that amount twelve successive months, he was held not entitled to his discharge under the act(); nor is a prisoner entitled to his discharge under the act if the debt exceeds 201., although the excess consists of interest only, which has accrued after action brought (m). Though the judgment is in debt for 1007., yet, if the execution against the defendant is for less than 207., he may be discharged out of custody under the above act, without reducing the judgment (n). It is no ground for refusing a party his discharge under this act, that he has been brought up under the compulsory clauses of the Lords' act, and has refused to deliver in his schedule (o). The statute contemplates cases where there might be proceedings against the property of the debtor (p). On an application for a prisoner's discharge under this act, it was objected, that, within the twelve months, he had several times broken the rules of the Queen's Bench prison; the court referred it to the master of the Crown Office to inquire into that fact, and if he found the prisoner had been out without a day rule, he was not to be discharged (7). Where the prisoner is lunatic, the application may be made by his wife(r). The right to be discharged under this act is not affected by the 1 & 2 V. c. 110, s. 41 (s). CHAP. IV. SECT. 1. should apply. The application for discharge must be made to the su- To what perior court out of which the process issues (t), and cannot Court he be entertained before a judge at chambers(u). If the action be in an inferior court, the application may be made to any of the courts at Westminster in term time(). how made. The mode of proceeding, as pointed out by Mr. Chapman (w), Application, in his useful work on the practice of the Court of Queen's Bench, is thus:-Obtain from the keeper of the prison in which the defendant is confined a certificate of his commitment, with a copy of the causes. Serve a ten days notice (x) on the plaintiff (y) or agent of the defendant's intention to apply to the court for his discharge. The signature to the gaoler's certificate must be verified by affidavit. Make also an affidavit of service of the notice on the plaintiff; the defendant must also make an affidarit() that the debt or damages for which he is confined in the action do not exceed 201., exclusive of the costs; and that he has been confined in prison thereon for the space of twelve calendar months. Give the gaoler's certificate and the affidavits, with a brief, for counsel to move for the defendant's discharge, and the rule will be absolute in the first instance(a). In the Exche (1) Anon. v. White, 1 Dowl. 19: Chapm. Pract. 330: Robinson v. Lundell, 6 Moore, 287. The reason, however, for such decision seems doubtful, and see contra on a cognovit, Rathbone v. Fowler, 6 Dowl. 81. (m) Cooper v. Bliss, 2 Dowl. 749; 3 Moo. & Scott, 797, 8. C. (n) Harris v. Parker, 3 Dowl. 451. (0) Er p. White, 1 Dowl. 66: Davis v. Curtis, 3 Bing. N. C. 259; 5 Dowl. 344, S. C.: Venner v. Ozenham, 6 Dowl. 766: Clay v. Bowler, 6 Nev. & M. 814. (p) Ez p. Kaye, 1 B. & Ad. 653. (g) Day v. Thomas, Mich. 1826: Chap. Pract. 330. (r) Clay v. Bowler, 6 Nev. & M. 814. (8) Chew v. Lye, 7 Dowl. 465. (t) Pitt v. Evans, 3 Dowl. 649. (u) Kelly v. Dickenson, 1 Dowl. 546. (r) See the forms, Chit. Forms, 509. (2) See the form, Chit. Forms, 509. (a) R. H., 2 W. 4, r. 90. By that rule, "a rule or order for the discharge of a debtor who has been detained in execution a year for a debt under 20., may be made absolute in the first instance, on an affidavit of notice given ten days before the intended application, which notice may be given before the year expires." (See Davies v. Rogers, 2 B. & C. 804; 4 D. & R. 361, S. C.) It was formerly only a rule nisi in the Common Pleas (7 Taunt. 37, 467). BOOK III. By perfecting mise of the Action. A prisoner shall be discharged upon putting in and perfecting bail at any time before judgment (y). A prisoner shall also be discharged when the action is On favourable abated, discontinued, or decided in his favour. So, if the Termination prisoner settle or compromise the debt with the plaintiff, the on Compre plaintiff (or more properly his attorney) shall give the defendant a discharge in writing; and upon this being lodged with the marshal or gaoler, the prisoner shall be discharged (z). Or, if, after judgment, he pay the amount of it to the plaintiff or his attorney, they are bound at their peril to discharge him; and where a defendant in execution tendered the amount of the judgment to the plaintiff and to his attorney, and required them to sign his discharge, which they refused to do, unless he would also satisfy a demand they had on him for costs on another account, the court held that the defendant might maintain an action on the case against them for his subsequent detention (a). As the