Page images

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

If the desendant, a prisoner, is in the King's Bench prison, in order to charge him in execution, the plaintiff must get a rule from the clerk of iht rules, and serve the marshal with a copy, on which he will write his acknowledgment of the desendant's being in his custody, then enter committitur in the marjhol's book, and file it. Note on Reg. Tr. iGeo. I.

Upon motion to supersede the desendant, as not being; charged in execution in two terms, the court held that the committitur must be actually entered on record, before the end of the second term; and that there is no extension of of the time to the continuance day after term; nor was it sufficient, that there was an entry in the marjhal's book in time. Stra. 1215.

A committitur in execution was entered in the marshal's book, but no committitur piece was filed; ndr was the committitur entered on record within two terms. Rule made absolute for discharging desendant 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. Tottersll v. Philby. Burr. \pt. 1841.

If the desendant, a prisoner, is in the custody of * sheriff, a 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 Keg. Tr. 2 Geo. 1.

But quære as to injunction, and vide the Att. Pract. 371. And Satk. 322. Where, by injunction out of Chancery, the desendant stayed the plaintiff's execution a year and upwards. The injunction being dissolved, the plaintiff took out execution without asche facias; and this was reserred to the court, for irreguiarity. The plaintiff insisted, that he was stopped by the act of the desendant; and that, if the desendant had suspended it by a writ of error so long, he had been at liberty to take out execution without a j'ci.fat Scd 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 mist breve. A supersedeas quid im~ provide was awarded. Booth & Booth.

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

If the prisoner is in the Fleet, you make out an habeas corpus ad satisfaciendum, get it signed by the prothonotaryy 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 desendant must be brought into court, to be committed in • execution.

If a desendant be brought into court, upon a habeas cor-' pus ad satisfaciendum, he can be charged in execution upon that judgment only, on which the habeas corpus ad satisfaciendum issued: And if there be several 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 satisfaciendum in one cause only; and three judgment rolls were produced in this, and two other causes, by the attorney for the plaintiffs, who desired that the desendant might be charged in execution in all three. But by the judges in the Treasury, the desendant can only be charged in that cause, wherein the habeas corpus is brought." There must be an habeas corpus on every judgment. Barnes 323.

The same in this court; and if the ca. fa. be delivered to the gaoler, instead of the sheriff., it is well. 2 Barnes 308.

The same as to injunclion. Pract. Reg. 377. sed quære?

[merged small][ocr errors]

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

Where a prisoner is discharged for want of proceeding to judgment, he may afterwards be taken in execution; but otherwise, if discharged for want of being charged in execution. An. Pract. 295. PraSf. Reg. 333. 2 Vol. Rules and Orders 135. 6.

A prisoner discharged upon an insolvent act, and afterwards arrested tor a debt exceeding the sum limited in the act, shall not be discharged on common bail. Ld. Raym. 1088.

If the desendant is discharged by the lord's all, he cannot be retaken on execution, or new action. 1 Barnes 271.

A prisoner on a capias utlagntum, discharged on an insolvent debtor's act, cannot be taken again on a new capias utlagatum. 1 Barnes 278.

An action on the case lies against an attorney, for neglecting to charge a prisoner in execution in due time. Vide the cafe of RuJJlll v. Palmer, an Alt. C. B. 2 IHl. 325. And the cafe of Pitt v. Yalden. Burr. 4 pt. 2060.

So if the desendant, prisoner, obtains a faperjedeas for want of plaintiff's declaring within the two terms. Ibid.

Desendant being a prisoner in the Fleet, at the plaintiff's suit, brought a writ of error, and thereupon judgment was reversed, and superssedeas issued to discharge her out of custody; but before she could get the supersedeas allowed, the plaintiff charged her w;th a neiv declaration; whereupon she moved to be discharged, and the coutt held, that as desendant was detained a prisoner at the plaintiff's suit only, and not at any other person's, she could not regularly be charged with the second declaration, after reversal of the first judgment, whereon she had been wrongsully detained; and therefore ordered desendant to be discharged. Peachy v. Bowes, spinster. Barnes 368.

But where afterwards the plaintiff caused her to be arrested and held to bail for the former cause of action, and she moved to be discharsed on a common appearance, tvjo judges held j that as the second declaration was no charge, she had the benefit of her superssedeas; and that after the judgment v/as reversed and annulled, the plaintiff had a right to bring a new aff'ron, and hold her to bail. But the other two judges were of opinion, that after the desendant had been dilchargcd by rule of court, as to the second declaration, she ought now to be discharged on entering a common

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

mon appearance; and that the rule of court amounts to the same thing as z supersedeas. The court being divided no rulewas made. Sherwin v. Bowes, spinster. Barnes 429. Though in the book the names of the plaintiffs are different, it appears clearly from the report to have been the same parties in both cafes.

Da Of Of a Prisoner's obtaining a Superfedeas.

TO discharge a prisoner in any case, whether for want of declaring*, neglecting to proceed to judgment, or not charging him in execution, his attorney mult take out a judge's summons, to shew cause why desendant should not be discharged, for want of charging him (or whatever the case is) in due time, and serve the same on the opposite party; and if the plaintiff's attorney do not attend thereon, or consent to an order being made, the desendant's attorney must make an assidavit of the service of the summons, and his attendance at the time therein appointed; whereupon the judge will make an order for the desendant's discharge, on filing common bail.

If the prisoner is in the custody of the marjhal of the King's Bench, he must 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 marjhal, he will discharge him without a supersedeas.

But if the prisoner is in the custody of i jheriff, &c. he must sue out a writ of supersedeas; for signing of which at the office, the bail-piece, signed 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 cases, whether the desendant is in the Fleet, or in custody of the sheriff, a superfedeas issues, to be allowed by a judge to discharge him out of custody. Reg. £. 8 G. i.

* But in order to discharge a prisoner, for want of declaring according to the rule, z Geo. I. you must also obtain a certificate from the clerk of the declarations, it in B.R. that no bill is filed in hi* office against the defendant; and a certificate of t:ie causes wherewith he stands charged, from the clerk of the 'papers of the King's Bench prison, if in custody of the marjhal; and from the gaoler or turnkey, if in custody of ficrif or other oficer.


« PreviousContinue »