BOOK III. Modes of Discharge from Impri sonment. 2. Discharge by Superse- Cases, &c. The remainder of this section shall be confined to the consideration of the different modes by which a prisoner may be discharged from his imprisonment; and they shall be treated of in the following order : 2. Discharge of a Prisoner by Supersedeas. In what Cases, &c.] Before the recent Imprisonment for Debt of a Prisoner Act (1 & 2 V. c. 110) came into operation, if a declaration were not delivered, and an affidavit thereof duly made and filed in due time, (as to which, see ante, 851, 852), by the plaintiff at whose suit he was in custody, the defendant might be discharged out of custody by writ of supersedeas or otherwise, upon entering a common appearance (j). It is, however, as we have seen, (ante, 852), questionable whether this would afford a ground for the discharge of a prisoner arrested under the provisions of that act, and for the reason stated in Vol. I. p. 137, it would seem not to be a ground of discharge. If the defendant plead to a declaration which was not delivered or filed in time to prevent his being supersedeable, he waives his right to the supersedeas (k). For Plaintiff's not proceed ing to Trial, If the plaintiff do not proceed to trial, or (in case of judgment by default, demurrer, or issue upon nul tiel record) to &c., in Time. final judgment, in due time, (as to which, see ante, 855), the defendant may be discharged by writ of supersedeas, or otherwise, upon entering a common appearance (1). For Plaintiff's not charging him in Execu If the plaintiff do not charge the defendant in execution in due time, (as to which, see ante, 857), the latter may be discharged tion in Time. out of custody by writ of supersedeas or otherwise, upon entering a common appearance (m). Cases where There are many cases in which, by the act of the court, or of the defendant himself, the plaintiff may be excused from laches in not proceeding within the time otherwise limited for that purpose against the defendant, and in which the defendant will not therefore be entitled to a supersedeas; these have, for the greater part, been already noticed (ante, 857): to these it may be added, that if at any time pending the action, or before the defendant is charged in execution, there be a treaty or agreement for a settlement or compromise of the matters in dispute, no laches shall be imputed to the plaintiff, nor shall the defendant be entitled to his discharge for want of prosecution pending such treaty, &c. (n); provided such treaty or agreement be in writing, signed by the defendant or his attorney, or some other person duly authorized by him, and it be therein expressed that proceedings are stayed at the defendant's request(o). Also, by the recent act 1 & 2 V. c. 110, s. 41, no prisoner whose estate shall by an order under this act have been vested in the said provisional assignee shall, after the making of such order, be discharged out of custody, as to any action, suit, or process for or concerning any debt, sum 66 () R. T., 3 W. 4: R. H., 26 G. 3. (7) See the rules of court and practice, (m) See the rules of court and practice ante, 857. (n) Walter v. Stewart, 3 Wils, 455; 2 W. Bl. 918, S. C.: Pitt v. Yalden, 4 Burr. 2063. (0) R. H., 6 G. 3, Q. B: R. H., 35 G. 3, C. P. See Melton v. Hewitt, 2 Dowl. 71; 1 C. & M. 579, S. C. of money, damages, or claim, with respect to which an adjudication can, under the provisions of this act, be made by or by virtue of any supersedeas, judgment of nonpros, or judgment as in the case of a nonsuit, for want of the plaintiff or plaintiffs in such action, suit, or process, proceeding therein ” (p). If, by reason of a writ of error, order, agreement, or other special matter, the prisoner be not entitled to a supersedeas, which he would otherwise be entitled to for not proceeding in the prescribed time, the plaintiff must give a written notice of such writ of error, &c., to the marshal or warden, otherwise the prisoner will be entitled to the supersedeas (infra). CHAP. IV. SECT 1. always super It is a general maxim, that a prisoner once supersedeable is once superalways so, unless he has