Evidence of the debt due from the party arrested.] The plaintiff' must prove a debt due to him from the party arrested, Alexander v. Macauley, 4 T. R. 611, at the time of the arrest. White v. Jones, 5 Esp. 160. If the declaration state, that the party was indebted to the plaintiff for goods sold and delivered, it must be so proved, Parker v. Fenn, 2 Esp. 477 (n); but the exact sum mentioned in the declaration need not be proved. B. N. P. 66. The debt is proved by the same evidence which would have been requisite to establish it, in an action against the debtor himself, and therefore an admission of the debt by the debtor at any time before the escape is good evidence against the sheriff. Williams v. Bridges, 2 Stark. 42, Rogers v. Jones, 7 B. and C. 89.

Evidence of the issuing and delivery of the process to the defendant.] The issuing of the process, and the delivery of it to the under-sheriff, must be proved. If the process has been returned, an examined copy of the writ and return will be evidence of these facts. B. N. P. 66. If not returned, after proof of a notice to produce, and that search has been made at the treasury, secondary evidence will be admitted. Where it was averred that the debtor was arrested "under a writ indorsed for bail by virtue of an affidavit now on record," it was held necessary to prove the affidavit. Webb v. Herne, 1 B. and P. 382. But where the declaration stated that the writ was marked for bail "by virtue of an affidavit of the cause of action of the plaintiff in that behalf, before then made, and duly filed of record in this court, according to the form of the statute, &c." without stating by whom the affidavit was made, it was held that the averment was sufficiently proved by an office copy of the affidavit. Casburn v. Reid, 2 B. Moore, 60. A variance between the process stated and that proved will be fatal; but where it was alleged that the prisoner was arrested on mesne process, and brought before a judge at chambers, by virtue of a writ of habeas corpus, and was by him thereupon committed to the custody of the marshal, "as by the record thereof now remaining in the court of King's Bench appears, &c." it was held, that such allegation was either impertinent and surplusage, since, properly speaking, such documents are not records, or considering them as quasi of record, the allegation was sufficiently proved by the production of them from the office of the clerk of the papers. Wigley v. Jones, 5 East, 440, and see Bevan v. Jones, 4 B. and C. 403, Bromfield v. Jones, 4 B. and C. 380, ante, p. 49.

Evidence of the arrest.] The facts sufficient to constitute an arrest have already been noticed, ante, p. 376; and see post, p. 492. Where the plaintiff gave in evidence the sheriff's return of cepi corpus to the writ, and proved that the defendant

in the former action did not put in bail above, and was not in the sheriff's custody at the return of the writ, Lord Ellenborough held, that the arrest and escape were sufficiently proved by the sheriff's return, and the non-appearance of the party, according to the exigency of the writ. Fairlie v. Birch, 3 Campb. 397. Where the writ has not been returned, evidence must be given to connect the bailiff and the sheriff. See ante, p. 483.

Evidence of the escape.] That the debtor was seen abroad after the return of the writ, and that bail has not been put in, will be evidence of an escape, vide supra. An admission of the escape by the under-sheriff, is evidence against the sheriff, ante, p. 484. The party escaping may be called to prove a voluntary escape, B. N. P. 67, for though the whole debt may be recovered against the sheriff, yet in an action against the original debtor for the debt, he can neither plead in bar nor give in evidence in reduction of damages, the judgment obtained in the action against the sheriff. Per Abbott, C. J., Hunter v. King, 4 B. and A. 210.

Defence.

It is a good defence, under the general issue, that the defendant, though he has taken no bail-bond, has put in bail before the expiration of the rule to bring in the body. Pariente v. Plumtree, 2 B. and P. 35.

For Escape in Execution.

In an action against the sheriff, for suffering a prisoner in execution to escape, the plaintiff must prove: 1, the judgment; 2, the issuing, and delivery to the defendant, of the writ of ca. sa.; 3, the arrest; and 4, the escape.

