CIVIL ACTIONS, treason (a). The right of the king cannot, it is true, be defeated DETAINING IN by such permission; for he may still command execution to be done on his body (b), and if a pardon be actually granted to him under the great seal, on condition of transportation, the court will not permit the intention of the crown to be defeated, by allowing creditors to throw an obstacle in the way of his departure, but will make it a part of the rule, that the defendant's person shall not be taken in execution (c). There is, indeed, a distinction taken between a pardon actually obtained, and a mere promise to grant one; for, in the latter case, the court will not interfere to discharge the prisoner (d). And, in no case, can any court order a prisoner in the House of Correction, or any other custody, except its own, to be brought up by habeas corpus ad respondendum, for the purpose of being charged with bailable process. So that, whilst a party is in such confinement, he cannot be sued otherwise than by issuing process, and entering continuances on the roll, in order to prevent the operation of the statute of limitations (e). When a criminal has given bail to a civil action, who are anxious to discharge themselves from further liability, they may sue out a habeas corpus cum causâ, on the crown side (ƒ), to bring up the defendant before the court of King's Bench, who will remand him to his former custody, and enter an exoneretur on the bail-piece, as to his sureties (g), but the court of Common Pleas will not do so (h), and a certiorari will not lie to remove the record of judgment obtained against a defendant in the county palatine of Durham, for the purpose of enabling his bail to render him in the King's Bench, though he be a prisoner for debt in the custody of the marshal (i), and the bail must justify before the writ will be granted them in any case (k). And it may CIVIL ACTIONS. DETAINING IN be refused, if the defendant is actually on board a ship to be transported to our foreign plantations (a), but, in such a case, the court will sometimes permit an exoneretur to be entered without bringing up the convict (b). Where the prisoner is brought up in person, the court will, in general, remand him immediately to the custody in which he was previously confined (c); but, if he be only in prison, on a charge of felony, they may commit him to Newgate, on the accusation which is preferred against him (d). Entries of Discharge, &c. It is the regular practice of every keeper of a public prison, to register the discharge of each individidual in his custody when his sentence expires, or he otherwise obtains his freedom (e). And these entries, until they are falsified, are admissible evidence to prove the time when the imprisonment ended (ƒ). Where the crown is willing to remit any part of the punishment, or entirely to excuse a fine, an entry of satisfaction is made on the record by the Attorney-General (g). Or if in the country, he issues his warrant for the clerk of assize, to acknowledge satisfaction on the roll, which operates as an entire discharge to the party convicted (h). 4 CHAPTER XXI. OF THE PROCEEDINGS AFTER EXECUTION, viz.- of conviction, IN order to prevent any second conviction for the same offence, of certificates, or the improper allowance of clergy more than once to the same and allowance person, the 34 & 35 Hen. 8. c. 14. s. 2 (a), directs the clerks of of clergy, &c. the peace, of the crown, and of assize, on the outlawry, conviction, or attainder of any criminal of felony in their respective courts, to certify a transcript, in a few words, of the effect of the indictment, outlawry, or conviction, with the time and place where the outlawry or conviction occurred, into the King's Bench, as the supreme court of criminal jurisdiction, where the clerk of the crown is, without reward, to receive them. It also directed, the latter officer, in whose custody these records were thus deposited, on the application of any justice of gaol delivery or of the peace, [ 816 ] throughout the realm, to certify the names of the parties convicted, together with the nature of the offence of which they were found guilty (b). And when, by the 3 W. & M. c. 9, the benefit of clergy was taken away from several descriptions of offences, it was enacted (c), that when any convict is allowed that benefit, the clerk of the crown, of the peace, or of assize, shall, at the request of the prosecutor, or any other person on behalf of his majesty, briefly certify the tenor of the indictment, conviction, and allowance of the benefit of the statute; which shall be sufficient evidence that the offender is ousted of clergy on any subsequent prosecution against him (d). (a) Dyer, 253, b. (b) Sec. 4. (c) Sec. 7. (d) Sec. 7. Ante, 667 to 690, as to Benefit of Clergy. Of estreats, fines, &c. [ 