Weaver v Clifford
| Jurisdiction | England & Wales |
| Date | 1792 |
| Year | 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 80 E.R. 30
IN THE COURT OF KING'S BENCH
[42] weaver versus clifford. Cro. Jac. 3. 1 Brownl. 83. 2 Bulstr. 62. 1 Roll. Abr. 897. Debt on escape. Recognisance. Capias. Scire facias. 13 Ed. 1. c. 45. Chancery. Cap. don't lie on recognisance. 23 H. 7. 10. Escape. If upon two nihils return'd against the recogniaor in Chancery, a capias is awarded against him out of the Chancery, by virtue whereof he is taken by the sheriff, and suffer'd to escape ; yet no action of debt lies against the sheriff upon this escape; for a capias don't lie on a recognisance, but scire facias only : and therefore when the party is taken by the capias, he is not a prisoner by course of law; for the law has not ordain'd any such means to arrest him, and being in custody without warrant, it ia not an escape; for that is only upon a lawful commitment: and so is the Statute W. 2. to be construed, which gives the action against the gaoler, viz. where the party is in execution by course of the law, and that he is not in this case, because the law don't give a capias on a recognisance; and although the Chancery has such course to award a capias on a recognisance, and has several precedents of it, yet this is the use YELVEKTON.. HILL. 1 JAC. B. R. 31 of that Court only, which does not close the mouths of the Judges of the common law, but that they ought to adjudge according to the law. Per Yelverton, Gaudy, Popham, Justices: Tenner fuesitavit; because he conceived the award of the capias only erroneous, and not void: and in this ease Tanfield Serjeant, and the Attorney General shew'd a precise judgment in the case, 21 Eliz. in the Exchequer, Clement Pastorfs case, who was charged for an escape, where he being sheriff had taken one on a capias on a recognisance, and suffer'd him to escape; and yet there the recogniaor was in prison for felony before the capias on the recognisance was awarded, and came to the sheriff's hands; and yet adjudged an escape to the party, although he was also the Queen's prisoner for the felony : yet the three justices held their opinion strenuously as before. Quod nota.
English Reports Citation: 80 E.R. 31
IN THE COURT OF KING'S BENCH
teem. hill. 1 jac. B. R. chambers versus mason. Cro. Jac. 34. Trover. Post. 47. 5 Com. Dig. 427. Cowp. 56. In an action of trover for certain tithes sever'd from the nine parts, upon non culp' pleaded; the jury found, that the Prior of Wombridge in comitatu...
To continue reading
Request your trial
-
Attorney General v Bushopp and Others
...Judges: 1st, Where a particular certainty precedes, it shall not be destroyed by a subsequent uncertainty or mistake, see Cro. Eliz. 34. 48. Yelv. 42. 3 Leon. 162. And. 148. 2 Godb. 423. Post, 10 Co. 109. 2d, That there is a difference when the King mistakes his title to the prejudice of hi......
-
Chandelor against Lopus
...158. Action upon the case. Whereas the defendant being a goldsmith, and having (a) Cro. Eliz. 164. (b) In the report of this case in Yelverton 42. it is said, that three of the Judges, viz. Yelverton, Gawdy, and Popham, were of opinion that the action would not lie, 4 EASTER TERM, 1 JAC. 1.......
-
Anonymous
...C. 1 Freem. 193. (g) Year-Book, 26 Edw. 3, pi. 16. 2 Inst. 230. Binch's case, Raym. 189. Neudick v. Stuit, 3 Keb. 852. Weaver v. Clifford, Yelv. 42. S. C. Cro. Jac. 3. S. C. 2 Bulst 62. (a) Gelder v. Pratt, cited 1 Ld. Ray. 230. (b) 8 Mod. (c) See Pool v. Gurin, Lut. 1560. Squib v. Hole, 2 ......
-
Weaver v Francis Clifford
...for the escape of a prisoner taken upon a capias, after scire facias, Lr. upon a recognizance in Chancery.-Post. 280. 289. 450. S. C. Yelv. 42. 1 Roll Ab. 809. Cro. Eliz. 188. 164. 578. Cro. Car. 528. Dyer, 67. Hob. 202. 6 Co. 54. 8 Co. 142. 2 Bac. Ab. 234. Salk. 273. 2 Stra. 873. Debt, upo......