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ster.Ilall, or the court out of which the execution issued, then upon petition to the court from whence such execution issued, or in the prison of which such prisoner stands charged, in execution, in like form as before mentioned, and on affidae, vit, as before directed, made and left with sach petition, such court (being satisfied with the truth of such affidavit) is to make a rule, to cause the prisoner to be brought to the next assizes or great sessions in Wales or Cheshire. And the expense of bringing him, not exceeding is. a mile, shall be paid to the gaoler, out of the prisoner's effects, if suficient to pay; and if not, then by the treasurer of the county or place as shall be allowed by the judge. And the creditors, their executors or administrators, at whose suit such prisoner stands charged in, execution, shall, by rule of court, be summoned to appear at the said next assizes or great sessions, if they can be met with; and if not, then the attorney last employed for them shall be. summoned; and a copy of such rule shall be served on them or, left at their usual abole, or with their attorney last employed, fourteen days at least before such assizes or great sessions. And on an affidavit of such service being laid before the judge, such judge being satisfied with the truth thereof, is to appoint a time for hearing such petition, on some day on the crown side of the court during the assizes or great sessions. And on the appearance of the creditors, or in default of their appearance in person, or by attorney, on proof of their being served with the notice required, and a copy of the account of the estate of the prisoner being comprised in such notice, and of the rule of court for his appearance having been served; the judge shall, in a summary way, examine into such petition, and hear what shall be alleged for or against the discharge of the prisoner; and upon such examination he is to administer to such prison. er the oath before appointed, and to make such order as scems meet, and proceed in manner aforesaid concerning the discharge of any prisoner, and give the same relief and directions, as any court out of which the process issued is to do: and every order so made shall be as effectual as if made la the court out of which the process issued; and the same shall be made a record of the proceedings at such assizes or great sessions, and a copy thereof shall be transmitted to the court from whence the execution issued, signed by the judge, to be a record of the said court. 32 Geo. 2. c. 28. s. 15.

By the same act, 32 Geo. 2. c. 28, if any prisoner charged How compelias in execution for any debt or damages (not exceeding 2001. 33 ble to deliver Geo. 3. c. 5. s. 3.) besides costs, shall not within three months up their effects. after he is charged in execution make satisfaction t› his creditors who charge him, then such creditors, their executors or administrators, may require such prisoner, on giving twenty days notice in writing to him, that they design to compel him to give into the court from which the process issued, on which

Gaolers to recover only a dividend with other creditors

If the effects of the prisoner extend not to satisfy the whol debt, and the fees to the gaoler, such gaoler shall only receive proportionable dividend in respect of such fees pro rata with as to their fees, the other creditors.

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The prisoner so discharged shall never after be arrested for the same debts; nor shall any action of debt be brought against him on any such judgment, unless he be convicted of perjury.

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But their future. But notwithstanding any discharge by this act for the person of such prisoner, the judgment against him shall continue in force, and execution may at any time be taken out thereon against the lands or goods of such prisoner, except the ne cessary wearing apparel and bedding for himself and family, and tools for his trade, not exceeding 107. in value. s. 20..

Persons excluded ben fit of the act.

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Mutual credit.

Misbehaviour f assignees.

And no person who shall take the benefit of any act for the relief of insolvent debtors, shall have any benefit under this act, unless compelled by any creditor to deliver up his effects. s. 21.

Assignces under the act nay make composition with any debtors or accountants to such prisoner, where reasonable: and take such part of any debt as can be gotten in full discharge thereof; and he may also submit any difference to arbitrators; and the same all be binding to all parties; and every assignee is indemnified for what he fairly does. s. 21.

And where mutual credit shall have been given between the prisoner and others, before the delivery of the schedule, the assignees shall state the account between them, and nothing more shall vest by the assignment than the balance of such ac

count. s. 23.

