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Of Proceeding against Prisoners in the Custody of the Marshal.
A prisoner once supersedeable is also so with respect to the plaintiff himself in that cause, but not as to third persons; for by them, so long as he is in actual cujlody, he may be charged as a prisoner. Burr. 4 pt. 1048.
Of Proceeding against Prisoners in the Custody of the Warden of the Fleet.
If a C<j/>i<m is returned Hmi £/? invent, against a prisoner in the Fleet, he must appear en an habeas corpus ad respondendum, as well at the suit of a stranger as at his suit whereon he is imprisoned, and receive a declaration. Mich. 1654. s. 13.
After an irregular declaration against a prisoner, the plaintiff cannot declare de novo, unlefs the prisoner is in custody at another person's suit. Pract. Reg. 328.
It is said in Pract. Reg. 328. to be the constant practice, to have four entire law days, after the two terms, to deliver declarations against prisoners, and give a rule to plead. So, where the declaration was delivered on Monday the fifth day after the term, it was held well. But quare, as to this practice.
But where a declaration is irregularly delivered, the prisoner must complain thereof before judgment. Pract. Reg. 329
Of Proceeding against Prisoners removing them* selves when charged with Process,
IF a prisoner in the Marjhalsea, on mesne process, removes himself to the Fleet, before the plaintiff has declared against him, the plaintiff then must declare in C. B. and cannot proceed surther in B. R. unless he brings the desendant baclc there by habeas corpus ad refpondendum. Att- Prac.
But if a prisoner in the custody of the marjhal, after being charged with a declaration in B. R. removes himself to the Fleet, the plaintiff must proceed to judgment in B. R. and then bring the desendant back by habeas corpus ad satisfaciendum to be charged in execution in B. R. Att. Pract.
And note—That, if upon the desendant's removal from
B. R. loC.B. before the piainiiff has declared the plaintiff does not declare within the two terms, the desendant's application for a supcrsedeas must be made to C. B.
But if he removes, after being charged with a declaration, [and not brought back. by habeas carpus'] then, for want of hot bein£ charged in execution in due time, (S'c. he must
o to J
apply for a supersedeas to B. R. Barnes 384. 5.
If two writs of habeas carpus ist'ue out of B. R. and th«
other out of C. B. Where the person is in a gaol, the writ
which is first served shall have the body; and the prisoner
'may afterwards, by another writ, remove himself into the
other court, but then he must plead first.
A prisoner, surrendered by bail, was superseded, because charged in the same court after he had removed himself. Stra. 1153.
Of Proceeding against Prisoners removing themselves when charged with Process.
IF a prisoner in the Fleet removes himself to the Marjhalsea, before the plaintiff has declared, the plaintiff must declare in B. R. and cannot proceed surther in C. B. unless he brings the desendant back by habeas corpus ad refpon~
And if a prisoner in the Fleet, charged with a declaration in C. B. removes himself afterwards to the Marjhasea, the plaintiff must proceed to judgment in C. B. and then carry him back by habeas corpus ad satisfaciendum, to charge him in the Fleet.
And note—That if, upon the desendant's removal from C. B. to B. R. before the plaintiff has declared, the plaintiff does not declare within the two terms, the desendant's application for a supersedeas must be to B. R.
But if he removes, after being charged with a declaration [and not brought back by habeas corpus] then for want of being charged in execution in due time, is'c. he must apply for a supersedeas to C. B. Barnes 384, 5.
Motion for a supersedeas for want of a declaration in C. B. within two terms. Desendant committed to the Fleet (charged inter al' with a bill of Middlesex at the plaintiff's suit) before declaration delivered; and afterwards the plaintiff delivered a declaration in the King's Bench, at the Fleet, and not a declaration in C. B. which declaration being delivered after the desendant had removed to the Fleet, as a declaration of the King's Bench, the court held as null and void, and made the rule abio)utc. Barnes 402.
Of the Rule to appear and plead, and when a Defendant, Prisoner, must plead.
IF the desendant is in the custody of Jbtrijs,. a rule to appear and plead must not be given before affidavit filed of the delivery of the declaration; which affidavit must be filed within twenty days, with the clerk of the rules, after the end of the second term after the return of process. Reg.
But if the desendant is in custody of the marjhal, no affidavit of delivery is necessary, but a rule to plead may be given of coin se ; and if the declaration is deliveredyiar days, exclusive, before the end ot the term, and rule given, and plea demanded [which must be done on the back of the declaration] the desendant must plead as of that term. Reg. Eajl 5W.&M.
But if the bill is not filed, and copy delivered, four days, exclusive, before the end of the term, the desendant may * imparl tili next term. The same.
If process is returnable the first day of Eajler or Michaelmas term, and declaration delivered before mens. Eajl. or, the morrow of All Souls; and affidavit thereof filed, the defendant must appear before the end of ten days after Eajler or Michaelmas term; and if he appears within that time he may imparl till the next term, unless the action is in London or Middlesex, and the defendant is in prison within forty miles of London, and then, though he appears within that time, he must plead two days before the essoign day of that term. Reg. Eajl. 5 TV. W M.
If a copy of a declaration is delivered on or after mens. Pas. or, morrow of All Souls, or, in Hilary or Trinity terms, and rules given; if the desendant appears before the essoign day of the next term, he shall imparl till the next term; but if he does not appear within that time, the plaintiff is entitled to judgment. Reg. Eajl. 5 W. fcf M.
If the declaration is delivered before the essoign day of the next term after the return of the writ, the plaintiff, in such next term may give rules, and the desendant must appear, and plead on or before the expiration of the rules. Eajl. 5 IV. & M.
After desendant, a prisoner, has appeared, the proceedings are the same as in other cases.
Notice of trial to a turnkey is good, in the case of a prisoner desendant, Stra. 248.