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1836.

HAINES

y. The

tunate situation, and may be liable for an escape in a very different manner, and under very different cireumstances from what he would be if the prisoner continued in the gaol itself; and that is very true. If Fasr INDI

Coupany, the Sheriff had it communicated to him by the Plaintiffs that they were inclined to grant this indulgence to the prisoner, and that he might go to another house in the custody of the Sheriff's officers, I am not prepared to state that the Sheriff might not say, “I will not do any such thing; I have him here under a cupias ad satisfuciendum, and unless you have a rule of Court for that purpose, I shall not consent to any such thing, because I cannot have the same strict custody over the party, and the means of keeping him in custody in another house (at this substituted prison as it were) that I have when he is in gaol, and, therefore, I will not consent to anything of the sort; if you mean to take him, discharge him; you have authority to do it yourself, and take him yourself ; make your agreement as you please with him ; I will

; have nothing to do with it.” Still the Sheriff may consent to do it; and here the Sheriff did consent to do it; and all parties consented to it. I apprehend that the Sheriff, when the Defendant was in this private house with his officers about him, might be liable to an action for escape, if it appeared that he had not used proper care, if he had removed his peons, or had employed persons who had not taken sufficient care to prevent the prisoner from escaping. Still it would be, under all circumstances, for a jury to consider whether, being in some measure instrumental in it, a Plaintiff ought to recover against the Sheriff at all; it would be a question of fact to be decided under all the circumstances of the case.

1856.

HAINES

The

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Now, really, under all these circumstances, the authorities which have been cited do not appear to

bear distinctly (I do not mean to say that they do East India not bear indirectly) upon the case in question, and COMPANY.

I feel that the Chief Justice at Bombuy was perfectly right in saying that he had not been able to find any authority for saying distinctly, whether there could be such an arrangement as this or not. In his judgment he says :-“I have not, however, been able to find any case in which it has been actually decided that the Plaintiff may relax the rigour of imprisonment, without thereby entitling the Defendant to his discharge. In the absence of authority, therefore, we must be guided by the general principles of the law (a).” It is perfectly true that there is no case, as far as I know, which goes to this particular point; but there is nothing to show that it is contrary to any principles of law that the creditor and the debtor may agree. The creditor may, under certain circumstances, or if he feels it to be really material and important to the debtor, change the place of imprisonment, and relax somewhat the rigour of imprisonment, without discharging the debtor from his debt, it clearly not being the meaning of either party that any such discharge should take place.

I should observe, that this opinion must not be taken to go the length of supposing that it would be possible, for instance, for a Plaintiff to say to a Defen,

. dant, “Oh, you may go about just where you please, but it shall be considered that you are in custody;" because that would be a fallacy and an absurdity : but here was an actual removal from the gaol to a private house, and an actual custody of some sort

() Ante, p. 475.

1856.

HAINES

v. The

a

continuing, which was intended to continue as a bonâ fide custody, as far as we can judge from all the circumstances of the case. Under these circumstances, we think that the judg- East INDIA

COMPANY. ment of the Court below is correct; that there is a distinction between the duty of the Sheriff to keep a man in arcta et salva custodiâ, and the question, whether or not any acts of the Plaintiffs have been such as to discharge the Defendant. They are totally different questions, and here there is clearly no intention to discharge the Defendant; there is no act done by the Plaintiffs which, in point of law, necessarily operates to that effect. It was not the intention of either party that he should be discharged; it was a matter of indulgence and kindness to him, and certainly he does not appear to have made a very grateful return for it. However, if in point of strict law he is entitled to be discharged, the law must take its course, whether he is grateful or not grateful, or whether it is a gracious proceeding on his part or not. There is, however, nothing in law to prevent this from being clearly a continuing custody of the Sheriff by the arrangement of the parties, and, therefore, we think that this appeal must be dismissed, and of course dismissed with costs.

The Lords of the Committee, will, therefore, humbly recommend as their opinion to Her Majesty, that the judgment of the Supreme Court of Judicature at Bombay, of the 3rd of January, 1856, ought to be affirmed, and this appeal dismissed with costs.

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1857.

abandonment

9th May, In this case leave to appeal had been granted by the

Judicial Committee upon terms of lodging in the zance entered Council Office a certificate of recognizance, under a the determi penalty of £500, before one of the Barons of the Exnation of an chequer conditioned upon the determination of the cated upon appeal. These terms were complied with; but the petition of the parties having compromised, the appeal was not furupon the ther prosecuted. The Appellant now presented a of the appeal. petition, praying that the Order granting leave to

appeal be dismissed, and the recognizance vacated.

Mr. Elderton, in support of the petition. Their Lordships rescinded the Order granting leave to appeal, and discharged the recognizance entered into on behalf of the Appellant. The Appellant to apply upon a certificate from the Council office to the Court of Exchequer to vacate the recognizance.

:

* Present : Members of the Judicial Committee, —The Right Hon. Lord Wensleydale, the Right Hon. Dr. Lushington, the Right Hon. Sir Edward Ryan, and the Right Hon. Sir John Dodson.

RANEE HURROSOONDREE DEBIAH

Appellant,

AND

RAJAH PRAN KISHEN SING

Respondent.*

On appeal from the Sudder Dewanny Adawlut, Bengal.

1857.

the same

This was a petition to restore, or, in the alterna

9th May, tive, to admit a fresh appeal, which had been treated

In circumas abandoned, under Statute, 8th & 9th Vict., c. 30, .stances showsec. 2, for non-prosecution within two years. The ing conflicte

and oppopetition stated that leave to appeal to England had site decisions

by the Sudder been granted by the Sudder Court on the 18th of Court upon January, 1848, and that the transcript of the pro- question at ceedings arrived and was registered at the Council issue, between

the same parOffice on the 7th of November, 1850. That an agent ties, an appeal

treated under had been appointed in England in the month of May, the Statute, 1852, and that the agent attended at the Council 8th & 9th

Vict., c. 30, Office on the 24th of that month, with a view of sec. 2, as proceeding with the appeal, and was informed that

non-prosecuthe Respondent had appointed agents in this country tion, was re

stored upon on his behalf, and that he immediately put himself in terms of paycommunication with them to join with him in paying ing costs and

undertaking half the expense of printing, when the Respondent's to lodge cases

forthwith, and agents informed him that they had no remittances to lodge secu

abandoned for

rity or a Bond * Present: Members of the Judicial Committee,- The Right to the amount

in England Hon. Lord Wensleydale,the Right Hon. Dr.Lushington, the Right of 5001. Hon. Sir Edward Ryan, and the Right Hon. Sir John Dodson.

Where an

appeal has as abandoned by Statute, 8th & 9th Vict., c. 30, sec. 2, their Lordships have no power to grant leave to institute a new appeal : only a discretion to allow the original appeal to be restored.

been treated

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