coke Report43a BOYTONS case mich and Elizabeth in the king bench SC more SC  cite ace I Lord raym marge burr t r bull n p b vin Abr escape a pl e pl Com  dig hearing complaint c escape c d Bac Abr escape in civil case b see the note  and reference infra I S be take in execution b can sa by the bailiff of a  liberty in Suffolk by warrant of the sheriff of the county the bailiff in  bring the plaintiff to Westminster at the return of the writ carry he at his  own request to Lambeth which be out of the way from Suffolk to Westminster  hold that this be no escape Thomas Boyton clerk parson of Hesset in Suffolk  bring a hearing complaint a against William Andrews and Lewis simpson set  forth how the defendant in salk where a verdict find more than be in issue  shall be good for what be in issue and the surplus reject see             ante  I p a n r and the book there cite by the stat car c the father may dispose of  his child or child until twentyone although the father be under twentyone see  Vaugh Rep a good exposition upon that stat Bl Com cap fol note to the former  edition see ante p b n a ED a a hearing complaint be a equitable action which  lie for a person who either be in execution or be in danger of be so upon a  judgement statute merchant statute staple or recognizance when he have matter  to show that such execution ought not to have issue or shall not issue against  he it be of a most remedial nature and seem to have be invent lest in any case  there shall be a oppressive defect of justice where the party have a good  defence but have not nor have any other mean to take advantage of it Com dig  hearing complaint a Bl Com f n b a askew v Fuliambe cro Elizabeth sand as  where upon a joint and several bind one of the obligors be sue in the king b  and take in execution and the other in the c b and his land be take in  execution by elegit as they may well be a hearing complaint lie for he who be  take in execution and because the judgement must be that he be discharge from  the execution he can be take again though the land take in execution be evict  Cowley v Lydeot hob Bulst and see t r east so if the defendant have pay and  satisfy the judgement and be afterward take in execution he may be relieve by  hearing complaint though he have no write for the payment Ognel v Randol cro  James by three judge against Popham so if there be judgement against two who  be coke report a er p the king bench have recover against the plaintiff debt  and damage and that after the judgement sure Julii Elizabeth at bury saint  Edmund in the county of Suffolk within the liberty and franchise of sir Roger  Townshend Knt and William Dixie Esq by Purdy and day army cujusdem warranti  recently before the same prediction both in execution and the sheriff suffer  one to escape and the plaintiff recover against the sheriff and have  satisfaction the other shall be discharge by a hearing complaint Alford v  Tatnal Mod so where a man as already observe be only in danger of be take in  execution a hearing complaint lie because to fear Inst a three agile p b n S  and therefore the conusor of a statute or a defendant against who a judgement  have be obtain may have it before execution sue roll Abr b pl and so may the  heir of the conusor ibidem pl ante p b and the conusor or his heir may have a  hearing complaint before any suit be commence upon the statute roll Abr b pl  and if there be a verdict for plaintiff at nisi prius and afterward and before  the day in bank be release the defendant and afterward sign judgement as the  defendant can plead the release he may have a hearing complaint to hinder the  execution of the judgement pale yellow c b rd edit but it be say that be shall  not have a hearing complaint until there be judgement against he for perhaps  the plaintiff will never enter up his judgement roll Abr b pl however though  it can be bring before judgement enter yet as it may be out of the defendant  power to bring a hearing querela before he be take in execution inasmuch as  the plaintiff may get judgement sign and take out execution on a sudden and  behind the defendant back it be say by hale Ch I that if a hearing complaint  be bring after the da in bank though the judgement be not enter up the court  will make the plaintiff enter his judgement as of the day in bank so that be  shall not plead nul tiel record Lampiere v Mereday Mod and if there be  judgement against a in the c p and against b and c in the king b for the same  trespass and a satisfy the judgement against he and satisfaction be  acknowledge and afterward execution be sue out against b he may have a hearing  complaint for though the plaintiff have a right to bring several action for  the same trespass and recover in they all yet when judgement and