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Of the Rule to appear and plead, and when a Defendant, Prifoner, muft plead.

HE. fame in this court. But if Eafter term is the fecond term, then the affidavit of delivery must be filed within ten days.

If the defendant is in the Fleet, the rule to plead is out in eight days. Hil. 14, 15 Car. 2. [inclufive.]

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

If a declaration is delivered to a prifoner the last day but one of term, he muft plead two days before the effoign day of the next term. Barnes 224.

In Eafter and Michaelmas terms, if the declaration is delivered before the morrow of All Souls, or menf. Pafch. the rules to plead are out in ten days after the term, except the action is in London or Middlefex, and the defendant in prifon 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 effoign day of the fubfequent term.

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

The fame in this court. Eaft. 5 W. & M.

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

In C. B. ten days notice, exclufive of the day of fuch notice, must be given to defendant (being actually in the Fleet) of the time of trial. Reg. Hil. 14, 15 Car. 2.

Of

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

F the plaintiff does not proceed to trial or judgment within

fhall be difcharged out of cuftody, on filing common bail, notice being firft given to the plaintiff, or his attorney, and an affidavit thereof made, if the plaintiff or his attorney does not attend and fhew cause against the discharge. Trin. 2 Geo. 1.-The term in which the declaration is delivered is one,

So for want of getting a demurrer argued within the third

term.

Vide the oppofite cafe.

The defendant, though not in cuftody, upon being taken, but furrendered himself in difcharge of his bail, is fuperferfedeable within the above mentioned rule, and its conftruction and the practice of the court; and the time runs from notice of the defendant's being in cuftody.

After judgment obtained against a defendant, prifoner, he must be charged in Execution within two terms--the term wherein judgment to be obtained to be reckoned as one— the defendant may obtain his difcharge in like manner as for not proceeding to trial or judgment. Reg. Tr. 2 Geo. 1.

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

HE fame in this court. Reg. Eaft. 8 Geo. 1.

TH

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

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

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

term.

The defendant was difcharged out of cuftody by superfedeas, on entering a common appearance, for want of plaintiff's proceeding to judgment within three terms after declaration delivered. Plaintiff afterwards obtained judgment, and defendant, being taken in execution, moved to be discharged, infifting, that after a fuperfedeas his perfon was free, and could not be again detained by procefs in the fame action. Per cur. After confulting all the judges in this cafe, the defendant having been difcharged by fuper fedeas before judgment, he is not finally ditcharged, but after judgment is fubje&t to be taken in execution.-But where a defendant is fuperfeded after judgment, for want of being charged in execution within two terms after judgment obtained, his perfon cannot afterwards be taken in execution. Barnes 376.

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

On fhewing caufe why defendant fhould not be difcharged by fuperfedeas, the plaintiff having neglected to charge him in custody within the two terms, it appeared, that the plaintiff's attorney had taken out a ca. fa. but directed it to the theriff of Exeter, instead of Devon, which being fent back, he got it refealed, and fent it in time to an attorney, with directions to charge defendant in execution; but it arrived too late to charge the defendant in time; and it appearing, that there was no intention to opprefs, and the delay arifing entirely from an accident, the court difcharged the rule. Barnes 380.

The plaintiff fhall have every day in the fecond term to charge a prifoner. 2 Wil. 380.

The

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

The defendant, a prifoner, applied to be difcharged by fuperfedeas, for want of being charged in execution within two terms after judgment. The plaintiff excufed himself by the delivery of a ca. fa. to the gaoler within due time. But the court held that to be infufficient. The ca. fa. ought to have been delivered to the fheriff, and the fheriff's warrant to the gaoler. Barnes 389.

Within two terms after final judgment, plaintiff, instead of charging the defendant 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 Superfedeas: rule for fuperfedeas made abfolute. Barnes 390.

The writ of enquiry being fet afide, becaufe not executed before a perfon properly deputed by the fheriff, defendant applied for a fuper fedeas for want of plaintiff's proceeding to final judgment within three terms after the declaration, and obtained a rule to fhew caufe, which was made abfolute. Barnes 384.

On motion for fuperfedeas for want of proceeding to judgment within three terms after declaration delivered, and caufe fhewn, it was contended, that the judgment, though not figned till the Michaelmas vacation, (Michaelmas being the third term) was a judgment of Michaelmas term, which was fufficient to prevent a fuperfedeas. Per cur. The three terms are always taken to be inclufive of that term whereof the declaration is, and unlefs plaintiff proceeds to fign final judgment within the third term, he is too late. Rule abfolute for fuperfedeas. Barnes 379.

The defendant was brought into court by hab. corp. ad fat. to be charged in execution, which being objected to, becaufe a judge had before made an order for a fuperfedeas which was lodged with the warden, and allowed and appearance entered: but as defendant had not ferved the order, nor allowed the fuperfedeas till after 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 affumpfit, and fued out a writ of enquiry; but, before the fame was executed, became bankrupt, and proceeded to final judgment against defendant, a prifoner, [which was regular] in Michaelmas term. The affignees

Of Judgment against Prifoners, and of charg ing them in Execution.

then brought a fcire facias against him returnal le the first return of Hil. to fhew caufe why they thould not have execution of that judgment; to which feire facias the defendant pleaded the whole matter ftated, and the bankruptcy of the plaintiffs in bar; to which the affignees demurred," and had judgment in Eafter term; and then the defendant moved, that he might be difcharged by fuperfedeas, the plaintiff not having charged him in execution in Hilary term. But per cur. The bankrupts could not charge the defendant in execution in laft Hilary term, becaufe the affignees were entitled to the benefit of the judgment, and had then brought a fcire facias upon it. And if defendant had any lands, (which he may have for any thing we know) the affignees may, perhaps, choose an elegit against his lands, and not charge his perfon. Whereupon the rule, to fhew why defendant fhould not be difcharged by fuperfedeas, was dif charged, the affignees having proceeded with due diligence. 2 Wilf. 378.

A prifoner who is fuperfedeable in one action, at the fuit of A. but not fuperfeded, may be charged in execution in another action, at the fuit of A. Barnes ad finem 500. Pract. Reg. 332.

If defendant, prifoner, brings a writ of error, no need to charge him in execution the fecond term after the judgment. 2 Wilf. 380.

The defendant, in Michaelmas term, was furrendered in discharge of his bail; 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 prifoner in B. R. and afterwards defendant moved for a fuperfedeas, that charge in the court, where he was not a prifoner, fignifying nothing; and fo two terms were elapfed. The plaintiff infifted, he was in no default, not having notice of his removal; and that thefe removals do not appear upon the committitur book, where the charge in execution is to be made. But the court granted a fuperfedeas; for the plaintiff, they faid, fhould bave demanded to fee the prifoner; and if not produced, would have known where to find him, and bring him back, by habeas corpus, to charge him. Filkes v. Allen. Stra. 1153.

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