waived the right to a supersedeas; sedeable, that is, if, for instance, he be supersedeable because a declara- sedeable. tion has not been delivered to him in due time, the delivery of a declaration afterwards will not prevent him from being discharged on account of the previous default (4). So, if he be supersedeable for want of proceeding to trial or final judgment, he cannot prevent his discharge by afterwards proceeding to trial or final judgment: or if he be supersedeable for want of being charged in execution, if the plaintiff afterwards charge him in execution he will be entitled to his discharge (r). Nor can the defendant be taken on a ca. sa. on the same judgment where he was supersedeable for want of being charged in execution (s). And the only remedy the plaintiff has in such a case is by action on the judgment (t); and plaintiff, after judgment in that action, might take him on a ca. sa., or charge him in execution (u). There is one exception, however, to this rule; namely, that if the defendant be once charged in execution, he cannot afterwards take advantage of any default of the plaintiff, other than a default in charging him in execution, provided he had an opportunity, previously to his being charged in execution, of applying for his supersedeas (x). Also, if the defendant be in custody in two actions, a supersedeas in one does not affect the right to proceed against him in the other (y). It may be necessary to add, that defendant cannot again be holden to bail for the same cause of action (≈). sedeable, &c. List of Prisoners supersedeable, &c.] By general rule of all List of Prithe courts of H. T., 2 ́W. 4, r. 86, "the marshal of the King's soners superBench prison, and the warden of the Fleet, shall present to the judges of the Courts of King's Bench, Common Pleas, and Exchequer, in their respective chambers at Westminster, within the first four days of every term, a list of all such pri (p) See the prior statute, 7 G. 4, c. 57, s.15; also the rule of H. T., 3 G. 4: 5 B. & Ald. 799; 1 D. & R. 472; 2 Chit. Rep. 377: 1 D. & R. 472: and see Freeman v. Weston, 1 Bing. 221; 8 Moore, 81, S. C.: 4 D. & R. 216, 347: Holmes v. Murcott, 1 Bing. 431; 8 Moore, 529, S. C.: Molyneaur v. Brown, 2 Dowl. 84; 1 C. & M. 858, S. C. (q) Peachey v. Bowes, Barnes, 368: Melton v. Hewitt, 2 Dowl. 71: Colbron v. Hall, 5 Id. 534: Pierson v. Goodwin, 1 B. & P. 361: Tidd, 9th ed., 357. (r) Melton v. Hewitt, 2 Dowl. 71. (x) Rose v. Christfield, 1 T. R. 591: see Foy v. Percy, 1 T. R. 592. () Vol. I. 476. See Hutchins v. Kenrick, 2 Burr. 1048: but see Gehegan v Harper, 1 H. Bl. 251. PART II. BOOK III. soners as are supersedeable; shewing as to what actions and on what account they are so, and as to what actions (if any) they still remain not supersedeable (a). Notice to Cause pre- Prisoners. By R. H., 2 W. 4, r. 87, "if by reason of any writ of error, special order of the court, agreement of parties, or other special matter, any person detained in the actual custody of the marshal of the King's Bench prison, or warden of the Fleet, be not entitled to a supersedeas or discharge, to which such prisoner would, according to the general rules and practice of the court, be otherwise entitled, for want of declaring, proceeding to trial or judgment, or charging in execution within the times prescribed by such general rules and practice, then, and in every such case, the plaintiff or plaintiffs at whose suit such prisoner shall be so detained in custody, shall, with all convenient speed, give notice in writing (b) of such writ of error, special order, agreement, or other special matter, to the marshal or warden, upon pain of losing the right to detain such prisoner in custody, by reason of such special matter. And the marshal or warden shall forthwith, after the receipt of such notice, cause the matter thereof to be entered in the books of the prison; and shall also present to the judges of the respective courts, from time to time, a list of the prisoners to whom such special matter shall relate, shewing such special matter, together with the list of the prisoners supersedeable" (c). One of the objects of requiring