FOR ESCAPES. Fleet for escape, where prisoner removed by habeas corpus sheriff's custody to self, at Westminster, in the county of Middlesex, by the consideration and judgment (g) of the said court, recovered against one G. H. a certain sum of £which in and by the said court was adjudged to the said plaintiff for his damages, [or if in debt state the judgment, as ante, 417,] which he has sustained, as well by reason of the non-performance of certain promises and undertakings by him before then made to the said plaintiff, as for his costs and charges by him about his suit in that behalf exfrom the pended, whereof the said G. H. was convicted (h). And the said plaintiff in fact further saith (i), *that the said G. H. afterwards, to wit, on the, &c. (day of commitment) was, by virtue of his majesty's writ of haand origi- beas corpus cum causa, issuing out of the court of our said lord the king, nal action of the bench here, to wit, at Westminster aforesaid, directed to the sheriff (f). of [Middlesex,] (who had heretofore taken the said G. H. by his body, [422] by virtue of his majesty's writ of capias ad satisfaciendum, at the suit of the said plaintiff on the aforesaid judgment, for the damages aforesaid, indorsed to levy the whole of the said sum of £- (k) and who then had the said G. H. in his custody, by virtue of the said last-mentioned writ) and returnable, before the justices of our said lord the king, at Westminster, on by the said sheriff brought up before the honorable Sir the Fleet, in K. B. knt. then one of the justices of our said lord the king of the bench here, to wit, at Westminster aforesaid, in and by the return of the said writ of habeas corpus cum causa, the said G. H. was then and there, by the said sheriff, charged, (amongst other things) with the said writ of capias ad satisfaciendum; and thereupon the said G. H. was then and (f) See other forms Herne, 89.-Lil. Ent. 156.-2 Mod. Ent. 400. tit. Escapes. 5 Wentw. 222 to 232. 7 Id. 503 to 509; and ante, 416.-Formerly a bill could not be filed against the warden of the Fleet in vacation, 6 Taunt. 347.-2 Marsh. 49, S. C. -6 Taunt. 352.-2 Marsh. 54, S. C.; but now it may, by the 59 Geo. 3. c. 64. See 2 B. & B. 51, and form of commitment, ante, 31.-Debt lies for an escape against the warden of the Fleet, as superior, the grantee for life being insufficient, 2 Mod. 119. Com. Dig. tit. Escape, B. 3. As to the declaration, see 2 Mod. Ent. 297. If a prisoner be removed by habeas corpus from the King's Bench to the Common Pleas, the plaintiff need not show a process in C. B. against the prisoner in an action for an escape, 2 Stra. 950. Com. Dig. Escape, C. (g) How to state the judgment, and what a variance, see the notes, ante, 417. (h) That there is no occasion to refer to the record of the judgment, see ante, 417, n. (i) Some of the forms state the capias here, and then the habeas corpus, in the following manner:-"And the said plaintiff, for having execution of the said judgment, afterwards, to wit, on, &c. in Term sued and prosecuted out of the said court of our said lord the king, before the king himself, at W. aforesaid, his said majesty's writ of capias ad satisfaciendum upon the said judgment, directed to the sheriff of M. by which said writ our said lord the king commanded the said sheriff, that he should take the said G. H. if he should be found in his the said sheriff's bailiwick, and safely keep him, so that he might have his body before our said lord the king, on, &c. to satisfy the said plaintiff in the said sum of 1. which the said plaintiff had recovered against the said G. H. for his damages aforesaid, and that the said sheriff should have there and then that writ,* which said writ afterwards, and before the return thereof, to wit, on, &c. was delivered to and then being sheriff of the said county of M. to be executed in due form of law; by virtue of which said writ the said -so being sheriff as aforesaid, afterwards, and before the return thereof, to wit, on, &c. at, &c. within the bailiwick of the same sheriff, took the said G. H. in execution of the said damages, and kept and detained the said G. H. in his custody, in execution of the damages aforesaid, at the suit of the said plaintiff from thence until the said G. H. afterwards, to wit, on, &c. by virtue of his majesty's writ of habeas corpus cum causa before then sued out of the court of our said lord the king of the bench here, against the said G. H. directed, &c. and returnable, &c. was brought before, &c." See 1 Wentw. 