1797. TAYLOR v. SHUм and The premises in question were demised in the year 1788 by the Plaintiff to one Hannah Adams, for twenty-one years, and afterwards came by several mesne assignments to one Sibley; in the year 1792 Sibley mortgaged the lease to the Defendants, who on his becoming insolvent, and abandoning the premises, took possession, and paid the rent up to Christmas 1795; at which time they offered to surrender the premises to the Plaintiff, and on his refusal to accept, assigned over to William Bishop: since that time the Defendants had neither enjoyed the premises nor paid any rent: nor had Bishop taken possession, or received the lease. This cause came on to be tried at the sittings after last Hilary term in London, before Eyre Ch. J., when a verdict was found for the Plaintiff, with leave for the Defendants to move to set it aside and enter a nonsuit. Accordingly Le Blanc Serjt., having on a former day obtained a rule to shew cause, and cited the case of Le Keux v. Nash, Str. 1221. where an assignment to a prisoner in the Fleet was held good, Shepherd Serjt. for the Plaintiff now produced an affidavit, stating that the Defendants had informed the Plaintiff that William Bishop the assignee lived in Harp Lane; but that although upon inquiry one or two persons of that name were found there, yet they had no knowledge of the assignment. He admitted that the Defendants might select a pauper for the purpose of assigning over to him, but insisted that there must be a good and valid assignment, so as to give the same remedy against the pauper as might have been had against the Defendants, otherwise the execution would be fraudulent. That if this were not the case they might have assigned to a non-entity. (Buller J. If they execute to a non-entity it is no assignment.) He contended that the Defendants had not legally divested themselves, for they had not made such an assignment as would bind the assignee, he never having had possession of the premises, or delivery of the lease. He cited Philpot v. Hoare, Ambl. 485., where an improper description of the residence of the assignee was one of the grounds on which the assignment was held fraudulent. Le Blanc contrà was stopped by the Court. EYRE Ch. J. It was no part of the case at the trial that there was no such person in existence as the person described in the assignment; the assignment was admitted on the pleadings. The real question is, whether the Defendants could assign to whom they they pleased, so as to destroy their own liability. If you have no remedy against the assignee, you must lose your rent, and get possession of the premises as soon as you can. The only case in which a question of fraud could arise, is, where the assignor has kept possession of the premises, of which he makes a profit, and has made an assignment to prevent responsibility. But even there, if the possession be profitable, there will always be something on the premises for the landlord to distrain; so that I doubt whether there can ever be such a thing as a fraudulent assignment, and whether an issue on such a point can ever be well taken. It is clear that there is no fraud in assigning to a beggar (a), or to a person leaving the kingdom, provided the assignment be executed before his departure. The Defendants had a right to divest themselves of the interest, by the mere form of an assignment, which drives the Plaintiff to take possession. BULLER J. An assignee is only liable while he continues to be legal assignee; that is, while he is in possession under the assignment (b). I will first consider the case as it stood at the trial, and next as it stands upon the facts of the affidavit. What was to be tried? not whether an assignment had been made or not: that was taken ex concessis; it was admitted on the record. Where the assignor continues in possession, is the only case where the replication per fraudem can be good; here the Defendants were clearly not in possession, and had no use of the premises; then what becomes of the issue? Secondly, has any thing appeared since the trial to shew that justice has not been done? the very reverse. Was the Plaintiff taken by surprize? It is true, that he has found a person of the name of Bishop, respecting whom there is some doubt, if he be the person mentioned at the trial; but the Defendants have received no benefit; they offered to give up the premises, which offer was refused. The Plaintiff adhered to the strict point of law against the justice of the case; the law is against him, and therefore he shall have no indulgence. HEATH J. This action is founded on the privity of estate (c); but here there is none, therefore the Plaintiff is not entitled to recover. So far from fraud appearing, the Defendants declared their (a) Pitcher v. Tovey, Salk. 81. 4 Mod. 71. S. C. (b) Vide Walker v. Reeves, Doug. 461. 