King's Bench, it was holden, that the attorney had a lien on the judgment obtained by his client against the opposite party, to the extent of his costs of that cause only a; and the plaintiff, in that court, might have set off interlocutory costs in the same cause, payable by him to the defendant, against the debt and costs recovered by him on the final result of the cause, notwithstanding the objection of the defendant's attorney, on the ground of his lien, which only attached on the general result of the costs, &c. of the cause b. But now, by a general rule of all the courts, "no set off of damages or costs between parties shall be allowed, to the prejudice of the attorney's lien for costs, in the particular suit against which the set off is sought; provided nevertheless, that interlocutory costs in the same suit, awarded to the adverse party, may be deducted." This rule gives the attorney a lien on a judgment obtained by him for his costs, as between attorney and client. And no set off of judgments will be allowed, even though they arise out of the same award, without satisfying the attorney's liene. So where, upon a reference of two causes, damages in the first were ordered by the award to be set off against costs in the second, the court held that this could only be done, subject to the lien of the plaintiff's attorney in the first cause, for his costs. But the above rule only applies to cases of setting off costs between adverse parties; and therefore, where there are several defendants, and some succeed and some do not, the unsuccessful defendants may set off the costs due to the successful one, notwithstanding the effect of it would be, to deprive the attorney of his lien §. * Domett v. Helyer, 2 Dowl. Rep. 540. 8 Leg. Obs. 347. S. C. f Cowell v. Betteley, 10 Bing. 432. 4 Moore & S. 265. 2 Dowl. Rep. 780. S. C. and see Cadle (or Caddell) v. Smart, 1 Tyr. & G. 475. 4 Dowl. Rep. 760. 12 Leg. Obs. 198, 9. S. C. Doe d. Swinton v. Sinclair, 3 Scott, 42. 5 Dowl. Rep. 26. 12 Leg. Obs. 322, 3. S. C. 8 George v. Elston, 1 Bing. N. R. 513. 1 Scott, 518. 1 Hodges, 63. 3 Dowl. Rep. 419. 9 Leg. Obs. 414. S. C. and see Lees v. Kendall, (or Reffitt,) 5 Nev. & M. 840. 3 Ad. & E. 707. 1 Har. & W. 316. S. C. CHAP. XV. Of the PROCEEDINGS in ACTIONS against PRISONERS, in sidered as in custody, on civil or criminal ac count, &c. PRISONERS in general may be considered as they are in custody Prisoners conon 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 corpusa, or habeas corpus, or surrender in discharge of bail. The proceedings against prisoners are either by the same plaintiff, at whose suit they were originally taken or detained in custody, for the cause of action expressed in the process, which are in continuance of the action already brought, or for a different cause, which requires the bringing of a new action; or they are by a third person. In the present Chapter, it is intended to consider the alterations which have been made in such proceedings, by recent statutes, rules of court, and judicial decisions; with the relief of prisoners in execution for small debts, by the statute 48 Geo. III. c. 123. &c. 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 to cause special bail to be put in for him 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. Proceedings Mode of pro ceeding against prisoners, in custody of sheriff, &c. By the uniformity of process act", "if a defendant be taken or Time for declar"charged in custody of the sheriff, upon the writ of capias and im- ing against. Stannard v. Fleet, Barnes, 392. and see Tidd Prac. 9 Ed. 341. b Ante, 130. с 2 W. IV. c. 39. § 4. Beginning of declaration. Three copies formerly neces sary. prisoned for want of sureties for his appearance thereto, the plain"tiff in such process may, before the end of the next term after the "detainer or arrest of such defendant, declare against such defend"ant, and proceed thereon, in the manner, and according to the di"rections of the statute 4 & 5 W. & M. c. 21."a 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 defendant, being arrested thereon, shall go to prison for want of 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 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 statute 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, &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 latter 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 a 2 W. IV. c. 39. § 4. And for the mode of proceeding in actions against prisoners in custody of the sheriff, &c. previous to the plea, see Tidd Prac. 9 Ed. 341, &c.; and subsequent to the plea, id. 360, &c. b Sched. to stat. 2 W. IV. c. 39. No. 4. Append. to Tidd Sup. 1833, p. 274. R. T. 3 W. IV. reg. 1. 5 Barn. & Ad. 467. 2 Nev. & M. 287. 10 Bing. 153. 3 Moore & S. 559, 60. 1 Cromp. & M. 865. 3 Tyr. Rep. 985. 2 Dowl. Rep. 211, 12. d Append. to Tidd Sup. 1833, p. 289. now required. signed. 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 now, by a general rule of all the courts, Two copies only "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 serviced; upon the office copy of which affidavit a rule to plead may be given." The mode of charging a defendant in actual custody of the sheriff, &c. by the same plaintiff for a different cause of action, or by a third person, when the cause of action is of a bailable nature, is by making an affidavit thereof, and suing out a writ of capias, in the form directed by the statute 2 W. IV. c 39. and leaving it at the sheriff's office; but if the cause of action 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 summonsf. Mode of proceeding against prisoners, in custody of sheriff, &c. by same plaintiff for a different cause of action, or by a third person. Ancient mode of detaining, in custody of marshal, in K. B. The principal alteration which has been made respecting pri- Prisoners in custody of soners, is as to the mode of detaining them in custody of the marmarshal, or shal of the King's Bench, or warden of the Fleet prison. In the warden. King's Bench, when the defendant was committed to the 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 8. In the Common Pleas and Exchequer, when the defendant In custody of warden, in C. P. was a prisoner in custody of the warden of the Fleet, it was formerly and Exchequer. 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 plaintiffh: 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 judgPresent mode of ment, against prisoners in the Fleet." And now, by the 2 W. IV. c. detaining, in cus39. § 8. "when it shall be intended to detain, in any personal action, tody of marshal or warden. 66 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." a Direction, and form of writ. Indorsements thereon. Copy of writ, and indorsements, to be delivered to mar This writ is issued, on a proper præcipe b, and directed to the marshal 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." form of the writ of detainer must be strictly pursued: and therefore, where it was directed to "the marshal of our prison of the marshalsea," instead of "the marshal of the marshalsea of our court before us," the court set it aside d. The The writ of detainer is required to be indorsed, in the same manner as the writ of capiase; but not to contain the warning on that writ: And "a copy of such process, and of all indorsements thereon, shall be delivered, together with such process, to the said "marshal or warden, to whom the same shall be directed, and who |