
    Jones v. Timberlake.
    November, 1828.
    Escape Warrant — What St Should Show. — Although an Escape Warrant ought regularly to show on its tace that the person who issues it, is a Justice of the Peace, yet, on a Habeas Corpus sued out by the person arrested under it, if it is proved that he is a Justice, the prisoner ought not to be discharged.
    On the petition of David Jones, to the General Court, setting forth that the petitioner, a resident ox Fluvanna County, having arrived in the City of Richmond, on the 18th November, was arrested on the day following by the Serjeant of the said City, and that he is now illegally detained in the custody of the said Serjeant. A Writ of Habeas Corpus was awarded, directed to the said Serjeant, returnable on the next day. In obedience to the Writ, the Ser-jeant produced the. body of the petitioner, and made return, that he had taken the said Jones into his custody, by virtue of two Escape Warrants, issued by J. Currin, who is said and believed to be a Justice of the Peace for the County of Fluvanna, and he produced the Escape Warrants. The Warrants were dated in 182S. By one of them it appeared, that David Jones' was charged in execution at the suit of Timberlake & Magruder, and other creditors named; and by the other, that he was charged in execution at the suit of Thomas Boyd. They were in the usual form, reciting the cause of the prisoner’s commitment, and his escape, and were directed to all Sheriffs, Serjeants, &c., ^commanding them to seize and re-take the prisoner, and to commit him to prison. The person who issued the 'Warrants, signed his name J. Currin, without stating himself to be a Justice of the Peace for the County of Fluvanna.
    The creditors appeared by Counsel, as well as the debtor. The latter gave in evidence that be was a farmer in Flu-vanna, where he resided in 1825, and ever since, without one mile of the residence of the creditors: that he has never concealed himself, and that he has gone at large and been publicly seen at the Court-house, and other public places in Fluvanna,- for the last three years, and that he was in the store of the creditors within a few months before his arrest, and that these Warrants have never been executed on him in his own County.
    The creditors, proved that the Jail of Fluvanna was consumed by fire in 1826, and has not since been re-built: and that J. Currin was in 1825, and is now a Justice of the Peace in the County of Fluvanna.
    Schmidt, for the petitioner, contended: 1. That it ought to appear from the Warrant itself, that it was issued by a Justice of the Peace of the County where the prisoner had been in custody. 1 Rev. Co. p. 548. That the Court "cannot presume that he is a Justice. 4 Burn’s Justice, p. 331. That as the Warrant is the authority for the arrest, it ought to be sufficient of itself to justify the arrest, without extra-neons evidence.
    " 2. That as the Warrant issued in 3325, and the petitioner was seen publicly in his own County, it ought to be presumed that there had been an arrangement of the debt between the parties.
    Green, for the creditors, relied: 1. On the fact fully proved, that Currin was, and isa Justice of the Peace for Fluvanna: and that according to the authority of Burn, it is not necessary that the Justice should state himself to be such.
    *2. He insisted that the presumption of an arrangement of the debt, is repelled by the fact that the Jail of the County was burnt down.
   STUART, J.

delivered the opinion of the Court.

The application of David Jones to be discharged from the custody of the Serjeant, has been considered by the Court. The petitioner was taken on two Escape Warrants issued by James Currin, on the 22d February, 1825. It is objected, that it does not appear on .the face of the Warrants, that Currin was a Magistrate. It has also been urged, that the length of time which has intervened, since the date of the Warrants, has raised a presumption that the debt has been discharged.

On the other hand, it has been proved, that Currin was in fact an acting Justice at the date of the Warrants, and that for some time past there has been no Jail in that County.

The Court is of opinion, that although Escape Warrants ought to be issued by Justices of the Peace, and, that regularly, it ought to appear on the face of the Warrants that they are such, yet in this instance, that defect has been supplied by proof of the fact. They are also of opinion, that the want of a Jail repels any presumption arising from the lapse of time. The petitioner is therefore remanded to the custody of the Serjeant of the City.

Note. — The petitioner afterwards applied to the Court of Appeals for a Writ of Error to this Judgment, which that Court refused. — Note in Original Edition.  