
    
      George Robertson, Survivor of Robertson and Gilfillan, v. John Shannon.
    
    It is the duty of the Court to supervise the execution of its own process, and prevent any abuse or oppression which may be practised under color of it, more especially in behalf of persons unlawfully imprisoned.
    It is no objection to a Fi. Fa. that the defendant is in custody in the action, if he has not been charged in execution. It is the plantiff’s right to choose in execution between the body and goods, and the defendant by neglect to give bail, cannot take away this choice, at least, for a reasonable time.
    A Ca. Sa. may be a renewal of a Fi. Fa. and there is, therefore, no irregularity in continuing process of execution within seven years, by sueing out a Ca. Sa. after the return of the Fi. Fa.
    
    Lodging a Ca. Sa. with the Sheriff, whose prisoner the defendant is, is, under our practice, a sufficient charging in execution ; the only mode known to us.
    If a prisoner be supersediable for any irregularity or default of the plaintiff, he cannot take advantage of that after he is charged in execution, if he had opportunity of applying on those grounds before he was charged. The charging in execution changes the process, and the nature of the custody.
    If a defendant has been regularly charged in execution, notwithstanding he was supersediable, he is no longer entitled to a supersedeas.
    
      Before Mr. Justice Frost, at Charleston, May Term, 1847.
    This case arose on a motion for a rule against George Robertson, survivor of the plaintiffs, to show cause why the defendant should not be discharged from custody, and a supersedeas for that purpose be granted.
    At the hearing of the motion, it appeared that the defendant had been arrested on bail process, at the suit of the plaintiffs, in April, 1839, and had remained in custody, under that process, ever since. . Judgment had been rendered for the plaintiffs in January, 1840; and a new trial having been granted,- final judgment and execution of fi. fa. were entered in June, 3840. The Grand Jury had, at the present term, presented the case of the defendant as one of great hardship and commiseration, requiring the interposition of the Court, if consistently with law and the rights off the plaintiff, any relief could be afforded. Similar presentments had frequently before -been made. On the presentment, and an intimation that the defendant was not sane, Judge O’Neall had ordered an inquiry to be made by physicians, respecting the state of the defendant’s mind.— They reported to the Court that the defendant exhibited no symptoms of insanity, but that he was morbidly excited on the subject of the plaintiff’s demand. On this report no further proceeding was taken on the presentment. After-wards, Mr. Petigru applied for this rule. He admitted that he was not retained by the defendant, and acted without his knowledge or consent.
    It was objected that the Court could not entertain the motion on behalf of the prisoner without the production of a warrant of Attorney, or proof of the retainer by him of the Attorney who undertook his case. The objection was over-ruled, because it is the duty of the Court to supervise the execution of its own process, and prevent any abuse or oppression which may be practised under color of it; more especially in behalf of persons unlawfully imprisoned ; and that the proper occasion for such interference of the Court, is a matter for the discretion of the Judge, who may give relief, although the party to whom it is extended may not be strictly and technically in Court. The circumstances of this case, in the opinion of the Circuit Judge, justified the interference of the Court. The defendant had been eight years imprisoned, under mesne process; and seven years had passed since judgment hod been rendered for the plaintiffs. The effect of such detention was to give the plaintiffs the benefit of an execution against the body and goods of the defendant, which regularly he cannot have. It was time the plaintiff should elect, whether he would proceed for satisfaction of his judgment' against the body or the goods of the defendant, and either charge the defendant in execution or discharge him from custody, and proceed with an execution against his property. It appeared from the proceedings in the case, and the statements of counsel at the trial, that the resentment of the defendant against the plaintiffs had reached a morbid intensity, which prompted him to the resolution never to satisfy the plaintiffs’ demand, and sustained him in this resolution during his long imprisonment. He refused to accept the voluntary and gratuitous services of counsel to procure his enlargement. Conduct so inconsistent with reason, must suggest a'doubt, of the defendant’s sanity,-which the report ‘«of the physicians does not entirely 'dispel. It at least ¡proved, that unless the Court would, at its own instance, ■notice the case, the defendant might be unlawfully imprisoned, under its process, for life. The rule was therefore granted.
    After service of-the Rule to show cause, and before the •return of it, the plaintiff sued out from the Clerk, a Ca. Sa., which was lodged with the Sheriff. On the points made in argument, at the return of the rule, it was held, that a prisoner in custody on mesne process, at the suit of the plaintiff in the action, is entitled to a supersedeas and discharge from custody, if the plaintiff does not, within two terms ■after final judgment, -charge the defendant in execution ; «that the lodgment of a Ca. Sa. with the Sheriff, is the proper mode of charging in execution ,a defendant who is in his custody; that the issuing of the Ca. Sa. in this case by the Clerk, was regular, and that though the defendant was ■supersediable when the rule was granted, yet the plaintiff might retrieve his delay by charging the defendant in exe■cution, at any time before he was actually superseded. The motion for the supersedeas was therefore refused.
    Notice and grounds of appeal in behalf of the defendant have been received.
    On the part of the defendant, an appeal was taken on the following grounds:
    1. That the defendant was clearly supersediable when the rule was taken out.
    2. That the Ca. Sa., signed on the 10th June 1847, was irregularly issued.
    * 3. That the said Ca. Sa. could not defeat the defendant’s right to his discharge.
    A motion was also made on the part of the plaintiff to ■reverse his Honor’s decision, and dismiss the rule, on the grounds,
    1. That the motion was not before the Court and could not be heard, the same not having been made by defendant in person, nor by his attorney or eojnnsel, with author^ sty so to do.
    