satisfaction  be have against one the plaintiff can have another satisfaction any more than  when a obligee sue one of two obligors in a joint and several bind in the c p  and recover and afterward sue the other in the king b and recover if one of  they make satisfaction the other shall have a hearing complaint to avoid  execution against he for the plaintiff can only have one satisfaction and in  this case c may join in the hearing complaint though he be not yet aggrieve  for he be privy to the judgement against b corbel v barn SirW Jones cro car a  hearing complaint be a commission to the judge to examine the cause Ognel v  Randol cro James and be in nature of a action of trespass therefore where it  be bring against two executor and one only appear and the other make default  he who appear be award to answer alone and damage be give if the execution be  without right h b bro damage executor but it do not lie where there be any  other remedy at law either by plea or otherwise and therefore where the party  have have time to take advantage of matter in discharge and have neglect it he  can afterward be relieve by hearing complaint Randoll v Ognell roll Abr c pl  as where the plaintiff have obtain judgement against the defendant release it  and afterward bring a to know facias upon the judgement the sheriff return to  know to make the defendant do not appear and execution be award be can have a  hearing complaint for he have a opportunity of plead the release at the return  of the to know facias and if he be not warn he have his remedy against the  sheriff for a false return but it be otherwise where nothing be return ibidem  pl Hannor v maze hob f n b I finch law day v Guildford t raym marshal case cro  Elizabeth salk ld raym cook v betri will so if on a to know facias on a  recognizance the party be return warn and make default it be too late to  allege that the recognizance be upon a condition which he have perform roll  Abr c pl wicket v creamer salk very v Carew more No person be entitle to a  hearing complaint who be not the party grieve Blakeston coke report b er p  Rogero et will fact army cujusdam warranti the same Roger et will per the  battle of Philippi Tilney arm tunc viscount predict come Suff sub sigiil duty  Himself confect de et super in breve de capias ad to give satisfaction say  beforehand advance William Andrews et Lodovico simpson de debit et financial  loss pillage ad prosecutionem Self will Andrews et Lodovic a pillage curian  our men in person we emanan et vic predict Suff recently direct c the say  though Boyton be take and arrest in execution until the say Roger and will  Dixie the say though Boyton at Lambeth in the county of Surre the say debt and  damage not satisfy extra prison predict to go out et ad grant quo to cause to  revolve ire to let pass the defendant plead that the say Roger and will Dixie  non to let pass the same though Boyton extra prison pillage to go out et ad  grant ire quo to cause to revolve modus et form prout c and thereupon the jury  give a special verdict to this effect that the plaintiff be in execution prout  c and that the say Roger and William Dixie bailiff coke Report43b of the say  franchise to lead to he to Westminster within the county of Middlesex die  Lunae ante return v martin sir W Jones so a hearing complaint do not lie where  the matter allege do not discharge the party as where one be in execution on a  joint and several bind and afterward the other be sue and take in execution  and then one die or escape the other be not entitle to a hearing complaint  Blumfields case post     Ent a nor be it a ground for a hearing complaint that  after judgement the party submit themselves to arbitration and that the  arbitrator have make his award mile fale case roll Abr in general the court  will not put the defendant to the trouble and expense of a hearing complaint  but will relieve he in a summary way on motion Sutton v bishop burr and see  Lister v Mundell Bos and p but where the ground of his application for relief  be a release the execution of which or some other matter of fact can be clear  ascertain without a trial the court will leave he to his hearing complaint  wicket v creamer salk ld raym Mod anon salk Ludlow v Lennard ld raym Mitford v  Cordwell stram the process in hearing complaint because to fear be a venire  facias then a distringa alias and pluries distringa and if non be invention or  nothing be return a capias be award f n b v that edit dyer b where the party  be in execution a to know facias issue instead of a venire facias trot v  sparling more clerk v more salk and if a hearing complaint be find upon a  record the process be a to know facias in the same manner as where the party  be in execution but if it be ground