case the king against fall a indictment against the keeper of Newgate for a  escape must show that the prisoner be in his custody as keeper of that prison  S c salk S c holt S c Mod S c ld ray sir b shower we move upon two several  indictment of fall the keeper of Newgate for suffer berkenhead and ray to  escape out of gaol c upon which indictment fall have be find guilty and now we  move in arrest of judgement first upon Berkenbeads indictment it be not say  that he be in custody of fall as the keeper of Newgate so that he may be in  his keep tortiously or out of the gaol and perhaps he never be within the gaol  of Newgate and then the let he escape be no crime and to say that fall do  negligent permit he to escape out of the gaol where he be not say to be will  not do and no indictment shall betake by intendment the fact must be certain  allege that we may know what to answer unto second it be not say that  berkenhead be in his custody lawful or that he be to be there until he be  discharge by law to oblige a gaoler to keep a prisoner there must be a legal  commitment and there ought to appear a lawful warrant to charge he and  therefore if be do not come there by a lawful warrant the gaoler be not bind  to keep he until he be discharge by law and perhaps this berkenhead may be  only commit until the next session or till examination by a secretary of state  c and three it be only say that he be there charge for high treason which may  be only by fame or hearsay modern fourthly as to Rayess indictment it be say  that he be commit in execution to the gaoler which be ill for it ought to be  express that he be commit to the custody of the sheriff who be the proper  officer and why shall fall be any more subject to be answerable for these  escape than any private turnkey or warder five it ought not to have be that  fall permit he to escape without satisfaction make to the plaintiff or  performance of the judgement c for it be to the sheriff who be to see the  punishment inflict or satisfaction make it be not in the gaoler power to  perform the judgement Northey these indictment be very extraordinary in the  frame of they and modern er p certain if turn will not make good declaration  the word onerabilis be not good they must show how he be commit for that load  be uncertain and though it be say he be charge with high treason yet it be not  say that when he escape he remain so charge as all the precedent be in action  of escape Rokeby justice there be certain a difference between action of  escape and indictment Trevor attorneygeneral the gaoler be a officer of who  the law take notice and he be answerable for escape as well as the sheriff as  to the objection that it be not say that berkenhead remain charge with high  treason at the time of his escape if the fact be so then fall may have take  advantage of it at his trial and he will have be acquit so a general  allegation that the judgement be not satisfy be well enough if it be satisfy  it ought to have be show on their side then the indictment be express that  berkenhead be in fall custody in Newgate as gaoler and not there in custody of  he as a private person the great exception be that it be only say general he  be charge and do not show particular how and perhaps in action of escape the  precedent may be so particular because the party must show how he be entitle  more than any other person and to ascertain the damage must distinguish the  person but here the king be a sovereign and trustee for the public and he need  not distinguish himself or show how he be charge modern holt chief justice  first the charge upon he be as gaoler of Newgate and you do not say berkenhead  be in Newgate second you say he be charge for high treason now that may be and  yet he may not be commit for high treason suppose he have be in custody for  debt or felony now he may be charge with high treason by another person and  yet all this while he be not commit for high treason and in indictment for  suffer person to escape it must appear that the party be lawful commit see  walker case case cro law king v Greeniff Cas cro law a there be a indictment  king v wright vent b for suffer two person to escape who undertaking to be by  the justice of peace for offence against the statute of forcible entry error  be assign because it be not set out how the commitment be whether upon a view  of the justice or verdict on the indictment and so it appear not whether he be  legal commit and the court hold that it be but inducement to the offence and  after verdict shall be intend the commitment be legal but three without doubt  gaoler be Chargeable for escape indeed if the gaoler be insufficient the  sheriff be answerable Adjournatur the case be move again in the Hilary term  follow and the judgement be arrest on the three exception videlicet that it be  only say that the prisoner be charge with high treason and do not show that he  be commit for that crime S c ld ray c