Of the Rules concerning Prifoners.

next term, the plaintiff, in fuch declaration, may give a rule to appear; and if the defendant doth not enter his appearance, and plead by the time the rules are out, judgment may be entered against him.

6. If the declaration be not entered, or left in the office, before the end of the next term, after the return of the writ or procefs, [by which the defendant fhall be taken or charged in cuftody] and an affidavit made and filed in manner aforefaid, before the end of twenty days after fuch term [Easter term excepted, and within ten days after Eafter term] the prifoner fhall be discharged, upon entering his appearance with the proper officer, by writ of fuperfedeas made by him according to the ancient practice of this court.

7. If

any gaoler, or keeper of any prifon, having received a copy of a declaration against any prifoner in his custody, fhall fupprefs the fame, or not deliver it forthwith to fuch prisoner, an attachment fhall be entered against him.

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

IF the defendant, upon being arrested, cannot find bail, but goes to prifon, and does not remove himfelf by habeas corpus, or the plaintiff does not remove him by habeas corpus, into the cuftody of the warden of the Fleet, the plaintiff may, under the above ftatute of king William, declare against him in the cuftody of the fheriff or bailiff where the prisoner is.

The fame in this court, Pract. Reg. 330.

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

BY Reg. Trin. 2 Geo. 1. If a perfon arrefted or com

mitted, by virtue of any procefs of this court, to the cuftody of any fheriff, or other officer whatfoever, at the fuit of any plaintiff, and shall so remain in cuftody by two terms, and the plaintiff fhall not declare against such defendant within that time, fuch defendant, after the end of the second term, after fuch imprisonment, fhall be dif charged out of the prifon where he fhall be fo detained, upon filing common bail figned by one of the juftices of this court, without any notice to be given to the plaintiff or his attorney.

Note-Within the above rule, the term in which the writ whereon the defendant was arrested is returnable, altho' it be not returnable till the laft day of the term, is one of the

two terms.

So is the term wherein the defendant was committed, although not committed till the laft day of a vacation.

Mafter Benton thought, that if the defendant did not fuperfede himself till the third term, and filed common bail as of that term, yet he was not obliged to accept a declaration. Sed quære, If common bail fhould not be filed as of the fecond term? and vide the practice of C. B.

Mr. Cowper, clerk of the rules in B. R. had fome doubt, whether a prifoner, fuperfeded on filing common bail might not fign a non-pros as foon as common bail filed; because the plaintiff had not declared within the two terms; but this feems impoffible: though quære, If he may not fign ic at the

end of the two terms after bail filed?

The court will never grant the plaintiff a rule for further time to declare against a prifoner.

But where, in a writ against three, one was arrested and lay in gaol, and the other two abfconded, the court refufed to difcharge the prifoner, faying, the defendant arrested must appear for all, or lie in gaol till the other two are outlawed.

But then the plaintiff muft move, in the fecond term, for time to declare against him in cuftody. Eaft. 12 Ges. 3.

The

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

I

F defendant be committed to prifon, by procefs out of this court, or habeas corpus, the prifoner entering his appearance, and giving a rule to declare, the plaintiff not declaring before the end of the next term after the commitment, the defendant to be difcharged by fuperfedeas in the end of the next term, and liberty for the plaintiff to declare, upon that appearance, the next term after that at farthest. Reg. M. 1654.

If the plaintiff does not remove the defendant to the Fleet, and the prifoner enter his appearance, he may be discharged by fuperfedeas in the end of the third term after the arreft, and the plaintiff may declare upon fuch appearance the term following, but not after.

But if fuch prifoner caufe an appearance to be entered for him by attorney, and cause notice thereof to be given to the plaintiff, or his attorney; and if oath thereof be made in writing, and filed in court, unless the plaintiff declares against him in the term after fuch appearance, he may be. difcharged by fuper fedeas, so as oath be made by the attorney for defendant, that no declaration had been delivered or tendered to him. And the plaintiff may declare against him the term next after fuch appearance entered, but not afterwards. Reg. H. 14, 15 Car. 2.

In this court, upon a fuperfedeas for want of declaring within the two terms, common bail must be filed of the term the fuperfedeas iffues. By Reg. 14, 15 Car. 2.

And by the fame rule, the plaintiff may deliver a declaration any time before the effoign day of the fecond term after the term in which the fuperfedeas iffued, or appearance was entered, and the attorney appearing for him is bound to accept a declaration.

The fame in this court.

Pract. Reg. 327.

But where in an action against two, and one defendant was comm tied to the Fleet, charged with the action, for want of bail; and the other abfconded, fo tha plaintiff was not able to bring him into court by arreft, and therefore took out procef, of outlawry against him, which, unavoida bly, over-run the time for declaring, viz. the two terms. The court tought it reasonable, as the plaintiff could not declare against the other, he neither being outlawed, nor in court, to allow a further time to declare. Barnes 401.

More

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

The court refused to discharge a prifoner out of cuftody, for want of proceeding against him within two terms, a mistake having arisen from two perfons being of the fame furname. Loft 274.

A writ was returnable the first return of Michaelmas term, and the defendant was arrefted in Trinity vacation, and the declaration was delivered in Hilary term, and held bad, for the plaintiff fhould have declared before the end of Michaelmas term. Pitt v. Yalden, East. 7 Geo. 3. B. R. Burr.

4 pt. 2060.

In Hutchins v. Kenrick. Burr. 4 pt. 1048. The court held, that a defendant prifoner, although fuperfedable, but not actually fuperfeded, if found in cuftody, may be charged with a declaration. Vide the oppofite cafe.

Of Proceeding against Prifoners in Caftody of the Sheriff, &c. at the Suit of the Party.

More than two terms had expired after the prisoner's being in cuftody, and before the plaintiff declared; and, on motion that the prifoner might be difcharged by fuperfedeas, the plaintiff having neglected to declare within the two terms. On fhewing caufe, it appeared by affidavits, that there had been a treaty of accommodation between the plaintiff and the defendant, and that breaking off, then the plaintiff declared, and the court held, that while a treaty fubfifts between plaintiff and defendant a prifoner, the plaintiff is not obliged to declare within the two terms, according to the practice, for it is for the prifoner's benefit, that the plaintiff liftens to propofals of accommodation. 3 Wilf. 455.

The plaintiff not having declared against the defendant, a prifoner, before the end of the fecond term, the defendant took out a judge's fummons for a fuperfedeas, 28th of Oct. and the plaintiff's agent had time to write to his client; and not being able to fhew cause against it, a fuperfedeas was ordered on the 11th of November, but could not be fealed that night; but on the 13th was fent into the country. The plaintiff, after the fummons ferved, viz. 1ft of November, charged defendant in cuftody with a declaration, and on the 13th figned judgment, fent down a teftatum cap. ad fat. and charged him in execution. The court held the plaintiff's proceedings, fubfequent to the time of the defendant's being fuperfedable and having applied for a fuperfedeas, to be irregular, and fet afide the ca. fa. with cofts, upon defendant's confenting not to bring an action. Webb v. Dorwell, Barnes 400.

The plaintiff had two different caufes of action against the defendant, one as adminiftrator, the other as affignee. Defendant was arrefted at the plaintiff's fuit as adminiftrator; but in the title of the affidavit for bail, administrator was omitted, though put in the writ. Defendant remained in cuftody for want of bail, and the plaintiff did not declare as adminiftrator, agreeable to his writ, but made a new affidavit of his other demand, as affignee, and delivered

a de.