case Eleanor plummer against sir Jeremy WHITCHOT Trinity term or car roll l  debt for escape lie against the warden of the fleet as superior the grantee  for life be insufficient S C lev S C Jones S vent S C lev Ent S C keb debt for  a escape upon nil debet plead the jury find a special verdict that sir Jeremy  Whitchot be seize in fee of the office of warden of the fleet and of several  message thereunto belong and be so seize do make a grant thereof to one  Duckenfield for life and for the life of three more a see will c S a  Duckenfield by rule of court be admit into the say office be approve by the  court and esteem a man of a estate he suffer a prisoner afterward to escape  and be not able to make the plaintiff satisfaction this action be bring  against sir Jerem that Whitchot the now defendant and whether he be Chargeable  or not with this action be the question Wallop who argue for the plaintiff say  that he will not take up any of their time to make a narrative of imprisonment  for debt or what remedy there be for escape at commonlaw and what remedy by  the statute but suppose a action of debt will lie whether it be by the statute  of Westminster cap for at the commonlaw before the make of that Act a action  of debt will not lie against the gaoler for a escape but a special action on  the case ground on a trespass or whether this action lie against the defendant  by the statute of Richard cap which give it against the warden of the fleet  vbo in this case have not the actual freehold in possession but the  inheritance and not the immediate estate but the reversion be in question the  office of the warden of the fleet may be take in two capacity either as a  estate or common hereditament wherein modern a mail may have a inheritance and  which may be transfer from one to another or as apublic office wherein the  king and the people may have a special interest as it be all inheritaime  transferable it be subject to the rule of law in point of descent and be  demisablo for life in fee tail possession or reversion and in many thing be  common and run parallel with other estate of inheritance it be true he can  grant this office for year not for any disability in the grantor but in  respect of the matter and nature of the thing grant it be a office of trust  and personal for otherwise it will go to the executor which be inconvenient    sir George Reynells case to inquire what superiority the reversioner have over  the particular estate be not to the point in question but there be such a  intimacy and privity between they that in judgement of law they be account as  one estate and therefore Littleton sect say that a release make to a  reversioner shall aid and benefit he who have the particular estate and  likewise a release make to the tenant of the freehold shall entire to he in  reversion because they be privy in estate so that these two estate in modern  er p the case at bar make but one office this be a public office of great  trust and concern the administration of justice and therefore it be but  reasonable to admit the rule of to answer superiori lest the party shall be  without remedy and the rather because execution be the life of the law Henry  he who be in the office as superior whether it be by law or tort be  Accountable to the king and his people and this bring he within the statute of  Westminster cap or Richard cap if the defendant have grant the office in fee  to Duckenfield before any escape have be and the grantee have be admit the  defendant then have be discharge or if he die before or after the action bring  and before judgement noritur action cumpersond for if he have not reserve  something he can not be charge and if he have part with the inheritance the  privity have be go but by reserve that be have make himself liable for now he  be superior he may exact homage and fealty and the particular tenant be say to  be attendant upon the reversion and these be mark of superiority and this rule  of to answer superior hold not only between the principal officer and his  deputy and between the master and his servant but in many other case one be to  be answerable for another as first modern where a man have power to elect a  officer he be Chargeable so the county have power to elect coroner and if they  fail in their duty the county shall be charge for by reason of the power they  have to elect they be esteem superior Inst second where one man recommend  another to a office concern the king revenue the person who recommend be  liable if the other prove insufficient and for this there be a notable case in  the Edward pl it be porter case cite in the case of the earl of Devonshire   b  where porter be master of the mint covenant with the king to deliver he money  within eight day for all the bullion deliver ad cambium king to coin which he  do not perform and because Walwyn and Picard to lead et praesentaveru the say  porter therefore to look at closely be quod a load versus owner king and why  not the defendant in this case who praesentavi the say Duckenfield to the  court tanquam to put under the reason be the same and the king be as much  concern in the order this court of justice as in the order of his coffer for  as the treasure be string pretty so the execution of the law be string peace  three in the case of a dependent officer though he be a proper officer and no  deputy the person who have the reversion shall answer as in