herein, but if such principal appeal be dismissed for non-prosecution, then the Petitioners were to be at liberty to prosecute their cross appeal as a separate cause." 1856. NANA NARAIN RAO v. HURREE PUNT BHAO. STAFFORD BETTESWORTH HAINES Appellant, AND THE EAST INDIA COMPANY Respondents.* On appeal from the Supreme Court at Bombay. THE appeal in these case was brought from a judgment of the Supreme Court at Bombay, which refused an application to discharge the Appellant out of the custody of the Sheriff of Bombay, and to have satis * Present: Members of the Judicial Committee, The Right Hon. Dr. Lushington, the Right Hon. Sir Edward Ryan, the Right Hon. Sir John Dodson, and the Right Hon. Sir John Patteson. Assessor,-The Right Hon. Sir Lawrence Peel. 2nd Dec., 1856. A., in the custody of the Sheriff, and confined in the gaol a Rombay, under a tion issued against him upon a judgment of the Supreme writ of execu Court at Bombay, was permitted by the Sheriff, with the sanction and authority of the judgment creditors by reason of illness, to go out of prison, and temporarily reside outside the precincts of the gaol, upon the condition that he should continue under the surveillance of the Sheriff's officers, and to which condition A. agreed and continued for a time to reside out of gaol at a private house, where he was constantly under such surveillance. Upon A.'s becoming convalescent, the Sheriff, at the instance of the judgment creditors, took him back to gaol. Upon an application by A., to the Supreme Court at Bombay, to discharge him out of custody, on the ground that the writ of execution was satisfied, that Court held, that A., having agreed to the condition imposed on him 1856. HAINES v. EAST INDIA faction entered of a judgment obtained by the Respondents against him. The facts of the case were these: On the 25th August, 1854, an action on promises was brought in the Supreme Court of Bombay by the Respondents, against the Appellant. On the 26th of the same month the Appellant was arrested by the Sheriff of Bombay on mesne process issued out of that Court in the action, and imprisoned in the gaol of Bombay. On the 4th January, 1855, a verdict in the action passed against the Appellant, and, on the 22nd of the same month, judgment was signed for the Respondents, for Rs. 2,79,917, for damages and costs, and a writ of Ca. Sa. issued against the Appellant, under which writ he was detained by the Sheriff in gaol. During his imprisonment in the gaol, the Appellant in a bad state of health, which being reported by the medical officer of the gaol to the Government of Bombay, that officer was desired by the Government to state "whether he considered it absolutely requisite for his (the Appellant's) recovery, that he should be temporarily released from his present confinement.” The medical officer reported, that a temporary by the judgment creditors, of continuing in the custody of the Sheriff's officers while out of gaol, was estopped from saying that he was out of the Sheriff's custody when he was permitted to leave the gaol, and that a change of the place of imprisonment in such circumstances did not amount to a discharge out of custody. Such judgment affirmed, upon appeal, by the Judicial Committee. Where an execution creditor is willing to allow a debtor to go out of prison for a temporary purpose, the custody continuing, the Sheriff may refuse, unless ordered by a rule of Court; but if, without any rule of Court, all parties agree to the debtor leaving the prison, and from a laxity of surveillance of the Sheriff's officers the debtor escapes, it is a question of fact for the jury, if the judgment creditor brings an action against the Sheriff, whether the judgment creditor did not himself contribute to the escape. If the Sheriff alone, on the ground of a debtor's ill-health, makes any relaxation of the imprisonment, by letting the debtor reside out of prison, it would be an eccape. release from his present confinement was essentially necessary for the re-establishment of his (Appellant's) 1856. HAINES V. The COMPANY, health." Upon which, the Secretary of the Bombay Government wrote to the Sheriff and the Superinten- EAST INDIA dent of Police of Bombay the following letters: "Sir, -Assistant-Surgeon R. IIines, in medical charge of the Bombay gaol, having reported that the temporary release of Mr. S. B. Haines, from his present confinement is essiantially necessary for the re-establishment of his health, I am directed by the Right Honourable the Governor in Council, to inform you that, under the Report, Government is pleased to permit him temporarily