faid John then and yet being warden of the faid prifon of the fleet, then and there took and received the faid M. H. into his cuftody in execution for the damages, cofts, and charges of the faid B. and on the day of the escape hereinafter mentioned, &c. &c. (as before to the end): Yet, &c.; common conclufion in debt, with prófert of letters teftamentary,

Plea to debt on WYBOURN

foner was ar

AND the faid John Wybourn, in his own perefcape, that pri- at juit of fon, comes and defends the wrong and injury, when, refted by de- CHRISTIE. &c. and fays, actio non; because he says, that true fendant in exe it is, that the said John Chriftie, in Trinity Term, in the twencution, and re- tieth year of the reign of his prefent majesty, in the court moved by babeas of our faid lord the king, before the king nimfelf, at WeftCorpus to the minster, in the said county of Middlefex, by the confideration of

the fame court recovered against the faid J. W. twenty-four pounds ten fhillings, which in and by the faid court there were adjudged to the faid J. C. for his damages which he had fuftained, as well on occafion of the not performing certain promifes and undertakings by him the faid J. W. before that time made, and whereof the faid John Wybourn was convicted as for his cotts and charges by him about his fuit in that behalf expended, as the faid John Chriftie hath above in declaring alledged; but the said John Wybourn further fays, that after the judgment and recovery aforefaid, and before the exhibiting of the bill of the faid John Chriftie in the action, to wit, in the term of the Holy Trinity, in the twentieth year of the reign of the faid lord the now king, in order to obtain the fatisfaction of the faid twenty-four pounds ten fhillings upon the faid judgment, he the faid John Chriftie profecuted and fued forth out of the faid court of our faid lord the king, at Westminster aforefaid, a certain writ of capias ad fatisfaciendum, directed to the then sheriff of Middlefex, by which faid writ the theriff was commanded that he fhould take the faid John Wybourn, if he should be found in his bailiwick, and him fafely keep, fo that he fhould have his body before our faid lord the king at Westminster, on Monday next after the Morrow of All Souls, to fatisfy the faid John Chriftie in the faid twenty-four pounds ten fhillings awarded to him for his damages which he had sustained, as well on occafion of the not performing the faid promifes and undertakings by him the faid John Wybourn before that time made; and whereof the faid John Wybourn was convicted as for his cofts and charges by him about his fuit in that behalf expended, and that he should have there that writ, by virtue of which faid writ ad fatisfaciendum the faid then sheriff, afterwards and before the return thereof, to wit, on the twenty-fixth day of October, in the twenty-first year of the reign of our faid lord the now king, at Weftminster, within the bailiwick of the faid fheriff, took and arrefted the faid John Wybourn by his body, and had the faid John Wybourn in his cuftody in execution for his damages aforesaid, from thence until the faid Wybourn afterwards, to wit, on the

* Habeas to the Fleet.

thirty

thirty-first day of October, A. D. 1780, by virtue of his ma
jefty's writ of habeas corpus cum caufa, before then fued out of
the court of our lord the now king of the bench, at Westminster,
against the faid John Wybourn, directed to the fheriff of the faid
county of Middlefex, and returnable immediately after the faid
fheriff's receipt of the fame writ, was by the faid sheriff, in obe-
dience to the faid writ, brought before the honourable John
Heath, efquire, being one of the juftices of our faid lord the king
of the bench, at his Chambers, in Serjeant's-inn, Chancery-lane,
and in and by the return of the faid writ of habeas corpus cum
caufa, the faid John Wybourn was charged in execution by vir
tue of the faid writ of capias ad fatisfaciendum, at the fuit of the
faid John Chriftie, for the damages aforefaid; and thereupon the
faid John Wybourn was then and there committed by the faid John
Heath, fo being fuch juftice as aforefaid, to the prifon of the Fleet,
fo charged in execution at the fuit of the faid John Christie for
the damages aforefaid, as by the faid writ of habeas corpus cum
caufa, and the return thereof, and the faid commitment thereon
now remaining in the faid court of our faid lord the now king
of the bench aforefaid, will more fully appear; and this the faid
John Wybourn is ready to verify: wherefore he prays judgment
if the faid John Chriftie ought to have or maintain his aforefaid
action thereof against him, &c.
G. WOOD.

fcaped.

he was

to

CHRISTIE And the faid John faith, that notwithstanding Replication, that against any thing by the faid J. W. in his plea by him after WYBOURN. above pleaded in bar alledged, he the faid J. C. comm tted ought not to be barred from having and maintaining his aforefaid the Fleet, he action against him the faid J. W. because protesting that the faid plea of the faid J. W. and the matters therein contained in manner and form as the fame are above pleaded and fet forth, are not sufficient in law to bar him the faid J. C. from having and maintaining his aforefaid action againft the faid J. W.; for replication in this behalf the faid J. C. faith, that true it is that he the said J. C. profecuted and fet forth the faid writ of capias ad fatisfaciendum in the faid plea of the faid J. W. mentioned, and that the faid J. W. was taken and arrefted by his body, and charged in execution by virtue of fuch writ, and that he was thereupon committed to the prison of the Fleet fo charged in execution at the fuit of the faid J. C. for the damages aforefaid, as the faid J. W. hath above in his faid plea by him pleaded in bar alledged: Yet the faid J. C. in fact further faith, that the faid J. W. after he was fo committed to the faid prison of the Fleet fo charged in execution at the fuit of him the faid J. C. as aforefaid, to wit, on, &c. without the leave or licence, and againft the will of the said J. C. efcaped and went at large from and out of the faid prifon of the Fleet, and from and out of the cuftody of the warden or keeper thereof, and fo hath remained and continued from thence hitherto, notwithftanding the faid damages fo recovered by the faid J. C. at the time of such escape and going at large of the faid J. W. as afore

faid, were and still are wholly unpaid and unfatisfied, to wit, at,
W. aforefaid; and this, &c. wherefore, &c, if, &c.
W. BALDWIN.

Rejoinder, that WYBOURN defendant per- at fuit of

mitted by virtue

And the faid J. W as to the plea of the faid J. C. by him above pleaded by way of reply pleaded as to the faid plea of the faid J. W. by him above Geo. 3. paffed pleaded in bar, fays, that after the making of a certain act of parfince the riots. liament which was made at Westminster, in the county of Mid

of 20. and 21. CHRISTIE.

dlesex, in the twentieth year of the reign of our fovereign lord the now king, intitled, "An Act to prevent any Mischief or "Inconvenience which may arife to Sheriffs, Gaolers, Suitors, Pri"foners, or others by the Prifoners in feveral Gaols in the Coun "tics of Middlefex and Surry, and the City of London, having "been fet at liberty during the late Tumults and Infurrections,' that is to fay, on the twenty fixth day of October, in the twenty-first year of the reign of our faid lord the king at Weftminfter, in the faid county of Middlesex, he the faid John Wybourn was taken in execution by virtue of the faid writ of capias ad fatisfaciendum, and was afterwards committed by virtue of the faid writ of habeas corpus, to the cuftody of the warden of the prifon of the Fleet, charged in execution at the fuit of the faid John Chriftie for the damages aforefaid: And the faid John Wybourn further faith, that after the making of a certain other act of parliament which was made at Westminster, in the county of Middlefex, in the twenty-firft year of the reign of our fovereign lord the now king, intitled," An Act to extend the Provifions contained "in an Act pafled in the laft Seffions of Parliament, intitled, an A& "to prevent any Mischief or Inconvenience which may arife to "Sheriffs, Gaolers, Suitors, Prifoners, or others, by the Prisoners in

feveral Goals in the Counties of Middlefex, Surry, and the City of "London, having been fet at liberty during the late Tumults and In"furrections," to perfons arrested and bailed fince the destruction of the fame gaols, and before the fame shall be repaired or other prifons eftablished in lieu thereof, and before the faid prifon of the Flect was repaired, or any other inftituted in lieu thereof, to wit, cn the eighteenth day of November, in the year of Our Lord 1781, the warden of the faid prifon of the Fleet, by virtue of the faid act, permitted and fuffered the faid John Wybourn to go at large from and out of the faid prifon of the Fleet, and from and out of the cuftody of the faid warden or keeper thereof; and the faid John Wybourn, by virtue thereof, was enlarged, and did not otherwife efcape or go at large from and out of the faid prifon, or out of the cuftody of the faid warden or keeper thereof; and this the faid John Wybourn is ready to verify: wherefore he prays judgment if the faid J. Christie ought to have or maintain his aforefaid action thereof against him. GEORGE WOOD.

And

that it was by

and

that he did not.