Henry pl the duke  of Norfolk who have the inheritance of the Marshalsea be charge for a escape  suffer by one Brandon who be tenant for life in possession of the say office  and there be great reason it shall be so for when a principal officer may make  a interior officer who afterward commit a forfeiture the superior shall take  advantage of this forfeiture and it be as reasonable he shall be answerable  for his miscarriage cro Elizabeth the earl of Pembroke v sir Henry Berkley and  therefore admit the defendant be out of the statute yet he be within the maxim  of to answer superior which be not ground upon any Act of parliament as appear  in the case of the coroner and the statute of Westminster the second and all  other act which inculcate this rule be but in affirmance of the commonlaw and  this be not only a rule of the common but also of the civil law which be serve  with the equity of this maxim in case of like nature and since it be pure  remedial such a construction ought to be make as may most advance the remedy  Inst in the case of Morse v slay a stomach and Mod a late in this court the  question be whether a master of a ship shall be charge upon modern the common  custom of England for negligent keep merchant good and adjudge that he be  though rob law a merchant make a provision for it for the remedy against the  master be most direct and immediate that against the owner be collateral in  favour of the merchant to who to hand over choice and therefore that the  interest of the merchant may be serve the law in that case provide a double  remedy and in Linwood de clergyman non resident word that supplies a place a  book foe a it be say that in the same church there may be a rector and a v ica  and the cure of the church may be divide between they the vicar be not the  deputy of the rector but have a distinct office from he and as the temperality  of the vicar be but a derivation from the betlefice of the rector so his cure  be derive from that of the rector also in like manner Duckenfield here be not  a deputy to the defendant but a immediate and proper officer and modern er p  the habitual care and custody be in he which be enough to bring he within the  rule of to answer superior these instance be give because this be not only a  maxim in England but be of foreign production and adapt to the rule of  commonlaw the statute de Scaccario Henry saint S enact that if any man be  receive into office in the exchequer without the treasurer licence or if he  have such licence and do trespass he shall be punish accord to his trespass if  he have whereof and if he have not then he who put he in the office shall be  charge and if he be not sufficient his superior shall be charge so that they  shall all answer in their several station and this statute be make in  affirmance of the commonlaw if therefore the superior of a superior shall  answer why shall not the defendant in this case answer for his substitute for  though the warden be not swear to appoint one who be sufficient to satisfy he  be bind to do it and it be no argument to say that he be discharge because  Duckenfield be appoint by the cou t for that be a work of supererogation which  be leave in the discretion of the court and may be do or omit as they shall  think necessary but be not conclusive Henry pl especial since the jury have  not find that the court take any examination whether he be sufficient or not  but that he have forfeit his office have wilful suffer a prisoner to escape  and then the defendant be or may be the actual officer and have take security  ought to be charge modern ever William Jones who argue on the other side  before be speak to the case endeavour to remove a doubt upon the special  verdict which find that the defendant have take security from Duckenfield to  indemnify he from escape this say be may be a argument at nisi prius to induce  a jury to find damage but can not make a man Chargeable who be not so before  second though the defendant have a covenant from Duckenfield to pay fifteen  hundred pound ayear to he yet that will not make he more liable than if  nothing have be to be pay neither do be lie any weight upon it that the  defendant have any notice of the insufficiency of Duckenfield for if he be  Chargeable he be bind to take notice at hisperils and nobody can believe that  the court orCommon plea be Chargeable for that be mention in the argument for  the plaintiff that the superior of a superior shall be charge where he be  insufficient neither do be insist upon the rule in the common plea by which  Duckenfield be admit but he consider first whether the defendant be Chargeable  by the statute of Westminster the second second if be can clear he from that  statute whether he be Chargeable at the commonlaw or by any other statute and  he say that he be not Chargeable by the statute of Westminster the second  which give all action of debt against the gaoler for a escape many authority  may be cite to prove that where a man be in execution on a action of debt that  such a execution be not within that statute Henry pl bro title escape pl pi  Com it be doubtful there how a gaoler become Chargeable for the escape of a  man who be in execution for debt but be be in execution for matter of account  he be Chargeable by the express word of the statute which be caveat Himself  sheriff el cuslos gaolce and the parliament in Richard do not think the warden  