deliverance (e) (28); whereas the writ of second deliverance, if delivered to the sheriff before return made, operates as a supersedeas to the writ of retorno habendo, issuing on the common law judgment (f).

X. Of the Costs, and herein of the Costs in Error.

1. As to the Plaintiff.-At the common law, the plaintiff obtaining judgment in replevin was not entitled to costs (g); but now, by the stat. of Gloucester, 6 Edw. I. c. 1, s. 2, the plaintiff is entitled to costs in all cases where he was entitled to damages antecedently to the statute of Gloucester; of course, therefore, the plaintiff is entitled to costs in replevin.

2. As to the Defendant.-At the common law, if an avowry, or cognizance, or justification, was found for the defendant in replevin, or if the plaintiff was otherwise barred, the defendant was not entitled to costs; but now, by stat. 7 Hen. VIII. c. 4, s. 3, persons making avowry, cognizance, or justification in replevin, or second deliverance, for any rent, custom, or service, if their avowry, &c. be found for them, or if the plaintiff be otherwise barred, shall recover their damages or costs, as the plaintiff should have done if he had recovered. And by stat. 21 Hen. VIII. c. 19, (which permits avowries, &c. in replevin, and second deliverance to be made by the lord, &c., alleging the land to be holden of him, without naming the tenant,) damages and costs are given to the defendants in replevin, not only in the cases provided for by the preceding stat. of 7 Hen. VIII. c. 4, but also in the cases of avowries, &c., for damage feasant, or for other rents, if such avowries, &c. be found for them, or if the plaintiff be otherwise barred. Upon a distress for an heriot, the defendant will be entitled to costs, but not upon a distress for an amerciament, in a leet, for not doing suit, because the statute extends only to customs and services (h). A replevin is not within the meaning of the statute 8 & 9 Will. III. c. 11, s. 1 (¿), which gives costs to persons who are improperly made defendants in actions or plaint of trespass, assault, false imprisonment, or ejectio firma.

Costs in Error.-By stat. 3 Hen. VII. c. 10, reciting that writs

(e) Cooper v. Sherbrooke, 2 Wils. 116.

2 Inst. 341, and S. P. per Holt, C. J., in Pratt v. Rutleis, 12 Mod. 547. (g) Tidd's Pr. 956, ed. 7th.

(h) Porter v. Gray, Cro. Eliz. 300. See Gotobed v. Wool, 6 M. & S. 128. (i) Ingle v. Wordsworth, 3 Burr. 1285.

(28) The same rule holds with respect to the writ of inquiry of damages under the 21 Hen. VIII. c. 19, which may be executed after a writ of second deliverance has been served. Pratt v. Rutlidge, Salk. 95.

of error were often brought for delay, it is enacted, "That if any defendant or tenant, against whom judgment is given, sue any writ of error to reverse it, in delay of execution, if judgment be affirmed, &c., the person against whom the writ of error is issued shall recover his costs, and damages for the delay and vexation." This statute applies only to cases where the judgment below is for the plaintiff; and subsequent statutes, viz. 3 Jac. I. c. 8, and 16 & 17 Car. II. c. 8, have not extended the description of persons to whom relief was meant to be given by the stat. 3 Hen. VII. c. 10. By stat. 8 & 9 Will. III. c. 11, s. 2, "Costs in error are given to the defendant, where the judgment below is for him and is affirmed on error:" and the words "such action, suit, or plaint," which are used in that section, mean any action, plaint, or suit in any court of record; and do not confine the remedy to those actions, &c. in courts of record, in which judgment is given against plaintiff upon demurrer (k).

(k) Ricketts v. Lewis, 1 B. & Ad. 197, 10 East, 4, was overruled. by which the case of Golding v. Dias,

2 M

VOL. II.

CHAPTER XXXIV.

RESCOUS.

THE term rescous, as far as it relates to the subject of this chapter (1), means the setting at liberty, against law, a person arrested by process or course of law (a). To recover a compensation for this injury, the plaintiff may bring an action of rescous, or an action on the case, against the party guilty of the rescous. The action of rescous having fallen into disuse, the usual mode of proceeding is by an action on the case; to support which, it is necessary for the plaintiff to prove :

1. The original cause of action.

2. The writ and warrant, by the production of copies of them, sworn to be true copies by a witness who has compared and examined them with the originals.

3. The manner of the arrest, in order that it may appear to the court whether the arrest was legal or not; for without a legal arrest there cannot be a rescue.

Mere words only, as if the officer says to the defendant, "that he has a warrant against him, and that he arrests him," will not constitute an arrest (b), if the defendant afterwards escapes from the officer; but if the defendant acquiesces, and goes along with the officer, this will be considered as submitting himself to the process, and as complete an arrest as if the officer had touched the

(a) 1 Inst. 160, b.

(b) Genner v. Sparks, Salk. 79.

(1) For rescous of distress, see ante, tit. “Distress,” sect. VIII. p. 686. Where cattle of defendant's, taken as a distress damage feasant, in the absence of the distrainor, escaped back into the defendant's grounds, and remained for half an hour, whence they were again driven by the plaintiff, and were retaken by defendant; it was holden not to amount to a rescue, there being an abandonment of the right of freshly following. Knowles v. Blake, 5 Bingh. 499. In case of distress for rent arrear, if the distress escapes, the party may distrain de novo. Vasper v. Eddows, Ca. Temp. Holt, 257.

