1787. SON MACHELL. ASHHURST, J. said, that the judges of this Court had consulted with the rest of the judges on this case, and the result of their opinion was, without giving any positive opinion upon the EDMONDquestion of law, that this rule ought to be discharged. An against application for a new trial is an application to the discretion of the Court, who ought to exercise that discretion in such a manner as will best answer the ends of justice. It does not require much penetration to see what are the ends of justice in the present case. It is certain that the girl herself ought to have some satisfaction for the injury she received; and that she consents not to try her action, the question is whether justice has not already been done; for it was admitted at the bar that, if the injury she sustained could be taken into consideration in this action brought by the aunt, the damages which the jury have given are by no means excessive. Then there does not appear to be any ground for the defendant to call on the discretion of the Court to send this cause down to be re-tried on a technical objection in point of law. And all the judges are unanimously of opinion that, as complete and substantial justice has been done, there is no reason to grant a new trial. On the plaintiff's undertaking to pay over to the niece the damages, after deducting the costs of this action, and on the niece's undertaking not to proceed in the action in which she herself was plaintiff, THIS Rule discharged without costs. BOOTHMAN against The Earl of SURRY. Tuesday, June 12th. The bailiff who has the return and of a liberty execution of writs is liable to an acfor an escape, if he prisoner taken in execution to tion of debt HIS was an action of debt against the defendant, who was chief bailiff of the liberty of Hallamshire, for an escape. The declaration stated, that, in Easter Term, in the 24th year of the reign of the present king, the plaintiff had recovered by the judgment of the Court of King's Bench 371. against one John Woolhouse; that on the 12th February, in the 25th year, c. he sued out a capias ad satisfaciendum, directed to the sheriff of Yorkshire, who made his mandate thereon to the defendant, requiring the defendant to arrest the said John Woolhouse, so that the sheriff might have his body at the return of the writ; upon which the defendant afterwards within his out of the bailiwick took and arrested the said Woolhouse by his body in there deliver liberty, and execution for the said debt, and had and detained him in his him into the custody of remove a the county gaol, situate custody the sheriff. Dougl. 42. BOOTH MAN against The Earl of 1787. custody in the gaol of the said chief bailiff in and for the said bailiwick in execution at the suit of the said plaintiff for the cause aforesaid, until the defendant, so being chief bailiff of the said liberty, afterwards, to wit, on, &c. without the licence or SURRY. consent and against the will of the plaintiff, and without any legal warrant or authority, permitted and suffered the said Woolhouse, so being in his custody, to escape out of his custody, and to go at large wherever he would, the said plaintiff then or yet not being satisfied, &c. Pleas, 1st. Nil debet. Secondly, That true it is that he the defendant did take and arrest the said John Woolhouse by his body, and him for a short space of time had and detained in his custody in the gaol of him the said chief bailiff in and for the said bailiwick, at the suit of the plaintiff, by his body, as in the said declaration in that behalf mentioned: but the defendant further says, that always from the time of his having so taken and arrested the said Woolhouse as aforesaid, until the time of his removal and delivery into the custody of the sheriff of Yorkshire, as is hereinafter mentioned, he the said defendant did safely and securely keep in his custody, within the liberty of Hallamshire aforesaid, the body of the said John Woolhouse. That as soon as conveniently might be after such taking and arresting the said John Woolhouse as aforesaid, and before the return of the said writ of capias ad atisfaciendum in the said declaration mentioned, to wit, on the 26th day of April in the 25th year aforesaid, he the said defendant for the delivery of the body of the said John Woolhouse icom and out of the hands and custody of him the defendant into the hands and custody of the said sheriff of Yorkshire, in order that the said sheriff might have the body of the said John Woolhouse before the said iord the king at Westminster at a day in the said writ of capias ad satisfaciendum in that behalf mentioned, according to the exigency of the said writ, he the defendant did, by the nearest and most convenient way, and with all reasonable expedition, necessarily remove and carry away the body of the said John Woolhouse from and out of the said liberty of Hallamshire, to and into the common gaol or prison of the sheriff of Yorkshire, at the castle of York, in the county. of York, and the body of the said John Woolhouse he the defendant did then and there for the purpose aforesaid deliver from and out of his hands and custody into the hands and custody of the said sheriff of Yorkshire, as he the said defendant was by the said mandate in that behalf required; and thereupon the said BOOTH MAN The Earl of SURRY. sheriff then and there, to wit, on the said 26th day of April, 1787. in the 25th year aforesaid, at the castle of York aforesaid, in his gaol or prison there, had and received into his hands and custody the body of the said John Woolhouse for the cause aforesaid, against which is the same suffering and permitting the said John Woolhouse to go at large and escape out of his custody, and to go wheresoever he would, whereof the said plaintiff hath above complained against the said defendant, and this he the said defendant is ready to verify, wherefore, &c. To this plea there was a general demurrer, and joinder. Chambre, in support of the demurrer. The question is whether, under the circumstances disclosed by these pleadings, the present defendant has or has not subjected himself to an action of escape, for permitting the defendant in the original action to go out of his custody. The execution was complete in the liberty of Hallamshire, when the defendant had arrested the prisoner by virtue of the sheriff's mandate, and had lodged him in his own gaol; after which the defendant could not suffer the prisoner to go out of his bailiwick without any legal authority, such as an habeas corpus. The defendant does not act as a bailiff of the