Jones v Pope
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 45
COURT OF KING'S BENCH
[34] 7. jones versus pope. Trin. 18 Car. II. Regis, Roll 213. 'Ñ** ' *"/ ^ City of Bristol, to wit.-Be it remembered that heretofore, to wit, in the term of St. Michatl last past, before our lord the King, at the City of Oxford, in the county of Oxford, came Richard Jones, Esq. by John Savage, his attorney, and brought into the Court of our said lord the King, then there, his certain bill against John Pope, late one of the sheriffs of the said City of Bristol, in the custody of the marshal, &c. of a plea of debt; and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, to wit: City of Bristol, to wit, Richard Jones, Esq. complains of John Pope, late one of the sheriffs of the said City of Bristol, being in the custody of the marshal of the Marshalsea of our lord the King, before the King himself, of a plea that he render to him 10071. Os. 6d. of lawful money of England, which he owes to, and unjustly detains from, him; for that whereas the said Richard Jones, on the 15th day of June, in the year of our Lord 1654, prosecuted out of the Court of the late Oliver, pretended Protector of England, before the pretended Protector himself, in the then Upper Bench, (the same Court then being at Westminster, in the county of Middlesex,) a certain writ* of the said pretended Protector of ttst&tum, capias ad satisfaciendum, directed to the then sheriffs of the City of Bristol, reciting that whereas he had lately commanded his Sheriff of Gloucestershire, that he should take Fabian Hill, otherwise called Fabian Hill of the City of Bristol mercer, if he should be found in his bailiwick, and him should safely keep, so that he should bars his body before the said pretended Protector in the then Upper Bench at Westminster, on Tuesday next after three weeks of the Holy Trinity, to satisfy the said Richard Jones of the said 10001. debt, and also of the said 71. Os. 6d. for bis damages, which he had sustained as well on occasion of the detention of that debt, as for his costs and charges by him about his suit in that behalf expended, whereof the 46 JONES V. POPE 1WMB. SAUND. 35. said Fabian Hill was convicted, as by the record thereof in the same Court did more fully appear: and his said Sheriff of Gloucestershire on that day returned, that the said [Fabian was not found in his bailiwick; whereupon, on the behalf of the said Richard, it was sufficiently testified in the said Court that the said Fabian did lurk and run up and down in the county of the City of Bristol; and therefore the said pretended Protector commanded the then sheriffs of the said City of Bristol, that they should take the said Fabian if he should be found in their bailiwick, and should safely keep him, so [35] that they should have his body before the pretended Protector in the Upper Bench aforesaid, at Westminster, on Saturday next after one month of St. Michael, to satisfy the said Richard of the debt and damages aforesaid; by virtue of which said writ, the said John Pope and one Thomas Bull, then being sheriffs of the said city, afterwards, to wit, on the 10th day of August, in the year aforesaid, at the City of Bristol aforesaid, took and arrested the said Fabian Hill in execution for the debt and damages aforesaid, and him the said Fabian Hill then and there had and detained in prison there in their custody in execution for the said debt and damages, until they the said John Pope and Thomas Bull afterwards, to wit, on the 1st day of September, in the year aforesaid (the said John Pope and Thomas Bull then and there being sheriffs of the said city), at the said City of Bristol, in the county of the said city, without the leave and against the will of the said Richard Jones, voluntarily (1) permitted the said Fabian Hill to escape, and go at large wherever (1) The word voluntarily, though generally used in the declaration in an action for a voluntary escape, is held to be superfluous, and not necessary to the action. The proper place is, to set it forth in the replication ; therefore, under a declaration or count, alleging the escape to be voluntary, the plaintiff is at liberty to give a negligent escape in evidence; and the defendant may plead thereto that he took the prisoner on a fresh pursuit, without traversing the voluntary escape. And if the truth were, that the defendant did retake him on fresh pursuit, he is now bound to plead it, and cannot give it in evidence on nil debet. For by the statute 8 & 9 Will. 3, c. 37, s. 6, no retaking on fresh pursuit shall be given in evidence, on the trial of any issue in any action of escape, unless the same be specially pleaded ; nor shall any special plea be allowed without an oath by the defendant, that the prisoner escaped without his knowledge; Latch, 200, 201, Harvey v. Sir G. Reynold. 1 Vent. 211, 217, Sir Ralph Bovy's case. 2 Term Rep. 126, Bonafous v. Walker; notwithstanding it seems to be holden in Cro. Jac. 657, Whiting v. Reynel, that a traverse of the voluntary escape is necessary. Debt lies by the statute 1 R. 2, c. 12,(a) as well where the escape is negligent, as where it is voluntary. 2 Str. 873, Stonehouse v. Mullins. 2 H. Black. 108, 112, 113, Alsept v. Eyles. If the sheriff, &c. where the escape is a negligent one, retake upon fresh pursuit before an action is brought for the escape, he shall be excused. 3 Rep. 52 b. Ridgeway's case. S. C. Moor, 660. Sir W. Jones, 145, Harvey v. Reynell. 1 Roll. Abr. 808, (e) pi. 1. 1 Sid. 330, Allanson v. Butter. But it is otherwise, if the action is brought before the retaking. 1 Roll. Abr. 808, pi. 2. Sir W. Jones, 145. But if it be a voluntary escape, the sheriff cannot retake him ; and is subject to an action for a false imprisonment, if he does. 1 Sid. 330. 1 Show. 174, Buxfon v. Hmie. Barn. 373, S. C. Vin. Abr. Escape, 93, pi. 7. 5 Term Rep. 25, Atkinson- v. Jameson. The plaintiff, however, in both cases, may retake him by a new capias ad satisfaciendum. 1 Sid. 330. 1 Show. 177, Buxton v. Home. 1 Vent. 4, Anon.. Ibid. 269, James v. Peirce. 1 Lev. 211, Allanson v. Butler. 2 Mod. 136, Basset v. Salter. Sir T. Jones, 21, Allen v. Finter. Or he may have an action of debt, or a scitre facias, against the defendant upon the former judgment. 1 Vent. 269. Sir T. Jones,, 21. 2 Lutw. 1264-1266, Sudall v. Wytham. And now, by the above statute 8 & 9 W. 3, c. 27, s. 7, if any prisoner in execution shall escape by any ways or means howsoever, the plaintiff may retake him by a new capias, or capias ad satisfaciendum, or sue forth any other kind of execution on the judgment, as if he had never been in execution. So if the prisoner returns to prison after a voluntary escape, the plaintiff may admit him to be in execution; and if he be turned over to the new sheriff, &c. (a) [But now, by stat. 5 & 6 Viet. c. 98, s. 31, an action of debt will not lie for an escape. See post, p. 38, n. (I).] IWMB. SAUMD. 35. MICH. 18 CAB. II. REGIS 47 he would, the said Eichard Jones then and yet still not being satisfied of the said deht and damages. And the said Eichard Jones in fact says, that the said Thomas Bull afterwards, to wit, on the 10th flay of April, in the 16th year of the reign of our said lord the now King, at the said City of Bristol, in the county of the said city, died ; whereby an action has accrued to the said Eichard Jonas to demand and have of and from the said John Pope the said 10071. Os. 6d., yet the said John Pope (although often required) has not yet paid the said 10071. Os. 6d. to the said Eichard Jones, but to pay the same to him has hitherto altogether refused, arid still refuses; to the damage of the said Eichard of 401. And therefore he...
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