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Os Proceedings against Prisoners.
such prisoner or prisoners, or to the gaoler or keeper of the prison or gaol, in whose custody such prisoner (hall be of remain; to which declaration or declarations, the said prisoner or prisoners (hall appear and plead; and if such prisoner or prisoners shall not appear and plead to the same, the plaintiff or plaintiffs, in such cases, sliall have judgment, in such manner as if the prisoner or prisoners had appeared in the said respective courts, and resused to answer pr plead to such declaration."
'And by sect. 3. it is surther enacted, " That in all declarations against any prisoner or prisoners, detained in. prison by virtue of any writ or process issued out of the court of King's Bench, it shall be alledged in custody of what sheriff, bailiff, or steward of any franchise, or other perspn, having the return and execution of writs, such prisoner or prisoners shall be at the time of such declaration, by virtue of the process of the said court, at the suit of the plaintiffs, which allegation stiall be as good and effectual, to all intents and purposes, as if such prisoner or prisoners were in the custody of the marjhal of the marjhalfea of our sovereign lord, t£c."
A prisoner in custody, on a criminal account, cannot ba charged with a civil action, without leave of the court, salt. 354.
A person attainted, even of high treason, may be charged with a civil action, by leave of the court. Ramfd:n and another v. Macdonald, 1 IVils. 21 j.
A prisoner, on a charge of selony, may be charged with a latitat. Daintree v. Ju/iice, Hil. 9 Geo. 3.
The court will not give leave to charge a prisoner with an action, who has a pardon upon condition of transportation, because it would deseat the effect of the pardon, and render the prisoner incapable of performing the condition pn which he was pardoned. Ld. Raym. 848.
A prisoner, committed for a contempt, cannot be charged with a declaration, without leave of the court. Praci.
Of Proceedings against Prisoners.
But if he accepts a declaration, and suffers plaintiff to take judgment, he has no remedy. Rules and Ordirs K. B. and C. B. 2 volume 31.
One in custody, on an attachment, cannot it charged in execution, without leave. Pratt. Reg. 825.
Of the Rules concerning Prisoners,
UPON the foregoing statute the judges of B. R. made the following rules. Easter, $IV.I$ M. i. That no copy of a declaration be delivered to any prisoner in custody, before the day. of the return of the process upon which the desendant was taken or charged in custody.
2. That no rule be given, for the desendant in custody to appear and plead to any declaration against him, until ai> affidavit be filed with the clerk of the rules, of the delivering a copy of such declaration, and of the time when, and the person to whom, the said copy was delivered; and that the desendant was arrested, or charged in custody, by process out of this court, returnable before the delivery of such
.eopy; aiid chat the time of filing such assidavit be entered upon the assidavit by rfie clerk of the rules ; and that a copy of snch affidavit be produced to the prothonotary or secondary before the signing the judgment.
3. If a copy of the declaration be delivered against such desendant, before " one month pf Eajler" or, " the morrow of All Souls," and assidavit be made thereof and filed; and the desendant doth not. appear before the end of ten days after Easttr and Michaelmas term respectively, judgment may be entered against him, if rules have been given; but if he doth appear before the end of ten days after the term, he shall imparl until the next term [unless the action be in London or Middlesex'] and the desendant be in prison within forty miles of London or IVeJlm'wJler; then, though he doth appear before the expiration of ten days after the end of the term, he shall plead two days before the cssoign day* of the next term, and in desault theieof [rules for pleading having been given] judgment may be entered against him as aforesaid.
4. If a copy of the declaration be delivered against such desendant, on or before " one month of Easier," in Eajler term, or " the morrow of All Souls," in Michaelmas term, pr in Hilary, or Trinity term; and thereupon the plaintiff gives a rule to appear and answer; then if the desendant appears two days before the estoign day of the next term, he shall imparl until the said next term; but if he doth not appear wuhin that time, judgment shall be given against; him.
'5. Isa writ be returnable in any term, and a copy of the declaration has been delivered before the cfsoign day of the.
Of the Rules concerning Prisoners.
UPON the foregoing statute the judges of C. B. madfc the following rules. Bast. 5 W. &Af. - ^
1. No copy of a declaration shall be delivered to any prisoner, until after the process, upon which such prisoner (hall be taken or charged in custody, be returnable.
2. No rule shall be givan for the desendant, in custody, to appear and plead to any declaration against him, until an affidavit be filed, with the proper secondary, of the delivery of the copy of such declaratvon, and of the time when, and the person to whom, the said copy was delivered; and a copy of the said assidavit shall be produced to the prothonotary before judgment signed, together with a certificate from the proper officer, that no appearance is entered with him.
3. If a ccpry of a declaration be delivered before mensem Pascha or crajlinum animarum, and affidavit thereof made and filed j and the desendant doth not enter his appearance with the proper officer within ten days after Easier or Michaelmas terrp respectively, judgment may be entered against him upon such certificate, if rules have been given; but if he does not enter his appearance, as aforesaid, within ten days after such term, he shall imparl until the next term, unless the action be in London ox Middlesex, and the desendant be in prison within forty miles of the cities of London or Wislminjler.i and then, though the prisoner doth appear within ten days after the end of the term, he shall plead two days before the •ssoign day of the next term; and in desault thereof, rules having been given, judgment may be entered against him as aforesaid.
4. If the copy of the declaration be delivered on or after mensem Pascha in Eajier term, or crajlinum animarum in Mi~ chatlmas term, or in Hilary term, or in Trinity, and the plaintiff shall thereupon give a rule to appear and plead; if the desendant enters his appearance two days preceding the essoign day of the next term, he shall imparl until the next term 3 but if he shall not appear within that time, judgment may be entered against him as aforesaid.
5. If the writ be returnable in one term, and a copy of the declaration be delivered before the est'oign day of the
B 3 next
Of the Rules concerning Prisoners.
next term, the plaintiff, in such next term, may give rule* to appear and plead; and if the desendant does not appear and plead, upon the expiration of the rules, judgment shall be given against him.
6. If the declaration be not filed before the end of the next term, after the writ or process by which the prisoner was taken or charged in custody, is returnable, and assidavit made and filed in manner as aforesaid, before the end of forty days next, after such term, the prisoner shall be discharged by common bail signed by one of the justices of this court.
7. If any gaoler or keeper of a prison, having received a copy of a declaration against any prisoner in his custody, shall suppress the same, and not deliver it forthwith unto such prisoner, an attachment shall be issued against him.
Of Proceeding against Prisoners in Custody of the Sheriff, £sV. at the Suit of the Party.
Upon being arrested, if the desendant cannot find bail, but goes to prison, and does not remove himself by habeas eorpus, or the plaintiff does not remove him by habeas carpus into the custody of the marjhal, the plaintiff may, under this statute asking William, declare against him in the custody of the sheriff or bailiff where the prisoner is; and if the suit is by bill or latitat, he must express in his declaration in whose custody he is, by virtue of the said process, at the suit of the plaintiff, which shall be as effectual as if the prisoner was in custody of the marjhal.
If the prisoner was arrested, and in custody at the suit of the plaintiff, there is no need of an affidavit on delivering the declaration, [as there must be when he is already in custody at the suit of another] because there was one on the writ. Rules and orders K. B. and C, B, 2 vol. 144.