CHAP. XV. Prisoners considered as in custody on a civil or criminal account, &c. Proceedings on arrest. Time for declar- Of PROCEEDINGS in ACTIONS against PRISONERS in PRISONERS in general may be considered as they are in custody on a civil or criminal account; and on a civil account, they are either taken or detained in custody of the sheriff, &c., on mesne process before, or final process after judgment; or they are committed to the custody of the marshal of the King's Bench, or warden of the Fleet prison, on a cepi corpus, or habeas corpus, or surrender in discharge of bail. It has been already seen, that when the defendant is arrested on the capias, he is either discharged out of custody, upon giving bail to the sheriff, or an attorney's undertaking for his appearance, according to the exigency of the writ, or on depositing in the sheriff's hands, the sum indorsed thereon, together with ten pounds in addition, to answer costs, &c. on the statute 43 Geo. III. c. 46. § 2; or he remains in custody, or escapes, or is rescued, &c. "If a defendant be taken or charged in custody of the sheriff, the writ of capias, and imprisoned for want of sureties for upon "his appearance thereto, the plaintiff in such process may, before "the end of the next term after the detainer or arrest of such de"fendant, declare against such defendant, and proceed thereon, in "the manner, and according to the directions of the statute 4 & 5 "W. & M. c. 21." And accordingly, in the notice or warning to be written under or indorsed on the writ, it is stated, that if a defendant, being in custody, shall be detained on that writ, or if a 66 a Stannard v. Fleet, Barnes, 392. and see Tidd Prac. 9 Ed. 341. b Ante, 97. 106. Stat. 2 W. IV. c. S9. § 4. And for the mode of proceeding on 43 Geo. III. c. 46. against prisoners in custody of the sheriff, &c. see Tidd Prac. 9 Ed. 341, &c. d Sched. to stat. 2 W. IV. c. 39. No. 4. Append. to Chap. VII, &c. § 5. defendant, being arrested thereon, shall go to prison for want of CHAP. XV. bail, the plaintiff may declare against any such defendant, before the end of the term next after such detainer or arrest, and proceed thereon to judgment and execution. And, by a late general rule of all the courts', it is declared and ordered, that "in all cases in which a defendant shall have been, or shall be detained in prison, on any writ of capias or detainer, under the statute 2 W. IV. . c. 39., or, being arrested thereon, shall go to prison for want of bail, and in all cases in which he shall have been, or shall be rendered to prison, before declaration, on any such process, the plaintiff in such process shall declare against such defendant, before the end of the next term after such arrest or detainer, or render and notice thereof; otherwise such defendant shall be entitled to be discharged from such arrest or detainer, upon entering an appearance according to the form set forth in the aforesaid stat. 2 W. IV. c. 39. Sched. No. 2., unless further time to declare shall have been given to such plaintiff, by rule of court, or order of a judge." The declaration against a prisoner in custody of the sheriff, Beginning of &c., begins by stating him to be in such custody: And it was formerly necessary, in the King's Bench, when the defendant was in custody of the sheriff, &c., to make three copies of the declaration; one to be delivered to the defendant, or left for him with the gaoler or turnkey; another, to be annexed to the original affidavit of such delivery, and filed with the clerk of the rules; and a third, to be annexed to an office copy of such affidavit: On which last copy a rule was given, with the clerk of the rules, for the defendant to appear and plead; and in default thereof, judgment might have been signed d. In the Common Pleas, the production of a copy of the affidavit to the prothonotary being dispensed with, it was only necessary to have two copies of the declaration, one to be delivered to the defendant, or left for him with the gaoler or turnkey, and the other to be annexed to an affidavit of such delivery; upon which latter copy, the secondary would have given a rule for the defendant to appear and plead. And declaration. now required. Two copies only now, by a late rule of all the courts a, "when the plaintiff declares against a prisoner, it shall not be necessary to make more than two copies of the declaration, of which one shall be served, and another filed, with an affidavit of service b; upon the office copy of which affidavit a rule to plead may be given.", Mode of charging defendant in The mode of charging a defendant in actual custody of the shecustody of sheriff, &c., by the same plaintiff or a third person, for a bailable riff, &c. by same cause of action, is by making an affidavit thereof, and suing out a plaintiff, for a different cause writ of capias, in the form directed by the statute 2 W. IV. c. of action, or by 39. and leaving it at the sheriff's office; but if the cause of aca third person. tion be not bailable, the same plaintiff, or a third person, may proceed against the defendant, as if he were at large, by serving him with a copy of a writ of summons d. Ancient mode of detaining pri of marshal, in K. B. In custody of warden, in C. P. and Exchequer. In the King's Bench, when the defendant was committed to the soner, in custody custody of the marshal, on a bill of Middlesex or latitat, &c., or on an attachment of privilege, the plaintiff, in order to detain him, must formerly have filed a bill against him, as a prisoner of the court, with the clerk of the declarations in the King's Bench office, and delivered a copy of it to the defendant, or turnkey, at the King's Bench prison. In the Common Pleas and Exchequer, when the defendant was a prisoner in custody of the warden of the Fleet, it was formerly necessary to bring him up, by habeas corpus, to the bar of the court, in