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

If the defendant, a prifoner, is in the King's Bench prison, in order to charge him in execution, the plaintiff must get a rule from the clerk of the rules, and serve the marshal with a copy, on which he will write his acknowledgment of the defendant's being in his cuftody, then enter committitur in the marshal's book, and file it. Note on Reg. Tr. 2 Geo. 1.

Upon motion to fuperfede the defendant, as not being charged in execution in two terms, the court held that the committitur muft be actually entered on record, before the end of the fecond term; and that there is no extenfion of of the time to the continuance day after term; nor was it fufficient, that there was an entry in the marshal's book in time. Stra. 1215.

A committitur in execution was entered in the marshal's book, but no committitur piece was filed; nor was the committitur entered on record within two terms. Rule made abfolute for discharging defendant on the authority of the above case of Unwin v. Kerchoffe. Stra. 1215. as it ought to have been actually entered on record before the end of the second term. Totterell v. Philby. Burr. 4 pt. 1841.

If the defendant, a prifoner, is in the cuftody of a fheriff, a ca. fa. must be sued out, and the warrant thereon lodged with the gaoler.

If a prisoner surrender, after judgment in discharge of bail, he must be charged in execution in two terms after render, except a writ of error is brought, or there is an injunction. Att. Pract. 341. Note on Reg. Tr. 2 Geo. 1.

But quære as to injunction, and vide the Att. Pract. 371. And Salk. 322. Where, by injunction out of Chancery, the defendant itayed the plaintiff's execution a year and upwards. The injunction being diffolved, the plaintiff took out execution without a feire facias; and this was referred to the court, for irregularity. The plaintiff infifted, that he was stopped by the act of the defendant; and that, if the defendant had fufpended it by a writ of error fo long, he had been at liberty to take out execution without a fi. fa, Sed per cur. We cannot take notice of Chancery injunctions; and you might have taken out a writ of execution, and continued it by vicecomes non mifit breve. A fuperfedeas quià improvide was awarded. Booth & Booth.

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

If the prifoner is in the Fleet, you make out an habeas corpus ad fatisfaciendum, get it figned by the prothonotary, and backed by a judge; and then carry it to the clerk of the papers at the Fleet, four days before the return; and the defendant must be brought into court, to be committed in. execution.

If a defendant be brought into court, upon a habeas corpus ad fatisfaciendum, he can be charged in execution upon that judgment only, on which the babeas corpus ad fatisfaciendum iffued: And if there be feveral judgments on which he is to be charged in execution, there must be a writ of habeas corpus on each judgment.

An habeas corpus ad fatisfaciendum in one caufe only; and three judgment rolls were produced in this, and two other caufes, by the attorney for the plaintiffs, who defired that the defendant might be charged in execution in all three. But by the judges in the Treafury, the defendant can only be charged in that caufe, wherein the babeas corpus is brought There must be an habeas corpus on every judgment. Barnes 223.

The fame in this court; and if the ca. fa. be delivered to the gaoler, inftead of the fheriff, it is well. 2 Barnes 308.

The fame as to injunction. Prac. Reg. 377. fed quære?

VOL. II.

A

Where

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

Where a prifoner is difcharged for want of proceeding to judgment, he may afterwards be taken in execution; but otherwife, if difcharged for want of being charged in execution. Att. Pract. 295. Pract. Reg. 333. 2 Vol. Rules and Orders 135. 6.

A prifoner difcharged upon an infolvent act, and afterwards arrefted for a debt exceeding the fum limited in the act, shall 'not be difcharged on common bail. Ld. Raym. 1088.

If the defendant is difcharged by the lord's act, he cannot be retaken on execution, or new action. 1 Barnes 271.

A prifoner on a capias utlagatum, difcharged on an infolvent debtor's act, cannot be taken again on a new capias utlagatum. 1 Barnes 278.

An action on the cafe lies against an attorney, for neglecting to charge a prifoner in execution in due time. Vide the cafe of Ruffell v. Palmer, an Att. C. B. 2 Wil. 325. And the cafe of Pitt v. Yalden. Burr. 4 pt. 2060. So if the defendant, prifoner, obtains a fuperfedeas for want of plaintiff's declaring within the two terms. Ibid.

Defendant being a prifoner in the Fleet, at the plaintiff's fuit, brought a writ of error, and thereupon judgment was reverfed, and fuperfedeas iffued to difcharge her out of cuftody; but before the could get the fuperfedeas allowed, the plaintiff charged her with a new declaration; whereupon the moved to be difcharged, and the court held, that as defendant was detained a prifoner at the plaintiff's fuit only, and not at any other perfon's, fhe could not regularly be charged with the fecond declaration, after reverfal of the firft judgment, whereon fhe had been wrongfully detained; and therefore ordered defendant to be difcharged. Peachy v. Bowes, fpinfter. Barnes 368.

But where afterwards the plaintiff caufed her to be arrefted and held to bail for the former caufe of action, and fhe moved to be difcharged on a common appearance, two judges held, that as the fecond declaration was no charge, the had the benefit of her fuperfedeas; and that after the judgment was reverfed and annulled, the plaintiff had a right to bring a new action, and hold her to bail. But the other two judges were of opinion, that after the defendant had been discharged by rule of court, as to the fecond declaration, fhe ought now to be difcharged on entering a com

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

mon appearance; and that the rule of court amounts to the fame thing as a fuperfedeas. The court being divided no rule was made. Sherwin v. Bowes, fpinfter. Barnes 429.

Though in the book the names of the plaintiffs are different, it appears clearly from the report to have been the fame parties in both cafes.

Of a Prisoner's obtaining a Superfedeas.

O discharge a prisoner in any case, whether for want

of declaring, neglecting to proceed to judgment, or not charging him in execution, his attorney must take out a judge's fummons, to fhew caufe why defendant should not be difcharged, for want of charging him (or whatever the cafe is) in due time, and ferve the fame on the oppofite party; and if the plaintiff's attorney do not attend thereon, or confent to an order being made, the defendant's attorney must make an affidavit of the fervice of the fummons, and his attendance at the time therein appointed; whereupon the judge will make an order for the defendant's difcharge, on filing common bail.

If the prifoner is in the cuftody of the marshal of the King's Bench, he muft get a certificate from the clerk of the common bails, that common bail was filed with him, by order of one of the judges, on producing which certificate to the marshal, he will discharge him without a fuperfedeas.

But if the prifoner is in the cuftody of a fheriff, &c. he muft fue out a writ of fuperfedeas; for figning of which at the office, the bail-piece, figned by one of the judges, is a warrant to the officer with whom you leave it, and he delivers it over to the clerk of the common bails to be filed.

But in the Common Pleas in all cafes, whether the defendant is in the Fleet, or in cuftody of the fheriff, a fuperfedeas iffues, to be allowed by a judge to difcharge him out of cuftody. Reg. E. 8 G. 1.

But in order to discharge a prisoner, for want of declaring according to the rule, 2 Geo. 1. you must alfo obtain a certificate from the clerk of the declarations, if in B.R. that no bill is filed in his office against the defendant; and a certificate of the causes wherewith he ftands charged, from the clerk of the papers of the King's Bench prifon, if in cuftody of the marshal; and from the gaoler or turnhey, if in cuftody of fheriff or other officer.

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