It appears from the motion, that the prisoner was confined in gaol; and that he attempted to effect the escape of the other prisoners, in no other way or manner, than as a consequence of the attempt to effect his own escape. By this we are doubtless to understand, that the only object of the prisoner was to free himself from confinement, and if, in effecting this object, persons legally imprisoned escaped, he disregarded such .consequences.
The statute creating, the offence with which the prisoner was charged, and for which he was committed, was repealed before the acts alleged to be a crime, were done;(a) the complaint on *456which the warrant for his arrest issued, was illegal, not being ma(j0 ¡-^ an informing officer ; and the court before which the prisoner was committed to appear, had no jurisdiction of the crime charged.
I am of opinion that the direction to the jury was erroneous. The act of the prisoner in question was so far from being a high crime and misdemeanour, that it was justifiable. And here it is not intended to suggest, that a prisoner might not do acts which w'ould be unjustifiable, in order to escape from unlawful imprisonment. He might not, for example, kill the gaoler, or set the prison on fire, or totally demolish it; for none of these acts might be at all necessary to effect his object. But he might lawfully free himself from this imprisonment; since it is confessed to have been illegal. It appears, that all the proceedings were void. A void process is no process. The complainant, — the justice of the peace who ordered him to be committed, — the sheriff who executed the pretended warrant,— and the gaoler who held him under it, — are all liable for false imprisonment. This is the undoubted doctrine of the common law from the time of the Marshalsea case, 10 Co. 68. to this day. It hence results, that the keeper of the gaol is vested with no authority ; the building in which the prisoner was confined, is not a gaol, but as to him, a mere private building; and hence he might regain that liberty of which he was unjustly deprived ; and it is no part of the case that he made use of more force than was necessary to accomplish this object. Nor does the fact that he was confined with certain atrocious offenders, render it less proper for him to effect his escape.
There must, therefore, be a new trial.
The other Judges were of the same opinion ; Peters, J. at first dissenting, but ultimately concurring.New trial to be granted.
The statute referred to, is the 41st section of the “ act concerning crimes and punishments,” revision of 1821, which was repealed in May 1825.