on matter of fact or the party be not in  execution the process be a venire anon salk where a hearing complaint be sue  because to fear and the party be at large there can be no to know facias but  the proper process be a venire and distress infinite clerk v more salk see the  proceed on a hearing complaint between Lord Portchester and Petrie sand b how  be v mott marsh and for practical direction see lee Dict a hearing complaint  may be bring in the same court in which the record upon which it be find  remain and therefore if a man recover judgement and afterward by deed release  it and then sue out execution the defendant may have a hearing complaint out  of the court where the record be f n b b that edit a hearing complaint be no  supersedeas and therefore execution may be take out unless a supersedeas be  sue forth if the plaintiff be not in execution there be no need of bail for  they be only necessary when a person in execution be to be discharge Corbet v  barn sir W Jones see the form of the bailpiece sell prac and the writ shall  not be allow nor shall there be alley supersedeas thereupon unless the release  upon which it be find be prove by the witness present in court Nubi v Jenkins  side where the defendant confess the matter allege the plaintiff have  judgement and discharge by confession but if the defendant deny it the party  proceed to a issue in fact or in law as in other case infra it be say that  cost be not recoverable in this action dyer a sand g the defendant in hearing  complaint can move in arrest of judgement but must either demurrer at the time  of fill the writ of hearing complaint or if the verdict be give against he  must bring a writ of error or move for a new trial Giles v Nathan marsh taunt  ED coke report b er p short catalog de capias ad satisfaciend the day of the  return be die Lunae post crastin air so that the bailiff mistake the day of  return and that the say bailiff in the interim before the return of the writ  at the request of the plaintiff carry he to Lambeth within the county of Surre  which town of Lambeth be next adjoin to Westminster but out of the way and not  in the way from the county of suffolk to Westminster and that at the return of  the say writ the bailiff do deliver the say Boyton to the prison of the king  bench by virtue of the say writ and that the plaintiff from the time of the  arrest until the return of the say writ and delivery of he to the prison  aforesaid do remain and continue with the bailiff by virtue or colour of their  warrant and whether on the whole matter the plaintiff be at large and out of  prison be the question and judgement be against the plaintiff and in this case  these point be unanimous resolve by the court first it be object that the  command of the writ of capias ad to give satisfaction be to have the body of  the plaintiff at the court of king S bench which then be at Westminster and  forasmuch as they carry the prisoner beyond Westminster that be to sa to  Lambeth in another count which be not warrant by the writ it must of necessity  be a escape b for the writ give they authority to bring he to b by the  commonlaw sheriff and gaoler be oblige to keep person in execution in safe  custody and if such prisoner escape the creditor have his remedy against the  gaoler by a action upon the case ground upon the tort which form of action  must still be adopt when the escape be before final process Inst but the  statute Westminster and Richard c give a action of debt against the sheriff or  gaoler for a escape to recover the sum for which a prisoner be charge in  execution these be affirmative statute do not take away the commonlaw remedy  so that the creditor have his election to bring either the one or the other  Burton v Eyre cro James the action of debt however be a more eligible proceed  than case for in the former the creditor be entitle to recover the whole debt  and the legal fee of execution Bonafous v walker t r Alsept v boil h Bl  Hawkins v Plomer Bl Rep but in the latter the jury be at liberty to give such  damage as they shall think right under all the circumstance of the case and a  small sum be frequent consider as sufficient in case of great hardship against  the gaoler another advantage attend the action of debt for a escape be that  the statute of limitation can be plead to it Jones v pope sand whereas in case  the defendant be at liberty to plead the statute of limitation as well because  the action lie at the commonlaw as because the word of the statute be all  action upon the case side sand escape be either voluntary or negligent  voluntary escape be such as be by the express consent of the gaoler negligent  where the prisoner escape without the consent or knowledge of the gaoler  Stonehouse v Mullins