If

tunate situation, and may be liable for an escape in a
very different manner, and under very different cir-
cumstances from what he would be if the prisoner
continued in the gaol itself; and that is very true.
the Sheriff had it communicated to him by the Plain-
tiffs 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 pre-
pared to state that the Sheriff might not say, "I will
not do any such thing; I have him here under a
capias ad satisfaciendum, 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, there-
fore, 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 pri-
vate 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 con-
sider 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

v. The

EAST INDIA
COMPANY.

1856.

HAINES

V. The

COMPANY.

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 I feel that the Chief Justice at Bombay 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 (a) Ante, p. 475.

continuing, which was intended to continue as bona fide custody, as far as we can judge from all the circumstances of the case.

1856.

HAINES

v.

The

COMPANY,

Under these circumstances, we think that the judg- EAST INDIA 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 custodia, 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.

VOL. VI.

J 2

1857.

Recogni

into to abide

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 appeal yacated upon appeal. These terms were complied with; but the petition of the parties having compromised, the appeal was not furAppellant 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.

upon the abandonment

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.

On appeal from the Sudder Dewanny Adawlut, Bengal.

c. 30,

9th May, 1857.

In circum

stances showThe ing conflicting and oppohad site decisions

by the Sudder

the same

the same par

treated under

THIS was a petition to restore, or, in the alternative, to admit a fresh appeal, which had been treated as abandoned, under Statute, 8th & 9th Vict., sec. 2, for non-prosecution within two years. petition stated that leave to appeal to England 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 Office on the 7th of November, 1850. That an agent ties, an appeal had been appointed in England in the month of May, the Statute, 1852, and that the agent attended at the Council 8th & 9th Office on the 24th of that month, with a proceeding with the appeal, and was informed that abandoned for the Respondent had appointed agents in this country tion, was reon his behalf, and that he immediately put himself in terms of paycommunication with them to join with him in paying ing costs and half the expense of printing, when the Respondent's to lodge cases agents informed him that they had no remittances to lodge security or a Bond in England

Vict., c. 30, view of sec. 2, as

non-prosecu

stored upon

undertaking

forthwith, and

* Present: Members of the Judicial Committee,-The Right to the amount 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

been treated

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.