in a greater sum than the amount of the attorney's costs in the cause, the court of Common Pleas held that the agent, to whom the plaintiff's attorney was indebted on a general account, in a sum greater than the amount of such costs, could not, as against the plaintiff, retain out of the sum recovered by the latter, more than the charge for agency in that particular cause.(b) As a further security to the attorney, he cannot be changed by his client, without leave of the court, or order of a judge, on payment of his bill, to be taxed by the proper officer. (c) In the King's Bench, when the defendant applies to set off the debt and costs in one action, against those in another, the court in general will not suffer it to be done, until the attorney's bill, for business done in the cause wherein he was concerned, be first discharged :(d) But it is otherwise in the Common Pleas; where the attorney's lien for his costs is held to be subject to the equitable claims that exists between the parties in the cause. (e) And, in the King's Bench, it has been holden, that an attorney has a lien on the judgment obtained by his client against the opposite party, to the extent of his costs of that cause only ;(f) and the plaintiff, in that court, may set off interlocutory costs in the same cause, payable by him to the defendant, against the debt and costs recovered by him on the final result of the cause; notwithstanding the objection of the defendant's attorney, on the ground of his lien, which only attaches on the general result of the costs, &c., of the cause.(g) So where a defendant, being sued by bill as an attorney of that court, pleaded by an attorney or agent who had not filed any warrant to defend, and the plaintiff, being nonsuited, moved to stay the proceedings in the action, undertaking to set off the defendant's costs against a judgment debt due from him to the plaintiff, the court held, that the defendant's attorney or agent had no lien upon the costs, for his own costs in defending the suit.(h) Where the plaintiff, having charged the defendant in execution, died, and the defendant's wife took out administration to the plaintiff, the court of King's Bench ordered the defendant to be discharged out of custody; saying, that the plaintiff's *attorney had no lien [ *340 ] on the judgment for his costs. (a) And where the plaintiff, after judgment recovered, settled the action with the defendant, and employed a new attorney to enter up satisfaction on the record, the court held that the defendant was entitled to be discharged out of custody; although the lien of the plaintiff's attorney for the costs had not been satisfied.(bb) (b) 1 Bing. 20. 7 Moore, 249, S. C.; and see 6 Price, 203. 2 Dowl. & Ryl. 6. 6 Dowl. & Byl. 384. Ante, 97. (e) 1 Lil. P. R. 141. Doug. 217. Ante, 94. (d) 4 Durnf. & East, 123, 4. 6 Durnf. & East, 456. 8 Durnf. & East, 70. 1 Maule & Sel. 240. 8 Taunt. 526. (e) 2 Blac. Rep. 826. Say. Costs, 254, S. C. 1 H. Blac. 23, 217. 2 H. Blac. 440, 587. 2 Bos. & Pul. 28. 1 New Rep. C. P. 22. 4 Taunt. 320. 8 Taunt. 526. 95 Moore, 5. 4 Bing. 16. 1 Price, 376; and see Lee's Prac. Dic. 1 Ed. 108, 9, 340, 41. 15 Ves. 72, 539. 2 Ball & Beat. 34, in Chan. (f) 3 Barn. & Cres. 535. 5 Dowl. & Ryl. 399, S. C. (9) 8 East, 362. 1 Price, 375. (h) (a) 8 Durnf. & East, 407; but see 8 Moore, 145, 529. (bb) 4 Barn. & Ald. 466. 4 Bing. 17, S. C. cited. 1 Dowl. & Ryl. 168. 1 Bing. 431, S. C. *CHAPTER XV. Of the PROCEEDINGS in ACTIONS against PRISONERS, in CUSTODY of the SHERIFF, &c.; and of the MARSHAL of the KING'S BENCH, or WARDEN of the FLEET PRISON: with the RELIEF they are entitled to, under the LORDS' ACT, &c. PRISONERS in general may be considered as they are in custody on a civil or criminal account; and on a civil account, they are either taken or detained in custody of the sheriff, &c. on mesne process before, or final process after judgment; or they are committed to the custody of the marshal of the King's Bench, or warden of the Fleet prison, on a cepi corpus, (aa) or habeas corpus, or surrender in discharge of bail. In treating of prisoners, I shall consider, first, the mode of proceeding in actions against them, when in actual custody of the sheriff, &c. previous to the plea; secondly, the writ of habeas corpus, and manner of removing