such petition be complained of, and for punishing such officer or person complained against, and for making reparation to the party or parties injured, as they shall think just, together with the costs of every such complaint: and all orders and determinations which shall be thereupon made, by any of the said courts, &c. shall have the same effect, force and virtue, as other orders of the same courts, &c; and obedience thereto may be enforced in like manner, by attachment or otherwise."(b) And that every sheriff, undersheriff, bailiff of any liberty, bailiff, serjeant at mace, gaoler, and other officer and person as aforesaid, who shall in anywise offend against the said act, shall, for every such offence, (over and above such other penalties and punishments as he may be liable unto,) forfeit and pay to the party thereby aggrieved, the sum of fifty pounds, to be recovered, with treble costs of suit, by action of debt, bill, plaint, or information in any of his majesty's courts of record at Westminster.(c) *At common law, a sheriff has no right to take fees for the [*233] execution of process:(a) And, by the statute 23 Hen. VI. c. 9, he is only entitled to the fee of four pence, for issuing his warrant on mesne process, to arrest the defendant;(a) although, when the plaintiff has paid the sum of one guinea to the plaintiff for an arrest, he has been allowed it by the master or prothonotary, in the taxation of costs. (bb) And where a sheriff's officer, who had arrested a defendant, demanded and received from him, a larger sum than he was liable to pay as a caption fee, and for the expense of a bail-bond, &c. the court of Exchequer, on motion, ordered it to be referred to the master, to ascertain what the officer was entitled to on that account, and ordered him to restore the surplus to the defendant, and to pay the costs of the application.(cc) But if, by the abuse of the process of one of the courts at Westminster, a sheriff's officer extort a promissory note from a suitor, and then declare upon that note, in another of the courts at Westminster, the latter court cannot interfere summarily to punish the officer, under the statute 32 Geo. II. c. 28, § 12.(d) And in order to recover a penalty on this statute, against a sheriff's officer, for taking a larger fee than is allowed by law upon arrest, the plaintiff must prove what sum is allowed by law, either by a table of fees, or some regulation respecting it, by the officers of the court out of which the process issued. (e) The justices in sessions have no authority to fix the bailiff's fees for an arrest:(f) And an action will not lie against the sheriff, where more than the sum allowed has been taken for a bail-bond, by one of his officers, to whom the warrant was not directed, but to whose lock-up house the defendant was brought, after being arrested.(g) When a defendant escapes out of legal custody, he may be either retaken by the sheriff or other officer on fresh pursuit, or by virtue of an escape (b) 11. (c) 12. And see stat. 3 Geo. I. c. 15, 13, and 5 Geo. IV. c. 106, 16, by which latter act, the judges of the courts of Great Sessions in Wales are authorized to remove any officer of the said courts, (not nominated and appointed by the crown,) or his deputy, for peculation, extortion, or other misconduct, and appoint a new officer or deputy, in the room of the person so removed. (a) 2 Barn. & Ald. 562. 1 Chit. Rep. 295, S. C.; and see 2 Barn. & Ald. 770. 1 Chit. Rep. 529, S. C. 5 Barn. & Cres. 328. 8 Dowl. & Ryl. 48, S. C. 6 Moore, 124. (bb) 1 Chit. Rep. 302, per Holroyd, J.; and see 2 Blac. Rep. 1101. 3 Durnf. & East, 417. 1 Ry. & Mo. 314. 2 New Rep. C. P. 59. 1 Stark. Ni. Pri. 417. (cc) 4 Price, 309. (e) 1 Esp. Rep. 361. 2 New Rep. C. P. 59. (9) 4 Esp. Rep. 63. (d) 2 Bos. & Pul. 88. warrant, (if he escaped out of the custody of the marshal of the King's Bench, or warden of the Fleet prison,) on the statute 1 Ann. stat. 2, c. 6. And though in general a defendant cannot be retaken on fresh pursuit, after a voluntary escape, (h) yet it has been determined, that a bailiff who has arrested a prisoner on mesne process, may retake him before the return of the writ, though he voluntarily permitted the prisoner to escape immediately after the arrest.