attorney, in strictness, has a lien on the judgment for the amount of his costs (b), the discharge, more properly, should be given by him, as above mentioned; but a discharge by either will be sufficient. And where a plaintiff, having his debtor in execution for 5007., entered up satisfaction on the roll by a different attorney from that he had employed in the cause, upon the defendant's agreeing to pay him 1207. at a future time; upon a motion to discharge the defendant, which was opposed by the plaintiff's attorney, on the ground of his lien, the court held that, although there appeared to be a fraudulent collusion between the plaintiff and the defendant, they had no power to detain the defendant in prison after satisfaction was entered up on the record (c). If the prisoner be in execution at the time of his discharge, his discharge amounts to a satisfaction of the debt, even although he was discharged upon giving a security, which, on account of an informality, afterwards became unavailable (d); but otherwise if he were in custody upon mesne process merely (e). In case of If a prisoner become bankrupt, and obtain his certificate, Bankruptcy. if the debt for which he is in custody be provable under his commission, he shall be discharged out of custody upon application to a judge at chambers (f). Even before he obtains his certificate, if the plaintiff elect to prove under the commission, he must first discharge the defendant out of custody, before he will be permitted to prove (g). After Death tiff. Also, in a case where the wife of a prisoner became adminisof the Plain- tratrix to the plaintiff, the court ordered the defendant to be discharged (h); and the Court of Common Pleas have gone so far as to discharge a prisoner in execution, after the plaintiff's death, upon service of a rule nisi upon the next of kin, and no (y) See Vol. I. 612, 613. (c) See Vol. 1. 543: see Butt v. Conant, 3 B. & B. 3; 6 Moore, 65, S. C. 1 T. R. 557. (e) MS., H. 1822: ante, Vol. I. 477. (a) Crozer v. Pilling, 6 D. & R. 129; 4 Bkt. L. 210, 281, 4th ed.: ante, Vol. I. B. & C. 26, S. C. (b) See Vol. I. 86, 87. (c) Marr v. Smith, 4 B. & Ald. 466: ante, Vol. I. 87, 88. (d) Ante, Vol. I. 455: Jaques v. Withy, 470. (g) 6 G. 4, c. 16, s. 59. See Arch. Bkt. L. 109. (h) Pyne v. Erie, 8 T. R. 407. cause shewn, it appearing that the next of kin did not intend to administer (i). But that court refused to discharge a defendant out of custody in execution at the plaintiff's suit, although the application was not made until eighteen months after the death of the latter, it appearing that he had appointed executors who were still alive, and had not assented to the discharge (k). And where administration had been taken out, that court refused, without the authority of the administratrix, to discharge the defendant out of execution after the death of the plaintiff, although his administratrix and assignees disclaimed all interest in the action (7). (i) Parkinson v. Horlock, 2 New Rep. 20: Broughton v. Martin, 1 B. & P. 176: and see R. v. Daris, Id. 336: but see Holmes v. Murcott, 1 Bing. 431; 8 Moore, 109, S. C. (k) Dunsford v. Gouldsmith, 8 Moore, 145. (1) Fothergill v. Walton, 4 Bing. 711; 1 Moo. & P. 743, S. C. CHAP. IV. SECT. 1. PART II. BOOK III. quer, where a defendant is in custody of any other officer than the warden of the Fleet, a copy of the causes, certified by the gaoler or verified by affidavit, must be produced on the application (b). Draw up a rule, serve a copy on the plaintiff (c), and deliver the original rule to the sheriff or keeper of the prison in which the defendant is confined, to warrant the discharge. A notice of the application should be served on the plaintiff personally (d) and not his attorney, whose authority ended when the judgment was signed (e), unless indeed the plaintiff cannot be found (f), or unless the attorney still continues his agent (g). Service on one of two lessors of the plaintiff was held sufficient where the other had no interest, and could not be found (h). But it is not absolutely necessary to give this notice; though it is a great saving of expense to the prisoner, for if no notice be given, it is only a rule nisi (i) in the first instance. The name of the cause stated in the notice must correspond with the name of that in which he is in execution (j). That rule must be served on the plaintiff, (or his agent, if he have any, and the plaintiff cannot be found), an affidavit of the service made, and a brief given to counsel "to move to make the within rule absolute;" if no sufficient cause be shewn, the rule will be made absolute of course, and must then be drawn up and served as above (k). Where a defendant had remained in custody more than twelve months on two judgments for 107. each, at the suit of the same plaintiff, it was holden that there must be a separate motion in each case(). The prisoner is entitled to his discharge as a matter of right, if the court are satisfied as to the fact of his imprisonment in actual custody for twelve months, &c.