Part II. one im Execution. See Tur ner v. Eyles, 3 Bos, & Pul. 456, and If the action be brought against the Marshal Action for of the King's Bench or Warden of the Fleet, Escape of the plaintiff must prove the debtor to have been regularly committed to his custody by the Court, which, in cases of execution it should seem, can only be done by proving an examined copy of the committitur entered of record; Cases there but where the debtor is committed on a habeas corpus charged with mesne process, the production of the habeas corpus itself, with the Judge's commitment annexed to it, is sufficient Watson v. evidence of such commitment; but it must also Sutton, be proved, that notice of it was given to the defendant by entering a memorandum of it in the book kept by him for that purpose. cited. Wigley v. Jones, 5 East. 440. Salk. 272. Hawkins v. Plomer, 2 Blac. When a defendant is in custody of the Marshal, and is to be charged with a King's Bench execution, a rule is obtained for the Marshal to acknowledge the defendant to be in his custody, and he is committed upon such acknowledgment. In this case, therefore, it would be proper to prove such acknowledgment on the trial; but if he be in custody of the Warden of the Fleet, and is to be charged with a Common Pleas or Exchequer writ, a habeas corpus is obtained, the return to which proves the fact of his being in custody. Having thus established the fact of the prisoner being in the defendant's custody, the plaintiff must next prove the escape from it; Sutton, I by evidence of the debtor having been after 10,8. Beaton v. Bos. & Pul. 24, wards f. 1. Action for Es ape of one in Execution. v. Earl of wards seen at large; and, in this case, whether Ch. XV. his escape were before or after the return of the writ, the sheriff is equally liable to an action. He cannot permit him to be out of his own custody for a moment, and even where after the arrest the bailiff suffered the defen- Ibid. dant to go about on two different days, in company with his follower, for the purpose of enabling him to settle his affairs, it was held to be an escape. So where a bailiff of a liberty Boothman having arrested the defendant, delivered him Surrey, 2 into the county gaol, this was determined to be an escape. The evidence of the escape, as well as that of the custody, is rendered much more easy by the before-mentioned Statute of 8 & 9 Will. III, which enacts, "That if the Marshal or Warden, or their deputies, or the keeper of any prison, after one day's notice in writing for that purpose, shall refuse to shew a prisoner committed in execution, to the creditor or his attorney, such refusal shall be a judged an escape." T. Rep. 5. 8 & 9 W. III. c. 27. 1.8., The defendant may put the plaintiff to the proof of all these facts by the plea of nil debet. He may also plead that the escape was against his will, and that he made fresh pursuit and retook the prisoner before the commencement of the plaintiff's action; but before such 8 & 9 W. plea is received, affidavit must be made by the gaoler that the prisoner escaped without his consent or privity. This plea may be pleaded to an action for a voluntary escape, for the 126. plaintiff III. c. 27. Bonafous v. Walker, 2 T. Rep. Ibid. Part II. plaintiff may, on such a count, give evidence of Action for a negligent escape, and if it appear that the Escape of one in prisoner escaped from the Rules of the King's Execution. Bench Prison, without the Marshal's knowledge, that will not falsify the plea. The defendant may, also, where the escape has been against his will, plead and give in evidence that the prisoner returned into his custody before. the commencement of the action, which is equivalent to a retaking by him. Duke of The law in this case is extremely severe on gaolers, for, if the prisoner cannot be retaken on a fresh pursuit, no excuse is admitted but Elliot v. the act of God, or the King's enemies. The destruction of his prison by a riotous mob;' the secret escape of an alien from his custody;* 2 Alsop v. or, a rescue from his officers, while obeying the H. Bl. 108. commands of a habeas corpus,' furnish no de3 O'Neil v. fence to this action, though no actual negliBurr.2812. gence is imputable to him. Norfolk, 4 T. Rep. 789. Eyles, I Marson, 5 Vide 2 & 2 T. The plaintiff is in this action entitled to reBlac. 1048. cover all money which is due to him from the prisoner; and, therefore, the circumstances of the defendant are not material to be proved. Rep. 126. SECTION II. Against Justices, Constables, and Revenue f. 2. Against Constables, and Reve nue Officers. IN Actions against Officers of the Criminal Ch. XV. and Revenue Law, some previons steps are rendered necessary by the positive rules of several Justices, Acts of Parliament, which the plaintiff must be prepared with evidence to shew he has complied with. By Statute 21 Jac. I. c. 12. Actions against Justices of Peace, Mayors, Bailiffs, Churchwardens, Overseers of the Poor, Constables, and other Peace Officers, or persons acting in their assistance or by their command, must be brought in the proper county. By Stat. 7 Jac. I. c. 5. (made perpetual by the other Act,) the defendant may give every thing in evidence on the general issue. (e) And, by 24 Geo. II. c. 44. f. I. no writ can be sued out against a justice for what he does in the execution of his office, till notice in writing of such intended writ has been delivered to him, or left at his usual place of abode, by the attorney or (e) By Stat. 42 Geo. III. c. 85. f. 6. the provisions of this Stat. of 21 Jac. I. are extended to persons holding, exercising, or being employed in any public employment, office, station, or capacity, either civil or military, either in or out of this kingdom, who have, by virtue of such public employment, office, &c. power commit persons to safe custody, except that the plaintiff is permitted to state any thing done out of this kingdom, to have been done at Westminster. agent Justices, and Reve Part II. agent of the party who intends to sue, one caAgainst lendar month () before the suing out the Constables, same; in which notice must be contained the nue Officers, cause of action, and on the back of which must be indorsed the name and place of abode of such attorney or agent. By Sect. s. the plaintiff must be prepared to prove the notice on the trial; and, by Sect. 5. he is precluded from giving evidence of any cause of action not contained in it, Jones v. Vaughan, 5 East. 445. By the same Statute, (Sect. 6.) no action can be brought against any constable, or any other person acting by his order, or in his aid, for any thing done in obedience to a justice's warrant, under hand and seal, until demand made or left at the usual place, of his abode, by the party intending to bring such action, or by his attorney or agent, in writing, signed by the party demanding the same, of the perusal and copy of such warrant, and the same has been refused or neglected for the space of six days after such demand; and in case after such demand and compliance therewith, by shewing the said warrant to, and permitting a copy to be taken thereof by the party demanding the same; (which, it has been held, may be done any time before the action is commenced, though after the expiration of six days,) an action be brought against the constable, &c. (f) The day on which the act complained of was done is included in the reckoning. See Castle v. Burdett, 3 T. Rep. 63;. without |