      2. That under the circumstances of the case, as is respectfully and deferentially submitted', the granting of the rule was unauthorized judicial interference with the civil and private rights of an individual, not in litigation before the Court.
    3. That the ground of the rule, the failure of the plaintiff to charge defendant with a Ca. Sa. is untenable, both in England and in this country, and especially in this State, where the Westminster rule of practice as to charging defendant in execution, within two terms after judgment, is. both obsolete from nonuser, and inapplicable to the law of bail in this State as modified by our own legislation.
    Bailey, Attorney General, for the motion,
    said he felt it to be-his official duty to aid in the liberation of this prisoner. That the-Court had the power of general jail delivery. (Act of 1735, 3rd. Sec. 7 Stat. 200.) That all the powers of all the Courts of England were vested in this Court. Asked why the Sheriff was bound to furnish a list of prisoners, but that the Court might take such-necessary orders as seemed to it good. Mr. B. said a prisoner in confinement under mesne process, who is not charged in execution within two terms after final judgment, is entitled to his supersedeas. 2 Archb. Pr. 113, Title, Execution ; 2 Sellon 34 and 35. If these are the rules of Westminster Hall, this Court has the same rules— 81st rule of Court. 2 Rich. Rep. 336; Bank v. De La Torre, 2 Spear. 503. The execution relied on, in this case, was neither issued in time, nor regularly issued by the Clerk. The Clerk had no authority to sign the ca. sa, 2 Sellon Pr. 21, 34, 36 and 37; Archb. Pr. 117;> Barnes’ Cases 389. The mode of charging the-prisoner in execution, is not a matter of form; substantial notice is necessary. See the Act of 1815, 6 Stat. 6, and that of 1827,6 Stat.. 324. If three years elapse there must be a sci. fa. As an original execution, the ca. sa. was too late, and a ca. sa. cannot be a renewal of a sci. fa. 1 Archb. 264, 270, 277 and 279. As well saya» action of debt is the renewal of a writ in assumpsit. A renewal is a continuance or revival of something of the same nature. To. avoid the absurdity, there is no evidence on the face of this writ to' show that it was a renewal. The ca. sa. and fi. fa. are concurrent remedies, but never conflict. Stale v. Quignard, 1 McC. 176 ; Ilia-zyck Sf Bell v. Coil, 2 Bail. 101; 3 M’Cord 418. These writs, air though they may be issued simultaneously, cannot both be used at' the same time. Jenkins, v. Mayrant, 3. M’cO. 560. If ever these: are to renew each other, it should appear on- the face- of the writ'. See 2 Bac. Abr. Title Execution, H. and the authorities referred to.1 2 Wilson 82. It must also be regularly returned to the office to show that satisfaction has not been obtained. 1 Salt. 318. It must bo entered on the roll.
    
