Escape

An escojMi is the de-
liverance of a person out of prison, who
is lawfully imprisoned, l>eforc such u
]»crson is entitled to such deliverance
by law. 5 Mass. 310.

2. — It will be proper to consider,
first, what is a lawful imprisonment ;
and, secondly, the different kinds of
cscojies.

3. — When a man is imprisoned in a
proper place under the process of a
court having jurisdiction in the case, he
is lawfully imprisoned, notwithstanding
the proceedings may be irregular ; but
if the court has not jurisdiction the im-
prisonment is unlawful, whether the
process lx; regular or otherwise. Bac.
Ah. Escape in civil cases, A 1 ; 13
John. 378 : 5 John 89 ; 1 Cowcn, 309 ;
8 Cowcn, 192; 1 Root, R. 288.

4. — Escapes are divided info volun-
tary and negligent ; actual or construc-
tive ; civil and criminal ; and escapes
on mesne process and execution.

ESC

5. — 1. A voluntary escape is the
giving to a prisoner, voluntarily, any
liberty not authorised by law. 5 Mass.
310 ; 2 Chipm. 1 1 . Letting a prisoner
confined under final process, out of
prison for any or the shortest time, is
an escape, although he docs afterwards
return, 2 ill. Rep. 1048 ; 1 Roll. Ab.
806 ; and this may be, as in the case
of imprisonment under a ca. sa. al-
though an officer may accompany him.
3 Co. 44 a; Plowd. 37; Hob. 202; 1
Bos. & Pull. 24; 2 Bl. Rep. 1048.

0. — The effect of a voluntary escape
in a civil case, when the prisoner is
confined under final process is to dis-
charge the debtor, so that he cannot be
retaken by the sheriff; but he may be
again arrested if he was confined only
on mesne process. 2 T. R. 172; 2
Barn. 6c A. 60. And the plaintiff may
retake the prisoner in either case. In
a criminal case, on the contrary, the
officer not only has a right to recapture
his prisoner, but it is his duty to do so.
6 Hill, 344; Bac. Ab. Escape in civil
cases, C.

7. — 2. A negligent escape takes
place when the prisoner goes at large,
unlawfully, either because the building
or prison in which he is confined is too
weak to hold him, or because the keeper
by carelessness lets him go out of
prison.

8. — The consequences of a negligent
escajie are not so favourable to the
prisoner confined under final process,
as they are w hen the escape is volun-
tary, because in this case, the prisoner
is to blame. He may therefore be re-
taken.

9. — 3. The escape is actual when
the prisoner in fact gets out of prison
and unlawfully regains his liberty.

10. — 4. A constructive escape takes
place when the prisoner obtains more
liberty than the law allows, although he
still remains in confinement. The fol-
lowing cases are examples of such
escapes. When a man marries his
prisoner, Plowd. 17 ; Bac. Ab. Escape,
H 3 ; if an underkceper be taken in
execution, and delivered at the prison,
and neither the sheriff nor any autho-

518

ESC

ESC

riscd porson bo there to receive him.
5 Mass. 310. And when the keeper
of a prison made one of the prisoners
confined for a debt a turnkey, and
trusted him with the keys, it was held
that this was a constructive escape. 2
Mason, 486.

1 1 . — Escapes in civil cases arc, when
the prisoner is charged in execution or
on mesne process lor a debt or duty,
and not for a criminal offence, and he
unlawfully gains his liberty. In this
case, we have seen, the prisoner may
bo retaken, if the escape have not been
voluntary ; and that he may be retaken
by the plaintilf when the escape has
taken place without his fault, whether
the defendant be confined in execution
or not, and that the sheriff may retake
the prisoner, who has been liberated by
him, when he was not confined on final
process.

12. — Escapes in criminal cases take
place when a person lawfully in prison,
charged with a crime or under sen-
tence, regains his liberty unlawfully.
The prisoner being to blame for not
submitting to the law, and in effecting
his escape, may be retaken, whether
the escape was voluntary or not. And
lie may be indicted, fined and imprison-
ed for so escaping. See Prison.

13. — Escape on mesne process is
where the prisoner is not confined on
final process, but on some other pro-
cess issued in the course of the pro-
ceedings, and unlawfully obtains his
liberty, such escape does not make the
officer liable, provided that on the return
day of the writ, the prisoner is forth-
coming.

1 4. — Escape on final process is when
the prisoner obtains his liberty unlaw-
fully while lawfully confined, and under
an execution or other final decree.
The officer is then, in general, liable lo
the plaintiff for the amount of the debt.

Escape warrant. A warrant is-
sued in England against a person who
being charged in custody in the king’s
bench or Fleet prison, in execution, or
mesne process, escapes and goes at
large. Jacob’s L. D. h. t.

ESCHEAT, title to lands. Accord -

ing to the English law, escheat denotes
an obstruction of the course of descent,
and a consequent determination of the
tenure, by some unforeseen contin-
gency ; in which case the land naturally
results hack, by a kind of reversion, to
the original grantor, or lord of the fee.
2 Bl. Com. 244.

2. — All escheats, under the English
law, are declared to he strictly feudal,
and to import the extinction of tenure.
Wright on Ten. 115 to 117 ; 1 Wins.
Bl. R. 123.

3. — But as the feudal tenures do not
exist in this country, there arc no pri-
vate persons who succeed to the inherit-
ance by escheat. The state steps in, in
the place of the feudal lord, by virtue
of its sovereignty, as the original and
ultimate proprietor of all the lauds within
its jurisdiction. 4 Kent, Com. 420. Jt
seems to he the universal rule of civiliz-
ed society, that when the deceased
owner has left no heirs it should vest
in the public, and be at the disposal of
the government. Code, 10, 10, 1 ;
Domat, Droit Pub. liv. 1, t. (>, s. 3, n.
1. Vide 10 Vin. Ah. 139; 1 Bro.
Civ. Law, 250; 1 Swift’s Dig. 156;
2 Tuck. Blacks. 244, 245, n. ; 5 Binn.
R. 375; 3 Dane’s Ah. 140, sect. 24.