prisoners under it, into the custody of the marshal of the King's Bench, or warden of the Fleet prison; thirdly, the bill against prisoners, in the actual or supposed custody of the marshal, and how far it is considered as the commencement of the suit; fourthly, the proceedings in actions against prisoners, in the actual custody of the marshal or warden, previous to the plea; fifthly, the proceedings in actions against them, when in actual custody of the sheriff, &c. or of the marshal or warden, subsequent to the plea; and lastly, the relief they are entitled to under the Lords' act, and other acts for the discharge of insolvent debtors. It has already been seen,(bb) that when the defendant is arrested, he is either let out of custody, upon giving bail to the sheriff, or an attorney's undertaking for his appearance, or depositing in the sheriff's hands, the sum indorsed on the writ, with 107. in addition to answer costs, &c.; or he remains in custody, or escapes, or is rescued, &c. And when he remains in custody of the sheriff, the plaintiff in due time should declare against him in such custody, unless he be removed by habeas corpus, to the custody of the marshal, of the King's Bench, or warden of the Fleet prison. Before the making of the statute 4 & 5 W. & M. c. 21, there could have been no declaration in either court, against a defendant in custody of the sheriff, or other officer by whom he was arrested; but the plaintiff [*342] was obliged to bring a habeas corpus cum causâ, and so turn him over to the custody of the marshal or warden, in order to charge him with a declaration. (a) But now, by the above statute, (b) which was passed to relieve plaintiffs from the trouble and expense of bringing up prisoners by habeas corpus, (c) "if any defendant be taken or charged in custody, at the suit of any person, upon any writ out of any of the courts at Westminster, and imprisoned for want of sureties for his appearance, the plaintiff in such writ may, before the end of the next term after such writ is returnable, declare against such prisoner, in the court out of which the writ issued, whereupon the said prisoner was taken and imprisoned, or charged (aa) Barnes, 392. (bb) Ante, 221. (a) See the preamble to the statute. R. M. 1654, 11. R. E. 5 W. & M. reg. 3, 1, (a), K. B. 1 Wils. 120. 2 Bur. 1051. 1 Durnf. & East. 192. (b) 82. (c) 1 Wils. 120. 1 Durnf. & East, 192. in custody; and may cause a true copy thereof to be delivered to such prisoner, or to the gaoler or keeper of the prison or gaol in whose custody such prisoner shall be or remain; to which declaration the said prisoner shall appear and plead; and if such prisoner shall not appear and plead to the same, the plaintiff in such case shall have judgment, in such manner as if the prisoner had appeared, and refused to answer or plead to such declaration." And, by the same statute, § 3, "in all declarations against any prisoner detained in prison, by virtue of any writ or process issued out of the court of King's Bench, it shall be alleged in custody of what sheriff, bailiff, or steward of any franchise, or other person having the return and execution of writs, such prisoner shall be, at the time of such declaration, by virtue of the proces of the said court, at the suit of the plaintiffs :(d) which allegation shall be as good and effectual, to all intents and purposes, as if such prisoner or prisoners were in the custody of the marshal." If the declaration therefore do not allege, either expressly or by implication, in what custody the defendant is detained, and at whose suit, (e) it will be bad on a general demurrer. This allegation however is only necessary, where the plaintiff proceeds upon a bill of Middlesex or latitat, &c. or by attachment of privilege, in the King's Bench; and not where he proceeds by original writ in that court, or by action in the Common Pleas. And, in a declaration in debt, it is unnecessary to state at whose suit the defendant is in custody; the words "of a plea that he render, &c.," being a sufficient allegation, that he is in custody at the plaintiff's suit.(f) Upon this statute, a defendant in the actual custody of the sheriff or other officer, may be proceeded against by the same plaintiff at whose suit he was arrested, or by a third person: by the former, upon the original caption, by the latter upon a subsequent charge, and by either of them, upon a re-caption by virtue of an escape warrant.