      The body of the debtor, in prison, is tho highest satisfaction known to the law, (4 McO. 509 ; 1 Hill. 422,) and the fi. fa. of a junior creditor may go on against his goods. 2 Hill. 502. You cannot go against the goods of a debtor, until you release his body from prison. This writ came too late. 2 Archb. Pr. 120, 121, 122 and 123. A prisoner supersodiable is always so, (2 Sellon’s Pr. 41 and 42; Barnes’Notes 368,) and plaintiff cannot renew process, after a rule to show cause, or an application for one — the forfeiture has occurred. Barnes’ Notes 398 and 400 ; Pearson v. Goodwin, 1 Bos. & Pul. 361. The prisoner cannot be arrested again after supersedeas, for the same demand.
    Yeadon, contra,
    contended that the party defendant was not before the Court, for his Lawyers were unauthorized to represent him; that no one as amicus curia can act as Attorney for another — he can only suggest, &c. 2 Cromp. 29. That the Attorney General could not intrude himself in a civil cause, or induce others to aid him in so doing, and that Messrs. Petigru & Lesesne were signed to the Appeal as defendant’s Attorneys. Mr. Y. said the release of this volunteer prisoner would operate great injury and injustice to the plaintiff. 1 Tidd’s Prae. 34 shows an Attorney to be one put in the place of another, to manage his case. 1 Sellon’s Pr. 17 approves of filing a warrant of Attorney, and it would be useful for it to be done in this case. 2 Stat. 456 shows how a pauper may be defended, but the defendant here is no pauper. Mr. Y. said admit, however, all this to be correct, and still this mode of proceeding is novel in our State — it had never been applied here, nor is it applicable. We have other remedies. If a debtor is honest he can soon be relieved under our own Acts. Our law of bail is different from that of England. Jarvis v. Alexander, Cheves 143. The rule contended for, is founded on British Statutes — not of force in this State. The only rule made of force, on this subject, is that of 4 and 5 Wm. & Mary, Chap. 21, but it is obsolete. See 2 Sellon’s Pr. 14 as to the mode of declaring, and 2 Sellon’s Pr. 34 and 35, Title, “proceeding against prisoner to trial and execution.” That of 26th George III., and 8th George I., referred to in Sellon, are rules not of force here ; and if of force, the counsel have not brought themselves under the rules laid down to discharge a prisoner by supersedeas. See 2 Sellon’s Pr. 37 and 38. They have entered no common appearance, &e. &o. In 2 Sellon, 36, it is shown how to charge in execution when the defendant is in custody of the Sheriff, and also when in custody of the Marshall or any other offieer-
    Although a party may be supefsediable, yet he may lose his right by subsequent action on the part of the plaintiff. 2 Sellon’s Pr. 39, 40 and 41; 1 Durn. & East, 591. As soon as the ca. sa. was lodged, the defendant was in prison under a new process, and lost his right. 5 Wm. & Mary, rules of King’s Bench; 1 Durn. & East, 591 ; Barne’s Notes, 379. The other’cases, cited on the other side, are as strong for us as for the defendant. We are not bound on the civil side of our Court, by the rules of the King’s Bench ; nor do any of their rules bind us, unless they have been adopted here--(7 Stat. 190.) The Judges have the power of making their own-rules. If the prisoner is charged in execution, before supersedeas-granted, it is in time, under the English rules, if'they are of force-here. The prisoner is then placed under a new process, and loses his right.
    The regularity of the ca. sa. in this case, is not to- be disputed in-this collateral way. Let it be impeached and set aside, if irregular. Ayers v liardress, Strange 100, shows that after several Ji. fas. returned nulla Iona, a ca. sa. issued, and was held to be regular. 2. Wilson, 82, and the other cases, eited on the-other side, only show that the first execution must be returned before the- other issues. 7 Stat. 228, actually prescribes the mode of proceeding. In 3 M’O. 418, the Ji. fa. had not been returned, and the case in 3 M’Cord, 560, goes no further; it shows that a ea. sa. may be a renewal of a:. .fi- fa-
    