CHRISTIE And the faid John Chriftie, as to the faid plea of Surrejoinder, against the faid John Wybourn by him above pleaded by the faid acts WYBOURN. way of rejoinder to the faid plea of the faid John enacted, that deChriftie by him above pleaded by way of reply to the faid plea of fendant fhould the faid John Wybourn by him above pleaded in bar, after proteft- return in actual ing that the faid pleas fo pleaded by way of rejoinder, and the custody, matters therein contained in manner and form as the fame are above pleaded and fet forth are infufficient in law; for furrejoinder faith, that by the firft-mentioned act of parliament in the faid plea of the faid John Wybourn by him above pleaded, by way of rejoinder as aforefaid fpecified, after reciting, among other things, that whereas divers evil-minded and diforderly perfons did, at feveral times between the fecond and eighth days of June, in that prefent year of Our Lord 1780, affemble themfelves together within the city of London and Weftminster, and borough of Southwark, and being fo affembled together at fome of the faid times, did burn, destroy, and break open divers of his majesty's gaols or prifons, that is to fay, the gaol of Newgate, the prifon of the Fleet, the King's Bench, and other gaols and prifons in the city of London, and in the counties of Middlesex and Surry, and did cause the prifoners then confined therein to escape and go at large; it was (among other things) enacted and declared, that fo foon as the faid prifon of the King's Bench and of the Fleet refpectively fhould be repaired and made fit for the reception of prifoners, or other prifons fubftituted in lieu thereof, and the fame fhould be notified in the London Gazette by one of his majefty's principal fecretaries of flate, all and every prifoner or prifoners who had efcaped or been at liberty in confequence of the faid tumult and infurrections, and also all fuch perfon or perfons, defendant or defendants, who had fince been committed, and who, under the provifions in the faid act before-mentioned were to be deemed and taken as if in cuftody of the faid marshal (that is to say, the marfhal of the faid King's Bench Prifon) or warden refpeétively, within twenty-eight days next after fuch notice given in the London Gazette of the repair of the faid prifons, or either of them respectively, or of any other prifon or prifons being appointed in lieu or of either of them, fhould and were, by the faid act, required to furrender themfelves to the keeper of fuch of the faid prifons to which they fhould refpectively belong, and in whofe cuftody they were under the provifions of the faid act deemed and taken to be fo as to become actual prifoners, and within the walls of fuch prifon or prisons refpectively, as by the faid act will fully appear: And the faid John Chriftie in fact further faith, that before the day and year in the faid plea of him the faid John Chriftie pleaded by way of reply as aforefaid mentioned, to wit, on the fixteenth day of October, in the year of Our Lord 1781, the faid prifon of the Fleet had been and was repaired and made fit for the reception of prifoners, and the fame was notified in the London Gazette of that day by one of his

ma

Rebutter, &c.

G

majefly's then principal fecretaries of ftate, according to the pur
port and directions of the ftatute in fuch cafe made: And the faid
John Chriftie in fact further faith, that the faid John Wybourn,
at the tie of giving fuch notice of the repair of the said prifon
of the Fleet as aforefaid,, and from thence until and at the end
and expiration of twenty-eight days next after the giving of
fuch notice, was a prifoner belonging to the aforefaid prifon
of the Fleet, under his aforefaid commitment thereto, and
under the provifions fpecified and contained in the faid act
in this plea particularly mentioned, was deemed and taken as
if in cuftody of the warden of the faid prison of the Fleet:
But the faid John Chriftie in fact further faith, that notwith-
ftanding fuch notice of the repair of the faid prifon of the Fleet as
aforefaid, and notwithstanding the faid John Wybourn was such
prifener belonging to the faid prifon of the Fleet as aforesaid,
and as fuch prifoner ought to have furrendered himself to the
keeper of the faid prifon, fo as to have become an actual pri-
foner, and within the walls of the faid prifon, within the faid
twenty-eight days next after the giving of fuch notice of the re-
pair of the faid prifon as aforefaid, according to the directions of
the aforefaid ftatute in fuch cafe made and provided, and notwith-
ftanding the faid damages fo recovered by the faid John Chriftie
aforefaid, during the aforefaid twenty-eight days, were and still are
wholly unpaid and unfatisfied to him the faid John Christie; yet
he the faid John Wybourn did not within the faid twenty-eight
days next after fuch notice given in the London Gazette of the re-
pair of the faid prison of the fleet as aforefaid, surrender himself to
the keeper of the prifon fo as to become an actual prifoner,
and within the walls of fuch prifon, according to the directions of
the aforefaid ftatute in fuch cafe made and provided, but wholly
refused and omitted fo to do, and ftaid and continued at large
out of the faid prison, and out of the cuftody of the warden
or keeper thereof, after the end and expiration of the faid
twenty-eight days next after the giving of fuch notice of the
repair of the faid prifon of the Fleet as aforefaid, without the
leave and licence, and against the will of the faid John Chriftie,
and thereby escaped and went at large from and out of the faid
prifon, and out of the custody of the faid warden or keeper
thereof, otherwife than as in the faid plea of the faid John Wy-
bourn by him above pleaded by way of rejoinder as aforefaid is al-
ledged, and in manner and form as the faid John Chriftie hath
above in his faid plea fo pleaded by way of reply as aforefaid al-
ledged, to wit, at Weftminster aforefaid; and this he the faid
John Chriftie is ready to verify: wherefore as before he prays
judgment and his debt aforefaid, together with his damages by him
fuftained on occafion of the detention of the fame, to be adjudged
to him, &c.
WM. BALDWIN.

And the faid John Wybourn fays, that the faid John Chriftie, by reafon of any thing by him above in furrejoining alledged, ought not to have or maintain his aforefaid action thereof against