(2) By the above statute(k) it is enacted, that "if any person or persons committed or rendered to, or charged in custody of the marshal of the King's Bench, or prison of the Fleet, either in execution or upon mesne process, or upon any contempt in not performing the order or decree of a Court of Equity, by any of his majesty's [*234 ] courts at Westminster, shall escape from the custody of the marshal or prison of the King's Bench, or from the prison of the Fleet, or shall go at large, it shall and may be lawful, upon oath thereof in writing, to be made by one or more credible person or persons, before any one of the judges of that court where such action was entered, or judgment and execution were obtained, or where the party were so committed or charged as aforesaid, to and for such judge, before whom such oath shall be made as abovesaid, and such judge is thereby authorized and required, from time to time, to grant unto any person whatsoever, who shall demand the same, one or more warrant or warrants under his hand and seal, therein reciting the action or actions, execution or executions, contempt or contempts, with which such person or persons, so escaping or going at large, stood charged, or were committed, at the suit of any person or persons, on whose behalf such warrant or warrants shall be demanded, at the time of such escape or going at large, (which said warrant or warrants shall be in force in all places whatsoever, within the kingdom of England, dominion of Wales, and town of Berwick upon Tweed,) directed to all sheriffs, mayors, bailiffs, constables, head-boroughs, and tithing men, therein and thereby commanding them, and every of them, in their respective counties, cities, towns, and precincts, to seize and retake such person or persons, so escaped or going at large; and such person or persons, so retaken upon such warrant, forthwith to convey and commit to the common gaol of such county, where such person or persons, so escaped or going at large, shall be retaken, there to remain without bail or mainprize, or being thence upon any account whatsoever delivered or removed, until he, she, or they shall have made full payment or satisfaction to the respective plaintiff or plaintiffs, creditor or creditors, in such action or actions, execution or executions named, or until the judgment or judgments, on which such execution or executions was or were sued out against such person or persons, shall be reversed or discharged by due course of law, or until judgment in such action or actions be given for such person or persons so committed as aforesaid, or until the said contempt or contempts, for which such person or persons were or shall be committed, be cleared and discharged; except such person or persons be charged with treason or felony, or any other crime, matter, or cause, for and on the behalf of the queen's majesty, her heirs and successors; and if he or she, for any such cause be removed to any other gaol or prison, he or she shall be, in the custody of such gaol, charged with all the causes with which he or she is or shall be charged, in the gaol from whence he or she shall be removed." Upon this statute it has been determined, that if a person charged in execu(h) Carter, 212. 2 Bac. Abr. tit. Escape, C. (i) 2 Durnf. & East, 172. (k) 1. tion in the King's Bench, he turned over to the Fleet and escape, either a judge of the King's Bench or Common Pleas may grant an escape warrant. (a) And after a negligent escape, the defendant, we have seen(6) may be retaken on a Sunday, by virtue of such warrant. But if one [*235] who is no officer, by virtue of the warrant, seize a person escaping, and bring him before the sheriff, he cannot detain him; for, being illegally executed, it is the same thing as if there had been no warrant at all.(aa) It has also been determined, that a person who has a day rule, cannot be taken by virtue of an escape warrant :(bb) and if a person be taken thereon at eight in the morning, and the same day obtain a day rule, pursuant to a petition which was not read in court till after eight, yet he shall be discharged; for as to this purpose, there shall be no fraction of a day.(c) The plaintiff's remedies, when the defendant escapes, are first, by taking out fresh process against him; secondly, by obtaining an escape warrant for retaking him, if the escape was from the custody of the marshal of the King's Bench, or warden of the fleet; and thirdly, by action or attachment against the sheriff or officer, for an escape: which remedies may be pursued, as well where the escape was voluntary, as where it was only negligent.