Christie v. Goldsborough

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 ⁵⁴¹ turn of it mortuus est, is offered as an excuse to the Court, sind not applicable to the plaintiff the one way o'r the other. Cro. ERz. 852.

But it is said, the sheriff should have returned where he died; that this return is ambiguous, and for any thing appears, he might have been at large, and not In the custody of the sheriff at the time of his death. With submission, I apprehend this return need not be more particular. Cepi corpus implies the party is in custody, and if he is not produced, is sufficient to support an action of escape j nay, it is sufficient of itself to support an action for a false return, which it could not do, unless it implies that he had the body incustody. How then can theplaintiffbe injured by this return as it now stands, if the sheriff did not take the body ; or if the defendant is not dead, an action on the case for a false return will lie if he did take him and suffered him to escape.

Though the sheriff is concluded by his own return, the plaintiff is not. He may aver .against it, and an action of escape would lie, and is his proper remedy. Sufficient therefore appears upon this return to shew the Court there has been no contempt of their process, and further I apprehend the Court will not require. He could not return et paratus habeo* The act of God has prevented him.

He is dead, and so the sheriff has returned him. The substance appearing, the Court will not regard form, in the return of writs. But let us reverse the case. The sheriff’s return is made upon oath. • The defendant’s counsel would have him return mortuus est in prisona.

Suppose the fact is not so, would the Court compel the sheriff to return an escape ? I believe it would be the first instance of a man’s being compelled to give evidence against himself, even if there had been escape; but it might so happen that the defendant might die out of die actual custody of the sheriff, and yet there might not be an escape in point of law; as suppose