detains in his custody, by virtue of his Majesty's writ of capias, CHAP. XIII. issued between the said parties, as the said sheriff hath charged himself by his return made on the said writ, within four days (in Middlesex, or "six days" in any other county,) next after notice of this rule, to be given to him, or his undersheriff. By the Court. Rose. In the King's Bench, &c. (265.) A. B. plaintiff, &c. (id.) G. H. of—, clerk to E. F. gentleman, attorney for the above named plaintiff, maketh oath and saith, that he this deponent did, on the day of instant, (or last,) personally serve, &c., (as in § 5.) And this deponent further saith, that he has this day searched (or "did, on the day of — instant, or last, search ") with the proper officer of this honourable court, for the writ of capias issued in this cause, and found that the same was filed, with a return of the said sheriff indorsed thereon, to the effect, that the said sheriff had, on the 18-, taken the said C. D. and him safely kept, until he had given him bail in the said action; and that, on the execution of the said writ, he had delivered a copy thereof to the said C. D. as by the said writ he was commanded. day of ($ 19.) Affidavit for obtaining judge's order, to bring in body, in vacation. Ante, 111. Sworn, (&c.) G. H. I order, that the sheriffs (or late) sheriffs, &c. (as in § 15; substituting the word "order," for the word "rule.") Dated B. V. ($ 20.) Judge's order thereon. Ante, 110. In the King's Bench, &c. (265.) (judge's, or baron's name.) A. B. plaintiff, &c. (id.) (§ 21.) Affidavit of service of rule to &c. G. H. of, clerk to E. F. gentleman, attorney for the above named plaintiff, maketh oath and saith, that he this deponent did, bring in body, on the day of instant, (or last,) personally serve, &c. (as in § 5.) And this deponent further saith, that no bail above has been put in for the defendant in this cause, (or "that bail above has been put in for the defendant in this cause, but that the same has not been perfected"; adding, in the Common Pleas, "this deponent having this day searched with the proper officer of the court, for that purpose.") Sworn, (&c.) G. H. ($ 21. a.) The like, of judge's order, &c. Ante, 111. (a.) ($ 22.) Rule for attachment, for not In the King's Bench, &c. (265.) A. B. plaintiff, &c. (id.) G. H. of clerk to E. F. gentleman, attorney for the above named plaintiff, maketh oath and saith, that he did, on the day of instant, (or last,) personally serve, &c. (as in §§ 5, 6.) And this deponent further saith, that no bail above, &c. (as in last). Sworn, (&c.) G. H. This rule is similar to that in § 7., stating the contempt to be "in not bringing into court the body of the defendant," instead of 66 bringing in body. ❝ in not returning the writ," & c. Ante, 111. (a.) CHAP. XV. (§ 1.) Præcipe for writ of detainer. Ante, 115. (§ 2.) Writ of detainer. Ante, 67. 114, 115. PROCEEDINGS in ACTIONS against PRISONERS *. Writ of detainer, for A. B. against C. D. in custody of the marshal of the Marshalsea, (or, warden of the Fleet prison,) in an action on promises, &c. (262.) William the Fourth, &c. (262.) To the marshal of the Marshalsea of our court before us, (or, "To the warden of our prison of the Fleet: ") We command you, that you detain C. D. if he shall be found in your custody, at the delivery hereof to you, and him safely keep, in an action on promises, (or, " of debt," &c. as the case may be,) at the suit of A. B. until he shall be lawfully discharged from your custody: And we do further command you, that on receipt hereof, you do warn the said C. D. by serving a copy hereof When the defendant is a prisoner in custody of the sheriff, &c., a bill must, it seems, be filed against him, in the King's Bench, with the clerk of the declarations in the King's Bench office; it being holden, that the delivery of a declaration against such prisoner, though within two terms, is a nullity, if there were no bill filed before. Nowell v. Bingham, 4 East, 16. and see Williams v. Scudamore, 1 Chit. Rep. 389. Long v. Wordsworth, 4 Barn. & Ad. 367. It is not necessary, however, under the rule of H. 2 W. IV. reg. 2. that the statement of the plaintiff's claim, for debt and costs, should be indorsed on the copy of such bill, served upon the turnkey. Long v. Wordsworth, 4 Barn. & Ad. 367. and see Lewellin v. Norton, id. 368. b. 1 Dowl Rep. 416. S. C. on him, that within eight days after service of such copy, inclusive CHAP. XV. of the day of such service, he do cause special bail to be put in for him, in our court of King's Bench, (Common Pleas, or, Exchequer of Pleas,) to the said action; and that, in default of his so doing, the said A. B. may declare against him, before the end of the term next after his detainer, and proceed thereon to judgment and execution: And we do further command you the said marshal, (or, "warden," as the case may be,) that immediately after the service hereof, you do return this our writ, or a copy hereof, to our said court, together with the day of the service hereof. Witness, &c. (§ 263.) N.B. This nrit is to be indorsed in the same manner as the writ of capias; (ante, 274,) but not to contain the warning on that writ. (Venue.) A. B. by E. F. his attorney, (or, "in his own proper person",) complains of C. D. being detained at the suit of the said A. B. in the custody of the sheriff of (or, "of the marshal of the Marshalsea of the court of King's Bench," or, " of the warden of the Fleet.") For the form referred to in this section, (ante, 113. 