    The only question, remaining then, is, has this ca. sa. been issued.' in time under the Act of 1827. Even after four, years an execution, retains its active energy until the sitting of the next Court, and anytime within three years after, it may be renewed. 6 Stat. 324.— (We, however, deny the right to question the validity of the execution in this ease.)
    Our law does not regard one in the state of this prisoner, with the false sympathy shown here; it gives a remedy, even after his death in prison from obstinacy, against his goods and chattels. Aet of 1785, 7 Stat. 228.
    The Act of 1734, 7 Stat. 184, is the first Act regulating our Courts, or organizing them. That of 1737, and all the other Acts •on the subject, only confirm the powers granted by that Act. The-English rules are different in the several Courts. They form no-part of the common law ; and we are no more bound by them than by their Legislation.
    Petigru, for the motion, asked if there-was any reason why the Court may interfere for the liberation of a* State prisoner, and not. for that of the captive of a private adversary ? The law, said Mr. P., has given the- ea. sa., and laid down regulations for .suing it out, and if the plaintiff has not performed the conditions annexed to it,, if he has not pursued the law, he has no right to complain. At common law, there was no ca. sa. The mode of proceeding prescribed by the law has failed of effect; (in fact, it has not been regularly pursued,) the debtor has been subjected to the ordeal, and it has been fruitless. Now can he still be detained? We contend that he cannot rightfully be.
    We do not say that a ca. sa. can never issue on a fi. fa. The Act. of 1827 does not authorize it. It alfows a-renewal of the execution: but is a ca. sa. a renewal of a fi. fa. ? It is a new execution, and the Act says you. may renew the same. Again, after judgment, you-. may take out both a ca. sa. and a fi. fa., but are they renewals one. of the other? In, the-case in 3d McC., where it is said it cannot he-renewed until the other is returned, it was only an additional reason ; the real case was already decided. Even the smallest distinction should he material in favor of liberty.
    The prisoner is supersediable by the laws of this Court. — Ex parte Watkins, 7 Peters, 568. There has always been a rule of Court regarding prisoners. The Statute of William and Mary was made of force-in this State, altering the mode of bringing them into Court, &c. The common law always saw that the prisoner had fair play, 1 Tidd’s Pr. 318, 319, 322 and 324, and Impey’s Pr. 636 and 640, show how and when a prisoner shall be charged and discharged; and Rich. Com. PI. 190 and 191, Lush. Pr. 657, 2 Cromp., K. B and C. P. 23. Barnes, 389, and 2 Tidd’s Pr. -953, show also the mode, &c. In the King’s Bench he is brought up by writ of habeas corpus to be charged in execution; but if in the country or distant county, he is in the custody of the Sheriff, and charged in execution by ca. sa., and he must be charged in execution within two terms af: ter judgment, including that at which the judgment was rendered. The Act of 1786 gives to the Circuit Courts here all the powers of the English Courts of Westminster Hall. The prison of Charleston District is that of the Court of Charleston District, and so the prisoner here is the prisoner of the Court, and the proceeding by ca. sa. irregular. As he was not charged in execution within two terms after judgment, he was supersediable: now did the ca. sa. take from him this right ? After he had become supersediable for not having been charged in execution, he was always supersediable, (Lush. 655) except against another party by different process. — Hutchings v. Kendrick, Burrow, 1048; Ex parte Wilson, 1 Atkins, 152; 1 Cowper, 1. Unlawful arrest, wrong imprisonment, cannot be made good by subsequent legal process. If one be supersediable for any irregularity subsequent to the judgment, he is always supersediable. If so before judgment, the judgment will cure the irregularity. — Lush. 657. If the plaintiff neglect to charge in judgment within the proper time, the prisoner is supersediable as to that judgment at any time afterwards. The rule is, to show what cause there is for detaining the prisoner at that time — now; not subsequent cause. — Pearson v. Goochvin, 1 Bos. and Pul. 361. You cannot found lawful detainer upon unlawful arrest. — Barnes, 398 and 400. After the rule is taken out, you cannot change the condition of the parties. The cases of Clayton v. Slap and Rose v. Chrisifield, do not conflict with this position.
    If a party is in jail six months after judgment, unless for special matter, he shall be discharged. This is the practice now in England — and if not here, it shows how consistent it is for the Court to care for the captive. The service of the ca. sa. in this ease, is a false imprisonment.
   Wardlaw, J.

