case whiting against sir george reenel marshal of the king bench a action on  the case or of debt lie at the election of the plaintiff against a sheriff for  a escape in execution and if the escape be voluntary or a action be commence  the sheriff can plead a retake on fresh pursuit Jones roll ab cro Elizabeth  cro car   comb Bac Abr fitzg peer wms strange barn king b Bl Com see the case  of Bonafous v walker to Rep debt for two hundred and two pound whereas he  recover against Thomas Abingdon and mary his wife in trespass for damage two  hundred and two pound and the say mary be commit in execution to the defendant  upon this judgement that the defendant that November James suffer her to go at  large whither she will his debt not be satisfy per quod action to grow  progressively the defendant plead that she break prison and escape and he  fresh follow her and take her again saint October James in fresh suit a and  have her in execution and yet have her c whereupon the plaintiff demurrer it  be now argue that this plea be not good because the escape be allege that  November James and the action be bring in easter term James and this reprisal  be allege a year after the escape and after the action bring for it be allege  croak throw although a reprisal by fresh suit if it have be before the action  bring will peradventure have excuse he yet be after the action bring so as the  plaintiff at the time of the action bring have good cause to have tile action  the reprisal after shall not excuse he and compare it to waste bring for  reparation which if amend pendent the writ it shall not excuse he so here and  in proof thereof be cite   Ridgeways case Edward pl Edward title bar but  against it be argue that this reprisal be allege to be by fresh suit and  before the plea plead be good for the time and he shall take advantage thereof  to excuse the escape for it be upon the matter no escape when she be take by  fresh suit for that be a continual pursuit and the law shall adjudge her in  prison always and it be not like the case of waste for there nothing be do  after the waste commit before the action and the reparation have not any  relation nor be the continuance of any former act but this reprisal have  relation and make it as no escape ab beginning as a distress take for rend and  rescue and drive into another manor which be pursue and retake the party shall  make his avowry of the take in the first place so here and it will otherwise  be a great mischief if a escape shall be against the will of sheriff or keeper  of prison by breach of prison or a it be former hold that the sheriff may give  fresh pursuit in evidence bait by will c S no retake on a fresh pursuit shall  be give in evidence on the trial of a issue in a action of escape unless the  same be especial plead nor shall any special plea be take unless oath be first  make in write and file by the sheriff against who the action be bring that the  escape be not with his consent privity or knowledge c and if such affidavit  shall be false the offender on conviction shall forfeit l croak James er p  rescue themselves before they be bring to prison or in their go thither and  the prisoner be reprised within two or three day that a action shall be bring  in the interim against the gaoler and that this reprisal when he have the  prisoner before the plea shall not be a excuse especial to the marshal who  have a multitude of prisoner and every day be to bring they to the hall by  habeas corpus or rule of court if peradventure a prisoner escape and a action  be bring against the marshal the same day before he can have any time to  retake he if he shall not be excuse by the retake he will be charge with a  multitude of suit and can not have any remedy to excuse he and therefore it be  compare to the plead of a fine levy before the writ of formedon and  proclamation incur pendent the writ before the plea plead he well may take  advantage thereof by plead it although when the writ be bring it be not  complete nor can be plead second it be move admit this to be no plea yet the  action lie not here because the escape be of a feme covert where her baron be  subject to the execution so the plaintiff have not lose his debt for by  intendment she can have pay it if she have lie in prison for she have nothing  but what be her husband and the execution remain yet against he therefore  action of debt lie not because he be not total deprive of his debt but a  action upon the case in respect of the damage and therefore it be say if one  have execution of a statute of the land good and body c and the prisoner  escape yet because the land remain in execution debt lie not for the escape  but a action upon the case for at the commonlaw a action of debt be not  maintainable for a escape but it be give by the statute of Richard c where the  debtor escape but here the sole and principal debtor do not escape for the  baron be the principal and remain subject to the execution croak throw but the  court hold that this be not any plea because the action be bring and imply a  voluntary permission ire ad grant which be neither deny nor traverse and if  the sheriff voluntary let a prisoner at large he can retake he and so this  reprisal as be allege be after the action bring be to no purpose nor be any  plea and for the action of debt they hold that it well enough lie or a action  upon the case at his pleasure because the feme be only commit to prison and  not the baron and she be the sole debtor who be imprison wherefore it be  adjudge for the plaintiff