/5/ Issue was taken thereon, which confirms the
other cases, by implying that in that event the defendant would
be liable.
Next I take a case of the time of Henry VI., A.D. 1455. /6/ [177]
was an action of debt against the Marshal of the Marshalsea, or
jailer of the King's Bench prison, for an escape of a prisoner.
Jailers in charge of prisoners were governed by the same law as
bailees in charge of cattle. The body of the prisoner was
delivered to the jailer to keep under the same liabilities that
cows or goods might have been. /1/ He set up in defence that
enemies of the king broke into the prison and carried off the
prisoner, against the will of the defendant. The question was
whether this was a good defence. The court said that, if alien
enemies of the king, for instance the French, released the
prisoner, or perhaps if the burning of the prison gave him a
chance to escape, the excuse would be good, "because then [the
defendant] has remedy against no one." But if subjects of the
king broke the prison, the defendant would be liable, for they
are not enemies, but traitors, and then, it is implied, the
defendant would have a right of action against them, and
therefore would himself be answerable. In this case the court got
very near to the original ground of liability, and distinguished
accordingly.
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