this notice to the marshal or warden is, that he may be better enabled to prepare the lists required by the rule supra. The rule extends only to prisoners in actual custody within the walls (d). Where the excuse for plaintiff's not proceeding arises from a demurrer, that is not a case contemplated by the rule, and plaintiff need not give notice thereof (e). Discharge of Also, by R. H., 2 W. 4, r. 88, "all prisoners who have supersedeable been or shall be in the custody of the marshal or warden for the space of one calendar month after they are supersedeable, although not superseded, shall be forthwith discharged out of the King's Bench or Fleet prison, as to all such actions in which they have been or shall be supersedeable" (ƒ). This rule extends, however, only to prisoners in actual custody within the walls (g). And the marshal or warden cannot be compelled to judge when a prisoner is supersedeable, in order to discharge him under this rule, but the prisoner must apply to the court or a judge(h). How Super. sedeas obtained, &c. How Supersedeas obtained, &c.] The rules of T., 3 W. 4, & H., 26 G. 3, state, that the defendant shall be discharged in the several cases above mentioned, by supersedeas or other (a) See the former rules in Q. B. of T. T., (b) See form, Chit. Forms, 501. (d) Siggers v. Brett, 5 B. & Ad. 445. 820. (f) By former rules of the Queen's wise, according to the course of the court, upon entering a common appearance, unless, upon notice given to the plaintiff's attorney, good cause be shewn to the contrary. The mode, therefore, of procuring the defendant's discharge in the several cases above mentioned, is as follows: CHAP. IV. SECT. 1. of Marshal. If the defendant be in the custody of the marshal, get a If in Custody copy of causes from the clerk of the papers at the prison; then, take out a summons requiring the plaintiff's attorney to attend, at the expiration of two days or more after the taking it out, before a judge, to shew cause why the defendant should not be discharged, &c. (i); and serve it upon the plaintiff's attorney or agent two days or more before it is returnable. “One summons, so served, is sufficient (k). If the plaintiff's attorney consent to an order, get the consent indorsed on the summons, and the judge will make an order accordingly; or, if the plaintiff's attorney shew cause, but the cause be not deemed sufficient, the judge will make a like order; or, if the attorney do not attend, then, after waiting half-an-hour, make an affidavit of the service of the summons and of your attendance (1), and the judge will make the order (m). In town causes, this order is absolute, in the first instance; but, in country causes, it is usually but an order nisi, unless cause be shewn within four days, or such other time as the judge shall think reasonable, and which will afterwards be made absolute, if no cause be shewn (n). Upon the order being made, serve a copy of it upon the plaintiff's attorney, enter a common appearance, as directed Vol. I. 121, and get a certificate from one of the masters of your having done so. Then, take this certificate and order to the marshal's office, and the prisoner will thereupon be discharged without a supersedeas, upon payment of his fees. But if the defendant be in custody of the sheriff, &c., get of Sheriff. from the gaoler a certificate of the causes the defendant is charged with (o); and make an affidavit of the gaoler's having signed the same (p). Then, take out a summons, and obtain and serve the order, and enter an appearance, as is above directed (q). Write out a præcipe for the supersedeas on plain paper, and write out the supersedeas on a plain piece of parchment (r); and take them, and the certificate of the master above mentioned, to one of the masters, who will sign the supersedeas; get it sealed. And lastly, leave the writ with the gaoler of the prison, who will thereupon discharge the defendant, upon payment of his fees (s). The Effect of it.] We have already considered the effect of a The Effect supersedeas, ante, 865. The rule nisi for the supersedeas is no stay of the proceed f) See the form, Chit. Forms, 504. (k) R. H., 