1797. TAYLOR V. SHUM and 1797. TAYLOR V. SHUM and Others. May 16th. desire of surrendering before they assigned, but the Plaintiff refused to accept. ROOKE J. Of the same opinion. Rule absolute. (a) If a sheriff's officer having taken a prisoner in execu D BENTON V. SUTTON. EBT against the Defendant as sheriff of Surry, for an escape of a prisoner in execution. This case came on to be tried before Runnington Serjeant, sitting for Hotham Baron, him to go about at Kingston Spring Assizes 1797. tion, permit with a follower of his before he takes him In a suit, in which Benton was the Plaintiff, and one Evans the Defendant, a writ of capias ad satisfaciendum, returnable on to prison, it the 3d of November, was sued out on the 1st of June against is an escape.* Qu. Whether it Evans, and delivered at the sheriff's office, and a warrant made been an escape out thereon to Donolly and Benton (the Plaintiff's father). Soon also, if the of after a similar writ issued against Evans at the suit of one Tib would not have ficer himself had accompa nied him. bits, returnable on the 7th of November, and a warrant was made out thereon to one Purkiss the sheriff's officer: by virtue of which last writ Evans was arrested on the 27th of September, and carried to a lock-up house belonging to the officer. On the 2d of October he was permitted by Purkiss to go in company with one of his followers of the name of Isaacs, to his own house, for the purpose of settling his affairs, and on the 3d was seen riding in St. George's Fields, in a chaise-cart, attended by the same person. On these facts Runnington Serjeant being of opinion that no escape had been made out, directed a nonsuit. Shepherd Serjt. on this day shewed cause against a rule obtained by Le Blanc Serjt., for setting aside the nonsuit and granting a new trial. Shepherd. Evans was not arrested under the writ at the suit of the Plaintiff, but under that at the suit of Tibbits: a warrant was made out on the Plaintiff's writ, and put intothe hands of Benton his father, with an injunction not to inforce it at that time: this last fact came out upon the cross-examination. Though therefore the Plaintiff's capias ad satisfaciendum was lodged in the sheriff's office in the month of June, and Evans might consequently be considered in execution at the suit of both, and so the present Plaintiff might maintain an action for an escape, yet the fact to (a) Vide Peake's N. P. Bourdillon v. Dalton and Others. Vide Houlditch v. Birch, 4 Taunt. 608. Stevens v. Jackson, 6 Taunt. 106. Goodman v. Chase, 1 B. & A. 297. which I have alluded would be a sufficient answer, and though not mentioned in Mr. Serjt. Runnington's notes, might perhaps save expence, if allowed to be proved now. EYRE Ch. J. I see no great force in that fact. When the Plaintiff first took out the warrant, he might not intend it to be executed; but on Evans being arrested at the suit of another, he might then intend it to be enforced. Evans being once in execution under other process, it would be very difficult to discharge him from any writ in the office. Shepherd. The law acknowledges but two kinds of custody. Custody of the gaol, and custody of the officer. When Evans was arrested he was taken to the house of the officer, not to the county gaol: and the supposed escape was his going with the servant of the officer to his own house, for about an hour. Now the cases on this point are, where the party had once been in gaol: as Balden v. Temple, Hob. 202. Platt v. Lock, Plowd. 35. So the case of Sir Miles Hobart and William Stroud, Cro. Car. 209. was decided on the ground of their having once been within the limits of the Gate-house Prison. For if a party has once been in gaol, he can never quit it without an escape in the sheriff. I admit that if Evans had ever been at large, this would have been an escape: but the question is, whether he can be considered as ever having been at large, when attended by a bailiff's servant. I contend that the bailiff had him always (if I may use the expression) in his manual possession. It has never been held that an officer is bound to take a party to prison before the return of the writ; but he must keep him in safe custody: while he is with the officer he is in safe custody, whether he be in the house, the street, or elsewhere. This is not like the case of Hawkins v. Plomer, 2 Black. 1048: For there the prisoner was stated to be at large, and that means out of the custody of the officer, not merely out of the officer's house. Here there was no escape from gaol, for the prisoner was never there; and no escape from the officer, for the prisoner was as much in his custody at the time of the supposed escape, as when he was in his house, 1797. BENTON . SUTTON. Le Blanc contrà. It is admitted that if Evans had gone alone, it would have been an escape; therefore it is admitted that an escape may as well take place before the return of the writ as afterwards. Put the case thus: May a sheriff's officer allow a prisoner to be at any time in any place, before the return of the writ, provided there be some person appointed by the officer with him? If the Court allow this, they must say, that if the sheriff were to send [ 26 ] the 1797. ΒΕΝΤΟΝ บ. SUTTON. the prisoner's father, or brother, or any other person, with him, has |