delivered, the opinion of the Court.

We cannot dispose of this case hastily, by sustaining either of the two first grounds which the plaintiff has taken in his appeal from the order granting the rule to show cause. Approving what the Circuit Judge , has said on this subject, we remark further, that the 51st section of the Sheriff’s Act of 1839, by “ the return to every Court of Common Pleas and General Session of the name of every prisoner, and the time and cause of his or her confinement, whether civil or criminal,” which it directs the •Sheriff to make, plainly contemplates an inquiry by the Court into the case of every prisoner. That no advantage has here been sought by any step taken without notice to the plaintiff, and that in this case, the defendant has a right to be heard by Counsel, for the common appearance, which the English practice requires a prisoner too long detained in prison on mesne process, to enter as a condition of obtaining a supersedias, and which the plaintiff’s counsel has supposed this defendant should have entered before an attorney could appear for him, as only such appearance as will authorize the plaintiff to go on against him, that is, appearance by attorney, or appearance after the common bail, John Doe and Richard Roe, instead of substantial bail,which, •according to our practice, was in fact, though not in form, entered by the defendant at the term following his arrest. There is nothing in our institutions which renders unlawful imprisonment, more especially that which is inflicted in the prison of the Court, or by abuse of the process of the Court, less odious to judges here, than by the common law, it has always been to judges in England. If a case of such imprisonment brought to the notice of a Circuit Judge and not relieved by him were again presented to this Court in suitable form, the duty of this Court would be very insufficiently performed, if inquiry were arrested by the objection that the authority of the prisoner had not been given to his advocates. Rather than endure a continuance of the wrong ■done under the seeming sanction of the law, this Court, if it ■could not look upon the appeal as regular, would consider it as a resort by the Circuit Judge himself to this Court for advice, and by such order as might be enforced on Circuit, if not here, would take care that the abuse should be corrected. Returning then to the counsel, who have argued this case in behalf of the defendant, the thanks which a Court should always feel due to counsel who with candor and ability afford aid to the Court in the investigation of a difficult matter, wherein the Court is called upon to act, we will proceed to inquire whether the defendant is entitled to the supersedias or discharge which is prayed. for him.