817 ] After the sessions or assizes are concluded, it becomes the duty of the clerks to make out a proper Estreat or list of the forfeitures incurred, and the fines inflicted while the court were sitting (a). By the 7 Hen. 4. c. 3, the judges or justices before whom the fines and amerciaments are made, are directed to charge the clerks by their oaths, that they make out these documents distinctly, by express words of the cause of the loss, of the term of the year, and the parties who have incurred the pecuniary penalty. In pursuance of the same design, the 22 & 23 Car. 2. c. 22. s. 7 & 8, provides, that all clerks of the peace, and town clerks, shall deliver to the sheriff, within twenty days after the 29th of September, in every year, a perfect estreat or schedule of all fines, issues, amerciaments, and other forfeitures whatsoever, forfeited in any sessions before Michaelmas, under the penalty of £50, half to be paid to the king, and half to the informer. And they are compelled under a similar penalty, on or before the second Monday after the Morrow of All Souls, to deliver into the court of Exchequer, a duplicate certificate, and estreat of the estreats and schedules thus delivered to the sheriff. On this occasion, they are to make oath that they have carefully examined the matters contained in the estreat, and that, to the best of their knowledge, they have duly inserted every forfeiture (b). If it be discovered that they have withheld or miscertified any part of the forfeitures, they are to forfeit treble, to lose their post, and to be rendered incapable of holding any office in the revenue (c). The provisions of the 22 & 23 Car. 2. c. 22, relates to the fines, issues, and amerciaments, forfeited recognizances, &c. im (a) Williams, J. Estreat. Burn, J. Estreat. See form, Burn, J. Estreat. Williams, J. Estreat. Post, last vol. It is incumbent on persons under recognizance, who, in consequence either of bills not having been found, or of none having been preferred, may not be called upon to answer, or give evidence, to see that their appearance is recorded, so as to enable the court to order their recognizances to be cancelled, as otherwise such attendance is no attendance at all. -Per Thomson, C. B. Rex v. Miller, the younger, 1808. (b) 4 & 5 W. & M. c. 24. s. 5. See form of oath, Burn, J. Estreat. Williams, J. Estreat. Post, last vol. (c) 22 & 23 Car. 2. c. 22. s. 9, and 3 Geo. 1. c. 15. s. 13. posed at the quarter sessions, and of the 4 & 5 W. & M. c. 24, making the same perpetual; and the 41 Geo.3. (U. K.) c. 85, are now repealed by the 3 Geo. 4. c. 46; which, together with the 4 Geo. 4. c. 37, provide for a more speedy method of the recovery of fines, &c. (a). By the 2d section of the 3 Geo. 4. c. 46, it is enacted, that all fines and forfeited recognizances, &c. are to be certified by the justice before whom they are set, or forfeited, to the clerk of the peace, in writing, containing the names and residences, trade, profession, or calling, of the party fined, &c. the amount, and the cause of the forfeiture, on or before the ensuing general or quarter sessions; and the clerk of the peace is to copy on a roll such fines, &c. at the quarter sessions, and is, within a time to be fixed by the court, not exceeding twenty-one days after the adjournment of the court, to send a copy of such roll, with a distringas and capias, or fieri facias and capias, according to the form therein given, to the sheriff, &c. to levy the fine, &c. The 3d section enacts, that the clerk of the peace, or town-clerk is, before delivery of such roll to the sheriffs, to make oath as to all fines, &c. which shall be paid (b). Section 4 enacts, that the justice before whom the recognizance is taken, is, at the time of entering into such recognizance, to give to the parties, entering into it a written notice, therein pointed out. Section 5 gives a right of appeal to the quarter sessions against fines, &c. upon giving security. The 10th section gives an allowance to the sheriff and clerk of the peace on the sums levied; and imposes a penalty of £50 on a sheriff's officer, or clerk of the peace, neglecting the provisions of the act. The act, by section 11, is not to alter the usual mode of appropriating fines. By section 14, clerks of the peace, &c. are to deliver into the Exchequer, yearly, a certificate of all fines, &c. paid, that the sheriffs may be discharged in their account, and that parties entitled to fines, &c. may claim the same. By sections 15 and 16, there is a saving of rights to bodies corporate, or lords of manors, liberties, or franchises, and of the privileges of the city of London. ESTREATS, FINES, &C. (a) See the 4 Geo. 3. c. 10, as to Exchequer practice. for discharging estreated recog (b) See form of oath, id. 3 E nizances; and ante, 92, note (d),, VOL. 1. |