by the rule, you may in the next term, give a fresh rule to plead, and for want of plea, sign judgment, without a demand of plea. N. B. The words of the rule are to proceed to trial or final judgment, within three terms next after declaration delivered. The term wherein such declaration shall be delivered, is to be taken as one. R. H. 26 Geo. 3. You Must be must proceed to trial, or final judgment must be signed charged in on or before the last day of the third term; and after final execution judgment, the prisoner must be charged in execution within two within two terms next after such judgment so had and obtained, the term in which the judgment is signed to be accounted one of the two terms, R. H. T. 26 Geo. 3, unless prevented by error or injunction. terms. be executed. If judgment be signed by default, and an inquiry is to Ifinquiry is to be executed in the third term, take care to make it returnable in time, to give a rule for judgment, so as it expire on or before the last day of that term, and the inquisition must also be left stamped with a 10s. stamp with the master on the last day of the term, in order that he may sign the judgment the same day; and he will do it in court if required. Having shewn how prisoners are to be declared against and detained, it will now be requisite to shew when they are to appear and plead. Within what Time Prisoners have to plead in County Gaols. before one Ordered, that upon every arrest by mesne process out If declaration of this court returnable the first day of Easter or Michael- be delivered mas term, if a copy of the declaration be delivered against month of such defendants before one month from the day of Easter Easter or (that is before the third return of Easter term,) or the Michaelmas. morrow of All Souls (which was then the third return of Michaelmas term)(a), and affidavit thereof made and filed, if the defendant doth not appear before the end of ten days after Easter and Michaelmas terms respectively, judgment may be entered against him, rules having been given; but if he appears before the end of ten days after the term, he shall imparle until the next term, unless (a) This term is since shortened by the stat. 24 Geo. 2. But if declaration be delivered one month after Easter, or the the action be in London or Middlesex, and defendant be in prison within forty miles of London or Westminster; then though he doth appear before the expiration of ten days after the end of the term, he shall plead two days before the essoign day of the next term, and in default thereof, rules having been given, judgment may be entered against him as aforesaid. R. E. 5 W. & M. sect. 3. If a copy of declaration be delivered against such defendant, on or after one month from the day of Easter in Easter term, or the morrow of All Souls, in Michaelmas Term, or in Hilary or Trinity term, and thereupon the plaintiff gives rules to appear and answer; then if the deAll Souls, &c. fendant appear two days before the essoign day of the next term, he shall imparle until the said next term; but if he does not appear within that time, judgment may be signed. Ibid. sect. 4. Morrow of If declaration be delivered before essoign day of the next term, after the re turn of the writ. When the rule to plead and appear, if defendant is in custody of the sheriff is to be given. Construction of the rule. If a writ be returnable in any term, and a copy of the declaration has been delivered before the essoign day of the next term, the plaintiff in such term may give rules to appear and answer, and if the defendant does not appear and plead upon the expiration of the rules, judgment shall be given against him. Ibid. sect. 5. If defendant is in custody of the sheriff, a rule to appear and plead must not be given before affidavit of the delivery of the declaration is filed, which must now be filed with the clerk of the rules before the first day of the next term after delivery. Rule, H. 26 Geo. 3. If the writ be returnable before the last return of the term, and party arrested and in custody, and the declaration is delivered against a prisoner in custody of the sheriff four days before the end of that term, he shall appear and plead in eight days, provided the affidavit is filed in due time after delivery, and rule be given. But if not, he has still two days before the essoign day of the next term to appear and plead thereto; and in case of neglect to sign the judgment that term, then a common four day rule to plead may be given the next term, and no plea being filed or delivered, plaintiff may sign judg ment. A prisoner may, any time pending the action, and before final judgment, file special bail, and justify same, in court in term, or before a judge in vacation, upon due notice, and be discharged. See the stat. 48 Geo. 3. c. 46. s. 6. title Special Bail. Where the defendant pleads before his time, without If defendant giving notice to the plaintiff, it is a surprise upon the lat- pleads before ter, who, without such notice, is not required to search in his time, he is to give notice. the office for a plea as of a term prior to that wherein regularly the defendant should have pleaded. Parkinson v. Thompson, 8 Term Rep. 596.-Per Cur. 4 Term Rep. 664. Thomas v. Prichard. The rule to appear and plead expired on the 19th of When he November, the defendant entered his plea the 16th Nov. need not plaintiff signed judgment on the 20th, for want of a plea. give notice. Motion to set it aside, court made rule absolute, the defendant having pleaded in regular time, and held no notice of it was necessary. Rusholm v. Chapman, 5 Term Rep. 473. Make out a ca. sa. and lodge it with the sheriff of the How to charge county, which is sufficient, pay him 2s. 6d. (and it is defendant in absolutely necessary that the judgment be entered, dock- execution in custody of eted, and filed of record, before this is done.) the sheriff. any other If the defendant be in custody in Newgate, Ludgate, If defendant or any other county or city gaol, at the suit of any other in custody in person, the plaintiff must sue out process against him, Newgate, &c. directed to such sheriff, &c. as the case is, and such pro- at the suit of cess must be left with him at his office, in order to charge plaintiff. such defendant in custody. In this case make affidavit of the debt, and sue out a writ as in other cases; pay sheriff for charging him in custody 2s. 6d. and such plaintiff must proceed against the defendant as before directed, otherwise he will be superseded; and N. B. he is to file a bill in this case before he delivers the declaration. Sayer's Rep. 49. Every prisoner having a day rule, shall return within Prisoners on the walls or rules of the said prison, at or before nine in day rules to the evening of the day for which such rule shall be grant- return at or ed. R. Hil. 45 Geo. 3. 