If a defendant imprisoned under mesne process requiring bail, whether he never gave bail, or having given it had been surrendered, had no summary mode of relief, he might, under the practice of the English Courts, have been greatly oppressed; the declaration might have been long delayed and no danger of non pros, have been incurred because there was no appearance, or if there was an appearance, and the prisoner even had opportunity for making the necessary inquiries, judgment of non pros, might have been avoided by leave obtained' of further time to declare ; after declaration, trial might have been delayed ; after trial, judgment delayed, and after judgment no writ of execution be sued out; the defendant all the while languishing in prison, or some other writ, and not a ca. sa. be sued, and so the body be held whilst the plaintiff sought satisfaction from the lands or goods. There are some terms employed in the English rules of Court hereafter noticed, which suggest the opinion that before any of those rules, the Courts at Westminster, under the regulations which they adopted for the government of their several prisons and their course of practice, interposed in some way to prevent the unnecessary oppression of prisoners. But I have found in the oldest books of practice which I have exaimed, no express,authority for saying that there was such interposition before those rules. No act of parliament was passed on the subject, but the imprisonment had in the prison of each Court, or by its process, seems to have been considered fit matter to be regulated by the Court itself.

At Mich, term, 1654, during the protectorate of Cromwell, the King’s Bench and Common Pleas each made a rule, in effect, providing that a defendant imprisoned in the Court or elsewhere, under the mesne process of the Court, should be discharged from imprisonment at the end of the second term upon common bail, if the plaintiff should not sooner declare against him ; the Common Pleas expressly providing that the discharge should be by supersedeas.—In 1661, the Stat. of 13 Chs. 2, Stat. 2, ch. 2, entitled “an Act for prevention of vexations and oppressions by arrests, and of delays in suits at law,” was passed (made of force in this State, 2 Stat. 513) for want of a declaration before the end of the term made after the appearance; and the 5th provides for bringing to the bar of the Court, by habeas corpus, a prisoner in the Fleet, that he may appear and the plaintiff may declare against him, so as to have judgment by nil dic.it, if no plea should be entered — “ the charge in Court by declaration, to be a good cause of detention of such prisoner, from which he shall not be discharged without a lawful supersedeas or rule of Court.” Soon afterwards, the Court of Common Pleas, to conform its practice to this statute by rule, Hil. Term, 14 and 15 Chs. 2, (1662,) reciting that “many persons, under mesne process from this Court, have been long detained, as well in the custody of Sheriffs and goalers as in the prison of the Fleet, without any proceedings against them; to prevent unjust vexations,” ordered, inter alia, that if a prisoner in the Fleet be not brought to the bar and declared against, before the end of the second term after his imprisonment, he should be discharged by svpersedias upon common appearance ; whereupon, the plaintiff might declare the next term after such appearance or supersidias granted, an additional term for declaring against a prisoner in custody of a Sheriff being allowed. At Easter Term, 16 Chs. 2, 1664, the King’s Bench, by rule, regulated the notice which should be given to the plaintiff of an application for the discharge of a prisoner, and ordered that a prisoner, “ against whom a prosecution hath been within three terms next preceding,” shall be discharged at the peril of the Attorney who shall procure the discharge.

In 1692, by Stat. 4 and 5 W. & M. c. 21, (made of force in this State, 2 Stat. 537,) the Parliament, reciting that by the practice of the respective Courts of Record at Westminster, a prisoner, if not removed by writ of habeas corpus, to be charged in the Court with a declaration, before the end of two terms, is discharged upon a common bail or appearance by Attorney ; enacted, that if a defendant be in custody for want of bail, the plaintiff may, before the end of the term after the writ is returnable, declare against the prisoner, and shall cause a copy of the declaration to be delivered to the prisoner or to his goaler : to which the defendant shall plead or the plaintiff have judgment in the same manner as if the defendant had appeared in Court. In the King’s Bench, it shall be alleged in custody of which Sheriff or other officer the prisoner is, which shall be as effectual as an allegation, that he was in custody of the Marshal of the Marshalsea.” This staC ute was intended for the relief of plaintiffs, but did not take away the old mode of proceeding, if they chose to take the trouble and expense of a habeas corpus. To conform their practice to this statute, at Easter Term, 5 W. & M. 1693, the King’s Bench and Common Pleas both made rules concerning declarations against prisoners, which again provided, that a prisoner might be discharged if there was no declaration before the end of the term after that under which he was taken, was returnable ; the C. P. says, that “ he shall be discharged upon the entry of his appearance with the proper officer, by writ of supersedeas, made by him accordiug to the ancient practice of this Court.”

