans was not in legal custody; and if he had attempted an
escape, the follower could not legally have refifted him. One who

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1797.

BENTON

SUTTON,

has no authority to arrest a person in the first instance, can have no authority to detain him in custody.

EYRE Ch. J. The cases go no further than to say, that it is an escape in the sheriff where the prisoner is at large ; what thall be deemed being at large, and therefore an escape, may be difficult to ascertain; and whether in this particular case the indulgence shewn to the prisoner will be an escape, may admit of conbiderable doubt. But one part of the argument struck me as very difficult to be answered, namely, that Evans was in no cuftody at all, under the circumstances of this case. The custody of the follower, after the writ once executed, amounted to nothing; he could have no power to detain the prisoner if he had chosen to escape, and the warrant would have been no justification to him, if any mischief had happened; which reduces the case to this point, that the prisoner was found abfolutely at large. On this narrow ground, I am prepared to say that the nonfuit was wrong. On the general one, I think it would require some consideration. C'ndoubtedly the effect of process of execution is to operate immediately by the duress of imprisonment; and cases may be put, where, if the officer attempted to justify any length of indulgence, under colour of the prisoner being always in his presence, the Court would say that it was an escape. Suppose the officer wore the livery of the prisoner, and rode with him to a horse-race, this would be contrary to the exigency of the writ. Whether any diftinction can be safely drawn between this last strong case, and the laudable and compassionate one, of accompanying the prisoner to his house, for the purpose of enabling him to examine his books, and settle the means of discharging his debt, I should have considerable doubt. On the narrow ground, however, it is clear that the prisoner was not in legal custody.

BULLER J. I am perfectly satisfied that the nonfuit waswrong. What my Lord has dropped is extremely correct, and I agree in the inftance which he has put, that if the prisoner had gone to a horse-race attended by a bailiff, it would have been an escape: and I think that no diftinction can be made between such a case as this, and one which originates in more laudable motives. Wherever the prisoner in execution is in a different cuftody from that which is likely to inforce payment of the debt, it is an escape. It has been asked whether an action on the case would liefor notarresting on the earliest opportunity. I have no doubt but that it would ; but the damages must depend on the particular circumstances. Let

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1797.

BENTON

SUTTON.

us put a case. The last day of last Trinity term was the 15th of June. Suppose a capias ad fatisfaciendum to have issued on that day, and proof that the officer to whom the warrant was directed was in company with the person named in the writ on the 16th, and that he omitted to arreft him: on the 4th of November he does arreit him, and on the 6th brings the body into court: if on the 16th of June, when the oflicer was in company with the prisoner, he was in good circumstances, and between that day and the 4th of November he has become a bankrupt, the Plaintiff may say to the officer, I have lost my debt by your not putting the party in reftraint sooner, I have sustained damages, and am entitled to recover them by an action. When a prisoner is removed by habcas corpus, if the officer carry him out of the direct road, it is an escape. The case in Blackstone's Reports pretty well establishes the proposition, that there may equally be an escape, whether the party has been committed to gaol or not. In this case what was done by the follower or officer (if an officer he can be called) was not done in execution of the writ. He took the prisoner from the bailiff's house to his own, and for what purpose fignifies nothing; he might as well have carried him to a horse-race.

HEATH J. What is said in Hobart 202. (a) is very material. The rule seems to be that a party must be taken to prison in a convenient time. What is convenient is a question for the determination of the judge, who will admit of all reasonable delay : but if that be made use of by the officer, as a means of giving more liberty than he ought, he will be liable for an escape. (b) .

ROOKE J. I think the nonfuit wrong, on the ground which my Lord has stated, that the prisoner was not in legal custody. I thall give no opinion on the general ground: I have no doubt, however, that where a party has been really injured by the sheriff's neglecting to arrest on the earliest opportunity, an action will lie for the injury sustained,

Rule absolute. (c)

(a) In Balden v. Temple Lord Hobart says," Let keepers of prisons beware when " they receive an habeas corpus from “ Chancery, or any o her cour:, bearing u teite in the end of a term, to have the

body of one in execution in the court " the nex* tern, that they do not, by « colour of such writs, suffer the party to “ go at large all the mean time (as it is u sometimes practicd); for the writ war

rants no more, but that he he brought

out of prison only for that purpose, and " only for so much time as in judgment of “ law fall be convenient and necessary “ for the execution of the writ, and no “ more : which in privilegiis adverfis must

ever be strict."
(6) Vide Cro. Cor. 14.
(c) Vide Rofe v. Green, 1 Burr. 437.

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