stram in either of these case debt lie against the gaoler  SC if a prisoner under final process before be be take to prison be permit to  go about though in company and under the control of the sheriff himself it be  a voluntary escape Benton v Sutton Bos and p Hawkins v Plomer Bl though it be  not deem a escape to take a prisoner in execution to a lockup house Houlditch  v birch taunt but after a arrest on mesne process the gaoler may suffer the  prisoner to go at large provide he have he at the return of the writ Atkinson  v Matthewson t r hence in Noy a distinction be take that in action for escape  on mesne process the writ shall allege that ad grant ire to let pass et non  comperuit ad diem but on process of execution ad grant ire to let pass be  sufficient and see rastal upon a habeas corpus to a gaoler to bring a prisoner  in execution before the court the gaoler shall have a convenient time only for  that purpose and for carry he back again to prison cro car which if he exceed  it be a escape the sheriff be liable for a escape though the judgement be  erroneous gold v stride Carth and the sheriff can take advantage of error in  the process Burton v byre cro James bush case cro Elizabeth Shirley v wright  ld raym salk so where a court not have jurisdiction order a officer to  discharge the prisoner and the officer obey the order be be liable in a action  for a escape brown v Com t r overrule Orby v hale ld raym coke report b er p  Westminster for there be the king bench and therefore when they carry he far  to Lambeth in another county it be without warrant and by consequence a by  stat W c S prisoner upon contempt or mesne process or in execution commit to  the custody of the marshal of the king bench or warden of the fleet shall be  detain within the say prison or the rule thereof which by this statute be to  all intent the same as the wall of the prison and therefore a escape from they  without the marshal knowledge can be consider as a voluntary escape Bonafous v  walker t r until discharge by due course of law and if the marshal or warden  or keeper of any prison shall suffer any prisoner commit to their custody  either in mesne process or in execution to go or be at large out of the rule  of the prison except by virtue of some writ of habeas corpus or rule of court  see show pl Bac Abr escape in civil case b to be grant only upon motion make  or petition read in open court such go or be at large shall be deem a escape  and if the keeper of any prison after one day notice in write refuse to show  any prisoner commit in execution to the creditor or his attorney such refusal  shall be deem a escape sect and if any person desire to charge another with  any action or execution shall desire to be inform by the keeper of the  prisoner whether such person be a prisoner or not the keeper shall give a true  note in write thereof to such person upon demand at his office for that  purpose upon pain of forfeit and such note shall be sufficient evidence that  such a person be at that time a prisoner in actual custody sect if the party  in execution escape by the negligence of the gaoler he may be retake either by  the gaoler f n b or the plaintiff Allanson v butler side or if the plaintiff  recover against the sheriff for the escape the sheriff may bring a action on  the case against the defendant for damage sustain by he by reason of the  escape f n b or if the sheriff retake upon fresh pursuit before a action be  bring for the escape he shall be excuse Ridgeways case post   b more Harvey v  reynell sir W Jones roll Abr e pl Allanson v butler side though it be  otherwise if the action be bring before the retake roll Abr pl sir W Jones but  if it be a voluntary escape the sheriff can retake he and be subject to a  action for a false imprisonment if be do Buxton v home side show father to  haugh v Atkinson barn vin Abr escape pl Atkinson v Jameson t r neither in such  case can the gaoler if he be oblige to pay the creditor the amount of his debt  in consequence of the escape recover back the money from the debtor pitcher v  Bailey east yet as the judgement remain still in force the plaintiff may  either bring debt Buxton v home I show or to know facias Alanson v butler lev  Allen v vinter I Jones on the judgement or be may retake he by a new capias ad  to give satisfaction vent Basset v salt Mod and if the plaintiff die his  personal representative may have a to know facias Sudall v Wytham Lutw and now  by the above statute W c S if any prisoner in execution shall escape by any  way or mean howsoever the plaintiff may retake he by a new capias or capias ad  to give satisfaction or sue forth any other kind of execution on the judgement  as if he have never be in execution so if the prisoner return