sheriff, but by virtue of his own authority as chief bailiff of Hallamshire in a distinct and independent liberty; and his office is in that respect similar to that of a sheriff. The sheriff is not answerable for the conduct of such an officer. If it be necessary for him to make any return to process, he must be ruled for that purpose. And whatever would be deemed an escape in the sheriff, will be equally so in the owner of such a franchise as the present. There is no instance of a bailiff's having returned to such a writ such facts as are here pleaded; nor would they constitute a good return. When the Court inquire into the execution of a writ of this sort, they call on the sheriff for a return of the capias ad satisfaciendum, who annexes the bailiff's return to him " quod cepit corpus prædicti 7. S. cujus corpus A. B. "(ballivus) coram justiciariis domini regis ad diem et locum in"fra contentum paratum habebit." Retorn, Brev. 168, 9. Offic. Brev. 216. It is not that the sheriff, but that he the bailiff, has the body ready to produce. When the bailiff has made this return, the rule to bring in the body must be on the bailiff, not the sheriff. The profits arising from the execution of these writs belong to the bailiff; he therefore must be answerable for any escape. And it would be extremely unjust that the bailiff, who receives all the advantages from these writs, should subject the Воотн- The Earl of 1787. the sheriff to the responsibility by conveying the prisoner to the county gaol. In Bro. Abr. tit. Escape, pl. 44. it is said, that, "if a person be imprisoned in execution in a county, or a liberty, against "the gaoler cannot carry him out of the county or liberty unSURRY. "less in some special case (which means by habeas corpus, or the "like); and if he does, the prisoner may have an action of false "imprisonment." Then the moment this prisoner was carried out of the defendant's bailiwick, he had a right to bring an action of false imprisonment against the defendant. If so, the defendant cannot justify his conduct. Suppose an escape had happened after the prisoner was out of the defendant's jurisdiction, and in the body of the county, before he was lodged in the county-gaol, an action for the escape could not have been maintained against the sheriff. It is perfectly well settled that, if the prisoner be not lodged in the prison, it is a sufficient excuse to a sheriff to return that the prisoner was rescued by force before he was carried to gaol; but if he be once lodged within the walls of the prison, such a rescue by force is no excuse to the sheriff (a). Then suppose the prisoner be arrested on mesne process by the defendant within his jurisdiction, the party would be entitled to an action of escape if the prisoner were rescued after he was imprisoned; and if the rescue were made while the defendant was taking the prisoner from the gaol within his bailiwick to the county gaol, to hold that the sheriff would be answerable, would be to subject him to an action of rescue to which he would not otherwise be liable, since the prisoner was never lodged within the walls of his prison. Lambe, contrà. The object of the execution is, that the person named in the writ of capias ad satisfaciendum shall be ready to be produced whenever the party shall call for a return of the writ. Then it is perfectly immaterial to the plaintiff whether the prisoner be in the custody of one person or another, provided he is forthcoming to answer the exigency of the writ. If the bailiff had permitted the prisoner to go at large after he was once arrested, or had not conducted him by the nearest way to the county gaol, and in the way the prisoner had escaped, the defendant would have subjected himself to an action of escape. But the question in this case is, whether the defendant, having delivered the prisoner into the actual custody of the sheriff, who made no objection to receive him, is or is not liable to this action (a) 1 Stra. 435. 1 Ro. Abr. 807. D. 1. 3. of BOOTH- The Earl of of escape for thus lodging the prisoner in the county gaol. It is 1787. true that the bailiff of a particular district is in some respects like a sheriff, but he is not so to all purposes. The sheriff is the superior officer; and in cases of this kind the writ first goes against to the sheriff, who makes out his mandate to the bailiff, requir-SURRY. ing him to arrest the prisoner so that he, the sheriff, may have his body at the return of the writ. The sheriff therefore is answerable for the execution of the writ. In Bro. Abr. title, Retorns de Briefe, pl. 35. (a) it is said that where the sheriff returns quod mandavit ballivo de D. qui respondit quod cepit corpus, &c. and has not the body at the day, the bailiff is bound to bring in the body, and not the sheriff, per Hill: but per Hank; he ought to deliver him to the sheriff, and he to bring him in as an officer immediate : as upon a fieri facias the sheriff commands the bailiff to levy the zaoney, and deliver it to the sheriff, so that the sheriff may have it at the day: Thirn indeed agreed with Hill; but it does not appear what was done in that case; and the question seemed to be doubted. However the sheriff must be considered as the immediate officer of the Court he must return the process; and if the bailiff comply with the sheriff's mandate by arresting the prisoner, so that the sheriff may have him at the return of the writ, he discharges his duty. Notwithstanding there are several exclusive jurisdictions in the county of Middlesex, all prisoners are taken to the county gaol; and there never was an instance of any action having been brought against any bailiff of these particular liberties for delivering the prisoner over to the sheriff of the county. And if it be objected that this case cannot be compared to those, because there are no prisons within those liberties; the obvious answer is, that if the bailiffs of those liberties were bound to keep the prisoners after they were arrested, they would be compellable to make a gaol for the safe custody of such prisoners. The argument drawn from the case in Brooke is not applicable here, that the gaoler would subject himself to an action of false imprisonment for carrying the prisoner out of the county or liberty, because in this instance the prisoner was not carried out of either; he was only detained in the defendant's bailiwick till he could be delivered over to the sheriff according to the exigency of the writ. The case of Crompton v. Ward, cited from Strange, does not prove that because the sheriff was not liable to an (a) 11 Hen. 4. 43. |