ESCAPE. 
9 
the party get free, the officer cannot be charged with an 
efcape. But if A. is arrefted, and in the aClual cuftody 
of the flieriff, and afterwards another writ is delivered to 
him at the fait of J. S. upon the delivery of the writ, 
A. by conftruCtion of law, is immediately in the ffieriff’s 
cuftody, without an aClual arreft; and if he efcapes, the 
plaintiff may declare that he was arrefted by virtue of the 
i'econd writ, which is the operation it has by law, and not 
according to the faCt. 5 Co. 89. But where the Iheriff, 
not having actually arrefted a defendant, but accepted 
the undertaking of an attorney to put in bail, who put in 
bail, and the Iheriff had returned a cepi corpus, held per 
lord Mansfield at Surrey affizes, fummer 1775, in Hodgfon 
and Akerman, efq. that the Iheriff was not liable, upon a 
writ of non ejl inventus, on another procefs, to arffcaftion, 
either for an efcape or a falfe return, or for negligence in 
not taking the defendant, no actual negligence being 
proved ; and the plaintiff was nonfuited. 
If a perfon out upon bail renders himfelf in difeharge 
of his bail, a'nd a reddiditJc is entered in the judge’s book, 
and a committitur filed in the office, and the prifoner after¬ 
wards efcapes; yet if no notice was given to the marflial 
of fuch render, nor no entry made of the commitment in 
his book, the prifoner (hall not be deemed in cuftody fo 
as to charge the marfhal with an efcape ; but it feems 
this mutter cannot be inlifted upon after trial. 1 Salk. 272. 
But for the greater fecurity of creditors, and the better 
to enable them to prove tire actual cuftody of the pri¬ 
foner, it is enaCted, by flat. 8 and 9 Will. III. c. 27. 
“ That if any one, defiring to charge any perfon with any 
aCtion or execution, ftiall defire to be informed by the 
marflial or warden, or their refpeCtive deputies, or by any 
other keeper of any other prifon, whether fuch perfon be 
a prifoner in his cuftody, or not, the faid marfhal or war¬ 
den, or fuch other keeper, (hall give a true note in writ¬ 
ing thereof, to the perfon fo requefting the fame, or to 
his lawful attorney, upon demand, at his office for that 
purpofe, or, in default thereof, ffiall forfeit the fum of 
50I. and if fuch marflial or warden, or their refpeCtive 
deputy, exercifing the faid office, or other keeper, &c. 
of any other prifon, (hall give a note in writing that fuch 
perfon is an aCtual prifoner in his or their cuftody, every 
fuch note ftiall be taken as a fufficient evidence, that fuch 
perfon was at that time a prifoner in aCtual cuftody.” 
Every perfon in prifon by procefs of law is to be kept 
in falva & arEla cujlodia, in order to compel them the more 
fpeedily to pay their debts, and make fatisfaCtion to their 
creditors. If therefore a defendant being taken in exe¬ 
cution, be afterwards feen at large, for any the ffiorteft 
time, even before the return of the writ, this is an efcape. 
2 Bl. Rep. 1048. 
Perfons in the King’s-bench and Fleet prifons are to 
be actually detained within the faid prifons; and if they 
efcape, aClion of debt lies againft the warden. 1 Rich. II. 
c. 12. But now the marflial or warden grant the liberty 
of the rules to fuch as they think proper, (not criminally 
charged,) on proper fecurity. Keepers of thofe prifons 
fuffering prifoners either upon contempt or mefne pro¬ 
cefs, or in execution, to be out of the rulCs, (except on 
rule of court, See.) are guilty of an efcape; and perfons 
conniving at an efcape ftiall forfeit 500I. by 8 & 9 Will. III. 
c. 27. And by this ftatute, where any prifoner in execu¬ 
tion efcapes, the creditor may have any other new exe¬ 
cution againft him. 
If the bailiff of a liberty, who has the return and exe¬ 
cution of writs, remove a prifoner taken in execution to 
the county gaol, fituated out of the liberty , and there deli¬ 
ver him into the cuftody of the flieriff, this is an efcape 
for which an aCtion of debt lies. 2 Term Rep. 5. 
In ftriCt law, if a man hath judgment againft two per¬ 
fons, and both are taken in execution, if the flieriff fuffer 
one of them to efcape, he ftiall be anfwerable for the 
whole debt, though he hath one of them ftill in cuftody. 