to prison after  a voluntary escape the plaintiff may admit he to be in execution and if he be  turn over to the now sheriff c and afterward escape may bring a action against  the new sheriff for the escape James v pierce vent in which the Sheri of essex  case hob be deny Lenthal v Lenthal lev James v pierce lev but if the prisoner  be permit to go out of prison with the consent of the plaintiff and resort to  the judgement again for the purpose of enforce it in any manner judgement be  hold to be satisfy and the creditor be deprive of every remedy upon it as well  by action of debt Vigers v aldrich burr or writ of execution against the good  tanner v Hague t r as by writ of execution against the person and this rule  hold although the party in execution have be discharge on term which be not  afterward comply with as upon a undertake to pay the debt by instalment Vigers  v aldrich burr or to render himself on a give day if he do not in the mean  time pay the debt clarke v clement t r b or to pay the debt at a future time  tanner v Hague t r coke report b er p escape for the bailiff can not have the  custody of he there as bailiff of the franchise for that be out of the  franchise and by force of the writ they can not and on failure thereof that he  shall be liable to be take in execution again Blackburn v Stupart east so if  the plaintiff consent to discharge one of several defendant take on a joint  she sa the plaintiff can afterward take any of the other defendant t r but a  discharge by act of law as under a insolvent debtor Act of one of several  defendant take on a joint she sa be no discharge of the other defendant Nadin  v battie east so where the prisoner be discharge upon give a fresh security to  satisfy the judgement which be afterward defeat on account of a mere  informality it be hold that the judgement be satisfy and can not be set off  against a demand of the prisoner Jacques v withy I t r and a agreement by the  defendant on his be discharge out of custody with the plaintiff consent that  the judgement shall be revive be hold to be void Thompson v Bristol barn so a  bind condition to render in execution so that he may be take a person who have  be once discharge be void dam cost v Davies I Bos and p but the plaintiff  consent must be previous to the escape for a subsequent assent by he be no bar  to debt or a to know facias upon the judgement Scott v peacock salk that in  case of a negligent escape a voluntary return of the prisoner into prison  before action bring be tantamount to a retake on fresh pursuit chamber v  Gambier Com Rep Bonafous v walker t r Bl Rep upon the principle of these  decision find upon the commonlaw the creditor be deprive of every remedy as  well by action of debt upon the judgement Vigers v aldrich burr as by writ of  execution against the good or person of his debtor tanner v Hague Ts r until  the statute Geo c S whereby it be enact that any creditor at who suit any  debtor be in prison and take or charge in execution for any sum of money may  declare his consent by write sign to the discharge of such debtor and shall  not lose the benefit of the judgement but may take out execution thereon  against land or good except thenecessary apparel a d bed of the prisoner or  his family not exceed in value or bring any action on the judgement or use any  remedy for recovery of his demand against any other person liable to satisfy  the same in the same manner as he may have do in case any such debtor have  never be take or charge in execution provide always that no debtor discharge  in pursuance of this Act shall at any time afterward be take or charge in  execution or arrest upon the judgement or in any action bring thereon and that  no proceed shall he have against the bail and by S it be enact that the  personal representative of the creditor may consent to the discharge of the  debtor in the same manner and with the same advantage as the creditor if live  may have do e and such personal representative shall not by reason of such  discharge be deem guilty of a devastavit or Chargeable with the debt due from  the person abroad prior to the Geo occasional act be pass usual every three or  four year for the relief of insolvent debtor but by stat Geo c amend by stats  Geo c Geo c a permanent court be establish for the relief of insolvent debtor  and by stat I Geo c three commissioner be to be appoint to preside in such  court which be thereby constitute a court of record for the purpose of the Act  under this statute person in custody for debt or for contempt of court in not  pay cost c may apply by petition in a summary way for discharge and on their  make a assignment of all their estate and effect except wear apparel c not  exceed the value of to assignee for the