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Of the Rule to appear and plead, and when a Defendant, Prisoner, must plead.

TH E. same in this court. But if Easier term is the second term, then the affidavit of delivery must be filed within ten days.

If the desendant is in the Fleet, the rule to plead is out in eight days. Hi!. 14, 15 Car. 2. [inclusive.]

If the desendant is in a common gaol, and the declaration is delivered before the essoign day of the term, the rule is out in four days.

Isa declaration is delivered to a prisoner the last day but one of term, he must plead two days before the essoign day of the next term. Barnes 224.

In Eajler and Michaelmas terms, if the declaration is delivered before the morrow of All Souls, or men/. Pa/ch. the rules to plead are out in ten days aster the term, except the action is in London or Middlesex, and the desendant in prison within forty miles of London, as in B. R.—And if delivered after those days, the rules are out in two days next preceding the essoign day of the subsequent term.

And in Hilary and Trinity terms, if the declaration is delivered on or after the essoign day of the term, the rules to plead are out two days before the essoign day of the subsequent term. But if desendant appears within the time he may imparle, as in B. R. Reg. East. 5 W. & M. 1 Barnes 150.

The same in this court. East. 5W.&M.

If a prisoner appears in person, he is bound to pay for the issue-book upon the delivery thereof, otherwise if he appears by attorney. 2 Wil. II.

la C.B. ten days notice, exclusive of the day of such notice, must be given to desendant (being actually in the Fleet) of the time of trial. Reg. Hil. 14, 15 Car. 2.


Of Judgment against Prisoners, and of charming them in Execution.

IF the plaintiff does not proceed to trial or judgment within three terms after declaration delivered, such desendant shall be discharged out of custody, on filing common bail, notice being first given to the plaintiff, or his attorney, and an affidavit thereof made, if the plaintiff or his attorney does not attend and shew cause against the discharge. Trin. 2 Geo. i.—The term in which the declaratipn is delivered is one,

So for want of getting a demurrer argued within the third term.

Fide the opposite case.

The desendant, though not in custody, upon being taken, but surrendered himself in discharge of his bail, is superscrsedeable within the above mentioned rule, and its construction and the practice of the court; and the time runs from notice of the defe»dant's being in custody.

After judgment obtained against a defendant, prisoner, he must be charged in Execution within two terms—the term wherein judgment to be obtained to be reckoned as one—. the desendant may obtain his discharge in lilce manner as for not proceeding to trial. or judgment. Reg. Tr. 2 Gee. 1.

Of Judgment against Prisoners, and of charging them in Execution.

r'J~\ H E same in this court. Reg. East. 8 Geo. i.

Or within three terms after the render, the desendant having appeared.

Or within three terms after recaption, or coming again into priion; tor that time shall be looked on as the time of the render. Barnes 382.

So, for want of getting demurrer argued within the third term. Barnes 383.

The desendant was discharged out of custody bysupersedeas, on entering a common appeaeance, for want 01 plaintiff's proceeding to judgment within three terms after declaration delivered. Plaintiff afterwards obtained judgment, and desendant, being tak'-n in execution, moved to be discharged, insisting, that afier a supersedeas his person was free, and could not be again detained by process in the same action. Per cur. After consulting all the judges in this case, the desendant having been discharged by supersedeas before judgment, he is not finally diicharged, but after judgment is subjict to be taken in execution.—But where a desendant is superseded after judgment, for want of being charged in execution wiihin two te'ms after judgment obtained, his person cannot afterwards be taken in execution. Barms 376.

The same this court. Reg. E 8 Geo. 1.

On shewing cause why desendant should not be discharged by supersedeas, the plaintiff having neglected to charge him in custody within the two terms, it appe»red, that the plaintiff's attorney had taken out a ca. fa. but directed it to the sheriff of Exeter, instead ol Devon, which being sent back, he got it reiealed, and sent it in time to an attorney, with directions ro ch . ge desendant in execution; but it arrived too late to charge the desendant in time; and it appearing, that there was no intention to oppress, and the delay -rising entirely from an accident, the court discharged the rule. Barnes 380.

