case to bind and sharp executor of thrower against jennet Trinity term  Elizabeth roll a caption upon a capias ullagatum make returnable five year  after the testae be not legal and it be no escape though the sheriff suffer  the prisoner to he at large ante post S c Owen SC gold SC sloor roll Abr   b b  Henry pl dyer Bulst salk salk Farres cro James Mod ld raym Bl Rep   dig  prohibition against jennet and other warden of the company of tallow  Cliandlers in London surmise that the defendant sue they in the court  Christian for a legacy of give to they by the testator of the plaintiff and  that they there plead that their testator be keeper of Ludgate and be possess  of good to the value of l and no more and be oblige in a obligation of l to  Spencer and massam sheriff of London that he shall safe keep the prisoner  commit to his charge and croak Elizabeth shall save the sheriff harmless from  all escape c and show that one helm be take upon a capias ullagatum after  judgement in debt and escape and debt be bring upon this escape against the  sheriff of London and judgement against they and so the obligation forfeit so  there be riens inter mains more than to satisfy this obligation and because  the ecclesiastical court will not allow of this plea a prohibition be sue it  be thereupon demurrer Atkinson for the defendant praved a consultation for  this plea be not any plea and therefore the court Chrlsfl n which be to take  notice of our law ought not to allow it for the judgement in debt be Elizabeth  and the capias utlagatum whereupon he be take be Elizabeth so as the plaintiff  can not take benefit thereof for he be not in execution for he as one take by  a capias pro fine after the year and croak Elizabeth er p day be not in  execution for the plaintiff as hein pl Henry pl quod to be concessumper curian  and then the obligation be not forfeit for it be not any escape and therefore  a action lie not against the sheriff and if it he not any forfeiture it be  plain that this legacy shall he first pay but the legatary by the civil law  shall enter into bind to make restitution if the obligation shall afterward he  recover so there be not any inconvenience to any and to that the counsel on  the other side and the whole court except Fenner agree that this be no plea  unless the obligation be forfeit but Fenner say he doubt thereof coke the  difference be when the obligation be for the payment of a lesser sum at a day  to come it shall he a good plea against the legatee before the day for it be a  duty maintenance which be in the condition as dw pl S but otherwise it be  where a statute or obligation be for the performance of covenant or to lo a  collateral thing there until it he forfeit it be not any plea against a  legatee for peradventure it never shall he forfeit and may lie in continuous  and by such mean no will shall he perform Tanfield the obligation be clear  forfeit for the condition be that he shall not suffer any prisoner commit to  his prison to escape and to save the sheriff indemnified from all escape c so  it be in the conjunctive and then although the prisoner be not in execution so  as no action of debt lie for the escape yet be take by the capias utlagatum  the suffer he to escape be a breach of the bind coke it appear by the record  that the capias utlagatum be award Elizabeth and be returnable Elizabeth so  mere void for every capias ought to be returnable the ensue term for the  mischief which otherwise may hefal the prisoner to he keep always in prison as  appear Henry pl Edward pl d year and then he be never lawful his prisoner and  may well let he at large Fenner conceive that be take by process he may not  dispute whether the process be lawful or well award but he ought by reason  thereof to detain he and the suffer he to go at large be a forfeiture of the  bind but all the other justice to the contrary for although peradventure this  arrest by force of this process be excusable in false imprisonment by the  sheriff Henry vpl and Henry pl yet clear it be no lawful imprisonment and as  to the benefit or prejudice of a stranger he shall never he say to be a  prisoner and the gaolors suffer he to go at large be lawful and the obligation  be not forfeit thereby wherefore consultation be award