case gambier against wright if a prisoner be remove from the king bench prison  to the fleet and escape a declaration for such escape need not show process  against he in the common plea SC stram S c bar king b SC Kely this be a writ  of error bring upon a judgement in the common plea in debt for a escape the  declaration set out that the plaintiff bring a action against a three person  in the court of king bench that the party be arrest thereon and in custody of  the marshal that by habeas corpus he be remove from thence and upon return of  the habeas corpus before Mr justice Denton be by he commit to the custody of  the defendant the warden of the fleet Hawkins sergeant for the plaintiff in  error insist that it ought to appear there be some action depend in the court  of common plea to warrant this removal by habeas corpus and commitment to the  fleet for otherwise it be a void commitment the defendant in the action be  never legal in custody and consequent this be not such a escape for which a  action lie against the defendant he cite roll Rep cro car Henry Lut more lev  Bulst cro cro roll Rep salk second the commitment be here to the defendant in  his personal capacity whereas it ought to be prison de la fleet and so be all  the precedent Mr Dennison on the other side the presumption be that the judge  of superior court have act accord to law and therefore it must be intend that  in this case there be a proper foundation for the commitment it be not  necessary to set forth the action in the record the plaintiff in this case be  a stranger to the proceed in the modern common plea upon which the removal by  habeas corpus be ground modern er p and therefore they can be set out by he  there be numberless precedent for declare in this manner lev Ent Vid Brownlow  Robinson lily as to the second objection in point of reason there be no  difference between a commitment to the warden c or to the fleet there be  likewise precedent of commitment in this manner lily entry Vid Robinson the  statute of the will c make no difference of expression between commitment to  the marshal of the king bench prison and warden of the fleet which show the  sense of the legislature to be that there be no material difference but beside  it be a settle principle of law that all judgement give by any court be not  void but voidable only and if voidable only the plaintiff can take advantage  of that Carth Mod salk judgement nisi for the defendant in error modern  michaelmas term the seven of George the second in the king bench Philip Lord  Hardwicke chief justice sir Francis page Knt sir Edmund probin Knt William lee  Esq justice attorneygeneral Charles Talbot Esq solicitor general