Fleet under your custody, by virtue of the said commitment, and for no other cause, then do you immediately discharge the said C. D. out of your custody, and permit him to go at large, as you will answer the contrary at your peril. Witness (name of chief justice), at Westminster, day of in the year of our Lord' the [See 2 Chit. Ar. Pr. 867.] 9. Writ of Supersedeas to the Sheriff, for not proceeding to Trial or final Judgment, in Q. B. day of [Proceed as in the form, ante, 506, No. 7, to the asterisk*, and then thus:] And whereas the said C. D. on the last past, was charged with a declaration, at the suit of the said A. B. upon the writ aforesaid: but because it appears to us that the said A. B. hath not proceeded to trial or final judgment against the said C. D. within three terms next after the delivery of the said declaration, according to the course and practice of our court before us, and because the said C. D. hath come into our said court before us, and appeared at the suit of the said A. B. in the action aforesaid; therefore we command you, that if the said C. D. be detained [&c. conclude as in the form, ante, 506, No. 7.] [See 2 Chit. Ar. Pr. 867, 864.] 10. The like, in C. P. day of [Proceed as in the form, ante, 506, No. 7, to the asterisk*, and then thus: And whereas the said C. D. on the - last past was charged with a declaration at the suit of the said A. B. in the action aforesaid; but because it sufficiently appears to our said justices at Westminster, that the said A. B. hath not further proceeded to judgment against the said C. D. within three terms after the delivery of the said declaration, as required by the rules of our court of the Bench, before our justices aforesaid; and that the said C. D. hath appeared in our said court to answer the said A. B. in the action aforesaid; therefore we command you, that if the said C. D. be detained [&c. conclude as in the form, ante, 506, No. 7.] 11. The like, to the Warden, where the Defendant was rendered in Discharge of his Bail. day of [Proceed as in the form, ante, 506, No. 8, to the asterisk*, and then thus:] And whereas the said C. D. after the said render and commitment, on the last past, was charged with a declaration at the suit of the said A. B. in the action aforesaid; [or if the render was after the declaration say, "And whereas the said A. B. had declared against the said C. D. in the action aforesaid; but had not further proceeded to judgment thereupon, before the render and commitment aforesaid: And because it sufficiently appears to our said justices at Westminster, that the said A. B. hath not further proceeded to judgment," [&c. conclude as in the form, supra, No. 10.] 12. The like, to the Warden, where the Prisoner had rendered himself in Discharge of Bail in Q. B. and was removed to the Fleet by Habeas Corpus (a). Victoria, [&c. ante, 506, No. 7,] to the warden of our prison of the (a) See the form, Tidd's Forms, 130. Fleet, greeting: whereas C. D. was lately committed to and is detained in our said prison under your custody, upon and by virtue of our writ of habeas corpus cum causá, directed to the marshal of our prison of the Marshalsea; and by the return thereof it appeared that the said C. D. had rendered himself, and was committed to the said marshal's custody, in discharge of his bail, at the suit of A. B., in an action on promises, [or as the plea is,] depending in our court before us at Westminster; and the said A. B. hath declared in our said court before us against the said C. D. in the action aforesaid; and because it appears to us that the said A. B. hath not proceeded to trial or final judgment against the said C. D. in the plea aforesaid, in due time, according to the rules of our said court before us; and because the said C. D. hath appeared in our said court before us, at the suit of the said A. B. in the action aforesaid; therefore we command you, that if the said C. D. be detained in our said prison of the Fleet under your custody, for the cause aforesaid, and no other, then do you immediately discharge the said C. D. [&c. conclude as ante, 506, No. 7.] 13. Writ of Supersedeas to the Sheriff for not charging the Defendant in Execution. [Proceed as in the form, ante, 506, No. 7, to the asterisk*, and then thus:] And whereas the said A. B. in term last past, obtained final judgment, [or "proceeded to trial and obtained a verdict in an action,"] in our court before us, [or "before our justices," or "before our barons,"] against the said C. D. upon the said writ: but because the said A. B. hath not proceeded to charge the said C. D. in execution within two terms after the said final judgment so obtained, [or "trial so had,"] according to the course and practice of our said court; and because the said C. D. hath come into our said court and appeared [&c. conclude as in the form, ante, 506, No. 7.] [See 2 Chit. Ar. Pr. 867, 864.] 