At Trinity Term, 9 or 3, 1697, tiie K. B. by rule, ordered, that if judgment be given against a defendant in the actual custody of the marshal, and he be not charged in execution, before the end of the second term after judgment obtained, common bail should be filed for him after notice, if no writ of error be pending. By rule, T. Term, 6 Ann, 1707, in K. B. a supersedeas, for want of a declaration before the end of the second term, may be made for a defendant detained in custody of a Sheriff after escape from the Marshalsea. In K. B. all of the preceding provisions were again explicitly repeated, with slight modifications, at Trin. Term, 2 Geo. 1, 1716, when a defendant in prison under the mesne process of the Court, was permitted “to file common bail or sue out a supersedeas, according to the course of the Court,” for his discharge out of custody, either for want of a declaration within two-terms, for want of proceeding to trial or judgment within three terms, or for want ®f charging in execution within two terms. In C. P. 8 Geo. 1, 1722, a rule, reciting that “ many doubts had arisen on the rules for discharging prisoners in the Fleet and County gaols,” directs, that a prisoner under the mesne process of the Court, by arrest or surrender, may be discharged by supersedeas for want of' a declaration, for want of proceeding to trial or judgment, or for want of charging in execution within certain periods, the same as those fixed in the last mentioned rule of" the King’s Bench : except that, perhaps, there may sometimes hare been a difference between the two Courts as to-including the first term in the reckoning of terms allowed. At Trim 5 Geo. 2, 1724, a rule of C. P. declared that a prisoner, discharged or ordered to be discharged by super-sedeas, for want of prosecution, shall not be held to any other than common bail in an action upon the judgment obtained in the former cause.

Thus stood the rules of the Courts of Westminster on this; subject, at the time when it hais been supposed they were-adopted here. Have they been adopted 1 The early judicial! history of this State cannot be traced upon our statute books,. An important “ Act for the better regulating Courts of justice,” passed 1719-20, has been entirely lost. (3 Stat. 99.) Many regulations established or altered by the Lords Proprietors, under the Proprietory Government, and afterwards by the Crown, through letters patent and repeals of Provincial Statutes, are not noticed in our legislative proceedings.— From the earliest time, a general Court sat in Charleston, which, in 1734, (see 7 Stat. 18,) was composed of a chief" justice and two assistants. In 1737, (7 Stat. 90,) the Court, of Common Pleas, and the justices thereof, were expressly vested with all the powers which the Court of Common Pleas,, at Westminster, and the justices thereof, might exercise.. In. 1768, 7 Stat. 97, Circuit Courts, intended to proceed after the; manner of the Courts of Assize and Nisi Prius, in England, were established: and in the 3d Sect, of the Act, power to make reasonable rules and orders, is given to the said Courts; and it is enacted, that “ the practice and proceedings in the said Courts, respectively, shall be as nearly similar as maybe to those [of the Court] now held in Charleston, and to those [of] the Courts holden in Great Britain by his Majesty’s justices of assize, Oyer <fc Terminer and General Goal Delivery, and also of nisi prius — provided that nothing herein •contained, shall extend or be construed to put in force any Statute of Great Britain, which is not otherwise of force in this province.” In 1759-7 Stat. 253, the same complete and ■final jurisdiction was given to each of the Circuit Courts, which the Courts [Court] in Charleston possessed, “ according to the customs, usages, and practice of the said Courts” in Charleston; and the Courts, now held, derive their authority from this Act, and subsequent amendments of it.

