(a) If a sche- remainder, or expectancy, other than and except (a) what dule. are mentioned and contained in the schedule or inventory hereunto annexed, and the necessary wearing apparel and bedding for himself and family, and the tools or instruments of his trade and calling, not exceeding the sum of ten pounds in value in the whole, and your petitioner being willing and desirous to conform himself to the direction of the said several acts, most humbly prays your lordships to grant a rule or order of this honourable court, for the plaintiff to shew cause why he should not be discharged pursuant to the said acts, and as in duty bound, your petitioner will ever pray, &c. R. F.

Affidavit to be annexed.

Put the title of the cause.

Affidavit of service of the

notice and schedule.

If there is a schedule, entitle it thus, A schedule or inventory of all the estate and effects which I R. F. a prisoner in execution in the custody of the sheriff of the county of Berks at the suit of John Denn, or any person or persons in trust for me was or were possessed of, or entitled unto, at the time of my first imprisonment, at the suit of the said John Denn, or at any time since, either in possession, reversion, remainder, or expectancy, other than and except the necessary wearing apparel and bedding of or for me or my family, and the tools or instruments of my trade or calling not exceeding ten pounds in value in the whole; as witness my hand this day of

1817.

Here state the things particularly; if notes or bills, the dates and sums.

N. B. This petition will serve for a prisoner in custody of the marshal.

J. G. of, &c. gentleman, maketh oath and saith, That be was present, and did see R. F. the above-named defendant sign his name (or mark), to the notice and schedule hereunto annexed, on the day of the date thereof, and also to a copy of the same; and that the name J. G. subscribed as a witness thereto is of the proper hand-writing of this deponent.

the

A. B. of, &c. maketh oath and saith, that he this depoDent did, on day of instant, serve the above-named plaintiff A. B. with a true copy of the notice (and schedule hereunto annexed,) by delivering the same to E. the wife of the said A. B. at his dwellinghouse, or place of abode, situate in in the county

of

Prisoners are brought up for this purpose at half-past

nine in the morning at Westminster-hall, Mondays and Wednesdays.

If defendant be in custody of any other gaoler (except the marshal), then there must be an affidavit of seeing the gaoler sign the certificate, which will be as follows (and the affidavit of the service of the rule, as well as that of seeing the gaoler's certificate signed, may be included in one affidavit):

day of

A. B. of, &c. maketh oath and saith, that he this depo- Affidavit of nent did on the instant, (a) serve the service of rule. above-named John Denn with a true copy of the rule hereto annexed, by delivering the same to the wife of the said John Denn, at his dwelling-house, or place of abode,

J. F. of, &c. maketh oath and saith, that he did see Affidavit of A. D. the keeper of his majesty's gaol or prison of, &c. seeing the sign the certificate hereto annexed, and that the name A. gaoler sign the D. set and subscribed at the foot of the said certificate is certificate. of the proper hand-writing of the said A. D.

shal.

If the defendant is to be discharged out of the custody How to proof the marshal, the petition is to be left at the clerk of ceed if in custhe rules with an affidavit of defendant's signature sworn tody of marbefore a judge, and also a certificate or copy of causes with which the defendant stands charged, is to be obtained from the clerk of the papers of the King's Bench prison, and also an affidavit of the due service of the notice, who will draw up the rule, which serve on the plaintiff, if he is to be met with, if not his attorney, persoually, and on the marshal to bring the defendant into court, on the day specified in the rule; make an affidavit of such service, on plain paper, annexing the original rule thereto, which affidavit you will have ready to produce in court, on the day stated in the rule, if there is no objection, the defendant will then be discharged of course on his taking the oath required.

and Thurs

Ordered, that insolvent debtors, petitioning under the To be brought lords' act, 32 Geo. 3. and subsequent acts for their further up Mondays relief, shall be brought into court during term time upon days. Mondays and Thursdays, and upon no other days. R. Hil. 37 Geo.3. 7 Term Rep. 454.

(a) Personally serve the above-named John Denn with

a true copy of the rule hereto annexed.

If in a county gaol.

If for the assizes,

If it be a country cause, then you obtain the gaoler's certificate of the cause the defendant stands charged with, and prepare an affidavit, which is to be ingrossed on unstampt paper, of having seen him sign same, then take the petition, the affidavit of service, and of the signature of the gaoler to the certificate, to the clerk of the rules for a rule to be drawn up for the defendant to be taken to the assizes for his discharge, pay for same 2s. 6d. serve a copy as before stated, and make affidavit of such service. Application is to be made to the clerk of the rules for the original petition, &c. to be taken to the assizes, who will let you have same on leaving copies with him.

When a prisoner is charged in execution above 20 miles from Westminster-hall, or the court out of which the execution issued, the rule requires him to be brought to the next assizes, and that the creditors be summoned appear there; and a copy of such rule is to be served on every creditor, his executor, &c. or left at his or their dwelling house, or usual place of abode, or with his or their attorney, fourteen days at least before the holding of such assizes. s. 15.

to

On bringing up the prisoner the court or judge of assize are, in a summary way to examine into the matter of the petition, and after the defendant's being sworn as the act describes, if no opposition be made, he is discharged of course upon executing an assignment and conveyance of his estate and effects, which is done by a short indorsement on the back of the petition. 8. 13.

