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1797.

TAYLOR

บ.

SHUM and

Others.

May 16th.

defire of furrendering before they affigned, but the Plaintiff refufed to accept.

ROOKE J. Of the fame opinion.

Rule abfolute. (a)

BENTON V. SUTTON.

DE
EBT against the Defendant as fheriff of Surry, for an efcape
of a prifoner in execution. This cafe came on to be tried
before Runnington Serjeant, fitting for Hotham Baron, at King-
fton Spring Aflifes 1797.

If a sheriff's

officer having taken a prifoner in execution,

permit him to go

about with a follower of his

before he takes

him to prifon, it is an efcape.

In a fuit, in which Benton was the Plaintiff, and one Evans the Defendant, a writ of capias ad fatisfaciendum, returnable on the 3d of November, was fued out on the 1ft of June against Qu. Whether it Evans, and delivered at the fheriff's office, 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 writ iffued againft Evans at the fuit of one Tib-

himself had ac

companied him.

bits, returnable on the 7th of November, and a warrant was made out thereon to one Purkifs the theriff's officer: by virtue of which laft writ Evans was arrefied on the 27th of September, and carried to a lock-up houfe belonging to the officer. On the 2d of October he was permitted by Purkifs to go in company with one of his followers of the name of Ifaacs, to his own houfe, for the purpose of fettling his affairs, and on the 3d was feen riding in St. George's Fields, in a chaife-cart, attended by the fame perfon. On thefe facts Runnington Serjcant, being of opinion that no escape had been made out, directed a nonfuit.

Shepherd Serjt. on this day fhewed caufe against a rule obtained by Le Blanc Serjt., for fetting afide the nonfuit and granting a new trial.

Shepherd. Evans was not arrefted under the writ at the fuit 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 ad fatisfaciendum was lodged in the sheriff's office in the month of June, and Evans might confequently be confidered in execution at the fuit of both, and fo the prefent Plaintiff might maintain an action for an escape, yet the fact to

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

which

which I have alluded would be a fufficient anfwer, 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 arrefted at the fuit of another, he might then intend it to be enforced. Erans being once in execution under other procefs, it would be very difficult to difcharge him from any writ in the office.

Shepherd. The law acknowledges but two kinds of cuftody. Cuftody of the gaol, and cuftody of the officer. When Evans was arrested he was taken to the house of the officer, not to the county gaol: and the fuppofed efcape was his going with a fervant of the officer to his own house, for about an hour. Now the cafes on this point are, where the party had once been in gaol: as Balden v. Temple, Hob. 202. Platt v. Lock, Plowed. 35. So the cafe 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-houfe Prifon. For if a party has once been in gaol, he can never quit it without an escape in the fheriff. I admit that if Evans had ever been at large this would have been an escape: but the queftion is, whether he can be confidered as ever having been at large, when attended by a bailiff's fervant. I contend that the bailiff had him always (if I may ufe the expreffion) in his manual poffeffion. It has never been held that an officer is bound to take a party to prifon before the return of the writ; but he must keep him in fafe cuftody: while he is with the officer he is in fafe cuftody, whether he be in the houfe, the street, or elsewhere. This is not like the cafe of Harkins v. Plomer, 2 Black. 1048. For there the prifoner was ftated to be at large, and that means out of the cuftody of the officer, not merely out of the officer's houfe. Here there was no efcape from gaol, for the prifoner was never there; and no efcape from the officer, for the prifoner was as much in his cuftody at the time of the fuppofed escape, 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 efcape may as well take place before the return of the writ as afterwards. Put the cafe thus: May a fheriff's officer allow aprifoner to be at any time in any place, before the return of the writ, provided there be fome perfon appointed by the officer with him? If the Court allow this, they muft fay, that if the fheriff were to fend the

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1797.

BENTON

V.

SUTTON.

the prisoner's father, or brother, or any other perfon, with him, that would be arcta cuftodia. The diftinction is between execution, and mefne procefs (a). On the latter, the sheriff may let the prifoner 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 refpect to the former, it is different; there if the bailiff voluntarily permit the prifoner 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 mefne procefs, the only diftinction between them would be deftroyed, if a continued cuftody of the prifoner were not inforced, for the purpofe of making fatisfaction to the Plaintiff by the durefs of imprisonment. The confinement of the Defendant's perfon is the only means of compelling payment of the debt; it is not therefore a fufficient cuftody, if the prifoner be permitted to go about with the officer, Hob. 292. (b) much less with a fervant of the officer, Plowd. 35. If the durefs of imprisonment be relaxed more than is neceffary to carry the writ into execution in a convenient time and manner, I contend that it is an efcape. In Bl. 1048. the prifoner was never committed to gaol; and the principal queftion 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, fo long as he keeps the prifoner there. For whatever place is necessary to fecure the prifoner, is for that purpose a gaol. In process of execution the fheriff is liable in cafe of refcue, even before the prifoner is carried to gaol. For it is faid in Sir Thomas Jones, 197. "that the