benefit of the creditor and deliver in  a schedule of debt property c as therein direct due notice have be give in the  London Gazelle c to the creditor the court if satisfy with such schedule c may  order the prisoner to be discharge from custody forthwith or so soon as he  shall have be in custody at the suit of one or more of the person who be  creditor at the time of petition or who have since become creditor in respect  of debt then borrow due for such period not exceed six month in the whole as  the court shall direct to be compute from the time of fill the petition of  such prisoner such order to specify the several debt of the prisoner to which  such charge shall apply when it shall appear to the court coke report b er p  have custody of he because they have not pursue the writ and if the bailiff  shall be suffer to carry he to Lambeth by the same reason they may carry he to  York or to any other remote part of the realm at their pleasure second it be  say that inasmuch as the writ which be their warrant be to have his body at  the court of king bench such a day they ought to bring the body the usual way  to Westminster where the king bench then be for so much be imply by the writ  and therefore the carry of his body to Lambeth in another county be without  warrant and by consequence a escape and the plaintiff thereby out of their  custody to which it be answer and resolve by the court that first there be a  difference between the custody of one in execution within the franchise or  county that such prisoner shall have destroy book or act fraudulent c the term  of imprisonment may be extend to three year S or if he shall have contract  debt fraudulent c or put his creditor to any unnecessary expense the court may  extend the time of imprisonment to two year S after the order for discharge of  any prisoner be make the court may direct that judgement shall be enter up  against the prisoner in one of the superior court c and may permit execution  to be take out on such judgement where there be asset and the prisoner be of  ability to pay and no to know facias be necessary to revive such judgement on  account of any lapse of time S but no prisoner after judgement be enter up  shall be subject to imprisonment by reason of the same and if he be arrest he  may be release by the judge of the court from which the process shall have  issue and in case of a action for escape the gaoler c may plead the general  issue and give this Act in evidence and if the plaintiff be nonsuit or  discontinue his action or a verdict or judgement upon demurrer be give against  he the defendant shall have Triple cost sacred scripture and where a prisoner  be declare entitle to the benefit of this Act no execution be to issue against  such prisoner for any debt contract prior to his actual confinement except  upon the judgement enter up by order of the court as aforesaid with a proviso  for proceed which can not be put in force against the prisoner at the time of  his obtain his discharge S the that section provide that where a prisoner  shall after his discharge become entitle to property which can be take in  execution the assignee may apply to the court by petition for relief in which  case if though court see fit it may order the prisoner to be apprehend and  remand to custody within the wall of the prison until he shall assign such  property to the assignee for the benefit of the creditor and when prisoner  after discharge become entitle to stock in the public fund c the court may  make further order concern the same S the power of the assignee however be not  to extend to the pay of officer of the Army or navy c or of benefice clergyman  with the proviso that a sequestration of the profit of the benefice may be  apply for and a portion of the pay of officer may be obtain by application see  S the Act do not extend to crown debtor unless the treasury give consent S  prisoner under writ of capias in case of extent issue for the benefit of any  surety c where the lord of the treasury be not authorize to give such consent  may apply to the baron of the exchequer to be discharge and upon their make a  full disclosure of their effect c the court if it see fit shall order a writ  of supersedeas quoad corpus to be issue out of the say court for the  liberation of such prisoner from imprisonment which be not to be deem to  satisfy or supersede the extent except as to such imprisonment or the debt  seize under the same S Uncertificated bankrupt be not entitle to discharge  under this Act unless they shall have be in custody for three year S and no  person have take the benefit of a insolvent Act shall be entitle to further  relief within five year unless threefourths in number and value of the  creditor shall consent or it