Every thing he can sell for his own benefit must be included in the schedule. 3 Term Rep. 681. As a life guardsman's place. Ibid. But not the half-pay of an officer in the army. Ibid. 3 B. & P. 324.

If the plaintiff is not satisfied with the truth of the oath of the prisoner, he, either personally or by attorney, may desire further time, and the court may remand him, and direct the parties to appear on some other day to be appointed of the court within the first week of the next term at farthest, s. 13, or sooner, 3 Burr. 1393. if the court shall think fit. And the creditor may file interrogatories for his examination, before he is admitted to take the benefit of the act. 33 Geo. 3. c. 5. s. 5.

In such case, it is ordered, that the creditor is to file same with the clerk of the rules, and that he do thereupon draw up a rule for the debtor's examination before the master, to whom he shall also deliver the original inter

DEBTORS.

rogatories: and that the debtor having been previously sworn in open court for the purpose, the master shall proceed to take down in writing, the examination of the debtor, in answer to the said interrogatories: and the same being signed by the debtor shall be afterwards filed by the master with the clerk of the rules; and the said interrogatories, and examination, shall be produced by the clerk of the rules and read, when the debtor shall on a subsequent day be brought up by rule for that purpose. R. E. 36 Geo. 3.

743

the schedule

All objections as to the insufficiency of a prisoner's objections to schedule of his effects in point of form, are to be made in point of on the first attendance: the second time the prisoner is form, to be brought up, the plaintiff must be prepared to falsify the made the first account given by defendant of his effects, if he can; if time. not, he will be discharged.

Groats must

The 3s. 6d. must be made payable, and be paid every be made payMonday, whatever may be the day on which the defen- able on every dant is brought up to be discharged, and is remanded at Monday. the instance of the plaintiff. Dougl. Rep. 68. Lench v. Pargitter. And a judge's order made after term for his discharge is final. Ibid. Court said, in future let all the notes be made payable on the Monday. Ibid. 69.

In the King's Bench.

C. D.

V.

A. B.

I hereby promise to pay and allow to A. B. The note no
3s. 6d. per week, weekly on Monday in stamp.
every week, for so long time as he shall

continue in prison, in execution at my suit; as witness
1817.
day of
my hand, this

Witness, J. G.

C. D. (a)

If the plaintiff cannot attend he may sign it, and his If the plaintiff attorney may make affidavit of his having signed it in his cannot attend, presence (intituling the affidavit in the cause,) and his witnessing the same; and if delivered at the time of his discharge in court, it will do. It is now determined that no stamp for the note is necessary. 7 Term Rep. 671. Tekell v. Casey. So in all the courts, contra Pilman v. Haynes, same book 530. All the plaintiffs must sign the note. 7 Term Rep. 156. Rex v. Wilkinson. The

(a) The plaintiff's attorney cannot sign the note: it must be done by the plaintiff unless he be out of England. See 32 Geo. 2. c. 28. s. 13.

If affidavit be

Partners.
Lessors.
Executors.

first 3s. 6d. is to be paid in court at the time of the prisoner's discharge.

If the affidavit of seeing the note signed is not intituled not intituled. in the cause, though the note is, it has been held not Where several sufficient, 2 Smith Rep. 393. And where there are several plaintiffs. plaintiffs, all must sign, 7 T. R. 156. 8 Term Rep. 325. Or if there are partners, by one on behalf of himself and others.8 1. R. 25. A note signed by one of several lessors in ejectment, 7 T. R. 176. or by one of several executors, without mentioning the others, not sufficient. 8 T. R. 325. But in an action at the suit of a corporation, if the note be sealed with the corporation seal it is sufficient. 1 N. R. C. P. 306. And the note is valid though it do not state the style of the court in which the action is brought. 2 Smith R. 642. If payment be not made in time, the prisoner has a right to be discharged.

Corporation. The latest hour ten at night.

not made in

time.

To be dis

It appeared the groats had not been paid till a quarter If payment be past ten, and then given to the turukey on the felon's side who received them; but defendant refused to accept them, saying, they had not been tendered in time. Motion for discharge; the court held that the tender came too late, and the latest hour still continues to be ten. They also held, that the turnkey on the felon's side was not the proper person who ought to have received the money; it must be the turnkey on the debtor's side. Prisoner discharged. Fisher v. Bull, 5 Term Rep. 36. see 1 N. R. 111.

charged if groats not paid by ten in the evening.

French half

crown,

To be paid to turnkey.

Fourteen days notice given, both days inclusive, Prisoner discharged upon

circumstan

ces.

The court held, that although the turnkey on the debtor's side received a French half-crown, which the defendant refused to accept, it was a good payment, the turnkey making no objection. Ibid. in note 37.

I find now the money is to be paid to the turnkey only, and not the prisoner.

The prisoner had given notice in a former term, to be discharged pursuant to this act above fourteen days, but nothing being done therein, by reason that he had not annexed schedule in the requisite form to the notice (though he had in reality no effects ;) upon this discovery he gave a new notice, having then only thirteen days remaining, unless the first and last were both included; question was, whether he should be discharged? Mr. Justice Yates observed, that upon returns to writs of mandamus and sci. fa. the rule was, that there must be fifteen days between the teste and return, and yet in practice there were only fourteen days, one of the first or last always being included; so upon a supersedeas for