(d)[A] But where the sheriff, having arrested the defendant, suffers him to go at large, upon giving bail for his appearance at the return of the writ, he is not liable to an action of escape: for he was obliged to take bail, by the statute 23 Hen. VI. c. 9.(e) And even where he suffers him to go at large without bail, he is not, it seems, liable to an action, provided he have him at the return of the writ. (f) But if he have him not then, or afterwards suffer him to go at large, without lawful authority, he is, in either case, liable to an action.(g) And where an action is brought against the sheriff, after he has taken bail, he must plead the statute; and cannot take advantage of it on demurrer to the declaration, or in arrest of judgment.(h) (a) 8 Mod. 240. (aa) 6 Mod. 154, and see 1 Str. 99, 100. (c) Id. ibid., and see 2 Bac. Abr. tit. Escape, E. 3. (b) Ante, 218. (d) 2 Bac. Abr. tit. Escape, C. E. 3, and see stat. 8 & 9 W. III. c. 26. 7 Moore, 552. 1 Bing. 156, S. C. (e) Cro. Eliz. 624, 852. Noy, 39, S. C. 1 Sid. 23. 1 Vent. 55. 3 Salk. 314, 15. Gilb. C. P. 22. 2 Wms. Saund. 5 Ed. 61, c. (6.) (f) 2 Durnf. & East, 172. 2 Bos. & Pul. 35, and see 2 Wms. Saund. 5 Ed. 61, a. b. (4.) 2 Barn. & Ald. 56. (g) Noy, 39. 1 Mod. 228, 9. 2 Mod. 178, S. C. Gilb. C. P. 22. 2 Durnf. & East, 174, &c. 7 Durnf. & East, 109. 1 Bos. & Pul. 225. 9 Moore, 584. 2 Bing. 317, S. C. 3 Anstr. 675, and see 2 Wms. Saund. Ed. 61, a. b. (4.) (h) Cro. Eliz. 460. Moor, 428, S. C. 1 Sid. 22, 439. 1 Vent. 85. 1 Mod. 33, 57, S. C. 2 Wms. Saund. 5 Ed. 154, 5. [A] Nothing but the act of God or the public enemies will excuse the sheriff for an escape. Fairchild v. Case, 24 Wend. 381. Rainey v. Dunning, 2 Murph. 386. Call v. Haggar, 8 Mass. 423. Patten v. Halsted, Coxe, 277. Colby v. Sampson, 5 Mass. 310. Lowry v. Barney, 2 Chip. 11. Adams v. Turrentine, 8 Ired. 147. Mabry v. Id., Id. 201. State v. Halford, 6 Rich. 58. But unless the process under which the arrest is made is judicial process, the sheriff is not guilty of an escape in letting the prisoner go at large. Ellis v. Gee, 1 Murph. 445. Although no informality in the process will justify the prisoner in effecting an escape. The State v. Murphy, 3 Shep. 100. It is otherwise if the process be void. Neither will the insecure state of the jail excuse the sheriff for an escape. Smilh v. Hart, 1 Brevard, 146. Parsons v. Lee, Jefferson, 50; or even if there be no jail. Gurnn v. Hubbard, 3 Blackf. 14. Nor will the death of the prisoner before recapture, although there has been a fresh pursuit, purge the escape. Whicker v. Roberts, 10 Ired. 485. An action against the sheriff for an escape may it seems be defeated, by putting in bail in the original action, of the term in which the writ was returnable, though after the expiration of the time allowed for putting it in; and even after the action for an escape is brought.(2) To prevent this, the plaintiff should oppose the justification of bail if put in: and in a late case, (k) where bail had been permitted to justify without opposition, the court of King's Bench set aside the rule for the allowance of bail, on payment of the costs of justification. And, in that court, bail put in after the term in which the writ is returnable, is not an answer to an action against the sheriff for an escape, brought before it was put [ *236 ] in.(aa) So, in the Common Pleas, if the sheriff omit to take a bail-bond upon the arrest, and afterwards, upon an action being commenced against him for an escape, he causes bail to be perfected, the court will order the allowance of bail to be set aside, that the action may proceed.(bb) But the court of Exchequer would not set aside an order for the allowance of bail, obtained after an action commenced against the sheriff for an escape, though no bail bond had been taken, nor bail above put in in due time, where the defendant had been rendered on the day of the expiration of the rule to bring in the body.(cc) And in an action against the sheriff, for not assigning a bail bond, that court would not grant a motion, to enter the recognizance of bail on the record, as taken on the true day, (it being always entered generally as of the term,) to enable the plaintiff to proceed with his action.(d) If a bail bond has been taken by the sheriff, though his clerk, on inquiry at the office, deny that he has taken one, the plaintiff cannot maintain an action against him for an escape:(e) It is therefore usual, in declaring against the sheriff, to insert three counts; First, for an escape; 2dly, for not taking the defendant when he had an opportunity; and 3dly, for not assigning the bail bond, on request. And, in an action for an escape upon mesne process, it is enough, without producing the warrant, or giving direct evidence of the arrest or escape, to prove the sheriff's return of cepi corpus, and to show that the party did not put in bail, and was not in the sheriff's custody at the return of the writ.