BOOK III. Habeas where Prison of another Court. service on a prisoner, unless, perhaps, under some special agreement (i). If the defendant be a prisoner in the custody of the warden Defendant in on process issuing out of the Queen's Bench, or in the custody of the marshal on process issuing out of the Common Pleas or Exchequer, it is, it seems, unnecessary to bring him up by habeas corpus, in order to charge him with a declaration(); nor is it necessary where he is in the custody of the sheriff (1). The charging the defendant with a declaration without a habeas corpus where it is necessary does not render the declaration a nullity, and it is an irregularity only, which could be cured by pleading thereto or the like (m). Form of Declaration. When in Criminal Cus tody. As to the form of the declaration, it is the same as in ordinary cases against a defendant who is not a prisoner (n). If the defendant be in custody on a criminal account, leave of the court or of a judge must first be obtained, before he can be charged with a declaration or in execution on a civil action (o) (which rule includes prisoners for contempts (p), but not persons in custody under attachments for the nonpayment of costs (q), or the like); 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 it (r). In a recent case, where one of two defendants was in custody of the marshal on a criminal charge, the Court of Queen's Bench allowed him to be brought up on a habeas corpus ad respondendum, to be charged with a declaration (8). This leave is (i) See per Patteson, J., in Spencer v. Newton, 1 Nev. & P. 827. It was there held, that appearing as an attorney before a judge for a prisoner in custody on a capias ad respondendum, does not constitute him attorney in the suit so as to entitle the plaintiff to leave the declaration at his office. In Price's Exch. Pract. p. 256, it is said, that if the defendant has appeared by attorney, the demand of plea should be made on the attorney. (k) Barnett v. Harris, per Taunton, J., 2 Dowl. 186: Millard v. Millman, 3 M. & Scott, 63; 2 Dowl. 723, S. C.: but see Williams v. Macgregor, cor. Alderson, B., at chambers, 3rd December, 1836. The learned baron gave the following written judgment in the case, after having conferred with several other judges:-"In this case it appears that the defendant was arrested by capias from the Exche quer in the last vacation, and has removed himself also, in the course of the vacation, by habeas corpus into the custody of the marshal of K. B. In the course of the term, the plaintiff caused a declaration to be delivered, by leaving it with the officer of the K. B., instead of bringing the defendant up by habeas corpus into the Exchequer, and there charging him with a declaration. The defendant now applies to be discharged, on the ground that the plaintiff has not declared against him in due time, and contends that a declaration so delivered is no declaration at all; and, after considering the case, I am of opinion, that, according to the practice of the court, the declaration ought to have been delivered to him when brought up by habeas corpus for that purpose. The 2 W. 4, c. 39, s. 8, does not apply to cases like the present, in which a defendant is in cus tody of another court, and not that out of which process issues. But here the defendant has pleaded to the declaration. I think, after that, he cannot be allowed to treat the declaration as a nullity. I therefore, on this latter ground, discharge the summons." See the prior cases of Sherson v. Hughes, 5 T. R. 35: Filkes v. Allen, 2 Str. 1153: see also the point well investigated by Mr. Lush, in his Treatise on the New Imprisonment Act, p. 13, &c., and from which it may be collected that there is no reason for having the habeas. (1) 4 & 5 W. & M. c. 21. Before that act the habeas was necessary in this case. (m) See Williams v. Macgregor, supra. (n) See the former Practice, R. M., 3 W. 4, r. 15: and see 4 & 5 W. & M. c. 21. (0) Crackall v. Thomson, 1 Salk. 354: Ramsden v. Mackdonald, 1 Wils. 217; 1 W. Bl. 30, nom. Ramsay v. M'Donald, S.C.: Coppin v. Gunnell, 2 L. Raym. 1572; 2 Str. 873, S. C.: Goodman v. —, 1 Dowl 128 Altroffe v. Lunn, 9 B. & C. 375: Tidd, 9th ed., 345. According to the recent case of Grainger v. Moore, (5 Dowl. 456; 1 Murphy & H. 20, S. C.), it was not necessary to obtain the leave of the court or a judge to charge the defendant in custody of the sheriff on a criminal account with a writ of capias, issued under the 2 W. 4, c. 39. (p) Pletwood v. Turty, Prac. Reg. 325: Allgood v. Howard, Cas. Pr. C. P. 27. (q) Bonafous v. Schoole, 4 T. R. 316. (r) Pepper v. Bawden, Cas. Pr. C. P. 31: and see Rose v. Christfield, 1 T. R. 591: Williams v. Scudamore, 1 Chit. Rep. 386: Tidd, Prac., 9th ed., 345. (8) Ess (or Williams) v. Smith, 3 Tyr. Rep. 363; 1 Dowl. 703, S. C. usually given, if it be not inconsistent with the terms of a conditional pardon already granted to the prisoner (u), or the like, and particularly where the party is in prison for safe custody only, and not for punishment. If the prisoner be in custody on a criminal account in any other than the prison of the court or sheriff, he cannot be charged with a civil action at all; and, therefore, a prisoner under criminal process in Newgate, or the house of correction, or other such gaols, cannot be brought up by habeas corpus for the purpose of being charged in the custody of the marshal in a civil action, and re-committed to his former custody so charged (x). If the defendant be a prisoner in custody on a criminal account, in any other custody save that of the sheriff or warden, the Court of Common Pleas or Exchequer have no authority to have him brought up to charge him with a civil action, for it cannot change the custody, and then commit the defendant again upon criminal matter, like the Court of Queen's Bench, which is a court of criminal jurisdiction (y). And the Court of Exchequer in a late case refused an habeas corpus to charge in execution a defendant in custody under an order of the lords of the Admiralty (z). CHAP. IV. SECT. 1. It may be here added, that when the defendant is in Service of custody, all papers, notices, &c., which do not ordinarily Notices, &c. require personal service, may be delivered for him to the turnkey of the prison (a). As to the delivery to his attorney, see ante, 853. Plea.] By R. T., 3 W. 4, "in all actions against prisoners in Plea. the custody of the marshal or warden, or of the sheriff, the defendant shall plead to the declaration at the same time, in the same manner, and under the same rules, as in actions against defendants who are not in custody." And see the practice, Vol. I. 152 to 194. As to the service of the rule to plead, see ante, 853. Trial or final Proceeding to Trial or final Judgment.] By a general rule Proceeding to of all the courts of H. T., 2 W. 4, reg. 1, s. 85 (b), the plain- Judgment. tiff shall proceed to trial, or final judgment, against a prisoner within three terms inclusive after declaration, and shall cause the defendant to be charged in execution within two terms inclusive after such trial or judgment; of which the term in or after which the trial was had shall be reckoned one." Also in cases where the defendant is not a prisoner at the time of declaring, if he afterward be rendered in discharge of his bail, then the plaintiff must proceed to trial or final judgment against him within three terms after such render and notice thereof given, the term of the notice and render being deemed one; otherwise the defendant shall be discharged by supersedeas (c). If the declaration be delivered or the render made in vaca (u) Fost. 61: Foxworthy's case, 2 L. Raym. 848; 7 Mod. 153; 2 Salk. 500, S. Č. (z) Guthrie v. Ford, 4 D. & R. 271: semb., overruling Morland v. Weston, 3 Id. 31 and see Brandon v. Davis, 9 East, 154. ) Walsh v. Davies, 2 New Rep. 245: Freeman v. Weston, 1 Bing. 221; 8 Moore, c. 81, S. C. (2) Jones v. Danvers, 7 Dowl. 394; 5 M. (a) Whitehead v. Barber, 1 Str. 248. (e) R. H., 26 G. 3: T., 2 G. 1, Q. B.: PART II. BOOK III. tion, the preceding term would not, it is apprehended, be reckoned as one of the three terms (e). If the plaintiff's not having proceeded in the time above limited have arisen from the default of the court, as by the court's deferring to give judgment on a demurrer (f), or from the default of the defendant, by his neglecting to plead in time or the like or, from the assizes at which the cause was to be tried not occurring within the time limited for the plaintiff's proceeding to trial (ƒ); in these and the like cases the delay may be excused, and a supersedeas will not be granted. So, if the plaintiff gives notice of trial, and sets down his cause in the third term inclusive after declaration, he has complied sufficiently with the rule; for the delay would be the act of the court, and not of the plaintiff (g); but it would be