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 (1). 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 Dis charge 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 nisi 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. (5) 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. 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 Lords' Act. Proceedings under the Lords' Act.] The act of 1 & 2 V. Proceedings e. 110, s. 119, enacts, that from and after the passing of that 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 vest the defendant's estate in the provisional assignees of that court. Subsequent Proceedings against Insolvents discharged under Subsequent the Lords Act.] By a discharge under the Lords' Act, (which against Insol Proceedings we 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 the Lords' 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. Attorney dis 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 claims the issued by him, or with his authority or privity (x). Writ. 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. (4) 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, 32, n.: Pagett v. Wheate, 2 Doug. 669. Hatt v. (u) MS., M. 1814: Wilson v. Kemp, 3 &c. BOOK III. By perfecting Bail. 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 or Compro 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. (2) See Vol. 1. 543: see Butt v. Conant, 3 B. & B. 3; 6 Moore, 65, S. C. (a) Crozer v. Pilling, 6 D. & R. 129; 4 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, 1 T. R. 557. (e) MS., H. 1822: ante, Vol. I. 477. (f) 6 G. 4, c. 16, s. 126. See Arch. Bkt. L. 210, 281, 4th ed.: ante, Vol. I. 470. (g) 6 G. 4, c. 16, s. 59. See Arch. Bkt. L. 109. (h) Pyne v. Erle, 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 (). (i) Parkinson v. Horlock, 2 New Rep. 240: Broughton v. Martin, 1 B. & P. 176: and see R. v. Davis, Id. 336: but see Holmes v. Murcott, 1 Bing. 431; 8 Moore, 529, 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. CHAPTER V. ACTIONS BY AND AGAINST EXECUTORS OR ADMINISTRATORS. BOOK III. Limitation of Process, &c. SECT. 1. Actions by Executors or Administrators. Limitations of Actions by.] Ir the time limited by the statute have not expired before the death of the testator or intestate, the executor or administrator may bring the action at any time within a year after the death (a); or, if the time limited have not expired within the year after the death, at any time before the expiration of such limited time. And if the executor bring an action, and die before judgment, his executor may bring a fresh action within a reasonable time afterwards (b). In an action by an administrator upon a bill of exchange payable to the intestate, but accepted after his death, it was holden that the statute began to run from the grant of the letters of administration, and not from the time the bill became due, there being no cause of action while there is no party capable of suing (c). But that case would have received a different decision, had the bill been due in the lifetime of the testator (d). By the recent act 3 & 4 W. 4, c. 42, s. 2, executors and administrators may bring an action for an injury to the real estate of the testator or intestate, provided the injury was committed within six months before the death of the testator or intestate, and provided the action be brought within a year after his death (e). Process, &c.] Though the plaintiff sue as executor or administrator, the process need not describe him as such; but the practice in the Common Pleas, in bailable cases, before the 2 W. 4, c. 39, was different (f): and to avoid any doubt on the question, it is best in that court to describe him in the process as executor or administrator. An executor or administrator may swear to the debt according to his belief; he is not obliged to swear positively to it, as he would be if he were not suing in autre droit (g). Executors who have holden a |