1

person of the defendant (c). An officer having two warrants in his pocket against the defendant (d), at the several suits of A. and B., laid his hands on the defendant, and said to him, "I arrest you by virtue of a warrant that I have; but he did not show the defendant the warrant, nor had it in his hand, nor told the defendant at whose suit he arrested him, neither did the defendant demand to see the warrant, or to be informed at whose suit he was arrested. It was holden; 1st, that this arrest, without showing the warrant, and without mentioning at whose suit the defendant was arrested, was legal, and that it was not incumbent on the officer to show the warrant to the defendant until he obeyed and demanded it. 2ndly, That this arrest was legal, although the officer had not the warrant in his hand, and although he had two warrants in his pocket for the defendant; for, being under the bailiff's arrest, he was in custody for all causes for which the sheriff had made his warrant against him, although the sheriff or bailiff did not mention any specially.

By stat. 29 Car. II. c. 7, s. 6, "No person upon the Lord's day shall serve or execute any writ, process, warrant, order, judgment, or decree, (except in cases of felony or breach of the peace,) but the service of every such writ, &c. shall be void to all intents and purposes. As it is matter of public policy (e), that proceedings of the nature described in the statute should not be executed on a Sunday, the regularity or irregularity of them cannot depend on the assent of the party afterwards to waive an objection to such proceedings, because they are in themselves absolutely void by the statute. In the construction of this statute (ƒ), it has been holden, that an arrest cannot be made on a Sunday for non-payment of a penalty by a defendant who has been convicted on a penal statute. The statute prohibits original arrests only on Sundays. Hence a defendant, who wrongfully escapes from the custody of the law, may be retaken upon a Sunday, on fresh pursuit (g), or by virtue of an escape warrant (h), which is in the nature of fresh pursuit, for it is not original process, and a commitment upon it is only the old commitment continued down. But after a voluntary escape, defendant cannot be retaken on a Sunday (i). So where A. was arrested at the suit of B., and discharged, the sheriff not knowing that there was also a detainer in his office against A. at the suit of C., and on the Sunday following the sheriff arrested A. at the suit of C., the court discharged him out of custody, considering the arrest on the Sunday, either as an original taking, which was prohibited by the statute, or as a retaking after a voluntary escape, which was bad under the authority of the preceding case (k), where

(h) Adjudged in Parker v. Moor, Lord Raym. 1028; Salk. 626; 6 Mod. 95. (i) Featherstonehaugh v. Atkinson, Barnes, 373.

(k) Atkinson v. Jameson, 5 T. R. 25.

the distinction between a voluntary and a negligent escape was recognized. A person may be arrested on a Sunday on an attachment for a rescue (1). But a rule nisi for an attachment for nonpayment of a sum of money, pursuant to the master's allocatur, cannot be served on a Sunday (m). If a defendant (n), after an arrest on mesne process, is rescued on his way to gaol, the only remedy which the plaintiff has, is by an action against the rescuers, since the sheriff is excusable by reason of the rescue; for on mesne process the sheriff is not bound to take the posse comitatus with him, and therefore upon such process it is a good return to return the rescous. In an action (0) against the sheriff for an escape on mesne process (p), if he pleads a rescue, it is not incumbent on him to show that the rescue was returned. If the party is once within the walls of the prison (q), though the custody is on mesne process only, yet a rescue thence by any persons, (except the king's enemies) (r), will not excuse the sheriff. So on writs of execution the sheriff cannot return a rescue; for the law supposes that the sheriff is attended with his posse comitatus (s). So if the defendant is brought out of prison after judgment, and before any charge in execution on a habeas corpus, and is rescued on his way to the judge's chambers, the sheriff will be answerable in an action for an escape; for it is his duty, and so he is directed by the writ, to provide for the sure and safe conduct of the party (t).

4. The plaintiff must prove the damage sustained by the rescue, viz. the loss of the debt by reason of the escape of the defendant (2).

By a contract of sale, the property sold was to be paid for in ready money. The vendee induced the servant of the vendor to deliver it for a check upon a banker, by representing it to be as good as ready money; in fact, he had overdrawn his account for many months. The vendor, after keeping the check for two days, presented it at the bankers, when payment was refused. On the same day that the goods were purchased, the vendee gave a warrant of attorney to a creditor, under which judgment was immediately entered up and execution issued, and the property in question

(1) Willes, 459.

(m) M'Ileham v. Smith, 8 T. R. 86.
(n) May v. Proby, Cro. Jac. 419.
(0) Gorges v. Gore, 3 Lev. 46.

(p) See stat. 1 & 2 Vict. c. 110, for abolishing arrest on mesne process in civil actions except in certain cases.

(1) May v. Proby, 1 Roll. Rep. 441.

Resolved, per tot. Cur., recognized in 1

Str. 435.

(r) Per Coke, in his report of Southcote's case, 4 Co. 84, a.

(8) May v. Proby, 1 Roll. Rep. 441. Resolved per tot. Cur.

(t) Crompton v. Ward, Str. 429.

(2) With respect to damages, Holt, C. J., in Wilson v. Gary, 6 Mod. 211, said, that the defendants were not entitled to any favour because they were guilty of a violence against the process of the law, and, therefore, this case was not to be compared to the case of a negligent escape.