The mode of proving the judgment, ante, p. 54, and the issuing and delivery of the writ, ante, p. 491, has already been mentioned.

Evidence of arrest.] The officer must be the authority to arrest, but he need not be the hand that arrests; nor in the presence of the person arrested; nor actually in sight; nor is any exact distance prescribed. It would be a different case, if he be upon some other errand, or stay at home and send a third person to make the arrest. Per Ld. Mansfield, Blatch v. Archer, Cowp. 65. In that case, the son of the officer said, at the time of the arrest, that he had his authority in his pocket, the officer himself being at the distance of thirty rods, and not in sight, and it was held a good arrest; and see supra. If A. be in custody at the suit of B., and a writ be de

livered to the sheriff at the suit of D., the delivery of the writ is an arrest in law, and if A. escape, D. may bring debt against the sheriff for an escape. B. N. P. 66.

It must appear that the prisoner was in the custody of the defendant; and, therefore, where he was taken in execution by a former sheriff, the assignment of the prisoner from him to the defendant by indenture ought to be proved, Davidson V. Seymour, 1 M. and M. 34, unless the defendant has become sheriff on the death of his predecessor; in which case he is bound, at his peril, to take notice of all the executions which are against any persons whom he finds in the gaols. Westley's case, 3 Rep. 72, b, B. N. P. 68.

Evidence of the escape.] Wherever the prisoner in execution is in a different custody from that which is likely to enforce payment of the debt, it is an escape. Per Buller, J., Benton v. Sutton, 1 B. and P. 27. Thus if a sheriff's officer having taken a prisoner in execution, permit him to go in company with one of his followers to his own house, for the purpose of settling his affairs, it is an escape. Ibid. If the defendant, when taken in execution, is seen at large for ever so short a time, either before or after the return of the writ, it is an escape. Per De Grey, C. J., Hawkins v. Plomer, 2 W. Bt. 1049. If the bailiff of a liberty, who has the return and execution of writs, removes a prisoner, taken in execution, to the county gaol, situate out of the liberty, and there delivers him into the custody of the sheriff, it is an escape, for which the bailiff is liable. Boothman v. Earl of Surrey, 2 T. R. 5. Where the officer, having taken the party in execution, permitted him to go to a lock-up house, kept by another officer, not named in the warrant, where he remained fourteen days, before the return of the writ, it was held no escape. Houlditch v. Birch, 4 Taunt. 608. Under a count for a voluntary escape the plaintiff may give evidence of a negligent escape. Bonafous v. Walker, 2 T. R. 126. If the sheriff receive the sum indorsed on the writ from the prisoner, and before payment over to the plaintiff, liberate him, it is an escape. Slackford v. Austin, 14 East, 468, 4 B. and C. 31.

By stat. 8 and 9 W. III. c. 27, s. 8, if the marshal of the King's Bench, or warden of the Fleet, or their respective deputy or deputies, or other keeper or keepers, of any other prison or prisons, shall, after one day's notice in writing given for that purpose, refuse to show any prisoner, committed in execution, to the creditor, at whose suit such prisoner was committed or charged, or to his attorney, every such refusal shall be adjudged an escape in law. And by section 9, if any person or persons, desiring to charge any person with any action or execution, shall desire to be informed by the said marshal or warden, or their respective deputy or depu

ties, or by any other keeper of any other prison, whether such person be a prisoner in his custody or not, the said marshal or warden, or such other keeper of any other prison, shall give a true note in writing thereof, to the person so requesting the same, or to his lawful attorney, upon demand at his office for that purpose, or in default thereof shall forfeit the sum of 501.; and if such marshal, &c. shall give a note in writing that such person is an actual prisoner in his or their custody, every such note shall be accepted and taken as a sufficient evidence that such person was at that time a prisoner in actual custody.

Defence.