shall appear to the satisfaction of the court  that he have since his former discharge endeavour by industry and frugality to  pay all just demand upon he and have incur no unnecessary expense and that the  debt which he have incur subsequent to such former discharge have be necessary  incur for the maintenance of himself or his family or that his insolvency have  arise from misfortune or from inability to acquire subsistence for himself or  his family S ED coke report a er p where the common gaol be or the office of  the sheriff or bailiff extend and where the sheriff or bailiff have the  custody coke Report44a of one in execution out of their franchise or county as  in the case at bar by force of a writ for if the sheriff or bailiff of a  liberty assent that one who be in a execution and under his custody go out of  the gaol for a time and then to return although he return at the time yet it  be a escape c so if the sheriff c suffer he to go b bail or b baston d for the  sheriff or bailiff ought to keep he in c salv et to shut up custodian and the  stat of west cap l say quod prison manucipentur in d ferris so as the sheriff  may keep they who be in execution in fetter and iron e to the end that they  may the soon satisfy their creditor and with that agree a resolution Trin h by  the advice of Fitzjames and e Norwich c justice and Fitzherbert and Spilman  justice that by the law those who be in execution shall not go at their  liberty within the prison nor out of the prison with the keeper but shall be  keep in strict ware vide dyer f b and the statute of r cap Westminster cap but  it be adjudge where the sheriff have one in execution for debt and a g habeas  corpus issue out of the king bench to have the body of he who be in execution  in the same court at a certain da by force of which writ the sheriff before  the return of the writ bring his body to a inn in Smithfield towards  Westminster and the prisoner of his own head go without any keeper to  Southwark in the county of Surre and the next morning come again to the  sheriff to Smithfield and at the return of the habeas corpus the sheriff  deliver his body in court this be no escape f and so it be adjudge in this  court Elizabeth in charnock case who be sheriff a roll hob dalt Sher Cr car  will c see n b sup b roll Plowd b a b hob   light a dalt Sher Cr Elizabeth  Benl in kelw n Benl pl Benl in ash Com dig escape c Bac Abr escape in civil  case c d I e one of the warden of the fleet be servant or officer who attend  the king court with a red staff for take such person into custody who be  commit by the court see stats I r c Elizabeth c ED c hard Inst   a dalt Sher  Cr car   light a roll Inst Bac Abr escape in civil case c d Bulst dalt Sher  roll Inst e Acc hawk p c and see hale h p c dalt c but this proceed even in  the case of a felon much more in that of a debtor can only be intend where the  officer have just reason to fear a escape as where the prisoner be unruly or  make any attempt to Oat purpose but otherwise it seem altogether unwarrantable  and contrary to the mildness and humanity of the law of England by which  gaoler be forbid to put their prisoner to any pain or torment and Lord coke  Inst be express that by the commonlaw it may not be do h h and if the gaoler  keep the prisoner more close than the law allow so that he die in consequence  of illtreatment this be felony in the gaoler by the commonlaw Inst Fost burn I  gaol and gaoler seven and therefore it be that whenever a man die in prison  whether by accident or disease the coroner must sit upon his body to ascertain  the true cause of his death Id ibidem hale hale but if a felon attempt to  break the prison assault his gaoler he may be lawful put to death hale burn I  gaol and gaoler seven and if the gaoler or any of his officer be kill in the  affray it will be murder in all aid in the resistance Fost burn I gaol and  gaoler seven Chit c l as to what shall be deem a escape see ante p b u b sand  Bac Abr escape in civil case b Com dig escape c ED e roll die pl f roll die pl  post b g dalt Sher more Com dig escape d vin Abr escape a pl bull n p b Bac  Abr escape in civil case b f so if a sheriff have arrest a defendant on mesne  process keep he in his custody after the return of the writ and then carry he  to prison he be not liable to a action as for a escape if the jury find that  the plaintiff have not be delay or coke report b er p of Bedford for the  effect of the command of the writ be perform sure to have his body in the king  bench such a day and this stand with great reason for the sheriff c may more  strong guard his gaol than every inn or other place through which he travel a  strong in the case at bar for he be always under the custody of the bailiff g  and the