James v Peirce
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1726 |
| Date | 01 January 1726 |
| Court | Court of the King's Bench |
English Reports Citation: 86 E.R. 180
IN THE KING'S BENCH, EXCHEQUER, COURT OF CHANCERY
james versus peirge. Anted 4. 1 Mod. 194. 2 Mod. 136. 3 Keb. 453, 463. 2 Lev. 132. Fide ib. 109. 3 Salk. 159, &c. infra. In an action of debt for an escape, upon nil debet, a special verdict was found to this effect, (viz.) that the plaintiff recovered 7001. debt against J. S. who was thereupon committed in execution to the Fleet, and afterwards the warden permitted him to make a voluntary escape, after which he returned again to the Fleet, and the defendant was made warden in the place of the other, and J. S. being then in the Fleet, was turned over with the other prisoners, and afterwards suffered to escape. So that the question was, whether he were so in execution upon his return, aa the escape in the now warden's time should intitle the plaintiff to the action 1 It was principally insisted on against the action, that there being once an escape, the party could riot be in execution again without new process. Hale said formerly it was held, even in the case of a permissive escape, that if the party were taken again, he might discharge himself by audita querela, and that he might not be retaken unless in case of a voluntary escape ; but there the remedy was only against the gaoler. But afterwards it was held, that debt would lie against the party who escaped, because the duty they did not suppose was discharged by the escape: but they held it was a good plea to a scire facias. But afterwards, 9 Car. between the Lord Koberts and Trevilian; the opinion of the whole Court was, that a scire facias quare executionem habere uon debet would lie against one that...
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