231. (k) As to the statement of levying expenses, &c. see ante, 418 n. "As to the statement of levying expenses, &c. ante, 418, note. FOR ESCAPES. there, by the said Sir so being such justice as aforesaid, (the said G. H. then and there being before the said justice on the occasion aforesaid) committed to the custody of the warden of his majesty's prison of the Fleet, charged (among other things) in execution for the said sum ofl. so indorsed on the said last-mentioned writ as aforesaid, as by the record of the said writ of habeas corpus cum causa, and the return thereof, and the aforesaid commitment thereupon, remaining in the said court of our said lord the king of the bench, more fully and at large appears. By virtue of which commitment the said defendant *who before, and at the time of the said commitment was, and ever since hath been, and still is, warden of his majesty's prison of the Fleet, on the day and year last aforesaid, at, &c. (venue) received and had the said G. H. in his custody in the said prison, in execution for the said sum of money so indorsed on the said writ of capias ad satisfaciendum, at the suit of the said plaintiff, and there kept and detained him in his custody so in execution for the said sum, until he the said defendant, so being warden of the *said [*423] prison of the Fleet as aforesaid, not regarding the duty of his said office of warden of the said prison, afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) wrongfully, and unlawfully, and unjustly, without the leave or license of the said plaintiff, and against his will, suffered and permitted the said G. H. to escape and go at large from and out of the said prison, and the custody of the said defendant, then and still being warden of the said prison, he the said plaintiff then and still being wholly unsatisfied his said damages, [or if the judgment was in debt, say "debt and damages,"] and every part thereof; by reason of which said premises an action hath accrued to the said plaintiff to demand and have, of and from the said defendant, so being warden of the said prison of the Fleet, the said sum of -l. above demanded. Yet the said, &c.-[ Conclude as usual, as ante, 387, and add a general count like the one ante, 420 b, mutatis mutandis.] warden of where prisoner For that whereas the said plaintiff heretofore, to wit, in Term, Bill (term of judgment) in the year of the reign of our lord the now against king, before Sir knt. and his companions, then his majesty's Fleet for justices of the court of our said lord the king, of the bench at Westmin- an escape, ster, in the county of Middlesex, by the consideration and judgment (m) original of the same court, recovered against one G. H. —l. which were ad- action in judged to the said plaintiff for his damages, [or, if in debt, state the C. P., and judgment, as ante, 417,] by him sustained, as well on occasion of the not brought preforming certain promises and undertakings before then made by the said up before G. H. to the said plaintiff, as for his costs and charges by him about his the court suit in that behalf expended, whereof the said G. H. was convicted (n). commitAnd the said plaintiff in fact says, that thereupon, afterwards, to wit, on, ted. &c. (day of commitment) in Term last past, the said G. H. then being in the custody of the said defendant, then and from thenceforth hitherto (being warden of his majesty's prison of the Fleet,) he the said G. H. was brought to the bar of the court aforesaid, by the said defendant, () As to the necessity of this, see ante, 420), note (y). (m) As to the statement of the judgment, and what a variance, see ante, 417, note. (n) That there is no occasion to refer to the record of the judgment, see ante, 417 a, n (1). and re FOR ESCAPES. then warden of the prison of the Fleet aforesaid, by virtue of his majesty's writ of habeas corpus, before then issued out of the said court, directed to [*424] the said warden; and thereupon the said G. H. at the request of the said plaintiff was by the same court then and there committed to the said prison in execution for the said damages, [or, if in debt, say “debt and damages,"] as by the record of the said commitment, remaining in the said court more fully and at large appears. By virtue of which commitment, &c.