116,) see the next Chapter, § 9. In the King's Bench, &c. (265.) A. B. plaintiff, &c. (id.) G. H. of, clerk to E. F. gentleman, attorney for the above named plaintiff, maketh oath and saith, that he did, on the day of instant, (or last,) deliver unto I. K., the gaoler or keeper of his majesty's gaol or prison, in and for the county of a true copy of the declaration hereunto annexed; and the said gaoler or keeper then acknowledged to this deponent, that the said defendant was, at that time, a prisoner in the said gaol or prison, by virtue of a writ of capias, issued out of this honourable court, at the suit of the said plaintiff. Sworn, (&c.) G. H. G. H. of clerk to E. F. gentleman, attorney for the above named plaintiff, maketh oath and saith, that he did, on the day of instant, (or last,) deliver unto I. K., one of the turnkeys of the King's Bench (or " Fleet") prison, at the lodge of the said prison, a true copy of the declaration hereunto annexed; and the said turnkey then acknowledged to this deponent, that the said U (3.) Indorsements thereon. Ante, 92. 115. of declaration, Ante, 113. 116. ($ 5.) ($ 6.) Affidavit of de livery of copy of declaration, against prisoner in custody of the sherit, &c. Ante, 114. ($ 7.) The like, against a prisoner in custody of mar shal, or warden. Ante, 114. CHAP. XV. defendant was, at that time, a prisoner in the said prison, at the suit of the said plaintiff. Sworn, (&c.) G. H. CHAP. XVII. (§ 1.) Rule for time, or further time, to declare, in K. B. or Ex chequer. Ante, 121. ($ 2.) The like, in C. P. Ante, 121. ($ 3.) Rule to declare peremptorily, in K. B. or Exchequer. Ante, 121. B. v. DECLARATION, &c. It is ordered, that the plaintiff have time (or "further time") to declare, until the first day inclusive of the next term, (or, "last day inclusive of the present term,") if the defendant is not in custody. D. B.7 V. Side bar. By the Court. It is ordered, that the plaintiff have time (or further time) to declare against the defendant, until the first day of the D. next term, (or, “until the last day of the present term") inclusive, if the defendant is not in custody. In the Treasury Chamber, at the plaintiff's instance. B. v. By the Court. Upon reading the rule made in this cause, on in this term, (or, "in term last", when the last rule was given D. for time to declare ;) It is ordered, that the plaintiff, upon notice of this rule, to be given to his attorney, shall peremptorily declare in this cause, on or before the last day of this term; otherwise that a non pros may be entered. Upon the motion of Mr. ($ 4.) B. D. By the Court. last, (the Upon reading a rule made in this cause, on v. last rule for time to declare,) It is ordered, that the plaintiff, upon notice of this rule, to be given to him or his attorney, This was formerly a rule to shew cause, in the Common Pleas : but, by a late rule of all the courts, "a rule to declare peremptorily may be absolute in shall declare peremptorily against the defendant in this action, on or before the last day of this term; or, in default thereof, the defendant shall be at liberty to sign a non pros. On the motion of Serjeant for the defendant. } In the King's Bench, &c. (265.) day of By the Court. CH. XVII. Ante, 121, 2. ($ 6.) Commencement (Venue.) A. B. by E. F. his attorney, (or, "in his own proper person,") complains of C. D. who has been summoned to of declaration, answer the said A. B., &c.a own (Venue.) A. B. by E. F. his attorney, (or, "in his proper person,") complains of C. D. who has been arrested at the suit of the said A. B., &c. For the form referred to in this section, (ante, 115. 122.) see the last Chapter, § 4. (Venue.) A. B. by E. F. his attorney, (or, "in his own proper person,") complains of C. D. who has been arrested at the suit of the said A. B. (or, “being detained at the suit of the said A. B." as before,) and of G. H. who has been served with a writ of capias, to answer the said A. B., &c. after summons. Ante, 122. ($ 7.) The like, after arrest, when defendant is not in custody. Ante, 122. ($ 8.) (5 9.) The like, after arrest of one de fendant, when served only. Ante, 115. 122. another has been ($ 10.) Declaration on bail bond, by the in the year of our Lord 18plaintiff in this suit,) assignee of assignee, against according to the defendant and his bail to the (to wit.) A. B. (the G. H. Esquire, sheriff of the county of form of the statute in such case made and provided, by E. F. sheriff." his attorney, complains of C. D. I. K. and L. M. (the defendants in this suit,) who have been summoned to answer the said A. B. as assignee as aforesaid, in an action of debt; and he demands of them the sum of -7. which they owe to, and unjustly detain the first instance." R. H. 2 W. IV. reg. 1. § 39. 8 Bing, 293. 2 Sup. to Tidd Prac. 9 Ed. 44. This and the three following forms are copied from R. M. 3 W. IV. reg, 15, Ante, 122. b This declaration is inserted, not only as being useful in itself, but also as it embodies all the proceedings on the writ of capias, from the time of suing it out, to the breach of the condition of the bail bond, by not putting in special bail. |