otherwise, perhaps, if in such a case the plaintiff countermanded the notice of trial, and the cause were not tried until after the term. So, if the defendant demur to plaintiff's pleadings, and there are issues in fact besides, the plaintiff will not be bound to proceed within the time limited by the rule (h). "Final Judg. ment," what. Issue, &c. The term "final judgment," mentioned in the rule, means a final judgment without a trial, as a judgment by default, on demurrer or on an issue upon nul tiel record, and not a judg ment after verdict (i). And where two prisoners were sued jointly, and one of them pleaded to issue, and the other allowed judgment to go by default, and the jury who tried the issue against the one assessed the damages against the other: the court held it sufficient that the plaintiff had proceeded to trial against the one who pleaded to issue within the three terms, although he had not proceeded to final judgment against the other within that time (k). So, where a prisoner, after being charged with a declaration in Trinity term, 1819, absconded in the long vacation, and did not return into cus tody until Hilary term, 1820, the Court of Common Pleas refused to discharge him, although the plaintiff had not proceeded to judgment against him within Hilary term: the court saying, that the object of the practice as to supersedeas is, to prevent defendant from being imprisoned longer than is necessary to enable the plaintiff to proceed in the action; and here the defendant could not complain of the laches of the plaintiff whilst he was not actually in custody (7). The plaintiff may also be excused from proceeding within the time above limited by the defendant's entering into some negotiation with him, or by the defendant's estate being vested in the provisional assignee of the Insolvent Court, on his appli cation for his discharge under the Insolvent Act, as noticed post, 864. Issue, &c.] The issue, notice of trial, or inquiry, is made up as in ordinary cases, and delivered to the turnkey for the defendant, or to the defendant himself, if he have appeared in person (m). SECT. 1. Execution against.] By rule of all the courts of H. T., 2 W.4, CHAP. IV. r. 85, after ordering that the plaintiff shall proceed to trial or final judgment against a prisoner within three terms after de- Execution claration, as above mentioned, it is ordered that he "shall against. cause the defendant to be charged in execution within two terms inclusive after such trial or judgment, of which the term in or after which the trial was had shall be reckoned one." A final judgment is complete at the time of signing it, without carrying in the roll (n). If the judgment be signed in term, the plaintiff has only the following term to charge the defendant in execution; but if in vacation, he has the two following terms allowed him for that purpose, the doctrine of relation to the preceding term being now put an end to by the rule of H. T., 4 W. 4(0). The same principle would, perhaps, be held applicable as to the charging the defendant in execution after a trial. Bringing an action on the judgment within the two terms is not equivalent to charging the defendant in execution(p). The above rule of H. T., 4 W. 4, does not, it will be seen, apply where Defenin its terms to the case of a defendant becoming a prisoner by a surrender after trial or final judgment; but by rules of court previous to that rule, in case of a surrender in discharge of bail after trial had or final judgment, the plaintiff shall cause the defendant to be charged in execution within two terms next after such surrender, and the notice thereof, of which two terms, the term wherein such surrender shall be made shall be taken to be one(g). A render in vacation after trial had or judgment signed in term, is, it seems, to be considered as a render of the preceding term; but if the trial were had or judgment signed in vacation, and the render made in the same vacation, then it would be a render as of the succeeding term (r). The fact of the defendant being in the meantime removed by habeas to the prison of another court in a civil suit makes no difference (8). dant surren ders. tiff is hindered If the defendant hinder the plaintiff from proceeding by Where Plainbringing a writ of error or obtaining an injunction, the plain- by writ of tiff will not be entitled to charge him in execution within the Error, In time above limited, and consequently the