The defendant cannot, under nil debet, give in evidence a retaking of the prisoner on fresh pursuit, before the commencement of the action; for by statute 8 and 9 W. III. c. 27, s. 6, no retaking on fresh pursuit shall be given in evidence, on the trial of any issue in an 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 bis consent, privity, or knowledge. Where the defendant pleaded that the prisoner returned into his custody, and that he did thereupon, then and afterwards, keep and detain the said prisoner in his custody, &c., and the plaintiff traversed that after the prisoner's return the defendant did keep and detain him in custody, &c., in manner and form as stated in the plea, it was held that the plea was negatived by evidence, that after the prisoner's return he again escaped, and died out of custody. Chambers v. Jones, 11 East, 406. If the defendant plead no escape, he cannot give in evidence no arrest, for he admits an arrest by his plea. B.N.P.67.

If the prison take fire, or be broken open by the king's enemies, by means whereof the prisoners escape, this will excuse the sheriff; but it is otherwise if the prison be broken open by the king's subjects. B. N. P. 66. So he may show, under the general issue, that the escape was by the fraud and covin of the party really interested in the judgment. Hiscocks v. Jones, Esq., 1 M. and M. 269.

The defendant may show that the judgment against the prisoner was void, but not that it was erroneous; thus he may show that the judgment was given in an inferior court, in debt on a bond made extra jurisdictionem, for such a judgment is void. B. N. P. 65, 66. Watson on Sheriffs, 54. So if the writ of execution be absolutely void, the sheriff will not be liable for an escape, but it is otherwise when it is only erroneous. Weaver v. Clifford, Cro. Jac. 3. Burton v. Eyre, id. 288. B. N.

For taking insufficient Pledges in replevin.

In an action on the case against a sheriff, for taking insufficient pledges in replevin, the plaintiff must prove, 1, the taking of the distress; 2, the replevying of the distress by the sheriff, and the proceedings in the replevin; 3, the taking of the bond; 4, the insufficiency of the sureties.

Evidence of the replevying.] The replevying of the distress may be proved by the original precept to deliver. If it be in the hands of the bailiff, he should be served with a subpoena duces tecum; if it be returned to the sheriff, a notice to produce should be given to let in secondary evidence. The connexion between the sheriff and the bailiff delivering may also be proved by showing that the sheriff has recognised the bailiff's act.

Evidence of the taking of the bond.] Notice to produce the bond should be given to the defendant. Where it was produced under such notice, and it also appeared, that upon inquiry made on behalf of the plaintiffs, whether any replevin bond had been executed, the original bond had been shown to the plaintiffs' agent, and a copy of it delivered to him, Abbott, C. J., was of opinion that, under these circumstances, it was unnecessary to call the subscribing witness, and that as against the sheriff it must be taken to be a valid bond. Scott v. Waithman, 3 Stark. 168. So where it was proved that the sheriff had assigned the bond to the plaintiff, Abbott, C.J., was of opinion that it was not necessary for the plaintiff to prove the execution by the sureties, for that as against the sheriff, proof of the assignment by him to the plaintiff was sufficient. Barnes v. Lucas, R. and M. 264.

Evidence of the insufficiency of the sureties.] Some evidence must be given by the plaintiff of the insufficiency of the sureties; but it is said that very slight evidence is sufficient to throw the proof on the sheriff, for the sureties are known to him, and he is to take care that they are sufficient. Saunders v. Darling, B. N. P. 60. Where the sureties had recently been bankrupt, but were in apparent credit when the bond was taken, it was held that the sheriff was not liable. Hindle v. Blades, 5 Taunt. 225. If a person, known to the sheriff, make inquiries as to the credit or reputation of a tradesman, and the value of his stock, and communicate the result of such inquiry to the sheriff, it it be favourable, the latter need not make a personal inquiry. Per Dallas, C.J., Sutton v. Waite, 8 B. Moore, 28. Though the sheriff is justified in taking a person as a surety, who appears to the world to be a person of