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

If a prifoner on mefne process escape, and is retaken on an efcape warrant, and in cuftody of the fheriff, &c. the plaintiff muft declare against him within two terms after taken on the escape warrant. Reg. 6 Anne.

If a defendant is in the cuftody of the fheriff, and the plaintiff has declared against him as in fuch cuftody, he may notwithstanding, if he thinks proper, remove the defendant into the cuftody of the marshal by habeas corpus cum caufa ad faciendum et recipiendum; for the act 4 & 5 W. M. was only made for the ease and benefit of plaintiffs, to fave them the trouble and expence of suing out an habeas corpus to bring the defendant into court, and does not take away the plaintiff's common law right to remove him. Dr. Bettefworth v. Bell, Efq. Burr. 4 pt. 1875.

But note, fuch hab. corp. must be tefted in term, though it may be returnable immediate.

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Of Proceeding against Prifoners in Cuftody of the Sheriff, &c. at the Suit of the Party.

a declaration in the country gaol, indorfed for bail. And the rule to fhew caufe, why a fuperfedeas, &c. in the first caufe was made abfolute, the affidavit being a nullity; but the arreft, in the fecond caufe, was held not to be void.

Barnes 391.

But where the plaintiff arrefted defendant as executrix, and afterwards finding the action wrong as executrix, made a new affidavit for bail, and charged the defendant with a new declaration in her own right; and, upon defendant's moving for a common appearance and fuperfedeas, the court held, that if there had been two different caufes of action, the second declaration would have been a good charge; but there being but one and the fame caufe of action, the proceedings were irregular, and made the rule abfolute to fet afide the proceedings. Barnes 391.

The fame in this court, I Barnes 285.

If prifoner efcapes, his recaption thall be looked on as the time of the render from whence the plaintiff is to proceed. Barnes 382.

Motion to ftay 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. Pex cur. It is fufficient to enter the declaration any time before giving a rule to plead. Barnes 372.

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Of Proceeding against Prifoners in Cuftody of the Sheriff, &c. under a prior Commitment.

HERE a perfon has caufe of action against a prifoner, already in cuftody of the sheriff, &c. he may, inftead of removing fuch prifoner into court, charge him with procefs in the cuftody of the fheriff, &c. But if he would remove him into court, he must take out an habeas corpus ad refpondendum.

If the caufe of action is not bailable, or under 10l. the defendant, prifoner, must be ferved with a copy of procefs, and the plaintiff may file common bail for him, and proceed

as in other cafes.

But if the caufe 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 defendant, prifoner, in cuftody of the Sheriff, &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 fecond on treble penny ftampt paper, to deliver to the prifoner himself, or leave with the gaoler or turnkey of the prifon.-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 prifoner or turnkey, of which declaration and affidavit he will make an office copy on ftamps, 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 affidavit, and pay for the fame according to the length.

The clerk of the rules will enter a rule for the defendant to appear and plead on the office-copy of the declaration, after which [if he fail fo to do in due time] a demand of a plea being made, judgment may be figned againft him; and if he does appear and plead, the proceedings then are the fame as in other cafes,

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

If the cause of action is not bailable, or under 10%. the defendant, prifoner, must be ferved with a copy of a common capias; and the plaintiff may, on affidavit of fervice, enter an appearance for him, according to the statute. 2 Barnes 314.

But if the cause of action is bailable, and above 10%. the procefs to be fued out by the plaintiff, against the defendant, prifoner, is a special capias, and a warrant thereon muft 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 ferved on the prifoner, or left with the goaler or turnkey.

The plaintiff muft declare within two terms.

Where a defendant was ferved with a copy of procefs, but, before declaration delivered, became a prifoner in the Fleet, and the plaintiff entered an appearance for him, purfuant to the ftatute, and left a declaration in the office, and gave him notice of it. The court fet afide the proceedings, and held, that the declaration ought to have been delivered at the Fleet. Barnes 392.

The

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

If the defendant is in the cuftody of the sheriff, 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 fecond term after the return of the process.

The fame, though the defendant removes himself from one gaol to another. Att. Pract. 337.

But if he is in the cuftody of the marshal, no fuch affidavit is neceffary,

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