-[Proceed as in the last precedent, from the asterisk to the end, and add another general count, like the one ante, 420 b, mutatis mutandis.] ON DEEDS- On a deed whereby a testator 50001 to IV. ON SPECIALTIES. I. ON DEEDS-POLL. For that whereas in the life-time of the said L. F. to wit, on, &c. at, &c. (venue) by a certain deed-poll then and there made by the said L. appointed F. in his life-time, bearing date the day and year aforesaid, sealed with his seal, and to the court of our said lord the king now here shown, the be paid to the plain- said L. F. did, for the provision and relief of the said J. H. in such deedtiff on the poll described as the only son of E. H. deceased, his (the said L. F.'s) event of aunt's son, the first cousin, thereby grant, assign, and deliver over unto his death (0). him (the said plaintiff) the sum of £5000, sterling, good and lawful money of Great Britain, immediately after he the said plaintiff attained the age of twenty-one years, for and in consideration of the love and affection he (the said L. F.) always bore for the said E. H. his father, and in consideration of the several services he (the said E. H.) had therefore rendered him in his life-time; and the said L. F. thereby then and there declared that the said sum of £5000 so granted, should and might be recovered from and off all or any part of his (the said L. F.'s) estates, lands, premises, goods, chattels, and so forth, wherever the same might be situated, for the sole use and behoof of the said J. H.; and the said L. F. thereby declared that the said £5000, or any part thereof, or the interest or interests thereupon arising, or which might thereafter at any time arise or grow due, should not, upon any pretext, extend or be granted to [*425] any other person or persons *after the decease of him the said John Hodnett, wherever the same might happen to be; but that the aforesaid grant of £5000 should be prudently and carefully appropriated for the said John Hodnett, excluding heirs, assigns, or survivors of any description whatsoever, and in case of his [the said Luke Foreman's] decease at any time before the said John Hodnett should attain the aforesaid age of twentyone years, that then and in such case it should and might be lawful for him the said John Hodnett, or his lawful attorney nominated, to enter upon and recover the said sum as thereinbefore recited, in any of his Majesty's courts in Great Britain, as counsel learned in the law should direct, (0) This was the declaration in Hodnett against Foreman, in which plaintiff reco vered a verdict, and which was settled by an eminent barrister, A. D. 1815. POLL. or advise or devise; and the said Luke Foreman did thereby nominate, constitute, and appoint John Barry, uncle of the said John Hodnett, to be principal guardian and trustee to him, in the economy and necessary arrangement of the aforesaid grant of £5000, but without any claim or demand upon any part of the same as in and by the said deed-poll, reference being thereunto had, will appear: And the said John Hodnett in fact saith, that afterwards, to wit, on, &c. (p) at, &c. aforesaid, he the said John Hodnett attained the age of twenty-one years, whereof the said Foreman in his life-time, afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, had notice; yet neither the said L. F. in his life-time, nor the said Mary, James, and John Chandler, executrix and executors as aforesaid, since his decease,, hath or have (although often severally requested so to do), paid the sum of £5000 or any part thereof, to the said John Hodnett, and, on the contrary thereof, after the said John Hodnett so became of age, and after the death of the said Luke Foreman, to wit, on, &c. at, &c. aforesaid, the said sum of £5000, together with a further large sum of money, to wit, the further sum of £785, for interest thereon, making together the sum of £5785 became, and was and still is in arrear and unpaid to the said J. H. contrary to the form and effect of the said deed-poll, to wit, at, &c. aforesaid, whereby an action hath accrued to the said J. H. to demand and have of and from the said M. J. and J. C. as executrix and executors as aforesaid, the said sum of £5785 above demanded, yet the said M. J. and J. C. executrix and executors as aforesaid, hath not, nor hath either of them *(although often requested so to do) paid the said [*426] sum of £5785 above demanded, or any part thereof, to the said J. H. but have, and each of them hath, hitherto wholly neglected and refused, and they still neglect and refuse, and each of them neglects and refuses so to do; to the damage of the said Jonn Hodnett of £1000, and therefore he brings his suit, &c. II. ON CHARTER-PARTIES. ON A CHARTER PARTY. For that whereas heretofore, to wit, on, &c. (date of charter-party) to By owner wit, at, &c. (venue) by a certain charter-party of affreightment, then and against freighter, there made between the said plaintiffs, by the name and description of for penalMessrs. A. B. and E. F. therein described as the owners of the good ship ty incuror vessel called the red, by (whereof E. H. was then master), of the burden of not loadtons or thereabouts, then on the River Tyne, of the one part, and the ing the said defendant, therein described as the freighter of the said ship, of the other part; (one part of which said charter-party, sealed with the seal of the (p) This should be the true date of the plaintiff's coming of age, from which date only the interest would be calculated. (9) See other forms, 7 Wentw. 