defendant will not junction, &c. be entitled to a supersedeas, if the plaintiff proceed in due time after the writ of error has been determined, or the injunction dissolved (t). Or if one of several defendants bring a writ of error, the plaintiff is not bound to proceed against the others until the time limited after the writ of error has been determined (u). So, where the assignees of a bankrupt were prevented from charging the defendant in execution by a plea put in by him to their scire facias, the court refused a super (n) Colbron v. Hall, 5 Dowl. 534. (0) Colbron v. Hall, 5 Dowl. 534: and see Watson v. Dore, 2 M. & W. 386. (p) Childs v. Prowse, Willes, 531; Barnes, 300, S. C: Maud v. Branthwaite, 2 Str. 943: Pierson v. Goodwin, 1 B. & P. 361. (q) R. H., 26 G. 3. Q. B.: R. E., 8 G. 1, C. P.: and R. T., 26 & 27 G. 2, Exch.: 3 M. & W. 416. (r) Thorn v. Leslie, 3 Nev. & P. 305: Colbron v. Hall, 5 Dowl. 534: Smith v. Jefferys, 6 T. R. 776: Neill v. Loveless, 3 Moore, 8; 8 Taunt. 674, S. C. The case of Burer v. Baker, (2 Dowl. 688; 1 A. & El. 861, S. C.), is an authority against the (8) Morris v. Magrath, 3 B. & B. 301. BOOK III. Where De Benefit of sedeas (v). Where the defendant, after rendering in discharge of his bail in an action in the Common Pleas, was committed to criminal custody for a misdemeanour and so continued, that court refused a supersedeas for not charging him in execution in due time, as they had no jurisdiction to remove him by habeas from the criminal custody in which he then was (x). The plaintiff may also be excused from proceeding to exe fendant takes cution within the time above limited by the defendant's enterInsolvent Act. ing into some negotiation with him, or by the defendant's estate being vested in the provisional assignee of the Insolvent Court, on his application to be discharged under the Insolvent Act, as noticed post, 864. How charged when in Custody of the Sheriff. When the defendant is in custody of the sheriff, the mode of in Execution charging the defendant in execution is by lodging a ca. sa. with the sheriff of the county in whose custody the defendant is, as in ordinary cases, and obtaining a warrant thereon directed to the gaoler or officer who has him (y) in custody. The charging in execution is then complete; and although the defendant should be afterwards removed into the custody of the marshal or warden, it is not necessary for the plaintiff to take any other steps to charge the marshal or warden with his custody (z). If the defendant be in custody in the country, it will suffice to deliver the ca. sa. to the sheriff's agent in town; and in a case where it was so delivered within the two terms, although it did not actually reach the gaoler, in whose custody the defendant was, until after that time, it was held that the defendant was properly charged in execution (a). Where the defendant was in the county gaol, and a ca. sa. against him, at the suit of the sheriff, directed to the coroner, was handed by the coroner to the gaoler, this was held to be a sufficient charging of the defendant in execution (b). The plaintiff might remove the defendant from the sheriff's custody into the custody of the marshal, by a writ of habeas corpus ad satisfaciendum, and there charge him in execution. It is, however, wholly in the discretion of the court to grant such writ, and in most cases it would be refused as unnecessary and oppressive (c). When in Cus of Plaintiff. When the defendant is in the custody of the marshal, at the tody at suit suit of the same plaintiff (d), the mode of charging him in execution is thus:-Get a side-bar rule from one of the masters, requiring the marshal to acknowledge the defendant in his custody (e); take the rule to the marshal's office, and he will write (v) Bibbins v. Mantell, 2 Wils. 378. From the case of Poole v. Cook, tody the defendant is, is sufficient. (Sed quære). (z) Searl v. Johnson, 1 Dowl. 384: Deemer v. Brooker, 3 Dowl, 576; 1 H. & W. 206, S. C. (a) Williams v. Waring, 2 C., M. & R. 354; 4 Dowl. 200; 1 Gale, 268, S. C. (b) Bastard or Burston v. Trutch, 3 A. & E. 451; 5 Nev. & M. 109; 4 Dowl, 6; 1 H. & W. 321, S. C. (c) See Williams v. Jones, 2 C. & J. 611. (d)" The proceeding by side-bar rule does not operate to charge a prisoner in execution, unless he be at the time in custody in the particular suit." (See per Lord Denman, C. J., in Furnival v. Stringer, 5 Nev. & M. 60). (e) See the form, Chit. Forms, 501. |