1 Rol. Abr. 810. But in an aCtion on the cafe, tried before 
lord Mansfield, in Surrey, for an efcape of one of two de- 
Vol. VII. No. 403. 
fendants, under very favourable circumftances for the 
officer, his lordftiip left it to the jury, whether they 
would find the whole of plaintiff’s debt, in damages, or 
only half, and the. jury found only half. 
By flat. 8 and 9 Will. III. c. 27. it is enaCted, t( That 
if the marflial or warden for the time being, or their 
refpeCtive deputy or deputies, or other keeper or keepers 
of any other prifon or prifons, ffiall, after one day’s no¬ 
tice in writing given for that purpofe, refufe to fliew 
any prifoner committed in execution to the creditor, at 
whofe fuit fuch prifoner was committed or charged, or 
to his attorney, every fuch refufal ffiall be adjudged to 
be an efcape in law.” 
In civil aiStions the flieriff is to anfwer for the efcape 
of his bailiff, as the bailiff is for that of his fervant; and 
aCtion on the cafe lies againft the flieriff' for an efcape upon 
mefne procefs, becaufe the plaintiff is prejudiced in his 
fuit by it. See Bull. Ni. Pri. 59. Where a perfon is in 
cuftody on mefne procefs, and being outlawed after judg¬ 
ment at the fuit of another, the judgment creditor brings 
a warrant on a capias utlagatum, and delivers it to the ffie- 
riff’s officer, who hath him in cuftody; if the officer af¬ 
terwards permits the perfon to efcape, though he refufe 
to execute the warrant, the flieriff is chargeable in aCtion 
on the cafe. 5 Rep. 89. 
If the marflial of the King’s-bench, or warden of the 
Fleet, or any other who hath the keeping of prifons in 
fee, fuffer a voluntary efcape, it is a forfeiture of the of¬ 
fice. 3 Mod. 146. And there is likevvife a farther penalty 
of 500I. added by 8 and 9 Will. III. c. 27. 
There is this difference between an efcape on mefne 
procefs, and execution; if the flieriff arreft a perfon on 
mefne procefs, and he is refeued by J. S. he may return 
the refeue, and fuch return is good, and no action of 
efcape lies againft him after fuch return ; but the court 
will iffue procefs againft fuch refeuer, or fine him ; for 
in this cafe, though the flieriff may, yet he is not obliged, 
to raife the pojfe comitatus. 1 Rol. Abr. 807. But after judg¬ 
ment on a capias adfatisfaciendum, the flieriff cannot return 
a refeue, for in fuch cafe the flieriff is obliged to raife 
the pojfe comitatus, if needful, and therefore, if he return 
a refeue, an action of efcape lies, or a new capias-, for 
the return of an ineffectual execution is as none. See 
Buller’s Ni. Pri. 60. 
It is ufual, on an efcape on mefne procefs, to declare 
againft the flieriff, &c. in cafe: on execution, in debt. 
The diftinCtion feems now to be thus fettled : I-f a flieriff 
or gaoler fuffers a prifoner, who is taken upon mefne pro¬ 
cefs, to efcape, he is liable to an aCtion on the cafe. Cro. 
Eliz. 625. But if, after judgment, a gaoler or fheriff 
permits a debtor to efcape who is charged in execution 
for a certain fum, the debt immediately becomes his own, 
and he is compellable by aCtion of debt, being for a fum 
liquidated and afeertained, to fatisfy the creditor his 
whole demand. 2 Injl. 382. In debt againft the fheriff or 
gaoler for an efcape, the jury cannot give a lefs fum than 
a creditor would have recovered againft the prifoner, viz. 
the fum indorfed on the writ, and the legal fees of exe¬ 
cution. zTerm. Rep. 126. 
By the ftatute 8 and 9 Will. III. c. 27. it is enacted, 
“ That it ffiall be lawful for any perfon, having caufe of 
aCtion againft the warden of the Fleet prifon, upon bill 
filed in the courts of common pleas or exchequer againft 
the warden, and a rule being given to plead thereto, to be 
out eight days at hioft after filing fuch bill, to fign judg¬ 
ment againft the warden, uplefs he plead to the bill within 
three days after fuch rule is out.” 
If the prifon takes fire, by means whereof the prifoners 
efcape, this ffiall excufe the flieriff. So if the prifon is 
broke by the king’s enemies, this ftiall excufe the flieriff, 
for he can have no remedy againft them. 1 Rol. Abr. 80S. 
But if the prifon was broke by rebels and traitors, the 
king’s fubjeCts, this ftiall not excufe him, for he may 
have his remedy againft thefe. When a prifoner tortioufly 
efcapes from the cuftody of the gaoler, he may be re- 
D taken j 