27, 29, 34; and those in Assumpsit, ante, 221; and in Covenant, post, 528. Debt lies upon a charter-party, if the sum demanded is ascertained thereby, or it sufficiently appears cargo, and not paying freight how much is due,-Andr. 156.-2 Stra. (9). ON A CHARTER PARTY. also that the said ship should, for her or at the said defendant, the said plaintiffs now bring here into court, the date whereof is a certain day and year therein named, to wit, the same day and year aforesaid, the said plaintiffs [here set out the charter-party in the past tense, thus:] let the said ship to freight for one voyage, from the Island of St. Michael's to the ports of, &c. optional to the affreighter or his agent, with liberty to take on board a cargo of coals, and goods, and deliver them in her way to ; and the said defendant hired the same in manner and form therein mentioned, to wit, that the said ship then was, and should, during the said intended voyage, be at the expense of the said plaintiffs, the said owners, kept staunch, tight, and strong, well manned, victualled, [*427] tackled, and provided, in every respect fit for merchant's service, and particularly for performing such intended voyage (the dangers and perils of the seas, restraints of princes and rules, fire and enemies, during the same, always excepted); and also that the said G. H. with the said ship, after she delivered her cargo of coals and goods should, with the first opportunity of wind and weather, proceed directly for, and, on her arrival there, to receive on board a full and complete cargo of fruit, in common-sized boxes, at such convenient place or places where the said ship and cargo might safely come; and loading at and delivering at lay the full space of twenty working days, if required, and so to end the said intended voyage; in consideration of which the said defendant did agree, not only to load and put on board the said ship the said cargo of fruits as aforesaid, and to receive or cause the same to be received from on board her, at option of the said defendant, and that within the days and time limited for her loading and discharging as aforesaid, but also should and would pay, or cause to be paid, unto the said plaintiffs or their assigns, on the safe delivery of the cargo at or optional to the said defendant or his agent, half cash, and the remainder by an approved bill on London, at four months' date, in full for the freight and hire of the said ship for the said voyage, at and after the rate of £- sterling per ton, of twenty common-sized boxes of fruit, and in proportion for any less quantity than a ton. It was understood, in the stowing of the cargo, a well-hole of two feet square was to be kept open, from the keels on to the deck, opposite each hatchway, for the purpose of airing the fruit, and that the boxes must be stowed on their bottoms, and not their ends, nor edge-ways, together with the sum of four guineas per day, to be paid day by day as the same should grow due, for every day of the ship's detention over and above the days and time limited for her loading and discharging as aforesaid; as also £10 per cent. on the amount of the above specified freight, in lieu of all port-charges and pilotage; and for the true performance thereof, each of the said parties bound himself, his executors, administrators, and assigns, reciprocally unto the other, especially the said plaintiffs, bound their said ship, her freight and appurtenances; and the said defendant the goods to be loaden on board her, each to the other, in the penal sum of £1000, firmly by the said charter-party of affreightment; as by the said [*428] *charter-party, reference being thereunto had will more fully appear: And the said plaintiffs in fact say, that the said G. H. with the said ship or vessel in the said charter-party mentioned, afterwards, to wit, on, &c. proceeded to according to the meaning and effect of the said charterparty, and afterwards, to wit, on, &c. aforesaid, arrived at aforesaid, |