Pearl v. Rawdin , 5 Day 244 ( 1812 )

Tuumbuli,, J.

When an officer holds any person a pri-oner in legal custody, on arrest, and the prisoner escapes by force, or otherwise, against his will, the officer has a right to his body, and power to retake him, at any place to which he may abscond. It is a matter of no consideration, whether his original writ could have been legally served within the jurisdiction, in which he retakes him ; for he retakes him, not by that writ, but by virtue of the hold he had on him by (lie arrest.

By the common law, if a prisoner escape into another county, in which the sheriff has no jurisdiction, and is there retaken, the retaking is legal, and the prisoner shall have no remedy by audita querela ; for he shall not take advantage of his own wrong. Boyton's case, 3 Co. 43. Ridgeway's case, 3 Co. 52.

As to the second point, nothing more appears than that ⅛ the complainant, had impowered and directed the plaintiff, as her agent, to settle her claim, on the receipt of 8ft dollars. Rut in complaint on (lie statute cf Haslardy, it is nos the complainant atone, wiio is interested. 'J’he complaint is in nature of an information tjni tam, in favour of herseii and the town, who musí, be liable to maintain the child, when a pauper. The officer, on a settlement of the claim of tile complainant, has clearly a right, to demand his fees in addition, and hold the prisoner, till they are satisfied. And it would be difficult to find any case, where a third party can have a demand against an agent, for not obeying the instructions of his principal. In every view, this objection appears of no validity.

The third objection is merely a demurrer to the declara tion. Such a question cannot be brought before us on a motion for a new trial. It could only be the ground of a writ of error. Indeed, if the objection were valid, nothing would be more absurd than to advise a new trial, when the court were of opinion, that the plaintiff had no cause of action, and there was nothing, either of law or lacf, to In tried.

The other Judges severalty concurred in this opinion-

.New trial not to be granted.