to reside outside the gaol, under such surveillance as may prove as little irksome as possible to the prisoner, while consistant with its perfect efficiency. The Superintennent of Police has been instructed to render you all the assistance of which you may stand in need, for keeping Mr. S. B. Haines under efficient surveillance while without the walls of the gaol. A copy of my letter of this date to Major Baynes, is inclosed for your information." The communication referred to by the Secretary of the Bombay Government was as follows:-" Sir, I am directed by the Right Honourable the Governor in Council to inform you that Assistant-Surgeon R. Haines, in medical charge of the Bombay gaol, having reported to Government that the temporary release of Mr. S. B. Haines from his present confinement is essentially necessary for the re-establishment of his health, Government is pleased to permit him temporarily to reside outside the gaol under surveillance; and I am to request that efficient measures may be adopted by you, in communication with the Sheriff of Bombay, to prevent his quitting the Island. It is the 1856. HAINES wish of Government, that while the surveillance over Mr. Haines should be completely efficient, it may be rendered as little irksome to his feelings as may be EAST INDIA practicable." บ. The COMPANY. These letters were communicated to the Appellant in the gaol at Bombay, by the Deputy-Sheriff, when the Deputy-Sheriff explained to the Appellant, that if he availed himself of the permission of Government to reside temporarily outside the gaol, Sheriff's peons, or officers, would be stationed in and about the house in which he might take up his residence, and that two of the Sheriff's peons would always remain in the house, and asked him if he was willing to avail himself of such permission, on such terms. The Appellant expressed to the Deputy-Sheriff his willingness to avail himself of the permission, both verbally and by the following letter :—" Sir,—I shall be grateful for any change, and the consideration of my health is indeed most welcome." In consequence of what had thus passed, on the day following the DeputySheriff went to the gaol, and accompanied the Appellant thence to a small Bungalow situated at Omercarry, near the gaol, and, on that occasion, the Deputy-Sheriff pointed out to the Appellant one of the Sheriff's peons, who had accompanied them from the gaol, as one of the Sheriff's officers who would always be in the house. On the 22nd of July, the Appellant, accompanied by the Sheriff's peons, removed to a more convenient Bungalow, at Mazagon. During the whole of the period that the Appellant was residing at Omercarry and at Mazagon, he was in the custody and charge of the Sheriff's officers, and was within the bailiwick and jurisdiction of the Sheriff of Bombay. 1856. HAINES v. The COMPANY. On the 3rd August, in consequence of a communication from the Appellant's wife to the Bombay Government, stating that the Appellant's health was so seriously affected by his recent incarceration that his EAST INDIA life might possibly be endangered if he should be again confined in the Bombay goal, the Government appointed a Medical Committee to examine the Appellant, and report whether the Appellent's life would be endangered by a re-incarceration in Bombay gaol. On the 20th of the same month, the Medical Committee reported to the Government as their opinion that Mr. Haines' impaired health did not arise from any cause connected with the climate of the gaol, but was attributable to mental causes; and that his life would not be endangered by re-incarceration in the Bombay gaol, so far as its climate was concerned, mental suffering often leading to mental and bodily disease, and even to death, in all places and in all climates; but in Mr. Haines' present state of health, bodily and mental, so far as was discoverable by them, they were of opinion that a fatal result would not be more likely to occur in the Bombay gaol than in any other place. In consequence of this report, the Government of Bombay, on the 22nd August, 1855, directed the Sheriff of Bombay to take immediate measures to remove the Appellant "from the place of his (the Sheriff's) custody of him to the gaol," and on the same day the Deputy-Sheriff went to the Bungalow where the Appellant was residing, for the purpose of removing the Appellant to the gaol. On that occasion, Mrs. Haines, the wife of the Appellant, opposed the Deputy-Sheriff seeing him, on the ground that he was so dangerously ill that the presence of the Deputy-Sheriff might violently excite him, and possibly |