Chargeable for if they do to what purpose be it to make the warden of the  fleet liable to a action of debt for all escape of a man in execution for debt  if he be Chargeable before by that statute of Westminster the second this be  urge to show that at that time it be not clear but because there be authority  that seem another way he do not affirm or deny it after such variety of  opinion but proceed to argue these two point first that the rule of to answer  superior do not extend to this case second that a reversioner be not a  superior modern first the statute de gift be by some call the statute of great  man because the intent of it be for the preservation of their estate and this  statute be make in the same year a Edward c a seem also to have a particular  regard to the lord to give he a quick and more severe remedy against his  servant and bailiff than he have before for it make he in effect his own judge  against he in case of account because it give he authority to assign auditor  and such as he appoint must stand and the servant have no remedy but by writ  exparte fall in the exchequer b f n b b yet no man modern er p ever think that  by the equity of this statute the same may be do in a action of debt and  therefore the difference in the proceed between action of account and debt  seem to imply that a action of debt be not within the rule of to answer  superior second there be a great difference between the restraint of prisoner  in execution for debt and those who be imprison by this Act for arrear of rend  which direct that they shall be arrest c el prison mancipe in ferris but this  the gaoler can not have do at the comnion law neither be it ever practice or  allow by the law that a prisoner shall be so use who be in execution for debt  unless he be unruly and endeavour to escape but it be express against the law  to do it where there be no such reason because a prison be for the safe  custody of man and not to punish they   light a so that it appear by this that  a strict remedy be provide for execution in account than for those in debt  three there be certain person also who be make Chargeable by this statute when  the execution be in account who can be charge in ebt for the statute enact  that if the party escape the officer in who custody he be shall answer sive  infra freedom sive extra so that the gaoler shall be charge whether he be of a  franchise or of the county at large but if a man be in execution for debt and  then escape the gaoler be not liable but the sheriff though the gaoler have  the custody of the body of one who the late sheriff do not deliver over to the  present sheriff a   Westbys case see also lev Jones Mod ld ray salk ba ab a so  that in this also there be a difference upon this statute between action of  account and action of debt and therefore the clause therein of to answer  superior be make upon a particular occasion only in the case of account shall  not be extend to other matter and can in no wise influence this case which for  other reason can be govern by that rule if extend to all who have power to  depute a officer and thereby give he a interest or to appoint one for a time  modern second point first because be in reversion be not in propriety of  speech a superior for it be not say that a reversioner of to a estate for life  e be superior and of more account in the law than he who have the particular  estate but on the contrary he who have the freehold be of great account and  regard in the law than the reversioner after he and if as it have be object  both make but one estate then there can be no superiority and it will be very  bare and difficult for ai that man to prove that any attendancy be make by the  tenant for life upon he who have the reversion second here be room enough  within the statute to satisfy the word superior by a plain and clear  construction without bring in the reversioner for if the sheriff make a deputy  or a lord make a bailiff of a liberty the sheriff and the lord be proper the  superior three this word superior be use in the statute make the same year  with this b the statute of Marleberge Henry c b insignification agreeable with  the case in question for it recite that where lord of fee distrain that ir  tenant for rend and service and they have replevied their cattle do alien or  sell they so that a return can be make then tt provide that the sheriff or  bailiff shall take pledge to prosecute the suit before they make deliverance  of the distress and if the bailiff be not able to restore that be if be take  insufficient pledge the superior shall answer by which the parliament can mean  no other than the lord of that liberty for if it shall be otherwise there will  be no end of superior as if there be a bailiwick in fee of a liberty and the  bailiff thereof grant it for life in this case there be two superior for the  lord of the bailiff be one and the bailiff himself be another which can be  Inst there be a congruity in law in say the sheriff and lord be superior but  there can be none in make the reversioner a superior the lord may lose the  liberty if his bailiff for life or in fee commit a forfeiture as by not attend  the justice in eire but a reversion can be lose by the forfeiture of the  tenant for life if the bailiff make a ill execution of a writ or suffer the  party to escape the lord shall answer so if the marshal of England appoint a  marshal there may be a