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Of Proceedings against Prisoners,

fuch prifoner or prifoners, or to the gaoler or keeper of the prifon or gaol, in whofe cuftody fuch prifoner fhall be or remain; to which declaration or declarations, the faid prifoner or prifoners fhall appear and plead; and if fuch prifoner or prifoners fhall not appear and plead to the fame, the plaintiff or plaintiffs, in fuch cafes, fhall have judgment, in fuch manner as if the prifoner or prifoners had appeared in the faid refpective courts, and refused to answer or plead to fuch declaration."

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And by fect. 3. it is further enacted, "That in all declarations against any prifoner or prifoners, detained in prifon by virtue of any writ or procefs iffued out of the court of King's Bench, it fhall be alledged in custody of what sheriff, bailiff, or fteward of any franchife, or other perfon, having the return and execution of writs, such prifoner or prifoners fhall be at the time of fuch declaration, by virtue of the procefs of the faid court, at the fuit of the plaintiffs, which allegation fhall be as good and effectual, to all intents and purposes, as if fuch prifoner or prisoners were in the cuftody of the marshal of the marfhalfea of our sovereign lord, &c."

A prifoner in cuftody, on a criminal account, cannot be charged with a civil action, without leave of the court, Salk. 354

A perfon attainted, even of high treafon, may be charged with a civil action, by leave of the court. Ramfden and another v. Macdonald, 1 Wilf. 217.

A prifoner, on a charge of felony, may be charged with a latitat. Daintree v. Juftice, Hil. 9 Geo. 3.

The court will not give leave to charge a prifoner with an action, who has a pardon upon condition of transportation, because it would defeat the effect of the pardon, and render the prifoner incapable of performing the condition on which he was pardoned. Ld. Raym. 848.

Pract.

A prifoner, committed for a contempt, cannot be charged with a declaration, without leave of the court. Reg. 325.

But

Of Proceedings against Prisoners.

But if he accepts a declaration, and fuffers plaintiff to take judgment, he has no remedy. Rules and Orders K. B. and C. B. 2 volume 31.

One in cuftody, on an attachment, cannot be charged in execution, without leave. Pract. Reg. 825.

U

Of the Rules concerning Prifoners,

PON the foregoing ftatute the judges of B. R. made the following rules. Eafler, 5 W. & M.

1. That no copy of a declaration be delivered to any prifoner in cuftody, before the day, of the return of the procefs upon which the defendant was taken or charged in cuftody.

2. That no rule be given, for the defendant in custody to appear and plead to any declaration against him, until an affidavit be filed with the clerk of the rules, of the delivering a copy of fuch declaration, and of the time when, and the perfon to whom, the faid copy was delivered; and that the defendant was arrested, or charged in cuftody, by procefs out of this court, returnable before the delivery of such copy; and that the time of filing fuch affidavit be entered upon the affidavit by the clerk of the rules; and that a copy of fnch affidavit be produced to the prothonotary or fecondary before the figning the judgment.

3. If a copy of the declaration be delivered against such defendant, before " one month of Eafler," or, the morrow of All Souls," and affidavit be made thereof and filed; and the defendant doth not appear before the end of ten days after Eafter and Michaelmas term refpectively, 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 fhall imparl until the next term [unless the action be in London or Middlefex] and the defendant be in prifon within forty miles of London or Weftminster; then, though he doth appear before the expiration of ten days after the end of the term, he fhall plead two days before the effoign day of the next term, and in default thereof [rules for pleading having been given] judgment may be entered againft him as aforefaid.

4. If a copy of the declaration be delivered againft such defendant, on or before" one month of Eafter," in Eafter term, or "the morrow of All Souls," in Michaelmas term, or in Hilary, or Trinity term; and thereupon the plaintiff gives a rule to appear and anfwer; then if the defendant appears two days before the effoign day of the next term, he fhall impar! until the faid next term; but if he doth not appear within that time, judgment fhall be given against him.

5. If a writ be returnable in any term, and a copy of the declaration has been delivered before the efloign day of the.

Of the Rules concerning Prifoners.

PON the foregoing ftatute the judges of C. B. made the following rules. Eaft. 5 W. & M.

1. No copy of a declaration shall be delivered to any prifoner, until after the procefs, upon which fuch prifoner shall be taken or charged in custody, be returnable.

2. No rule shall be given for the defendant, in cuftody, 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 fuch declaration, and of the time when, and the perfon to whom, the faid copy was delivered; and a copy of the faid affidavit shall be produced to the prothonotary before judgment figned, together with a certificate from the proper officer, that no appearance is entered with him.

3. If a copy of a declaration be delivered before menfem Pafcha or craftinum animarum, and affidavit thereof made and filed, and the defendant doth not enter his appearance with the proper officer within ten days after Eafter or Michaelmas term refpectively, judgment may be entered against him upon fuch certificate, if rules have been given; but if he does not enter his appearance, as aforefaid, within ten days after fuch term, he fhall imparl until the next term, unless the action be in London or Middlefex, and the defendant be in prifon within forty miles of the cities of London or Westminster, and then, though the prifoner doth appear within ten days after the end of the term, he fhall plead two days before the effoign day of the next term; and in default thereof, rules having been given, judgment may be entered against him as aforefaid.

4. If the copy of the declaration be delivered on or after menfem Pafcha in Eafter term, or craftinum animarum in Mis chaelmas term, or in Hilary term, or in Trinity, and the plaintiff fhall thereupon give a rule to appear and plead; if the defendant enters his appearance two days preceding the effoign day of the next term, he fhall imparl until the next term but if he fhall not appear within that time, judgment may be entered against him as aforefaid.

5. If the writ be returnable in one term, and a copy of the declaration be delivered before the effoign day of the

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next

Of the Rules concerning Prisoners.

next term, the plaintiff, in fuch next term, may give rules to appear and plead; and if the defendant does not appear and plead, upon the expiration of the rules, judgment thall 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 prifoner was taken or charged in cuftody, is returnable, and affidavit made and filed in manner as aforefaid, before the end of forty days next, after fuch term, the prifoner fhall be difcharged by common bail figned by one of the justices of this court.

7. If any gaoler or keeper of a prifon, having received a copy of a declaration against any prifoner in his cuftody, fhall fupprefs the fame, and not deliver it forthwith unto fuch prisoner, an attachment shall be iffued against him.

Of Proceeding against Prisoners in Cuftody of the Sheriff, &c. at the Suit of the Party.

but

Upon being arrefted, if the defendant cannot find bail,

goes to prison, and does not remove himself by habeas corpus, or the plaintiff does not remove him by habeas corpus into the cuftody of the marshal, the plaintiff may, under this Statute of king William, declare against him in the custody of the fheriff or bailiff where the prifoner is; and if the fuit is by bill or latitat, he muft exprefs in his declaration in whofe cuftody he is, by virtue of the faid procefs, at the fuit of the plaintiff, which fhall be as effectual as if the prisoner was in cuftody of the marshal.

If the prifoner was arrefted, and in cuftody at the fuit of the plaintiff, there is no need of an affidavit on delivering the declaration, [as there must be when he is already in cuftody at the fuit of another] because there was one on the writ. Rules and orders K, B. and C. B. 2 vol. 144.

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