1 Md. 540 | Md. | 1774
Í agree that all writs must be returned, and the effect oí them complied with, unless some reasonable cause is shewn by the sheriff as an excuse for his not doing so. But we differ in the application of this general position. The writ, which is the foundation of this motion, commands the sheriff to take the body, &c. and him safe keep, so that he have him before the Court at the particular day therein specified. The sheriff returns “ cepi corpus.” If the return had rested there, we should have heard no objection to it, and the gentleman’s sagacity would have furnished him with arguments and law too, to support an action of escape, or an action upon the case for a false return, at his election, if the defendant was not forthcoming at the return day of the writ. Why, therefore, was it necessary that the sheriff should go further on this occasion, and return the death of the defendant ? not to put the plaintiff in a better situation than he would have been in by the return of cepi corpus only, but to excuse himself to the Court for not bringing in the body agreeably to their mandate, by which he purges himself of the contempt of their process, and avoids the fine which he would otherwise subject himself to, for not obeying the command of the writ; for if the death of the defendant had not been returned, the Court might have fined him for contempt, in not producing the body, and often have done so, though at the same time he may be answerable to the plaintiff for an escape. The re
Cases cited.
The sheriff may confine a prisoner for debt in any house or any where he pleases. Lat. 16. And. 345. Cro. Car. 210. He cannot suffer him to go at large out of the prison, though he himself attends him. Hob. 202. Sid. 318.
If the sheriff takes the defendant on a capias ad satisfac.the execution is good, though the writ be not returned. 5 Co. 90. 2 Salk. 700. Shirley v. Wright.
Upon a capiasut lagatum, if the defendant be taken, and escape before the return of the writ, the sheriff is answerable to the plaintiff, for he is in execution immediately on the arrest, though he be not afterwards brought into Court and committed. 5 Co. 88. Cro. Eliz. 706. Sid. 380. Teh. 20. 5 Mod. 201.
Habeas corpus issued to bring up a prisoner in execution. The sheriff brought him to Smithfield, and pbrmitted him to go in the night to Southwark, but the next day he returned, .and the sheriff delivered him up according to the writ, and it was held to be no escape. Moore, 257. 299. 3 Co. 43. a.
Suffering prisoner to go at large before the return of the writ is an escape. Noy, 72. Cro. Eliz. 16. 5 Co. 88. b.
Note. This case is taken from the notes of W. CooieP Esq. who argued the case, and who says the Court decided that the return of the sheriff was good.