cuftody of the bailiff is the cuftody of the fheriff; and if a pri"foner be refcued out of the cuftody of the bailiff, the fheriff "fhould return it as a refcue out of his own cuftody." So that the only queftion is, whether Evans was at large or not, when the servant of the officer, having the warrant in his poffeffion, was with him. But the bailiff cannot give authority under the warrant to his fervant; for the warrant is directed to a particular perfon. Either caption or recaption must be in the legal prefence of the bailiff. It has been determined in feveral cafes, and the rule of law is perfectly clear, that he may allow another to lay hold of a party in his prefence, but not out of it. For there is no fuch thing as an abfolute delegation of his authority to a third perfon. Here then Evans was not in legal cuftody; and if he had attempted an efcape, the follower could not legally have refifted him. One who

66

(a) Plank v. Anderfon and Another, 5 T.R. 37.
(6) Vid. etiam Boyton's Cafe, 3 Co. 44. a.

'has

has no authority to arreft a perfon in the first inftance, can have no authority to detain him in cuftody.

EYRE Ch. J. The cafes go no further than to fay, that it is an efcape in the fheriff where the prifoner is at large; what fhall be deemed being at large, and therefore an efcape, may be difficult to afcertain; and whether in this particular cafe the indulgence fhewn to the prifoner will be an escape, may admit of confiderable doubt. But one part of the argument ftruck me as very difficult to be anfwered, namely, that Evans was in no cuftody at all, under the circumftances of this cafe. The cuftody of the follower, after the writ once executed, amounted to nothing; he could have no power to detain the prifoner if he had chofen to efcape, and the warrant would have been no juftification to him, if any mifchief had happened; which reduces the cafe 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 fome confideration. Undoubtedly the effect of procefs of execution is to operate immediately by the durefs of imprisonment; and cafes may be put, where, if the officer attempted to juftify any length of indulgence, under colour of the prisoner being always in his prefence, the Court would fay that it was an escape. Suppose the officer wore the livery of the prifoner, and rode with him to a horfe-race, this would be contrary to the exigency of the writ. Whether any diftinction can be fafely drawn between this laft strong cafe, and the laudable and compaffionate one, of accompanying the prifoner to his house, for the purpose of enabling him to examine his books, and fettle the means of difcharging his debt, I should have confiderable doubt. On the narrow ground, however, it is clear that the prifoner was not in legal cuftody.

BULLER J. I am perfectly fatisfied that the nonfuit was wrong. What my Lord has dropped is extremely correct, and I agree in the inftance which he has put, that if the prifoner had gone to a horfe-race attended by a bailiff, it would have been an escape: and I think that no diftinction can be made between fuch a cafe as this, and one which originates in more laudable motives. Wherever the prifoner 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 cafe would lie for not arrefting on the earliest opportunity. I have no doubt but that it would; but the damages muft depend on the particular circumftances. Let

us

1797.

BENTON

ย.

SUTTON.

1797.

BENTON

V.

SUTTON.

us put a cafe. The laft day of laft Trinity term was the 15th of June. Suppofe a capias ad fatisfaciendum to have iffued on that day, and proof that the officer to whom the warrant was directed was in company with the perfon named in the writ on the 16th, and that he omitted to arreft him: on the 4th of November he does arreft him, and on the 6th brings the body into court: if on the 16th of June, when the officer was in company with the prifoner, he was in good circumftances, and between that day and the 4th of November he has become a bankrupt, the Plaintiff may fay to the officer, I have loft my debt by your not putting the party in reftraint fooner, I have fustained damages, and am entitled to recover them by an action. When a prifoner is removed by habeas corpus, if the officer carry him out of the direct road, it is an efcape. The cafe in Blackstone's Reports pretty well establishes the propofition, that there may equally be an efcape, whether the party has been committed to gaol or not. In this cafe 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 prifoner from the bailiff's houfe to his own, and for what purpose fignifics nothing; he might as well have carried him to a horfe-race.

HEATH J. What is faid in Hobart 202. (a) is very material. The rule feems to be that a party must be taken to prifon in a convenient time. What is convenient is a queftion for the determination of the judge, who will admit of all reasonable delay : but if that be made ufe 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 ftated, that the prifoner was not in legal cuftody. I shall give no opinion on the general ground: I have no doubt, however, that where a party has been really injured by the fheriff's neglecting to arreft on the earliest opportunity, an action will lie for the injury fuftained.

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