And it shall be lawful for the courts at Westminster, from whence any process issued, or where the prisoner is charged in execution by process issued out of any other court, it shall be lawful for the judges of the King's Bench, Common Pleas, and Exchequer, or one of them, on the petition of any creditor having charged such prisoner in execution, or of such pri Soner complaining of any fraud or misbehaviour of any assignee, to order the parties to attend such court or judge at a time in such order mentioned; and they are to make such order in the premises, either for displacing such assignee, and appointing a new assignee, or for the prudent management of the said effects for the benefit of the creditors, as they think fit, s. 22. Adjudications Under these acis for the relief of insolvent debtors the folen the insolvent lowing material points have been decided. Payment of the weekly allowance to a prisoner, to the person who opens the door of the prison, is a sufficient payment to the prisoner within the mucaning of the act, although he be not a turnkey; for turnkeys may be changed every day, and the person who opens the door must be taken, as to the plaintiff, to be the turnkey.

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Parsons v. Rep. 111. 2d. An insolvent debtor in execution under process, sued out of an inferior court of small pleas, holden within any town or borough or other place, is entitled to the benefit of the statute 2 Geo. 2. c. 22. and the several other acts passed for the relief of insolvent debtors: for in favour of so beneficial a remedy for the subject, all the acts must be constened together, as forming one system of laws, extending to inferior as well as to the superior courts; limiting however the application of the prisoner for relief to be made to the court, whether of superior or inferior jurisdiction, out of which the process issue, within the term next after he is charged in execution, the duration of the terms in other instances being of general notoriety. Rex v. Bailiffs of Ipswich, Mic. Ter. 46 Geo. 3. B. R. 7 East Rp. 84, and 3 Smith's Rep. 102. And any agreement entered into by a debtor with his creditor not to take the benefit of the lords' act, cannot be supported; for where a defendant had executed a cognovit, with an agreement not to bring any writ of error, or take the benefit of the lords' act, the court held that a defendant could not so bargain with a plaintiff, to exclude himself from the benefit of this act, and thus sell his personal liberty; he was therefore ordered to be discharged. Parish v. Woolstonecroft, Mic. Ter. 46 Geo. 3. 3 Smith's Rep. 52..

Salmon, Mic. 45 Geo. 3. 1 Bos. & Pul. New

3d. That a note for the allowance must be signed by all the plaintiffs, if there be more than one in the action. Rex v. Wil kinson, Hil. 37 Geo. 3. 7 Ter. Rep. 156.

4th. That no stamp whatsoever is necessary on notes of this kind. Tekell v. Casey, Tr. 38 Geo. 3. 7 Ter. Rep. 670.

VIII. The duty and power of gaolers and keepers of prisons.

A goaler is considered as an officer relating to the administra ion of justice, and is so far under the protection of the law, hat if a person barely threatens him for keeping a prison.r in afe custody, he may be indicted and fined, and imprisoned for t. 2 Rol. Abr. 76. 1 Hawk. c. 21. s. 14.

But imprisonment is in most cases only for safe custody, and ot for punishment. Co. Lit. 260, a.

Therefore a prisoner ought to be used with the utmost umanity. 4 Black. Com. 300.

And in regard to the great power gaolers and their officers ive (and, while it is exercised with moderation, ought to have) er their prisoners, the law_watcheth with a jealous eye over eir conduct. Foster's Cr. L. 331.

And therefore, if a prisoner under their care dieth, whether disease or accident, the coroner, upon notice of such death, VOL. II.

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which notice the gaoler is obliged to give in due time, ought to resort to the goal, and there, upon view of the body, make in. quisition into the cause of the death*. Foster's Cr. L. 321. 1 Hale's Hist. 432. 2 Hale's Hist. 57.

And if the death was owing to cruel and oppressive usage on the part of the gaoler or any officer of his, or to speak in the language of the law, to duress of imprisonment, it will be deemed wilful murder in the person guilty of such duress. Foster's Cr. L. 322.

The instances of oppression, which may fall within the rule of duress of imprisonment, are as various as a heart cruelly beat upon mischief can invent. Ibid.

But two cases on this subject, from the peculiarity of their circumstances, require to be particularly mentioned.

1. A gaoler, knowing that a prisoner infected with the small pox lodged in a certain room in the prison, confined another prisoner against his will, in the same room; the second prisoner,{ who had not had the distemper, of which the gaoler had notice, caught this distemper, and died of it: this was holden to be murder. 2 Str. 856.