forfeiture of his office because it be still but the  same office and therefore the case in cro Elizabeth where it be say if a  office be grant for life the forfeiture of tenant for life shall be modern er  p the forfeiture of the whole office be mistake for in more pl it be hold  otherwise and upon the true difference between a deputy and a modern grantee  for life for in the first case there may be a forfeiture of the superior  because it be still but the same office but in the other case the superior  shall not forfeit for any misdemeanour of the grantee for life because he have  the freehold of the whole office and the other nothing but the reversion and  therefore if the defendant be liable in this case it be in respect first that  be have grant the estate second that he have the reversion or residue after  the life of the grantee he can be charge in respect that be have grant the  estate because the freehold be go and in another neither can he be charge in  respect of the reversion because then not only his heir but the assignee of  the reversion will be Chargeable also which can be as to the second point of  this argument if the defendant be not Chargeable by this statute he be not to  be charge at the commonlaw because the commonlaw do not give a action of debt  for a escape but a action on the case only neither do it give any remedy but  against the party offend as to the case that have be object upon the statute  de Scaccario where the several officer in the exchequer shall answer in their  degree of superiority that can be applicable to this case because there can be  no proportion between thing which concern the king revenue and prerogative and  those of a common person the case of the coroner and the sheriff and of the  recommend of a receiver to the king be not like this case because the king can  inform himself of the sufficiency of the party recommend and therefore it be  but reasonable that he who recommend shall be liable and can it be say that  when the defendant be about to sell this office to one Norwood which he have  since do that if a stranger have recommend Norwood and he have prove  insufficient that the stranger will have be liable?As for the civil law and  the authority therein cite to govern this case he do not answer they because  they judge after their law and the commonlawyers after another way this office  have be grant time out of mind for life and no doubt but many escape have be  make but never be any action bring against he in the reversion before now the  court of common plea always examine the sufficiency of the grantee for life  which show that in all succession of age the opinion of learned man be that no  escape can be modern bring against the reversioner for if so what need be  there of such examination this be urge to show that the proceed of that court  do not alter but interpret the law but admit the case of the duke of Norfolk  to be law yet it concern not this because the submarshal there be take as a  deputy but there be no such officer as a subwarden for Duckenfield have it for  life and then a deputy be a person removable at pleasure will not be so  consider ir law as one who have a more fix estate for have nothing to lose it  can be intend that he will be so careful in the execution of his office as the  other and therefore it be reasonable in such case that the superior shall  answer but be who have a freehold for life have a estate of some value in the  law which he can be suppose easy to forfeit and therefore it be reasonable  that be alone shall be liable for his own miscarriage for if the defendant  shall be charge by the same reason the grantee of the reversion may be charge  who be altogether a innocent person and so may be liable to a vast sum for the  fault of another for which reason be pray judgement for the defendant the  court deliver no opinion this term but take time to advice and afterward in  easter term follow Rainsford chief justice deliver the opinion of Twisden wile  and Jones justice who say they be all agree in the main point but think the  verdict imperfect and not to warrant the plaintiff case for be declare that at  the time when the grant be make to Duckenfield when the commitment be and when  the escape be suffer and ever since that Duckenfield be insufficient and not  able to answer the plaintiff but the jury in the special verdict do not find  the insufficiency at that time when this action be bring but as to the main  question they be of opinion that the defendant be superior and that he be  Chargeable for this insufficiency of Duckenfield but if he have be sufficient  when the plaintiff bring this action it may have be otherwise but his  inability be full aver in the declaration and the defendant deny it and the  jury have find nothing against it but there be strong suspicion of the modern  er p truth of the fact the court will not make a intendment to the contrary  the jury have find express that Duckenfield be insufficient at the time of the  escape which be within six week of the time when the action be commence so  that have once find he disable unless it appear that he be of ability  afterward modern the court will not intend he so but rather that he be  insufficient at the time of the action bring for there be strong surmise of it  and there be no ground within the record to intend he sufficient a fact may be  collect that be not find in the verdict Fulwoods case