(g) When the defendant is a prisoner in custody of the sheriff, &c., a bill must 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 [*343 ] delivery of a declaration against a prisoner, though within two terms, is a nullity, if there were no bill filed before:(aa) And, by rule of E. 5 W. & M. if the declaration be not filed in the King's Bench,(bb) and Exchequer, (c) or entered and left in the office in the Common Pleas, before the end of the next term after the writ or process, by which the prisoner was taken or charged in custody, is returnable, the prisoner shall be discharged, in the King's Bench and Exchequer, on filing common bail; or, in the Common Pleas, upon entering his appearance with the proper officer, by writ of supersedeas, made by him, according to the ancient practice of that court.(dd) The statute expressly provides, that the plaintiff may declare against a defendant in custody of the sheriff, &c., before the end of the next term after the process is returnable: But a subsequent rule, of the court of (d) Append. Chap. XV. ¿ 1, &c. (f) Id. ibid. 1 Ken. 114. (e) 2 Ld. Raym. 1362. 1 Wils. 119, 20. and see Carth. 469. 1 Salk. 98, S. C. (aa) 4 East, 16; and see 1 Chit. Rep. 389. (56) R. E. 5 W. & M. reg. 3, 2 6, K. B.; (c) R. E. 5 W. & M. reg. 3, 6, in Scac. (dd) R. E. 5 W. & M. reg. 3, 6, C. P. Append. Chap. XV. & 35, &c. VOL. I.-22 And for the form of the writ of supersedeas, see King's Bench, (e) having rather ambiguously required, that if the defendant should remain in custody for two terms, and the plaintiff should not declare against him within that time, the defendant should be discharged out of custody, after the end of the second term after such imprisonment; the judges of that court, in favour of liberty, determined, that where a defendant was arrested in one term, on a writ returnable the next, the term in which the defendant was arrested should be reckoned as one of the two terms; and consequently, that the defendant should be discharged, for want of a declaration, after the end of the same term in which the writ was returnable.(f) This practice however has been since altered; and it is now settled, agreeably to the letter and intention of the statute, that in all cases where a prisoner is taken or charged in custody, by mesne process issuing out of the King's Bench, the plaintiff may declare against him, before the end of the next term after the return of the process, by virtue whereof he was taken or charged in custody."(g) And a plaintiff need not declare against a prisoner, until the term next after the return of the writ, even though there was time in the term in which the writ was sued out, to have made it returnable in that term, and it be not in fact made returnable until the next term.(h) The term however, in which the process whereon the defendant was arrested is returnable, is still accounted one of the two terms; although it be returnable on the last day of the term:(?) and the plaintiff cannot declare before the return of the process, upon which the defendant was taken or charged in custody.(k) If the defendant be taken and detained, or charged in custody of the sheriff, &c., for a bailable cause of action, a copy of the declara[*344] tion should *be delivered personally to the defendant, or left for him with the gaoler or keeper of the goal or prison in whose custody he is confined, before the end of the next term after the return of the process:(a) And if any gaoler or keeper of a prison, having received a copy of a declaration against any prisoner in his custody, shall suppress the same, and not deliver it forthwith unto such prisoner, an attachment shall be issued against him. (6) It is not sufficient, where the defendant is a prisoner in custody of the sheriff, &c., to file or enter a declaration in the office, to which the defendant is not obliged to plead, and on which the plaintiff cannot take a regular judgment:(c) And, in the Common Pleas, if a defendant in custody employ an attorney, merely for the purpose of putting in bail, the delivery of a declaration to such attorney is not sufficient.