Wightman, in support of the rule, cited Molling and others v. Buckholtz (a), but was stopped by the Court GRAHAM, B. We have no doubt about this case. These notes were enforced before, by the first arrest; the original payee could not arrest again for them; and the plaintiff stands in the same situation with the original payee: the rule must be made absolute (b). Wightman, as to both members? GRAHAM, B. No.-As to the defendant's being discharged out of custody only. HULLOCK, B. There is no pretence for the other part of the rule. Rule absolute, as to the defendant's being (a) 3 Maule & Selwyn, 153. 1824. M'CLURE v. PRINGLE. 1824. January 23d, 26th, & 31st; February 4th & 10th. A person who has lain in pri son above twelve successive calendar months, in execution upon a judgment for damages under 20., is entitled to be discharg LANGDON v. ROSSITER, a Prisoner. THE defendant was committed to the Fleet prison, the 12th January, 1822, at the suit of the plaintiff. The action was proceeded in, a writ of enquiry executed, and the damages assessed at 157. 11s. 3d., exclusive of costs. In Trinity term, the defendant was charged in execution in this court upon the judgment; and was detained in custody, at the plaintiff s suit only, till the present term. He had been brought up by rule of court, under the compulsive clauses of the Lords' act, on the 25th of November, proper applica in last Michaelmas term; but that not being within the tion, under the 48 G. 3, c. 123, first seven days of the term next ensuing the expiration s. 1; notwithstanding he had of the twenty days' notice, required by that act, he was previously been remanded, without being called on to obey its further brought up unprovisions. ed out of cus tody forthwith, as to such execution, on a der the compulsory clauses of the Lords' act, refused to deliver in a effects, and Jones, D. F. the first day of this term, obtained a rule schedule of his under the stat. 32 Geo. 2, c. 28, ss. 16, 17, for bringing the Defendant into court on the 26th January, to deliver in a schedule of his effects, and assign the same for the been in consequence remanded. The 48 G. 3. c. benefit of the plaintiff. 123, s. 1. ap plies only to cases of persons in execution Chilton afterwards, on the same day, obtained a rule, in civil actions. under the 48 G. 3, c. 123 (a), for the relief of debtors in upon judgments The Lords' act gives no au. thority to remand a prisoner refusing to give in an ac count, other wise than generally. If a prisoner be brought up by rule of Court under the compulsory clauses (a) This statute enacts, that "all persons in execution upon any judgment, in whatsoever court the same may have been obtained, and whether such court be or be not a court of record, for any debt or damages, not ex ceeding the sum of 20%., 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 thereinafter mentioned, shall and may, upon his or their applica tion 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." of the Lords' act, on a day, after the first seven days of the term next ensuing the expiration of the twenty days' notice, required by that act, he cannot be called upon to give in upon oath an account of his estate. execution for small debts, to shew cause why the defendant should not be discharged out of custody as to this action, the debt therein not exceeding 207., and the defendant having lain in prison above twelve months. January 26th.-The prisoner was brought up, pursuant to the order of the 23d, and refused to deliver in a schedule. Chilton claimed for him the sixty days, allowed by the 32 Geo. 2; and Jones moved, that the prisoner should give in a just and true account of his property now, or at the end of sixty days. The Court thereupon made an order, remanding the prisoner, and directing him to be brought into court the first day of next Easter term, then and there to deliver a schedule, &c. January 31st.-Jones shewed cause against the rule of the 23d, for discharging the prisoner. The prisoner having twice refused to give an account of his property, has been remanded in order to compel him to do so, or to bring him within that provision of the stat. 32 G. 2, which renders a refusal at the end of sixty days more, a transportable offence. But it may admit of doubt, whether an indictment could be sustained, unless the sixty days were days in continual custody; and if so, the prisoner could not now be released under the 48 G. 3, without holding that that stat. repealed the 32 G. 2. But such was not its effect. Its object was merely to give personal liberty in the cases which it specifies, leaving the provisions of the Lords' act untouched. But, however that point may be decided, the prisoner is not now in a condition to claim his release under the 48 G. 3; because his custody has been changed by the order of the Court of the 26th; and he is no longer in custody solely in execution upon a judgment in a civil cause. 1824. LANGDON v. ROSSITER. Chilton, in support of the rule. As far as the circumstance of lying in prison for twelve months, for a debt under 207., entitles a prisoner, on application, to his discharge, so far the 48 G. 3, is a repeal of the Lords' act ; there being no proviso therein, that it should not extend to cases where the compulsive clauses of the Lords' act apply. The statute is in favour of liberty, and ought to be construed liberally. The plaintiff here has been guilty of great laches; because, on his own shewing, the party. has been in custody two years. HULLOCK, B. The question which the Court has to decide is, whether the prisoner is not within the 48 G. 3. That act, however, applies merely to cases, where the prisoner is in custody in civil execution. The difficulty here is, whether a party, being in custody at the time of his application by a rule of court made in consequence of the plaintiff's proceeding on the 32 G. 2, the Court can now make an order to discharge that party under the 48 G. 3. If we make this rule absolute now, which, but for this, we are inclined to do, the one order will be contradictory to the other. GARROW, B. Should not the defendant alter his course, and get rid of the existing order? If you can shew that the order to bring him up the first day of next term, should be cancelled, then it is open to you to move for the prisoner's discharge under the 48 G. 3. Agreeably to this suggestion, the rule was by consent enlarged till an application of the above nature should be made. Accordingly, February 4th.-Sir W. Owen moved to discharge the order of the 26th January, quia improvide emanavit, on these grounds; 1st. that it was repugnant to the pre vious rule of the 23d January, and that the two custodies under the orders were inconsistent. 2d. The compulsive clauses of the Lords' act were most highly penal, and ought to be construed most liberally; but they contained no provision whatever for bringing up a prisoner to give in an account on more than one occasion. There was therefore no authority for the order. 3d. There was a period of much more than sixty days between the time of remanding the prisoner, and the first day of next term; but the words of the statute ought to be literally complied with. Jones not being instructed, Sir W. Owen, at the suggestion of the Court, took a rule calling on the plaintiff to shew cause why the order of the 26th January should not be discharged, and the rule of the 23d January made absolute. February 10.-Jones opposed the latter rule, and supported the former, repeating his former arguments. HULLOCK, B., having referred to the language of the 17th section of the 23 G. 2, c. 28, viz. "and if any prisoner charged, &c. and who shall be required, &c. shall neglect or refuse to deliver in such just and true account, &c. within the time hereinbefore limited and appointed for the doing thereof, or within sixty days then next following," &c: if the man does not do what the act requires within sixty days after being remanded, he is made liable to transportation; but he may do it the next day. This rule appears to have exceeded the directions of the act, by remanding the prisoner for a certain period of time. The Court accordingly directed the rule of the 26th to be altered into one, simply remanding the prisoner; and made the rule absolute for discharging him out of custody, under the 48 G. 3. c. 123. 1824. LANGDON V. ROSSITER. |