Geilles v Rigeway
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1682 |
| Date | 01 January 1682 |
| Court | Court of the King's Bench |
English Reports Citation: 79 E.R. 1159
King's Bench Division
[41] easter term, 36 Euz. geilles versus regeway. In debt for 3061. 6s. 8d. by William Geillies, against Thomas Rigeway Esquire late Sheriff of Devon ; for that whereas John Chaunder alias Chaundeler, was in execution with the said sheriff for the said sum, the said sheriff afterwards, to wit, the 10th day of December, 34 Eliz. at London, in such a parish and ward suffered him to escape, the said Rigeway then being Sheriff of Devon, and having him then in execution, &c. To which the defendant pleaded, how that he took him in execution by the jyoeess at Stockram in the county of Devon, as the plaintiff hath alledged, and there detained him in safe custody until the 8th day of December, 34 Eliz. at which day the said Chaundeler broke the prison, and escaped out of it contrary to the will of the said defendant, and that the defendant did freshly pursue him, and in this fresh pursuit did re-take him the llth day of December, then next ensuing at Stockram aforesaid, and detained him in execution for the said 3061. 6s. 8d. during the time of his office, and delivered him over to the new sheriff, &c. To which the plaintiff replyed by protestation, that he did not make fresh pursuit; and for plea saith, that after the going away of the said Chaundeler, and before his re-taking by the said defendant as aforesaid, the said Chaundeler for a whole day and night, to wit, at London, in the parish and ward aforesaid, was out of the view of the said defendant, &e, upon which it was demurred in law. And it was moved by Coke Attorney-General, that judgment ought to be given for the plaintiff; for, in as much as it was alledged, that he was out of the view of the sheriff for a day and a night together, there it shall be intended to be a default in the defendant in the making of his pursuit, and therefore chargeable to the plaintiff, and yet he agreed, that if the sheriff had made his pursuit freshly; although that at the turning of a lane, end of an house, or the like, the prisoner had been out of the view o! the sheriff for a small time, as until the sheriff cometh to his turning, end of the house, or the like, yet the sheriff may retake the prisoner, and he shall be yet said to be in execution to the party against his will, yet when he is for so long a time out of his view, it shall be otherwise, for the default which the law presumes to be in him ; and therefore in this case the action lies. To which it was answered by Popham, Gawdey and Clench, that if he makes fresh pursuit, so that it doth not appear fully that there was a default in the sheriff in his pursuit, although he were so long out of his view, yet he shall be said to bo in execution for the party against his will upon the re-taking of him : as if he be pursued to an house where he is kept for a long time, and the sheriff set a guard upon the house, and after this re-take him the next, or any other day without departing from thence, the sheriff' in such a case may re-take him upon his coming out of the house, and he shall be in execution to the party against his own will. 1160 GEILLES V. RIGEWAY POPHAM.42. And so in all like cases; as if he pursues him in the night, so ag he cannot see him, and yet by the tract of the horse, or enquiry he makes diligent pursuit to re-take him, so that it cannot appear that there was any negligence or default in him in making pursuit. And it is not the form of the pleading to alledge, that he pursued him freshly, arid had him always in his view until he re-took him, hut only that he pursued him freshly and took him in this fresh pursuit, without saying any thing that he was in his view, and therefore his being out of the view of the sheriff is not material in the case, but the fresh pursuit, and the taking of him in this pursuit. [42] Then Coke moved, that the bar was not good, because he doth not shew where he made the pursuit, so that he might agree to answer that which is alledged by the plaintiff, to wit, his...
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