6 East, 2. before nine. A day rule when made covers by relation back the libe- Of the day ration of a prisoner, who having signed the petition, had rule. gone out of prison before the sitting of the court the same day, and although the marshal had been sued for an escape before the court sat. 9 East, 151. Field v. Jones. How to proceed if Defendant be in the Custody of the If the defendant be in custody of the marshal of the How to proKing's Bench prison, at the suit of the same plaintiff, ceed if defen of the mar shal. dant is in cus- then make two copies of the bill, one on parchment, the other on paper (stampt with a 4d. stamp,)(a) file the bill first, then deliver the copy to the turnkey, pay ls. and in this case no affidavit is requisite; but give a rule to plead, and demand a plea as in other cases. I Term Rep. 591. When defendant is to plead. When a bill is filed against a prisoner in custody of the marshal, if a copy of it be delivered for him to the turnkey, four days exclusive before the end of the term in which the writ is returnable, a rule to plead being given When he may and plea demanded, 1 Term Rep. 591. the defendant shall imparl. plead as of that term, or judgment may be signed; but if the bill be not filed, and the copy delivered four days exclusive before the end of the term, the defendant may imparle until the next term. N. on R. E. 5 W. & M. Within what time to pro ceed to trial or judgment. When to exe cution. Declaration against a pri soner in custody of the marshal by bill. If an action is ceed. You must also proceed to trial, or final judgment, within three terms next after declaration delivered, accounting that term one. R. Hil. 26 Geo. 3. vide page 727° And also charge defendant in execution, within two terms after final judgment signed, accounting that term as one, unless prevented by error or injunction. Ibid. Middlesex (88) A. B. complains of C. D. being in 'the custody of the marshal of the Marshalsea of our lord the now king, before the king himself: for that whereas. Add pledges; you proceed as in other cases to sign judgment, if no plea, &c. If the defendant, a member of parliament, be in custody not bailable, of the marshal, and you would wish to proceed against and defendant him for a debt not bailable, file a bill against him, and in custody, deliver a copy to him in custody to plead in four days; in how to prothis case it is not necessary to issue a writ of summons, but demand the plea, as in other cases, and if none, sign judgment. See 5 Term Rep. 362. Jackson v. Mackreth; where court held, that being already in custody, no process is necessary; and you may declare against him as being in custody of the marshal. How to Get a rule from the clerk of the rules for the marshal charge defen- to acknowledge defendant in his custody, pay 7s. 6d. take same and leave it at the marshal's house with 10s. 6d. he tody of mar will write his acknowledgment thereon, which get from dant in exe cution in cus shal. (a) To be written only on one side the paper. 12 East, 294. Champneys v. Hamlin. If written on both sides supersedeable. him, then take a piece of parchment without a stamp, in the shape of a bail-piece, and enter the committitur thereon, thus: Middlesex, to wit. Easter Term, 57th Geo. 3. Law and Markham. C. D. iscommitted to the custody Committiturof the marshal, &c. in execution, at the suit of A. B. in piece. a plea of trespass on the case, for damages, there to remain until, &c. (a) R. R. attorney. Judgment of Hilary term, 57th Geo. 3. Ordered that every committitur on every judgment ob- Rule for filing tained in this court, against any prisoner or prisoners, and entering shall be filed with the clerk of the dockets, on or before committitur against pri See which was the the last day of the term in which such priso- soners. ner or prisoners is or are to be charged in execution, 1 East, 405. who shall enter such committitur on the judgment roll, Pearson v. within four days after the end of such term, exclusive of Rawlings, the last day of the term, unless the last of such four days occasion of be Sunday, and in that case within five days next after the making this end of such term: and that in default thereof, such pri- rule. soner, &c. shall be entitled to be discharged. R. E. 41 Geo. 3. 1 East, 410. (b) marshal is to The acknowledgment by the marshal ought to be of Of what term the same term in which the defendant is charged in exe- the acknowcution, and an acknowledgment two terms preceding is ledgment by not sufficient. Fisher v. Stanhope, 1 Term Rep. 464. be of And the committitur must be filed of the same term as the marshal's acknowledgment. 10 East, 46. Cunningham v. Cogan. There is a book kept in the K. B. office called the mar- Marshal's shall's book, in which are entered the names of persons book kept in the office. charged in execution previously to their being so charged. But this is a book of no authority; and only meant for the (a) The damages and costs in case, if in debt, the sum recovered, and costs. (b) This rule does not extend to the case of a prisoner To what the committed under a hu. corp. ad satisfaciendum, in which rule does not no committitur-piece was ever necessary. Pitcher v. Fau- extend. cett, T. 43 Geo. 3. |