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

The fame in this court. The affidavit must be filed with the prothonotary; but if Eafter term is the second term, fuch affidavit must be filed in ten days after, &c.

But if he was arrested at your fuit, no such affidavit is neceffary, 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.

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Of Proceeding against Prisoners in the Cuftody of the Marshal.

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F any defendant fhall be committed to the cuftody of the marshal, or fhall be charged in cuftody of the marshal, or arrested or committed by virtue of any process of this court, to the custody of any fheriff, or other officer whatfoever, at the fuit of any plaintiff, and fhall fo remain in cuftody by two terms, and the plaintiff fhall not declare against fuch defendant within that time, fuch defendant, after the end of the fecond term after fuch imprisonment, fhall be difcharged out of the prifon where he shall be fo detained, upon filing common bail, figned by one of the justices of this court, without any notice to be given to the plaintiff, or his attorney. Reg. 2 Geo. 1.

Note, Within the above rule, the term in which the writ, whereon the defendant was arrested, is returnable, although not returnable until the last day of the term, is to be accounted as one of the two terms; as is alfo the term wherein the defendant was committed to the cuftody of the marfhal, although not committed till the laft day of a vacation.

If a perfon has caufe of action against a defendant, prifoner in the cuftody of the marshal, he may charge such defendant in cuftody, by delivering a declaration.

But," for preventing the detainer of prifoners, charged by declarations, in the cuftody of the marshal of the marshalsea of this court, where the caufe of action against fuch prifoners does not amount to 10l. and upwards-It is ordered, That, from and after the laft day of this term, no declaration, whereby any prifoner fhall be charged in the cuftody of the marshal, fhall be fufficient caufe of detaining fuch prifoner in cuftody, unlefs an affidavit, that the plaintiff's cause of action against fuch prifoner does amount 10. or upwards, fhall be firft made and filed with the clerk of the rules of this court, and the fum fpecified in fuch affidavit fhall be indorsed by him upon fuch declaration, before the leaving thereof, with the turnkey. Eaft. 15 Geo. 2.

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If the prifoner was arrested, and in custody, at the fuit 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.

Procefs may be ferved on a man in cuftody of the marfl, having furrendered himself to take the benefit of the

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Of Proceeding against Prifoners in the Custody of the Warden of the Fleet.

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F defendant shall render himself or be rendered to the Ficet in difcharge of his bail, at

any plaintiff, where no declaration has been delivered, unless the plaintiff fhall declare against fuch defendant within two terms after fuch render, fuch defendant may be difcharged out of cuftody by fuperfedeas, to be allowed by one of the juftices of this court, if caufe be not fhewn to the contrary by the plaintiff or his attorney, upon notice to either of them given by the defendant's attorney or agent, and affidavit made of fuch notice. Reg. 8 Geo. 1.

If a perfon has caufe of action against a defendant, pri foner in the Fleet, the plaintiff may charge fuch prifoner in cuftody, by delivering a declaration.

But for preventing the detainer of prifoners charged by declarations delivered at the Fleet prifon, where the cause of action against fuch prifoners does not amount to 10%. it is ordered, that no copy of a declaration delivered at the Fleet prifon, against any prifoner there, fhall be fufficient charge to hold fuch prifoner to bail, or to retain fuch prifoner in cuftody for want of bail, unlefs an affidavit, that the plaintiff's cause of action amounts to 107. or upwards, be first made and filed in the prothonotary's office, and an indorsement made by the faid prothonotary, or his deputy, upon fuch copy of a declaration, fignifying the sum of money specified in fuch affidavit; for which fum, fo indorfed, bail fhall be required, and no more. Hil. 8 Geo. 2.

In explanation of the above rule, it has been adjudged, that if a defendant, arrefted by procefs iffuing out of the court of King's Bench, and in cuftody for want of bail, remove himfelf, by habeas corpus, to the Fleet prifon, 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

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Of Proceeding against Prisoners in the Cuftody of the Marshal.

act for relief of infolvent debtors. Pry v. Lawford. 3 Geo. 2.

From what is faid, it may be collected, That where the defendant is in the cuftody of the marshal, under a former commitment, you may deliver a declaration, and not ferve 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 Geo. 2. elfe it is no cause of detainer, if he should be fuperfeded in other actions against him: But then, as in all cafes where the cause of action does not require bail, common bail must be filed in thofe actions, on being superfeded in fuch actions as require bail.

To charge a prifoner, in cuftody of the marshal, in vacation time, [inftead of the old method of fuing out an hab. corp. ad refpond. tefied as of the laft term] the plaintiff mult file a bill as of the preceding term, and then to deliver to or leave for the defendant in cuftody, a copy of the declaration as of the preceding term, and make an affidavit of the delivery thereof. Burr. 4 pt. 1052.

And so in term time, and the defendant is a prifoner in cuftody of the marshal, you ingrofs and file a bill, and deliver a copy of the declaration thereon to the prifoner himself, or leave the fame with the turnkey, and give a rule to plead, demand a plea, and proceed as in other cafes.

In this court, a bill muft always be filed against a prifoner; and for want of it, he is intitled to a fuperfedeas, although he has pleaded.

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Of Proceeding against Prisoners in the Cuftody of the Warden of the Fleet.

davit made of the debt, when the plaintiff took out the process upon which the defendant was arrested. But if a declaration comes in as a new charge against a prifoner in cuftody at the fuit of another plaintiff, there the above rule must be obferved. Rep. & Caf. of Pract. C. B. 144. Barnes 72. Pract. Reg. C. P. 330.

If any perfon hath caufe of action against a prisoner committed to the Flect, after filing a declaration with the proper officer, he may deliver a copy to the defendant or turnkey; and, after rule given to plead, to be out in eight days after delivery of declaration; and affidavit being made of the delivery, the plaintiff may fign judgment, as if the defendant had been charged at the bar of the Common Pleas [or Exchequer] with fuch action. 8 & 9 W. 3. c. 27.

A prifoner, furrendering as a fugitive, cannot be charged with a declaration under this act, becaufe not committed. Pract. Reg. 126. 1 Barnes 281.

But it feems he may be arrested.

Ibid.

To charge a prifoner in the cuftody of the Fleet, in vacation time, the plaintiff draws his declaration as of the preceding term, gets it ftamped by the prothonotary, and delivers or leaves it with the clerk of the papers.

To charge a prifoner in term time, the plaintiff draws his declaration, gets it ftamped by the prothonotary, and delivers or leaves it with the clerk of the papers at the Fleet.

When the defendant is a prifoner in the Fleet, the declaration must be entered with the prothonotary, before the delivery of the declaration to the defendant; but if the defendant is in any other prifon, it need not be fo entered bcfore the delivery, but it is fufficient to file it any time before a rule is given thereon to appear and plead.

And note-That when the defendant is in the Fleet, the original declaration, indorfed by the prothonotary, fhould be left at the Fleet, and not a copy thereof. Whereas, when the defendant is in another gail, the original declaration is filed with the prothonotary, and a copy thereof delivered to the defendant. Pract. Reg. 331. 1 Barnes 315.

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