(m). Where the rule is only a rule nisi, the court have no power to order cause to be shewn at chambers(n). If notice of the application for the discharge was given, and the application be successfully opposed in the first instance, no costs are allowed to the opposing creditor(o). Proceedings where Discharge improperly obtained. If the prisoner's discharge be unduly or fraudulently obtained by a statement to the court, which, if true, would entitle him to be discharged under the act, he is liable to be again taken in execution, and remanded by rule of court; but the sheriff or keeper of the prison who may have discharged him under a rule so obtained, is not to be liable to an action (b) Short v. Williams, 4 Dowl. 357. (e) Johnson v. Routledge, 5 Dowl. 579: (f) See Bradley v. Webb, 7 Dowl. 588. the plaintiff had died intestate, and that no administration had been taken out, but that his wife was living, a rule is was granted to be served on the wife and the attorney in the cause, which was afterwards made absolute. (Id.) (h) Doe Smith v. Payton, 7 Dowl 671. (i) See Er p. Neilson, 7 Taunt. 37: Magnay v. Wilkes. Id. 467: Jones v. Fits Addams, 2 Dowl, 111; 1 C. & M. 855; 3 Tyr. 904, S. C.: Moore v. Clay, 4 Dowl. 5 (j) Kelly v. Dickenson, 1 Dowl. 537. (k) Cowley v. Bussell, 4 Taunt. 460: Mence v. Graves, Id. 854: Nicholls v. Neilson, 6 Id. 493. Baker v. Sydee, 7 Id. 179. (1) Anon., 3 Leg. Obs. 76. (m) Stacey v. Fieldsand, 1 Dowl. 700: ante, 868. (n) Jones v. Fitz Addams, 2 Dowl. 111; 1 C. & M. 855: 3 Tyr, 934, S. C. (0) Anon., 1 Dowl. 148. 1 for an escape in consequence of such discharge (p). If, therefore, a prisoner obtain his discharge fraudulently, an application must be made to the court for "liberty to sue out a new ca. sa. against the defendant;" this must be supported by an affidavit of facts, to shew in what manner the discharge was improperly obtained; give a brief to counsel, with the affidavit to move for the rule; it is a rule nisi, and must be served on the defendant, but does not require personal service; make an affidavit of service, and give a brief to counsel to move to make the rule absolute; if the rule be made absolute, then sue out the capias ad satisfaciendum in the usual way (q). CHAP. IV. SECT. 1. under the Proceedings under the Lords' Act.] The act of 1 & 2 V, Proceedings c. 110, s. 119, enacts, that from and after the passing of that Lords' Act. act, no prisoner for debt shall petition any court for his or her discharge under the Lords' Act, 32 G. 2, c. 28 (r). And the same section enacts, that no creditor of any prisoner shall petition any court for the exercise of the compulsory powers given against debtors under the provisions of the Lords" Act (s). The 36th section of the same act, however, empowers the detaining creditors of prisoners in execution, to apply, by petition, to the insolvent court, for an order to rest the defendant's estate in the provisional assignees of that court. the Lords' Subsequent Proceedings against Insolvents discharged under Subsequent the Lords' Act.] By a discharge under the Lords' Act, (which Proceedings against Insolwe have seen cannot take place since 1 & 2 V. c. 110, s. 119), vents disthe debtor's person is for ever freed from arrest for the same charged under debt (t); even if he subsequently promise payment, it has Act. been considered he cannot be holden to bail on such subsequent promise (u). The judgment, however, remains in force; and execution may at any time be sued out against the debtor's "lands, tenements, rents or hereditaments, goods or chattels," other than and except his wearing apparel, tools, &c., to the amount of 107., as before mentioned (v). As to the mode of proceeding in such a case, see ante, 826. 4. Discharge of Prisoners by other Means. A prisoner will be entitled to his discharge, if the attorney, Where an whose name is indorsed on the writ, declares that it was not Attorney disissued by him, or with his authority or privity (x). claims the Writ. &c. As to what defects in an affidavit to hold to bail, or in a Defect in Writ, writ of capias, will entitle the prisoner to his discharge, see Vol. I. 484, 500, 520. (p) 48 G. 3, c. 123, s. 1. (y) Chapm. Pract. 330. () As to the law and practice, when these clauses of the Lords' Act were in operation, the reader is referred to Tidd's Practice, and Archbold's Pract., 2nd ed. Vol II. 135 to 140. () As to the law and practice when these provisions of the Lords' Act were in operation, see the 6th edition of this Work, Vol. II. p. 917. (t) See Workman v. Leake, Cowp. 22, (u) MS., M. 1814: Wilson v. Kemp, 3 (v) 32 G. 2, c. 28, s. 20. Hatt v. |