14. The like, to the Warden. [Proceed as in the form, ante, 506, No. 8, according to the facts, to the asterisk*, and then thus:] And whereas the said A. B. in term last past obtained final judgment [&c. conclude as in the preceding form.] 15. The like, to the Warden on a Render after Judgment. [Proceed as in the form, ante, 506, No. 8, to the asterisk*, and then thus:] And whereas judgment had been obtained by the said A. B. against the said C. D. in the action aforesaid; but the said A. B. had not proceeded to execution thereupon before the render and commitment aforesaid; and because the said A. B. hath not proceeded to charge the said C. D. in execution, upon the said judgment, within two terms next after the render and commitment aforesaid, as required by the rules of our said court, therefore we command you [&c. conclude as in the form, ante, 506, No. 7.] SECTION IV. DISCHARGE OF A PRISONER UNDER STATUTE 48 GEO. 3, c. 123 (a). 1. Notice of Prisoner's Intention to apply. In the Q. B. [or "C. P." or " Exch. of Pleas."] Mr. A. B. A. B. plaintiff and C. D. (a prisoner) defendant. Take notice, that I shall on next, or as soon after as I [or "counsel"] can be heard in this behalf, make application to her majesty's court of Queen's Bench [or "C. P." or "Exch. of Pleas"] at Westminster, to be discharged out of the custody of the sheriff of [or "of the marshal of the Marshalsea" or "warden of the Fleet,"] as to this action at your suit, according to the form of the statute in such case made and provided; I having been imprisoned and having lain in prison for the space of twelve successive calendar months, in execution upon the judgment herein obtained by you, for damages, [or "debt and damages,"] not exceeding the sum of twenty pounds, exclusive of costs; and hereunder written [or "annexed hereto"] is a copy of the affidavit upon which I shall ground the said application. Dated the day of, A. D. ———. Your's &c. Witness W. W. [See 2 Chit. Ar. Pr. 869.] 2. Affidavit to obtain the Rule. In the Q. B. [or "C. P." or " Exch. of Pleas."] 66 C. D. A. B. plaintiff v. C. D. (a prisoner) defendant (b). C. D. the above-named defendant, now a prisoner in the Queen's Bench prison, [or "in the prison of the Fleet" or county gaol of -"] maketh oath and saith, that on the day of in the year of our Lord A. B. the above-named plaintiff obtained a judgment in this suit against this deponent, for £- damages, [or "debt and damages,"] exclusive of costs. And this deponent further saith, that on the day of, in the year aforesaid, he this deponent was charged in execution upon the said judgment, at the suit of the said A. B. and hath ever since been detained in custody, and hath lain in prison in the Queen's Bench prison, [or "prison of the Fleet," or " county gaol of -,"] aforesaid, in execution upon the said judgment as aforesaid. And this deponent further saith, that he did on -personally serve the above-named plaintiff with a notice signed by this deponent, a true copy whereof is hereunto annexed, [or if the service was not personal state it accordingly.] Sworn [&c. as ante, 207.] [See 2 Chit. Ar. Pr. 869.] (a) The right to be discharged under this act is not affected by 1 & 2 Vict. c. 110, s. 41, Chew v. Lye, 7 Dowl. 465. (b) If the defendant be in execution on a judgment of an inferior court, C. D. then entitle the affidavit in the court in which the application for the discharge is made, but not entitling it in any cause, and state in the affidavit the nature of the action and the court in which it was brought. CHAPTER V. ACTIONS BY AND AGAINST EXECUTORS OR ADMINISTRATORS. 1. Affidavit to hold to Bail by an Executor or Administrator. 2. Process. [Same as usual, see forms of Writ of Summons, ante, 18, and of Writ of Capias, &c. ante, 228; but describe the plaintiff or defendant, if an executor, thus: "A. B. executor of the last will and testament of E. F. deceased,” or if an administrator, describe him thus: “ A. B. administrator of all and singular the goods, chattels, and effects of E. F. deceased, at the time of his death, who died intestate," or it seems that such description may be altogether omitted, at least in the writs of summons and distringas. 3. Declaration, Plea, &c. [Get the declaration or plea drawn or settled by counsel or pleader. The other practical proceedings are the same as in ordinary cases, merely adding after the name of the plaintiff or defendant, where it first occurs, his addition as executor or administrator, as in the process supra, and wherever afterwards it occurs, the words " as executor as aforesaid," or "as administrator as aforesaid," as the case may be.] 4. Scire Facias, by an Executor or Administrator, to revive a Judgment obtained by Testator or Intestate. [See forms, ante, 474 to 491.] 