writ do not command the sheriff to bring he the direct or usual way to  Westminster c but only to have his body in the icings bench c such a day and  therefore if one be sheriff of two county and have arrest and take several  person in execution in the several county by force of several capias ad be  satisfied direct to he he may in that case bring one prisoner out of the one  county into the other to carry they both together to the king court at  Westminster without any escape and what way or place the sheriff think most  sure for he he may take h and some conceive that the case at bar be strong  because the prisoner go to Lambeth at his own request and therefore he shall  not discharge himself by hearing complaint in this case and forasmuch as  escape be so h penal to sheriff bailiff of liberty and gaoler the judge coke  Report44b of the law have always make as kind and favourable construction as  the law will suffer in favour of sheriff bailiff of liberty and keeper of  prison who be officer and minister of justice and to the intent that every one  shall bear his own a burden the judge will never adjudge one to make a escape  by any strict construction and therefore if one in execution escape out of  prison and fly into another county it may be argue that this shall be a escape  although he be retake you fresh suit because the sheriff can have the custody  of he in b another county in regard he be not sheriff there neither do his  authority extend thither but the judge nevertheless will adjudge it no escape  I because the sheriff do all he can and by his c fresh suit have retake he  before any action bring so in the case at bar when the prisoner be once out of  the proper county although he go into another county which be not in the way  to Westminster where the king S bench sit this by a favourable construction in  law be not a escape if at the day of the return he have the body of the  defendant in court and if the sheriff c shall be compel to bring his prisoner  to the king court as in rectan linea it will be too full of hazard and very  dangerous for sheriff c second it be resolve that if one in execution escape  of his own wrong and be retake he shall never have a hearing d complaint to  discharge himself of the imprisonment because he shall not take advantage of  his own wrong and in such case it be lawful for the gaoler to retake he as it  more full appear in the follow case and where it be object that the writ be  not good because it do not appear that prejudice in his suit Planck v Anderson  t r of escape upon habeas corpus see bull n p b Bac Abr escape b ED g but the  bailiff of a liberty who have the return and execution of writ be liable to a  action of debt for a escape if he remove a prisoner take in execution to the  county gaol situate out of the liberty and there deliver he into the custody  of the sheriff Boothman v the earl of Surre t r ED h that the sheriff be to  bring he in convenient time and the most convenient way and this be to be  judge of by the judge cro car dalt sheriff Bac Abr escape in civil case b ED h  dalt Sher a hard b Plowd a b vin Abr escape e pl I that a sheriff be excuse  for a negligent escape even in execution provide he the prisoner on fresh  pursuit before action bring ace Ridgeways case post   Hawkins and another v  Plomer and another Bl Rep Bonafous v walker t r ante p b n b as to the  difference between voluntary and negligent escape see ante p b n b Bac Abr  escape in civil case c ED c post b roll Com dig escape d and see the book cite  in n I infra d more Cr Elizabeth more Cr car post b sty Ridgways case coke  report b er p the warrant make by the bailiff be in write e for the word of  the writ be army cujusdam warranti and do not say in write as have be say but  that exception be disallow by the court for the sentence be f army cujusdam  warranti per say beforehand advance r et W fact et direct c by which word fact  et direct be imply that it be in write king another exception to the writ be  take that it do not appear thereby when the judgement be give nor when the  capias ad to give satisfaction issue nor when it be return so that it may  appear that the defendant be arrest by force of it after the testae of the  writ and before the return of it but that exception be also disallow by the  court forasmuch as it g appear by the writ that the say Thomas Boyton the  plaintiff army short catalog pillage capacity et arrestatus to be in execution  by these word it be imply that it be lawful and duly do and it be agree that  writ be more Compendious than count l and count than other plead for writ  comprehend the effect and substance without circumstance of time or place and  other circumstance et therefore to say short catalog near the dawn shortness