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Of the Rules concerning Prisoners.

next term, the plaintiff, in such declaration, may give a rule to appear; and if the desendant 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 process, [by which the desendant shall be taken or charged in custody] and an assidavit made and filed in manner aforesaid, before the end of twenty days after such term [Eajier term excepted, and within ten days after' Eafler term j the prisoner shall be discharged, upon entering his appearance with the proper officer, by writ of supersedeas made by hint according to the ancient practice of this court.

7. If any gaoler, or keeper of any prison, having received a copy of a declaration against any prisoner in his custody, shall suppress the same, or not deliver it forthwith to such prisoner, an attachment shall be entered against him.

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

I F the desendant, upon being arrested, 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 warden of the Fleet, the plaintiff may, under the above statute of king William, declare against him in the cuftody of the sheriff or bailiff where the prisoner is.

The same in this court. Pracl. Reg. 330.

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

Y Reg. Trin. 2 Gea. I. If a person arrested or committed, by virtue of any process of this court, to the custody of any sheriff, or other officer whatsoever, at the suit of any plaintiff, anc! shall Jo remain in custody by twa terms, and the plain:iff sh^ll not declare against such defendant within that time, such desendant, after the end of the second term, after such imprisonment, shall be discharged out of the prison where he shall be so detained, upon filing common bail signed by one of the justices 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 desendant was arrested is returnable, altho' it be not returnable till the last day of the term, is «n*of the two terms.

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

Master Benton thought, that if the desendant did not supersede himself till the third term, and filed common bail as of that term, yet he was 'not obliged to accept a declaration. Sed quare, If common bail should not be filed as of the second term? and vide the practice of C. B.

Mr. Cowper, clerk of the rules in B. R. had some doubt, whether a prisoner, superseded on filing common bail might not sign a non-pros as soon as common bail filed; because the plaintiff had not declared within the two terms; but this seems impossible : though quære, If he may not iign ic at the end of the two teuns after bail filed?

The court will never grant the plaintiff a rule for surihes time to declare against a prisoner.

But where, in a writ against three, one was arrested and lay in gaol, and the other two absconded, the court resused to discharge the prisoner, saying, the desendant arrested must appear for all, or iie in gaol till the other two are outlawed.

But then the plaintiff must move, in the second term, for time to declare against him in custody. Enjt. 12 Ges. 3.


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

IF desendant be committed to prison, by procefs out of this court, or habeas corpus, the prisoner entering his appearance, and giving a rule to declare, the plaintift not declaring before the end of the next term after the commitment, the desendant to be discharged by super/ideas in the «nd of the next term, and liberty for the plaintiff to declare, upon that appearance, the next term after that at sarthest. Reg. M. 1654.

If the plaintiff does not remove the desendant to the Fleet, and the prisoner enter his appearance, he may be discharged by supersedeas in the end of the third term after the arrest, and the plaintiff may declare upon such appearance the term following, but not after.

But if such prisoner cause 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, unlefs the plaintiff declares against him in the term after such appearance, he may be . discharged by supersedeas, so as oath be mafle by the attorney for desendant, that no declaration had been delivered or tendered to him. And the plaintift" may declare against him -the term next after such appearance entered, but not afterwards. Reg. H. 14, 15 Car. 2.

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

And by the same rule, the plaintiff may deliver a declaration any time before the essngn day of the second term after the term in which the supersedeas ifsued, or app-arance was entered, and the attorney appearing for him is bound to accept a declaration.

The same in this court. Praii. Reg. 327.

But where in an action against two, and one desendant was comm tied to the Fleet, charged with the action, for Want of bail; and the other abfcondid, so tha plaintiff was not able to brng him into court by arrest, and therefore took out procef-. of outlawry against him, which, unavoidably, ever run ths time for declaring, w'z. the two terms. The court n '.i^h; .: reafonable, as the plaintiff could not declare aga-nst the other, he neither being outlawed, noT in court, to <j1jw a surther time to declare. Barnes 401.


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

The court resused to discharge a prisoner out of custody, for want of proceeding against him within two terms, a mistake having arisen from two persons being of the same surname. Loft 274.

A writ was returnable the first return of Michaelmas term, and the desendant was arrested in Trinity vacation, and the declaration was delivered in Hilary term, and held bad, for the plaintiff should have declared before the end of Michaelmas term. Pitt v. Yalden, East. 7 Geo. 3. B. R. Burr. 4 ft. 2060.

In Hutchins v. Kenrick. Burr. 4 ft. 1048. The court held, that a desendant prisoner, although superscdablc, but not actually superseded, if sound in custody, may be charged with a declaration. Vide the opposite case.

Os Proceeding against Prisoners in Castody of the Sheriff, &c. at the Suit of the Party.

More than two terms had expired after the prisoner's being in custody, and before the plaintiff declared; and, on motion that the prisoner might be discharged bysupersedeas, the plaintiff having neglected to declare within the two terms. On shewing cause, it appeared by affidavits, that there had been a treaty of accommodation between the plaintiff and the desendant, and that breaking off, then the plaintiff declared, and the court held, that while a treaty subsists between plaintiff and desendant a prisoner, the plaintiff is not obliged to declare within the two terms, according to the practice, for it is for the prisoner's benefit, that the plaintiff listens to proposals of accommodation. 3 If its 455.

The plaintiff not having declared against the desendant, a prisoner, before the end of the second term, the desendant took out a judge's summons for a supersedes, 2$th of 051. and the plaintiff's agent had time to write to his client; and not being able to shew cause against it, a supersedeas was ordered on the nth of November, but could not be sealed that night; but on the i$th was sent into the country. The plaintiff, after the summons served, viz. 1st of November, charged desendant in custody with a declaration, and on the 13th signed judgment, sent down a tesiatum cap. ad sat. and charged him in execution. The court held the plaintiff's proceedings, subsequent to the time of the desendant's being superjedable and having applied for a supersedeas, to be irregular, and set aside the ca. fa. with colts, upon desendant's consenting not to bring an action. Webb v. Dorweil, Barnes 400.

The plaintiff had two different causes of action against the desendant, one as administrator, the other as assgnee. Desendant was arrested at the plaintiff's suit as administrator; but in the title of the assidavit for bail, administrator was oniitted, 'hough put in the writ. Desendant remained'n custody for want of bail, and the plaintiff did not declare us administrator, agreeable to his writ, but made a new affidavit of his other demand, as affiance, and delivered

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