5. Judgment by Cognovit in Assumpsit, against an Executor or [Proceed as in the form, ante, 320, to the end of the declaration, and then on a new line thus:] And on the defendant by D. A. his attorney says that he cannot deny the action of the plaintiff, nor but that the said E. F. in his life-time did promise in manner and form as the plaintiff hath above in that behalf alleged; nor but that the plaintiff hath sustained damages [&c. proceed as in the form, ante, 320, to the judgment, which is thus:] Therefore it is considered that the plaintiff do recover against the defendant, as executor [or "administrator"] as aforesaid, his damages aforesaid, to £--, in form aforesaid acknowledged, and also £-- for his said costs and charges, by the court here adjudged to the plaintiff, and with his assent, which said damages, costs, and charges, in the whole amount to £——, to be levied of the goods and chattels which were of (a) See form of cognovit by an executor, ante, 319. the said E. F. at the time of his death in the hands of the defendant, as executor [or "administrator"] as aforesaid, to be administered, if he hath so much thereof in his hands to be administered, and if he hath not so much thereof in his hands to be administered, then £- parcel of the damages aforesaid, being for his costs and charges aforesaid, to be levied of the proper goods and chattels of the defendant; and the defendant in mercy, &c. [Add the marginal notes as directed at end of form, ante, 320, No. 9.] [See 2 Chit. Ar. Pr. 679, 878.] 6. The like, in Debt on Bond. [Proceed as directed in the form, ante, 321, No. 11, to the end of the declaration, and then thus:] And on, the defendant by D. A. his attorney, says, that he cannot deny the action of the plaintiff, nor but that the said writing obligatory is the deed of the said E. F., nor but that the defendant detains from the plaintiff the said sum of £- above demanded, in manner and form as the plaintiff hath above in that behalf alleged Therefore it is considered that the plaintiff do recover against the defendant, as executor [or "administrator"] as aforesaid, his said debt, and also £— for his damages which he hath sustained, as well on occasion of the detaining of the said debt, as for his costs and charges by him about his suit in this behalf expended, by the court here adjudged to the plaintiff, and with his assent, to be levied of the goods and chattels which were of the said F. F. at the time of his death, in the hands of the defendant as executor [or "administrator"] as aforesaid to be administered, if he hath so much thereof in his hands to be administered, and if he hath not so much thereof in his hands to be administered, then the said £—, parcel of the damages aforesaid, being for his costs and charges aforesaid, to be levied of the proper goods and chattels of the defendant: and the defendant in mercy &c. [Add the marginal notes as directed at end of the form, ante, 321, No. 11.] [See 2 Chit. Ar. Pr. 878.] 7. Judgment of Assets in futuro, in Assumpsit, on Plea of Plene administravit, or Plene administravit præter a Judgment or Specialty Debt when pleaded alone. [Proceed as in the form, ante, 102, to the end of the plea of plene administravit, and then thus:] And hereupon on the plaintiff, inasmuch as the defendant doth not deny the action of the plaintiff, nor but that the said E. F. in his lifetime did promise in manner and form as the plaintiff hath in that behalf alleged, and inasmuch as the plaintiff cannot deny but that the defendant had not any goods and chattels which were of the said E. F. at the time of his death in his hands to be administered, in manner and form as the defendant hath above in the said plea in that behalf alleged, prays judgment, and his damages by him sustained, on occasion of the not performing of the said promises in the said declaration mentioned to be adjudged to him, to be levied on the goods and chattels which were of the said E. F. at the time of his death, and which since the pleading of the said plea of the defendant have come or which shall hereafter come to the hands of the defendant to be administered [or if the plea were of bonds &c. outstanding and plene administravit præter, here add the following words, " after satisfying the monies due and owing on the said several judgments, indentures, and writings obligatory in the said plea respectively mentioned"]: Therefore it is considered that the plaintiff ought to recover against the defendant as executor [or "admi |