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Of Proceeding against: Prisoners in Custody of the Sheriff, &c. at the Suit of the Party.

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Of Proceeding against Prisoners in Custody of the Sheriff, &c. at the Suit of the Party.

a declaration in the country gaol, indorsed for bail. And the rule to shew cause, why a supersedeas., &c. in the first: cause was made absolute, the assidavit being a nullity; but the arrest, in the second cause, was held not to be void. Barnes 391.

But where the plaintiff arrested desendant as executrix, and afterwards finding the action wrong as executrix, made a new assidavit for bail, and charged the desendant with a new declaration in her own right; and, upon desendant's moving for a common appearance and J'upersedeas, the court held, that if there had been two different causes of action, the second declaration would have been a good charge ; but there being but one and the same cause of action, the proceedings were irregular, and made the rule absolute to set aside the proceedings. Barnes 391.

Tie same in this court. 1 Barnes 285.

If prisoner escapes, bis recaption lhall be looked on as the time of the render from whence the plaintiff is to proceed. Barnes 382

Motion to stay proceedings upon a declaration delivered against a prisoner in a county gaol, the declaration not having been entered in the prothonotary s office before delivered. Pen cur. It is sufficient to enter the declaration any time before giving a rule to plead. Barnes 372.

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Of Proceeding against Prisoners in Custody of the Sheriff, &c. under a prior Commitment.

WHERE a person has cause of action against a prisoner, already in custody of the Jherisf, ££?f. he may, instead of removing such prisoner into court, charge him with process in the custody of the sheriff, {5V. But if he would remove him into court, he must take out an habeas corpus ad respondendum.

If the cause of action is not bailable, or under 10I. the desendant, prisoner, must be served with a cppy of process, and the plaintiff may file common bail for him, and proceed as in other cases.

But if the cause of action is above 10/. and the plaintiff would hold him to bail, an affidavit must be made thereof, and filed with the clerk of the rules.

The method of charging a desendant, prisoner, in custody of the Jherijf, &c. is this, the plaintiff makes three copies of a declaration, one on treble penny ftampt parchment, called the bill, which must be filed with the clerk of the declarations.—The second on treble penny stampt paper, to deliver to the prisoner himself, or leave with the gaoler or turnkey of the prison.—And the third on like paper, to be filed with the clerk of the rules, to which must be annexed an affidavit of the delivery of the one to the prisoner or turnkey, of which declaration and affidavit he will make an office copy on stamps, or the plaintiff's attorney may do it for expedition himself; but then he must take it to the clerk of the rules, to be marked, when he files the original declaration and assidavit, and pay for the same according to the length.

The clerk of the rules will enter a rule for the desendant to appear and plead on the office-copy of the declaration, after which [if he sail so to do in due time] a demand of a plea being made, judgment may be signed against him; and if he dees appear and plead, the proceedings then are the same as in other cases.

Of Proceeding against Prisoners in Custody of the Sheriff, &c. under a prior Commitment.

rip HE same in this court.

If the cause of action is not bailable, or under 10/. the desendant, prisoner, must be served with a copy of a common capias; and the plaintiff may, on affidavit of service, enter an appearance for him, according to the statute. 2 Barnes 314.

But if the cause of action is bailable, and above 10/. the process to be sued out by the plaintiff, against the desendant, prisoner, is a special capias, and a warrant thereon must be lodged with the gaoler, in order to detain him.

In this court the declaration must be filed with the prothonotary, and a copy thereof served on the prisoner, or left with the goaler or turnkey.

The plaintiff must declare within twa terms.

Where a desendant was served with a copy of process, but, before declaration delivered, became a prisoner in the Fleet, and the plaintiff entered an appearance for him, pursuant to the statute, and left a declaration in the office, and gave him notice of it. The court set aside the proceedings, and held, that the declaration ought to have been delivered at the Fleet. Barnes 392,

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Of Proceeding against Prisoners in Custody of the Sheriff, &c. under a prior Commitment.

If the desendant is in the custody of the Jherffi there must be an affidavit of the delivery of the declaration filed with the clerk of the rules, which must be filed before the end. of twenty days after the end of the second term after the return ©f the process.

The same, though the desendant removes himsejf from one gaol to another. Att. Tract. 337.

But if he is in the custody of the marjhal, no such affidavit is necessary.

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