2 W. 4, r. 89. By that rule it is ordered, that "the order of a judge for the discharge of a prisoner on the ground of a plaintiff's neglect to declare, or proceed to trial or final judgment or exécution in due time, may be obtained at the return of one summons served two days before it is returnable; such order in town causes being absolute; and, in country causes, unless cause shall be shewn within four days, or within such further time as the judge shall direct." See the former practice, Tidd, New Pract. VOL. II. 101. (1) See the form of affidavit, Chit. (n) R. H., 2 W. 4, r. 89, supra, n. (k). (9) Id. 504. (r) See the form of a supersedeas for not (*) See Jones v. Lander, 6 T. R. 754. of it. BOOK II. ings, so as to prevent the plaintiff from proceeding to charge PART II. the defendant in execution (t). Proceedings 3. Discharge of Prisoners under Insolvent Acts. Proceedings under Stat. 48 G.3, c. 123, s. 1.] "All persons under stat, 48 in execution upon any judgment (u), in whatsoever court the G. 3, c. 123, s. 1. In what cases titled to his Discharge. same may have been obtained, and whether such court be or be not a court of record, for any debt or damages not exceeding the sum of 207. exclusive of the costs recovered by such judgment, and who shall have lain in prison thereupon for the space of twelve successive calendar months next before the time of their application to be discharged as hereinafter mentioned, shall and may, upon his, her, or their application for that purpose in term time, made to some one of his majesty's superior courts of record at Westminster, to the satisfaction of such court, be forthwith discharged out of custody as to such execution by the rule or order of such court." The statute extends only to persons in actual custody, and Defendant en- a defendant who has merely had the rules of the prison is not within it (v). And the imprisonment, to entitle the party to his discharge, must be immediately previous to the application (x). The twelve months are reckoned inclusive of the day the party was charged in execution (y). Therefore, a defendant charged in execution on the 27th November, may apply on the 26th of November in the following year (z). The statute is not confined to parties in custody for debts; it extends to a party in custody in execution for damages recovered in an action of trover(a), or for an assault (b), or for crim. con. (c), or in an ejectment, though the damages be nominal (d). It applies only to persons in execution upon judg ments in civil actions(e): it does not extend to a party in execution under a writ de contumace capiendo (f), or on an attachment (g). It seems doubtful whether it extends to plaintiffs in execution (h). The defendant is entitled to be discharged though the debt amounts to 207. precisely (i). And although the sum for which a defendant has remained twelve months in execution exceeds 201. by the one shilling damages, in an action of debt, he is entitled to his discharge; the excess beyond that sum being considered only as constituting costs(). Where a defendant had given a warrant of attorney for debt and costs to an amount exceeding 201., although the original claim was less, and had remained in execution for (t) Robinson v. Cresswell, 2 M. & W. 410. (u) See R. v. Dunne, 2 M. & Sel. 201: Roylance v. Hewling, 3 Id. 282. (v) Barnard v. Symonds, 5 Dowl. 520: (x) Stubbing v. M'Grath, 7 Dowl. 328. (2) Porkers v. Wilkins, 7 Dowl. 152. (c) Goodfellow v. Robings, 3 Bing. N. (d) Doe v. Sinclair, 3 Bing. N. C. 778; 5 Dowl. 615, S. C.: Doe v., 1 Dowl. 69: Doe v. Ward, 2 M. & W. 65: Doe Smith v. Payton, 7 Dowl. 671: sed vide Doe V. Reynolds. 10 B. & C. 484. (e) R. v. Hubbard, 10 East, 408: Lewir v. Moreland, 2 B. & Ald. 61: R. v. Dunn, 2 M. & Sel. 201: R. v. Chifford, 8 D. & R. 58. (f) Ex p. Kaye, 1 B. & Ad. 652. (g) Doe Upton v. Bewson, 1 Dowl. 15: R. v. Hubbard, 10 East, 408: Pitt v. Evans, 3 Dowl. 649. (h) See Tinmouth v. Taylor, 10 B. & C. 114; 5 M. & R. 44, S. C.: sed vide Roy, lance v. Hewling, 5 M. & Sel. 282: Bradley v. Webb, 7 Dowl. 588. (i) Thomson v. King, 4 Dowl. 582. (k) Fogarty v. Smith, 4 Dowl. 595; 1 H. & W. 644, S. C. |