(ƒ) When the defendant is rescued upon mesne process, as he is going to prison, the sheriff may return the rescue; (g) but not, where the defendant is rescued after he is put in prison, except by the king's enemies. (h) And it seems that a return by the sheriff to a bill of Middlesex, stating that he took and detained the defendant, until he rescued himself, and that he was not afterwards found, &c. is sufficient, without naming the rescuers, or stating (i) 1 Esp. Rep. 87. 2 Bos. & Pul. 35, 246. 1 Taunt. 25. 1 Chit. Rep. 575, (a). 5 Barn. & Cres. 244. (k) Bosanquet v. Simpson, E. 42 Geo. III. K. B. (aa) 4 Maule & Sel. 397; and see 2 Chit. Rep. 93. (bb) 1 Taunt. 119; and see id. 23. 6 Taunt. 167. 1 Marsh. 520, S. C. (cc) 1 Price, 103; and see 5 Barn. & Cres. 244. (f) 3 Campb. 397. And for the evidence necessary to charge the defendant with the act of his bailiff, see 7 Durnf. & East, 113. 1 Campb. 389. Holt, Ni. Pri. 217. 1 Stark. Ni. Pri. 413. 2 Stark. Ni. Pri. 189, 202, 314. 7 Taunt. 8. 5 Moore, 183. 3 Brod. & Bing. 26, S. C. Holt Ni. Pri. 537. 5 Moore, 184, (b). 3 Brod. & Bing. 27, (a), S. C. 6 Moore, 120. 1 Car. & P. 7, (a). 3 Bing. 164, 492. (9) Cro. Jac. 419. 3 Bulst. 198. Gilb. C. P. 23; but see Cro. Eliz. 868. (h) Cro. Jac. 419. 1 Rol. Rep. 441. 1 Rol. Rep. 389, 440, S. C. 3 Lev. 46. 1 Str. 435. Moor, 852, contra. 1 Str. 435. 5 Bur. 2814. them to be people of the county ;(2) but the return not stating the arrest to have been made in the proper county, was holden to be bad.(i) And if the defendant escape, owing to the negligence of the officer, this will not justify the return of a rescue.(k) Upon the sheriff's return of a rescue, the [*237 ] plaintiff has a triple remedy against the rescuers; by *attachment, action on the case, or indictment. (a) The return of a rescue is of itself a conviction; (b) and the courts will grant an attachment upon it in the first instance, (c) which should be made returnable on a general return, though the original process was at a day certain. (dd) But, without the sheriff's return, the courts will not grant an attachment upon a mere affidavit of the fact.(ee) It was formerly the constant course, upon the return of a rescue, to set a certain fine of four nobles on each offender :(ff) but of late years, the courts have fined according to their discretion, upon considering the circumstances of the case. (gg) And as the sheriff's return of a rescue is not traversable, the court of King's Bench will proceed to punish the rescuers, without going through the ordinary course of examining them upon interrogatories.(hh) But where a defendant in that court, was brought up on an attachment, for rescuing a person arrested on a warrant for obstructing excise officers, it was said to be the invariable practice of the court, in such a case, to put the defendant to answer interrogatories, though he did not deny the charge in the affidavits, unless the prosecutor waived putting them.(i) [ *238] *CHAPTER XII. Of APPEARANCE and BAIL to the ACTION. HERETOFORE, when a writ issued out of the King's Bench, it was entered upon a roll; so that though the officer had not returned the writ, yet the defendant might have appeared at the day given by the roll; and that either to save himself from corporal pain by imprisonment, or to prevent the loss of issues, or to save his freehold or inheritance. (aa) And so it was in the Common Pleas; where they entered the writ upon a roll, by way of recital, viz. Dominus rex misit breve suum clausum, in hæc verba, &c.(aa) Appearance is the first act of the defendant in court;(bb) and differs from putting in bail, which is the act of the court itself, (cc) as is evident from (i) 1 Barn. & Ald. 190. Holt, Ni. Pri. 539, n. S. C. (k) Holt, Ni. Pri. 537. 5 Moore, 184, (b). 3 Brod. & Bing. 27, (a), S. C.; and see 2 Stark. Ni. Pri. 189. (a) Com. Dig. tit. Rescous. D. An indictment for preventing an arrest, on process issuing out of an inferior court, must state that the process was directed to the officer of the court. 5 East, 304. Say. Rep. 121. 4 Bur. 2129. (dd) 1 Str. 624. Mod. 141. 1 Str. 531; and see 1 Ken. 138. Say. Rep. 253. (b) Cas. temp. Hard. 112. 2 Salk. 586. |