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Of Proceeding against Prisoners in Custody of the Sheriff, &c> under a prior Commitment.
The same in this court. The affidavit must be filed with the prothonotary; but if Easter term is the second term, such affidavit must be filed in ten days after, He.
But if he was arrested at your suit, no such affidavit is necessary, because there was one on the writ. But if the declaration is a new charge, there must be an affidavit. Rules and Orders K. B. and C. B. 2 Vol. 144. Pract, Reg. 330.
Of Proceeding against Prisoners in the Custody of the MarJJja/.
F any desendant shall be committed to the custody of the marjhnl, or shall be charged in custody of the mar/ha/, or arrested or committed by virtue of any process of this court, to the custody of any sheriff, or other officer whatsoever, at the suit of any plaintiff, and shall so remain in custody by two terms, and the plaintiff shall not declare against such desendant within that time, such desendant, after the end of the second term after such imprisonment, shall be discharged out of the prison where he shall be so detained, upon filing common bail, signed by one of the justices of this court, without any notice to be given to the plaintiff, or his attorney. Reg. 2 Geo. I.
Note, Within the above rule, the term in which the writ, whereon the desendant was arrested, is returnable, although not returnable until the last day of the term, is to be accounted as ene of the tiuo terms; as is also the term wherein the desendant was committed to the custody of the marshal, although not committed till the last day of a vacation.
If a person has cause of action against a desendant, prisoner in the custody of the marfiial, he may charge such desendant in custody, by delivering a declaration.
But, " for preventing the detainer of prisoners, charged by declarations, in the custody of the marjhal of the marjhalfea of this court, where the cause of action against such prisoners does not amount to 10/. and upwards—It is ordered, That, from and after the last day of this term, no declaration, whereby any prisoner shall be charged in the custody of the marshal, shall be sufficient cause of detaining such prisoner in custody, unless an affidavit, that the plaintiff's cause of action against such prisoner does amount to 10/. or upwards, shall be first made and filed with the clerk of the rules of this court, and the sum specified in such affidavit Jhali be indorsed ly him upon such declaration, before the leaving thereof, with the turnkey. Eajl. 15 Geo. 2.
If the prisoner was arrested, and in custody, at the suit of the plaintiff, there is no need- of an affidavit on delivering the declaration, because there was one on the writ; but if the declaration is a new charge, there must be a new affidavit. Rules and Order, K. B. and C. B. 2 Vol. 144.
-Process may be served on a man in custody of the marl, having surrendered himself to take the benefit of the
Of Proceeding against Prisoners in the Custody of the Warden of the Fleet.
IF any desendant shall render himself or be rendered to the Fleet prison, in discharge of his bail, at the suit of any plaintiff, where no declaration has been delivered, unless the plaintiff shall declare against such desendant within two terms after such render, such desendant may be discharged out of custody by supersedeas, to be allowed by one of the justices of this court, if cause be not shewn to the contrary by the plaintiff or his attorney, upon notice to either of them given by the desendant's attorney or agent, and assidavit made of such notice. Reg. 8 Geo. 1.
If a person has cause of action against a desendant, pri-: soner in the Fleet, the plaintiff may charge such prisoner in custody, by delivering a declaration.
But " for preventing the detainer of prisoners charged by declarations delivered at the Fleet prison, where the cause of action against such prisoners does not amount to 10/. it is ordered, that no copy of a declaration delivered at the Fleet prison, against any prisoner there, shall be sufficient charge to hold such prisoner to bail, or to retain such prisoner in custody for want of bail, unless an affidavit, that the plaintiff's cause of action amounts to 10/. or upwards, be first made and filed in the prothmotarys office, anl an indorsement made by the said pretbenctary, or bis deputy, upon such copy of a declaration, signifying the sum of money specified in such affidavit; for which sum, so indorsed, bail lhall be required, and no more. Hil. 8 Geo. 2.
In explanation of the above rule, it has been adjudged, that if a desendant, arrested by process issuing out of the court of King's Bench, and in custody for want of bail, remove himself, by habeas corpus, to the Fleet prison, and the plaintiff charges him in the Fleet with a copy of a declaration, he is not obliged to make and annex an affidavit, as by the above rule is directed, in regard there was an affi
C 2 davit
Of Proceeding against Prisoners in the Custody of the Marjhal.
act for relief of insolvent debtors. Pry v. Lauifard. 3 Geo. 2.
From what is said, it may be collected, That where the desendant is in the custody of the marjhal, under a former commitment, you may deliver a declaration, and not serve him with process, whether the cause of action requires bail or not; but if the action requires bail, there must be an affidavit filed with the clerk of the rules, according to Reg. 15 Gee. 2. else it is no cause of detainer, if he should be superseded in other actions against him: But then, as in all cases where the cause of action does not require bail, common bail must be filed in those actions, on being superseded in such actions as require bail.
To charge a prisoner, in custody of the marjhal, in vacation time, [instead of the old method of suing out an hab. corp. ad respond. tested as of the last term] the plaintiff mub file a bill as of the preceding term, and then to deliver to or leave for the desendant in custody, a copy of the declaration as of the preceding term, and make an affidavit of the delivery thereof. Burr. \pt. 1052.
And so in term time, and the desendant is a prisoner in custody of the marjhal, you ingross and file a bill, and deliver a copy of the declaration thereon to the prisoner himself, or leave the same with the turnkey, and give a rule to plead, demand a plea, and proceed as in other cases.
In this court, a bill must always be filed against a prisoner; and for want of it, he is intitled to a supersedeas, although he has pleaded.
Os Proceeding against Prisoners in the Custodyof the Warden of the Fleet.
davit made of the debt, when the phintiff took out the process upon which the dsrend.-.nt was amsted. But if a declaration comes in as a new charge against a prisoner in custody at the suit of another plaintiff', there the above rule must be observed. Rest. & Cas. of Pract. C. B. 144. Barnes 72. Pract. Reg. C P. 330.
If any person hath cause of action against a prisoner committed to the Fleet, after filing a declaration with the proper officer, he may deliver a copy to the defendant or turnkey; and, aster rule given to plead, to be out in eight days after delivery of declaration; and affidavit being made of the delivery, the plaintiff may sign judgment, as if the desendant had been charged at the bai of the Common Pleas [or Exchequer] with such action. 8 elf? 9 W. 3. c. 27.
A prisoner, surrendering as a fugitive', cannot be charged with a declaration under this act, because mt committed. Pract. Reg. 126. 1 Barnes 281.
But it seems he may oc arrested. Ibid.
To charge a prisoner in the custody of the Fleet, in vacation time, the plaintiff draws his declaration as of the preceding term, gets it stamped by the prothonotary, and delivers or leaves it with the clerk of the papers.
To charge a prisoner in term time, the phintiff draws his declaration, gets it stamped by the piotnonotary, and delivers or leaves it with the clerk of the papers at the Fleet.
When the desendant is a prisoner in the Fleet, the declaration must be entered with the prothonotary, before the delivery of the declaration to the desendant; but if the defendant is in any other prison, it need not be so entered before the delivery, but it is sufficient to file it any time before a rule is given thereon to appear and plead.
And note—That when the desendant is in the Fleet, the original declaration, indorsed by the prothonotary, snould be Irft at the Fleet, and not a copy thereof. Wheieas when the desendant is in another gail, the original declaration is f::ed with the prothonotary, and a copy thereof delivered to ti'.c deicndant. Pi act. Rcr. -2;i. 1 Bamc: 515.