An escape is tho deliverance of a person who is lawfully
imprisoned, out of prison, before such a person 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 escapes.
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 imprisonment is unlawful, whether the process be regular
or otherwise. Bac. Ab. Escape. in civil cases, A 1, 13 John. 378, 5 John.
89, 1 Cowen, 309 8 Cowen, 192, 1 Root, R. 288.
4. Escapes are divided into voluntary and negligent, actual or
constructive, civil and criminal and escapes on mesne process and
5. - 1. A voluntary escape is the giving to a prisoner, voluntarily, any
liberty not authorized by law. 5 Mass . 310, 2 Chipm. 11. Letting a
prisoner confined under final process, out of prison for any, even the
shortest time, is an escape, although he afterwards return, 2 Bl. Rep.
1048, 1 Roll. Ab. 806, and this may be, (as in the case of imprisonment
under a ca. sa.) although an officer may accompany him. 3 Co. 44 a Plowd.
37, Hob. 202, 1 Bos. & Pull. 24 2 Bl. Rep. 1048.
6. The effect of a voluntary escape in a civil case, when the prisoner is
confined under final process, is to discharge 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. & A. 56. 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 escape are not so favorable to the
prisoner confined under final process, as they are when the escape is
voluntary, because in this case, the prisoner is to blame. He may therefore
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
following cases are examples of such escapes: When a man marries his
prisoner. Plowd. 17, Bac. Ab. Escape, B 3. If an underkeeper be taken in
execution, and delivered at the prison, and neither the sheriff nor any
authorized person be 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.
11. Escapes in civil cases are, when the prisoner is charged in execution
or on mesne process for 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 be retaken, if the escape have not been voluntary, and that he may be
retaken by the plaintiff 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 sentence, 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 he may be indicted, fined and imprisoned for so escaping. See
13. Escape on mesne process is where the prisoner is not confined on
final process, but on some other process issued in the course of the
proceedings, 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 forthcoming.
14. Escape on final process is when the prisoner obtains his liberty
unlawfully while lawfully confined, and under an execution or other final
decree. The officer is then, in general, liable to the plaintiff for the
amount of the debt.
Source: Bouviers Law Dictionary 1856 Edition
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