
    Parsons ag’t Lee Sherif of Stafford.
    
      Appeal.
    
    S. C. Jeff 49.
   Debt for Escape the Deft, pleads Nil debet and the Jury finds a Special Verdict That (Seale) the Prisoner escaped thro’ the Insufficiency of the Prison and not any Neglect of the Sherif this was in August and in Feb. the Sherif obtained an Escape Warrant and retook him before the Issue joined'and he was in Prison at the finding of the Verdict and it is found the Prisoner appeared publickly at K. G. Court house where he lived 2 or 3 Court Days after the Escape and whether this Retaking shall excuse the Escape is the Question.

It is sayed in some Books that the retaking must be before the Action brought or it shall not excuse. But other Books are that a retaking before Issue joined shall excuse Wi. 35. And seems not denied Cro. Ja. 657. And this Opinion seems most reasonable for it will be hard upon the Sherif especially in this Country where a man escapes thro’ the Insufficiency of the Prison as this Case is and against the Will of the Sherif that he must be liable if an Action is immediately brought as it may be the same Day tho’ he afterwards retake the Prisoner upon fresh suit.

But it will be sayed fresh suit was not made in this Case. The Sherif did not take out an Escape Warrant till 6 months after But what is the Escape Warrant to the Purpose the Sherif might make fresh suit without such Warrant and take him in any other County by the Common Law and the Escape Warrant which is given here by 11 Geo. 1. is only in aid of the Sherif and Pit. Therefore it is no Proof that he did not make fresh suit because he did not sue out an Escape Warrant sooner. Neither is there any Thing in that that the Prisoner appeared publickly at the Court house of another County the Sherif might be pursuing him elsewhere and is not to be presumed knowing of what passed in another County. As to the Distance of time between the Escape and Retaking there is nothing in that he might be taken a Year after the Escape God b. 177.

As it does not appear then that the Sherif did not make fresh suit it ought to be presumed he did For as Escapes are so penal to Sherifs the Judges ough to make such favourable Construction as the Law will permit in Favour of Sherifs who are the Officers and Ministers of Justice and the Judges will never judge one to make an Escape by any strict Construction 3 Rep. 44. Boyton’s Case.

And these are certainly very hard Actions upon the Sherif They have always been thought so in this Country and I am mistaken if Sherifs have not been excused where the Escape was thro’ the Insufficiency of the Prison without the Sherif’s fault without any Retaking. Much more here then.

[63] The Pit. not injured having the Effect of her Execution viz. the Body of the Debtor. Most reasonable everyone should bear his own Burthen.

In this case it was adjudged the Retaking would not excuse the Sherif and the County Court’s Judgment was reversed.  