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Of Proceedings against Prisoners.
such prisoner or prisoners, or to the gaoler or keeper of the prison or gaol, in whose custody such prisoner shall be oč remain; to which declaration or declarations, the said prifoner or prisoners shall appear and plead; and if such pria soner or prisoners shall not appear and plead to the same, the plaintiff or plaintiffs, in such cases, thall have judgment, in such manner as if the prisoner or prisoners had appeared in the said respective courts, and refused to answer or plead to such declaration."
And by sect. 3. it is further enacted, “ That in all'de. clarations 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 person, 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 shall be as good and effectual, to all intents and purposes, as if such prisoner or prisoners were in the custody of the marsal of the marfoal sea of our soyereign lord, &c."
A prisoner in custody, on a criminal account, cannot be charged with a civil action, without leave of the court, Salk. 354..
A person attainted, even of high treason, may be charged with a civil action, by leave of the court. Ramsden and another v. Macdonald, i IVilf. 217.
A prisoner, on a charge of felony, may be charged with a latitat. Daintree v. Justice, 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 defeat the effect of the pardon, and render the prisoner incapable of performing the condition on 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. Reg. 325.
Of Proceedings against Prisoners.
But if he accepts a declaration, and suffers plaintiff to take judgment, he has no remedy. Rules and Orders K. B. and C. B. 2 volume 31.
One in custody, on an attachment, cannot be charged in execution, without leave. Pract. Reg. 825.
Of the Rules concerning Prisoners, ITPON the foregoing statute the judges of B. R. U made the following rules. Easier, 5 W. M.
1. 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 defendant was taken or charged in custody.
2. That no rule be given, for the defendant in custody to appear and plead to any declaration againIt him, until an 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 defendant was arrested, or charged in cuftody, by process out of this court, returnable before the delivery of such .copy; and that the time of filing such afidavit be entered upon the affidavit by the 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 defendant, before 6 one month of Eajler," or, the 'morrow of All Souls,” and affidavit be made thereof and filed; and the defendant doth non appear before the end of ten days after Eater and Michaelmas term respectively, judgment may be entered againit him, if rules have been given; but if he doih 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 defendant be in prison within forty miles of London or Westminster ; then, though he doth appear before the expiration of ten days after the end of the term, he shall plead two days before the cfloign day of the next term, and in default thereof (rules for pleading having been given] judgment may be entered againft him as aforesaid.
4. If a copy of the declaration be delivered against such defendant, on or before “ one month of Easter,” in Easter 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 answer ; then if the defendant appears two days before the effoign day of the next term, he shall impar! until the said next term ; but if he doth not appear wiihin that time, judgment Mall be given against him, .) 5. If a writ be returnable in any term, and a copy of the declaration has been delivered before the effoign day of the.
Of the Rules concerning Prisoners. TIPON the foregoing statute the judges of C. B. made
the following rules. Baft. 5 W. & M. 1. No copy of a declaration shall be delivered to any prisoner, until after the process, upon which such prisoner lhall be taken or charged in custody, be returnable.
2. No rule shall be given for the defendant, in custody, to appear and plead to any declaration against him, until an affidavit be filed, with the proper secondary, of the deJivery of the copy of such declaration, and of the time when, and the person to whom, the said copy was delivered ; and a copy of the said affidavit 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 copy of a declaration be delivered before menfem Pafi chæ or craflinum animarum, and affidavit thereof made and filed; and the defendant doth not enter his appearance with the proper officer within ten days after Easier or Michaelmas term 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 or Middlesex, and the defendant be in prison within forty miles of the cities of London or Westminster, and then, though the prisoner doth appear within ten days after the end of the terin, he shall plead two days before the essoign day of the next term ; and in default 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 menfem Pafchæ in Easier term, or craftinum animarum in Mia chaelmas term, or in Hilary term, or in Trinity, and the plaintiff shall thereupon give a rule to appear and plead ; if the defendant enters his appearance two days preceding the essoign day of the next term, he shall imparl until the next term į 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 esloign day of the B 3
Of the Rules concerning Prisoners.
next term, the plaintiff, in such 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 prisoner was taken or charged in custody, is returnable, and affidavit made and filed in manner as aforesaid, before the end of forty days next, after such term, the prisoner shall be difcharged 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, &c. at the Suit of the Party.
corpus, ofcuftody of the maclare against him and
Upon being arrested, if the defendant cannot find bail, but goes to prison, and does not remove himself by habeas corpus, or the plaintiff does not remove him by habeas corpus into the custody of the marshal, the plaintiff may, under this Statute of king 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 marshal.
If the prisoner was arrested, and in custody 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 custody at the suit of another] because there was one on the writ. Rules and orders K. B. and C. B. 2 vol. 144. ::