Langdon v. Hathaway

delivered the opinion of the court.

The evidence in this case is conclusive, that the escape of the plaintiff was voluntary. The verdict, therefore, when we advert to the issue, appears to be incorrect. But it is stipulated by the parties, that the verdict shall not be set aside unless upon all the evidence the plaintiff is entited to recover. This inode of considering those questions of law that may be raised by the facts in this action, is untechnical, and a demurrer should have been filed to the defendant’s plea: or on these pleadings a verdict should have been returned for the plaintiff, and then a motion made by the defendant for a repleader. Because, in relation to the merits of this action, the issue is wholly immaterial. After an escape On mesne process, whether with or without license from the officer, whether voluntary or negligent, the right of recaption still exists. This arises from the nature of the officer’s duty in relation to the service of mesne process. He is not; as in final process, commanded to “ take the body of the defendant and him commit unto jail :”(1) but “him safely” to “ keep, so that 31011 bring him before” the court to which the Writ is returnable(2.)

Whether the escape, then, be voluntary or negligent, he obeys the mandate of the writ if he has the defendant in court on the return day(3.) But in final process he does not obey the precept, unless he “commits the defendant unto jail” immediately after the arrest(4.) The object of mesne process, also, is to have the defendant in court at its session, thát the contested rights between the parties may be Settled, and the defendant be present to abide any judgment- which shall be rendered against him. If he be then present in custody, the object of the process is fulfilled ; and as to that object it must be of no consequence how many escapes have happened, and what may have been their character.

Bat the object of final process is to deprive the defendant of his liberty, that he may be induced to make payment of the judgment against him ; and the object of .the *370process is delayed, if not defeated, by an escape of any kind.

. If, then, notwithstanding a voluntary escape on mesne process, the sheriff, by a recaption before the return day, obeys the writ and fulfills its object, he does no wrong to the ereditor(5.) The creditor can sustain no action against hkn; because he must allege and prove not only that he permitted the defendant to go at large, but that he did not have him in custody on the return day : ad lar gum in permissit et non comparuit ad diem(6.) “ The cases cited by the plaintiff’s counsel,” in support of the opposite doctrine, are some of them cases where no arrest had ever been made,(7) some are escapes after commitment,(8) others are, in the language of Ashurst, J.(9) “cases of escapes either in execti- “ tion or after tj|e return of the writ, and therefore not...applicable.” The same reason which in this case protects the sheriff against any claim of the creditor, will protect him also against the debtor(10.) Indeed, in relation to him, he has not only obeyed the writ and fulfilled its object, but performed a favour — permitting an indulgence which the debtor consented to, or requested. Non fit injuria vo-lenti.

The agreement which was made by the defendant with a friend of the plaintiff, that he would forbear to retake the plaintiff for a certain period, could not destroy the right of recaption.

It does not appear that either the present plaintiff or the former creditor authorized any such agreement. The original writ, then, as well as the original debt, remained in full :(11) and if the agreement was not void as to the olB.-cer, because contrary to his publick duty,(12) the person with whom it was made is still entitled to a remedy upon it for any breach of its provisions.

This right of recaption, however, was exercised by the officer beyond the limits of the county in which he was deputized. It is •true, that he could serve no legal process out. of his county. But all rights that he had already acquired *371within his county, whether as an individual or an officer, could be enforced by him in any other, as well as in that , county. The right to retake the plaintiff on fresh suit he had thus acquired. It was a pérsonal or transitory right, like that to retake property rescued from him, and could, with-propriety, be exercised wherever he might find the body of him who had escaped.-5 Es. C. 172, Fisher vs. Fallows, nt. 1.-1 Root 107, Howard vs. Lyon.-1 Burns. Jus. Ar. 99.-Dalt. Ch. 170.

Let judgment be entered on the verdict.