The plaintiff shall have every day in the second term to charge a prisoner. 2 Wil. 380.


Of Judgment against Prisoners, and of charging them in Execution.

The desendant, a prisoner, applied to be discharged by supersedeas, for want of being charged in execution within two terms after judgment. The plaintiff excused himself by the delivery of a ca. fa. to the gaoler within due time. But the court held that to be insufficient. The ca. fa. ought to have been delivered to the sheriff, and the sheriff's warrant to the gaoler. Barnes 389.

Within two terms after final judgment, plaintiff, instead of charging the desendant in execution, charged him with a declaration in an action of debt on the judgment. The court held this declaration vexatious, and no cause against a supersedeas: rule for supersedeas made absolute. Barnes 390.

The writ of enquiry being set aside, because not executed before a person properly deputed by the sheriff, desendant applied for a supersedeas for want of plaintiff's proceeding to final judgment within three terms after the declaration, and obtained a rule to shew cause, which was made absolute. Barnes 384.

On motion for supersedeas for want of proceeding to judgment within three terms after declaration delivered, and cause shewn, it was contended, that the judgment, though not signed till the Michaelmas vacation, [Alichaelmas being the third term) was a judgment of Michaelmas term, whicii was sufficient to prevent a supersedeas. Per cur. The three terms are always taken to be inclusive of that term whereof the declaration is, and unless plaintiff proceeds to sign final judgment within the third term, he is too late. Rule absolute for supersedeas. Barnes 379.

The desendant was brought into court by hab. corp. ad fat. to be charged in execution, which being objected to, because a judge had before made an order for a supersedeas which was lodged with the warden, and allowed and appearance entered: but as desendant had not served the order, nor allowed the supersedeas tiil .nfter habeas corpus was lodged with the warden, the court held, that he must be charged, and that he might apply afterwards as advised. The plaintiff may proceed at his peril. Barnes 379.

Plaintiffs obtained interlocutory judgment by nil dicit, in an action of ajsumpsit, and sued out a writ of enquiry; but, before the same was executed, became bankrupt, and proceeded to final judgment against desendant, a prisoner, [which was regular] in Michaelmas term. The assignees

Of Judgment against Prisoners, and of charging them in Execution.

then brought asclrefacias agiinst him retumalle the first return of Hil. to shew cause: why they should not haveexecuLiort of that judgment; to which fare facias the desendant pleaded the whole matter stated, and the bankruptcy of the plaintiffs in bar; to which the assignees demurred, and had judgment in Eajfier term; and then the desendant moved, that he might be discharged by supersedes, the plaintiff noc having charged him in execution in Hilary term. I5ut per tur. The bankrupts could not charge the desendant in execution in last Hilary term, because the assignees were entitled to the benefit of the judgment, and had then brought a scire facias upon it. And if desendant had any lands, (which- he. may have for any thing we know) the assignees may, perhaps, choose an elegit against his lands, and not charge his person. Whereupon the rule, to shew why desendant should not be discharged by supersdeas, was discharged, the assignees having proceeded with due diligence. 2 mis 378.

A prisoner who is supersedeable in one action, at the suit of A. but not superseded, may be charged in execution in another action, at the suit of ^d. Barnes ad finem 500. Pract. Reg. 332.

If desendant, prisoner, brings a writ cf error, no need to charge him in execution the second term after the judgment. 2 Wilf. 380.

The desendant, in Michaelmas term, was surrendered in discharge of his bail i and afterwards, without giving any notice to the plaintiff, was removed to the Fleet. The plaintiff, in Hilary term, charged him in execution as a prisoner in B. R. and afterwards desendant moved t'orasupersedeas, that charge in the court, where he was not a prisoner, signifying nothing; and so two terms weie elapsed. The plaintiff insisted, he was in no default, not having notice of his removal; and that thefe removals do not appear upon the cemmittilur Look, where she charge in execution is to be made. But .the court granted a supersedeai; for the plaintiff, they said, should have demanded to see the prisoner; and if not produced, would have known wheie to find him, and bring him back, by habeas corpus, to charge him. Filkts v. Allen. Stra. i153..

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