2. Another straitly confined his prisoner in a low damp us. wholesome room, without allowing him the common necessaries of chamberpot, &c. for keeping things sweet and clean about him the prisoner, having been long confined in this manner, contracted an ill habit of body, which brought on distempers of which he died. This likewise was holden to be murder in the party guilty of this daress. 2 Str. 884. 2 LA. Raym. 1578.

For although the law invests gaolers with all necessary power for the interest of the commonwealth, they are not to behave with the least degree of wanton cruelty to their prisoners. Oll Bail. sess. 1784, p. 1177.

And the above were deliberate acts of cruelty, and enor. mous violations of the trust the law reposeth in its ministers of justice. Foster's Cr. L. 322.

The common law also subjects gaolers to fine and imprisonment, as also to the forfeiture of their offices, for gross and palpable abuses in the execution of their offices, such as suffering prisoners to escape t, barbarously misusing them, or the like. 9 Co. 50. Raym. 216. 2 Bacon's Abr. 630.

And a gaoler in fact (de facto) who takes upon him, without any legal authority, to Keep prisoners, as also feme coveru

* See title CORONER, in Vol. I.

↑ And the great and learned Blackstone, with that humanity which disti guisher every part of his writings, speaking of gaolers, says, that ties are g fquently a merciless race of men, and by being contersant in scenes if muc; seled against any tender sensation. Sce his Commentaries, Vol. 4. p Cu * Their hability on Escapes is fully treated of under that title.

and infants, are answerable for miscarriages. 2 Inst. 381. 8 Co. 44.

Also gaolers are punishable by attachment, as all other officers sare, by the courts to which they more immediately belong, for any gross misbehaviour in their offices, or contempts of the rules of such courts; and they are also punishable by any other courts for disobeying writs of habeas corpus awarded by such courts, and not bringing up the prisoner at the day prefixed by such writs. 2 Hawk. c. 22. s. 31.

It seemeth generally, in all cases where a man is committed Their power, to prison, especially if it be for felony, or upon an execution, or but for a trespass or other offence, that every gaoler ought to keep such prisoner in safe and close custody; safe, that he cannot escape; and close, without conference with others, or intelligence of things abroad. Dalton, c. 170. 2 Bulstrode,

148. 191.

And in the case of felony, it is lawful for the gaoler to hamper his prisoner with irons to prevent his escape. 1 Hale's And it is said, that a gaoler is no way punishable for keeping even a debtor in irons *. 2 Hawk. c. 22. s. 32.

Hist. 601.

But it is observed by the editor of Hale's History, in a note, that this liberty, even in the case of a felon (and much more in the case of a prisoner for debt) can only be intended, where the officer has just reason to fear an escape; as where the pri oner is unruly, or makes any attempt to that purpose; but therwise, notwithstanding the common practice of gaolers, t seems altogether unwarrantable, and contrary to the mild. ess and humanity of the laws of England, by which gaolers re forbidden to put their prisoners to any pain or torment. Hale's Hist. 601.

For in Fleta, lib. 1. c. 26, and the Mirror, c. 5. s. 1. n. 54, is said, That it is an abuse that prisoners should be harged with irons, or put to any pain, before they be attainted felony.

Therefore, in the dubious interval between the commitment ad trial, a prisoner ought to be used with the utmost humaty; and neither be loaded with needless fetters, or subcted to other hardships than such as are absolutely requi te for the purpose of confinement only. 4 Black, Com

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*The act 13 Ed. 1. stat. 1. c. 11, Giving a remedy to masters against their vants and other accomptants found in arrear by auditors, ordained that their Fes should be arrested and delivered to the next gaol, and imprisoned in , until satisfaction.-It seems therefore to have been held after this stae, that gaolers might put irons upon their prisoners, for their safeguard is ESSARY. 3 Inst. 381. 1 Rol. 807, 1.5. Comyn's Dig. Tit. Imprio 2it (I), but Sir Ed, Coke is express, that at common law it could not be domo, st. 381.

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