Page 41
Easter Term 36 Eliz. Geilles versus Rigeway.
IN debt for 306. l 6. s. 8 d. by William Geillies, against Thomas Rigeway Esq late Sheriff of Devon; For that wheras John Chaunder alias Chaun∣deler, was in execution with the said Sheriff for the said summ, the said Sheriff afterwards, to wit, the tenth day of December, 34 Eliz. at London, in such a Parish and Ward suffered him to escape, the said Rigeway then being Sheriff of Devon, and having him then in execution, &c. To which the Defendant pleaded, how that he took him in Execution by the Proces at Stockram in the County of Devon, as the Plaintiff hath alledged, and there detained him in safe custody untill the 8th. day of December, 34 Eliz. at which day the said Chaundeler broke the Prison, and escaped out of it contra∣ry to the will of the said Defendant, and that the Defendant did freshly pur∣sue him, and in this fresh pursuit did re-take him the 11th. day of December, then next ensuing at Stockram aforesaid, and detained him in execution for the said 306 l. 6 s. 8 d. during the time of his Office, and delivered him ever to the new Sheriff, &c. To which the Plaintiff replyed by protestation, that he did not make fresh pursuit; And for plea saith, That after the going a∣way of the said Chaundeler, and before his re-taking by the said Defendant as aforesaid, the said Chaundeler for a whole day and night, to wit, at Lon∣don, in the Parish and Ward aforesaid, was out of the view of the said Defen∣dant, &c. Vpon which it was demurred in Law.
And it was moved by Cook Attorney-generall, that Iudgment ought to be given for the Plaintiff; for, in as much as it was alledged, that he was out of the view of the Sheriff for a day and a night together, there it shall be in∣tended to be a default in the Defendant in the making of his pursuit, and ther∣fore chargable to the Plaintiff, and yet he agreed, that if the Sheriff had made his pursuit freshly; although that at the turning of a Lane, end of a house, or the like, the Prisoner had been out of the view of the Sheriff for a small time, as untill the Sheriff commeth to this turning, end of the house, or the like, yet the Sheriff may re-take the Prisoner, and he shall be yet said to be in execution to the party against his will, yet when he is for so long a time out of his view, it shall be otherwise, for the default which the Law presumes to be in him; and therfore in this case the action lies. To which it was answered by Popham, Gawdy, and Clench, That if he makes fresh pur∣suit, so that it doth not appear fully that there was a default in the Sheriff in his pursuit, although he were so long out of his view, yet he shall be said to be in execution for the party against his will upon the retaking of him: As if be be pursued to a house where he is kept for a long time, and the Sheriff set a guard upon the house, and after this re-take him the next, or any other day without departing from thence, the Sheriff in such a case may re-take him up∣on his coming out of the house, and he shall be in execution to the party a∣gainst his own will.
And so in all like Cases; As if he pursues him in the night, so as he can∣not see him, and yet by the tract of the horse, or enquiry he makes diligent pursuit to re-take him, so that it cannot appear that there was any negli∣gence or default in him in making pursuit.
And it is not the form of the pleading to alledge, that he pursued him fresh∣ly, and had him alwaies in his view untill he re-took him, but only that he pursued him freshly and took him in this fresh pursuit, without saying any thing that he was in his view, and therfore his being out of the view of the Sheriff is not materiall in the case, but the fresh pursuit, and the taking of him in this pursuit.