order to charge him with a declaration, at the suit of the plaintiff: But this latter mode of proceeding was dispensed with by the 8 & 9 W. III. c. 27. § 13. “ for the more easy and quick obtaining of judgment, against prisoners in the Fleet." And now, by the 2 W. IV. c. 39. § 8. "when it "shall be intended to detain, in any personal action, any person, "being in the custody of the marshal of the marshalsea of the "court of King's Bench, or of the warden of the Fleet prison, Writ of detainer." the process of detainer shall be according to the form of the writ "of detainer, contained in the schedule to that act, and marked "No. 5."g Present mode of detaining prisoner, in custody of marshal or warden. form of writ. This writ is issued on a proper præcipe, and directed to the mar- Direction, and shal of the King's Bench, or warden of the Fleet prison; commanding him, that he detain the defendant, if he shall be found in his custody, at the delivery thereof to him; and him safely keep, in an action on promises, (or, of debt, &c., as the case may be,) at the suit of the plaintiff, until he shall be lawfully discharged from his custody: and that, on receipt thereof, the said marshal, or warden, do warn the defendant, by serving a copy thereof on him, that within eight days after service of such copy, inclusive of the day of such service, he do cause special bail to be put in for him, in the court in which he is sued, to the said action; and that, in default of his so doing, the plaintiff may declare against him, before the end of the term next after his detainer, and proceed thereon to judgment and execution: and further commanding the marshal or warden, that immediately after the service thereof, he do return the writ, or a copy thereof, to the said court, together with the day of the service thereof." thereon. and indorsements, to be delivered to marshal or warden; who is to serve The writ of detainer is required to be indorsed, in the same Indorsements manner as the writ of capias; but not to contain the warning on that writ: And "a copy of such process, and of all indorsements Copy of writ, "thereon, shall be delivered, together with such process, to the "said marshal or warden, to whom the same shall be directed, and "who shall forthwith serve such copy upon the defendant per"sonally, or leave the same at his room, lodging, or other place of it on defendant. "abode; which process may issue from either of the superior "courts of law at Westminster; and the declaration thereupon Declaration, and "shall and may allege the prisoner to be in the custody of the proceedings "said marshal or warden, as the fact may be; and the proceed"ings shall be as against prisoners in the custody of the sheriff, "unless otherwise ordered by some rule to be made by the judges "of the said courts." By this clause, it appears that the writ of Writ may issue detainer may issue from either of the superior courts of law at Westminster and as the declaration thereupon may allege the K. B. to warden. prisoner to be in custody of the marshal or warden, as the fact a Append. to Chap. XV. § 1. Sched. to stat. 2 W. IV. c. 39. No. 5. Append. to Chap. XV. § 2. Sched. to stat. 2 W. IV. c. 39. No. 4. Append. to Chap. VII, &c. § 6. 12. Sched. to stat. 2 W. IV. c. 39. No. 5. Append. to Chap. XV. § 2. e Append. to Chap. XVII. § 8, 9. f For the proceedings against prisoners in custody of the sheriff, see Tidd Prac. 9 Ed. 341, &c. Stat. 2 W. IV. c. 39. § 9. thereon. from C. P. to marshal, or from CHAP. XV. may be, and the proceedings shall be as against prisoners in custody of the sheriff, &c., it has been determined, that the court of Common Pleas may issue a writ of detainer, directed to the marshal of the King's Bench; or the court of King's Bench may issue such writ, directed to the warden of the Fleet prison and it is not necessary, in either case, to bring up the prisoner by habeas corpus, into the court from which the writ issued, in order to charge him with a declaration ". Mode of proceeding against prisoner, on process not bailable. Prisoner in custody on a criminal account, not chargeable in civil action, without leave. Beginning of declaration, against prisoner in custody of marshal or warden. : The mode of proceeding by the same plaintiff, or a third person, against a prisoner in custody of the marshal or warden, for a cause of action not bailable, is by suing out a writ of summons, and serving him with a copy of it, as in ordinary cases. But neither the plaintiff, nor a third person, can charge a prisoner with a declaration, or execution 4, in a civil action, when he is in custody of the sheriff, or of the marshal or warden, or in any other custody, on a criminal account, without leave of the court, or a judge; and a prisoner in custody on an attachment for a contempt, is holden to be a prisoner in custody on a criminal account, within the meaning of this rule; though if he accept a declaration, and suffer judgment to go against him without complaining, he has waived the advantage which he might have taken of the irregularity, and shall be bound by its. And where one of two defendants was in custody of the marshal on a criminal charge, the court of King's Bench allowed him to be brought up on a habeas corpus ad respondendum, to be charged with a declaration h The declaration against a prisoner in custody of the marshal or warden, begins by stating him to be in such custody1: And, by a late rule of all the courts k, it is ordered, that "in all actions 393, 4. S. C. per Littledale, J. f Allgood v. Howard, Cas. Pr. C. P. 27. Pletwood v. Turty, Pr. Reg. 325. Pepper v. Bawden, Cas. Pr. C. P. 31. and see Rose v. Christfield, 1 Durnf. & E. 591. Williams v. Scudamore, 1 Chit. R. 386. Tidd Prac. 9 Ed. 345. h Williams v. Smith, 1 Dowl. Rep. 703. 6 Leg. Obs. 13. S. C. i Append. to Chap. XV. § 4, 5. * R. T. 3 W. IV. reg. 2. 10 Bing. 153, 4. |