(d) But it is not necessary, in that court, to enter the declaration with the prothonotary, before the delivery thereof to the prisoner; it being sufficient, if it be entered at any time before the giving of a rule to appear and plead. (ee) And, in the King's Bench, if the defendant be served in custody of the sheriff, &c., with a copy of process, at the suit of the same or a different plaintiff, it is not necessary that a (e) R. T. 2 Geo. I. K. B. (f) 3 Bur. 1448. 4 Bur. 2060. Cookson v. Forster, T. 23 Geo. III. K. B. (g) R. H. 26 Geo. III. K. B. 2 Blac. Rep. 1242, 3, C. P. accord. (h) 6 Durnf. & East, 547. (i) R. T, 2 Geo. I. (a), K. B. (k) R. E. 5 W. & M. reg. 3, 1, K. B. C. P. & Excheq. (a) Stat. 4 & 5 W. & M. c. 21, 2. 1 Bos. & Pul. 535. (6) R. E. 5 W. & M. reg. 3, 7, K. B. C. P. & Excheq (c) 1 Str. 474. 1 Bos. & Pul. 535; and see 1 Chit. Rep. 386, 720. (d) 1 Taunt. 493; and see 5 Durnf. & East, 35. (ee) Barnes, 372. Pr. Reg. 329. Cas. Pr. C. P. 114, S. C. 1 Bos. & Pul. 539. copy of the declaration should be delivered personally to the defendant, or left for him with the gaoler or turnkey: but it may be delivered or filed, absolutely or de bene esse, and the plaintiff may proceed thereon, as if the defendant were at large. (f) The plaintiff having declared, an affidavit should be made, and filed with the clerk of the rules, in the King's Bench, before the first day of the ensuing term;(g) stating the delivery of a copy of the declaration, and the time when, and person to whom, the same was delivered ; (h) if to a gaoler or turnkey, that he acknowledged the defendant was then a prisoner in his custody;() and that the defendant was arrested, or charged in custody, by process of this court, returnable before the delivery of the copy.(k) The time when such affidavit was filed should be entered thereon, by the clerk of the rules, and a copy of it produced to the master in the King's Bench, or clerk of the pleas in the Exchequer,(1) before judgment.(k) Hence it is necessary, and usual in the King's Bench, when the defendant is in custody of the sheriff, &c., to make three copies of the declaration: one to be delivered to the defendant, or left for him with the gaoler or turnkey, who should be asked if the defendant be a prisoner at the plaintiff's suit; another, to be annexed to the original affidavit of such delivery, and filed with the clerk of the rules; and a [*345 ] third, to be annnexed to an office copy of such affidavit: On this last copy, a rule is given with the clerk of the rules, for the defendant to appear and plead; and in default thereof, judgment may be signed.(a) In the Common Pleas, the affidavit of the delivery of a copy of the declaration, &c., should be made and filed with one of the secondaries, within twenty days after the end of the next term after that in which the writ or process is returnable, Easter term excepted, and within ten days after Easter term :(b) therefore, if a declaration against a prisoner be delivered on the last day of the term in which the writ is returnable, the affidavit of the delivery need not be filed till twenty days after the expiration of the following term.(cc) And in that court, the production of a copy of the affidavit to the prothonotary being dispensed with, (dd) it is only necessary to have two copies of the declaration; one to be delivered to the defendant, or left for him with the gaoler or turnkey, and the other to be annexed to an affidavit of such delivery; upon which latter copy, the secondary will give a rule for the defendant to appear and plead. The mode of charging a defendant in actual custody of the sheriff, &c. for a bailable cause of action, is by making an affidavit thereof, and suing out process; which should be duly marked or indorsed for bail, and left at the sheriff's office. But if the cause of action be not bailable, the same plaintiff or a third person may proceed against the defendant, as if he were at large, by serving him with a copy of process ;(e) and if he do not appear, by filing a declaration in the office, and giving him notice thereof. But 2, K. B.; and see Append. Chap. XV. § 6. (f) 1 Durnf. & East, 192; but see Barnes, 392. 2, K. B.; and see Append. Chap. XV. ¿ 0. (e) 1 Durnf. & East, 192; but see Barnes, 392. (b) R. E. 5 W. & M. reg. 3, go, C. P. (dd) Imp. C. P. 7 Ed. 666, 672. |