Crompton v Ward
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 93 E.R. 615
COURTS OF CHANCERY, KING'S BENCH, COMMON PLEAS AND EXCHEQUER
crompton vers. wahd. Intr. de Hill. 4 Geo. Rot. 379. In case for an escape, qu. whether the sheriff may plead a rescue from his bailiff 1 and whether he must not aver that the prisoner waa not afterwards found in his 616 EASTER TERM, 7 GEO. 1 8TR1KOB, 430. bailiwick? A rescue of one brought out of gaol by habeas corpus between judgment and execution by any but common enemies will not excuse the sheriff. In case for the escape of Mary Oglethorpe, the declaration set forth, that Mich. 2 Geo. in C. B. the plaintiff recovered judgment against her for 2321. which coming into B. R. by writ of error, the writ was non pros and execution awarded, which judgment is still in force: that 12 June 2 Geo. the said Oglethorpe surrendered to the Fleet in discharge of her bail, from whence she was removed by hapeas corpus to Newgate una cum die et causa, &c. where the plaintiff intended to charge her in execution, but the defendants, Sheriff of Middlesex, voluntarily permitted her to escape. The defendants confess the said Oglethorpe in their custody, prout, &c. but say that 20 Junii a habeas corpus was delivered to them, requiring them to bring her to the Chief Justice's chamber, upon which they made a warrant to their bailiff commanding him to carry her and bring her safe back again, by virtue of which he took her out of Newgate, and in carrying her along she was rescued. The plaintiff demurs. And Mich. 5 Geo. Yorke pro quer' took three exceptions to the manner of pleading. 1. It is improperly pleaded : they should not have set forth the fact, bub the operation of law resulting from that fact; therefore pleading the rescue from the bailiff ia wrong ; it ought to have been as from the sheriff, for the law takes no notice of a bailiff or his acts. In Goalee's case, Hil. 2 G-eo. a rescue was returned on a bill [430] ol Middlesex in this form : that a capias ad satisfacieudum issued to the sheriff, who thereupon took the debtor, and the rescue was made of the prisoner under that arrest: exception was taken, that this return was only argumentative, because an escape of one in custody of the sheriff is an escape for all suits wherein he had process. The return indeed was held good, it being veritas facti, but the Court held it would have been otherwise in pleading. 2 Saund. 97. If one jointenant pleads that the other concaaait to him, it is ill; for it should have been pleaded as a release, that being the only proper conveyance between jointenants. 2 Vent. 149, 260, 266. 3 Lev. 290. That was pleaded as a grant, which could only enure as a covenant to stand seised, and the plea was held ill; for it ought to have been pleaded according to the effect of it in law. Salk. 8, 274. 2. The defendants ought to have averred, that she was not afterwards found in balliva sua. Dalt. 215, 216. Officina Brevium 203, 204, 217, 226. 3. The habeas corpus requires her to be brought sub salvo et securo conductu, but the defendants have not shewn that they complied with this direction ; as they ought to do, when they plead a rescue. As to the principal point, whether the rescue here pleaded be a sufficient excuse ; I must observe, that such returns have never been favoured, because there may be fraud and combination impossible to be discovered, and they infer a reflection upon the King, by supposing an unlawful force, as appears by Westm. 2, c. 39, which recites, that the sheriffs multotiens falsum dant responsura, mandando quod non potuerunt exequi praaceptum regis propter resistentiam: and concludes, caveant vicecomites de csetero, quod hujusmodi responsio redundat in dedecus domini regis et coronse susb. A returo of a rescue may discharge the sheriff against the King, but not against the party. Formerly such a return of a rescue upon mesne process was held not pleadable, because the sheriff might take sufficient power of the county. Cro. Eliz. 868. But since in the ease of May v. Proby, Cro. Jac. 419. 3 Bulst. 198. Moor 852. 1 Roll. Abr. 807, it has been resolved, that the arrest being on mesne process, and not upon execution, the sheriff is not bound to take the posse coraitatus, and therefore rescous is a good return : but if the prisoner had been once in the...
To continue reading
Request your trial
-
Nicholl v Darley, Esquire
...198. See also, Anon., Dyer, 241 ; Eobinxon v. Clayton, Cro. Car. 240 ; Gorgux v. Gam, 3 Lev. 40 ; Anon., 6 Mod. 141 ; Crumpton v. Ward, 1 Str/429; Rol. Abr. 807 ; 13ac. Abr. Execution, C. 3; Com. Dig. Escape, C. Viii. Abr. Escape, D.; Arch. Pract. 308; Tidd's Pnict. 1069, 976 KEMP V. SUMNER......
-
Jackson v Humphreys
...chambers of the Chief Justice by virtue of a habeas corpus, was rescued, and the sheriff was answerable for her escape, Grampian v. Wara, 1 Str. 429. The sheriff is not liable to answer for an escape from a special bailiff appointed by the plaintiff himself, De Morandu v. Dunkin, 4 T. E. 12......