In a collection of the Rules of Court, then of force in South ■Carolina, which was printed in 1796, and is the earliest record now extant of Rules of Court in this State, are 24 rules established 4th July, 1758, by the Judges of the General Court at Charleston, then subsisting. Nothing in them is said of supersedeas or discharge of prisoners, but the 24th is this. In all other cases, wherein no particular rules are herein before set down, the same method and practice, as in the Court of Common Pleas at Westminster, shall be used and practiced here, so far as the same be not repugnant or contrary to the above rules.” The 61st of the rules, made 1st July, 1800; the 81st of the rules, made 7th May, 1814; and the 89th of the rules, adopted Dec. 1837, are all in effect the same as the foregoing 24th rule of 1758. The method and practice of the Court of Common Pleas at Westminster, uninfluenced by changes which have grown out of statutes never made of force here, and not inconsistent with the laws of- this State, are then to regulate the practice of our Courts, in all cases not provided for by our legislation, rules of Court or settled practice. The decisions of the English ' Courts may be looked to, to ascertain what their practice, uninfluenced as above, was and is; and the rules of the Common Pleas at Westminster, especially those prevailing in 1758, -subject to the same qualifications as practice made otherwise evident, are authoritative declarations of their practice.

Our prison bound Acts and insolvent debtors Acts, have been supposed .to render altogether unnecessary here, the practice which' was adopted in England, to relieve prisoners under mesne process from vexatious detentions. But in favor of liberty, they should be construed as cumulative remedies, not denying prisoners any modes of relief, which before existed and have not been repealed. Besides, cases may be imagined, not only of extreme obstinacy in a debtor, who refuses to surrender his all to a creditor,-(as the defendant here is said to do,) but of "the chance of relief under our remedial statutes lost, and a defendant greatly oppressed by the delay of a plaintiff. Notwithstanding any obstinacy, or any delay of a debtor, or any circumstance which may have deprived him of the. benefit of our statutes — should a plaintiff be permitted, after judgment, to hold the defendant for want of bail under mesne process in jail, refusing to acknowledge the actual satisfaction which the body is held by the law to give ? If this may be done after the second term, what limit, without the practice of the Common Pleas at Westminster, is there, short of twenty years, which raises the presumption of satisfaction?

So far as the rules of the Courts of Westminster mentioned above may apply to discharges for want of declaration, or for want of proceeding to trial or judgment within three terms, we are not now called to consider them; but it may be observed, in passing, that in these cases their adoption by our Courts can rarely be desired. Our statutes and rules of Court,, made in general terms, which embrace prisoners as well as all other defendants, concerning the time and mode of a defendants appearing, and of a plaintiff’s declaring, have perhaps rendered wholly inapplicable the Statute of William and Mary concerning declarations against prisoners, and in a great measure superseded the practice of discharging a prisoner for want of declaration before the end of the term next after the term to which the writ was returnable. The defendant with us may always appear by attorney, whether he has given bail or no; his appearance is not needed to authorize a declaration : if he has appeared, he may, under the Statute 2 Charles 2, and our Act of 1791, (7 Stat. 263,) obtain, by proper caution, his judgment of non pros., and discharge under ■that, if plaintiff have not declared before the end of the term succeeding that to which the writ is returnable; unless the plaintiff should have obtained further time to declare, which the Court in England does not generally grant against a prisoner.—2 Sell. Pr. 29. If the defendant have not appeared, or have been wanting in diligence, a supersedeas may however, still be necessary for his relief from unjust detention in prison, without a declaration. In like manner, our usual course of proceeding con templates such supervisory control by the Court over the cases in Court, that a plaintiff could rarely neglect to proceed for three terms against a defendant who had appeared, without good excuse or danger of non pros: but still in cases of poor prisoners, who have not entered appearance, and in extraordinary cases of those who have (and these are the cases where oppression is most to be feared,) the super-sedeas in discharge of the defendant, for want of prosecution, may be necessary.

The necessity of the discharge for want of charging in execution, is most apparent here, although that case was the last which received the attention of the English Courts.

The plaintiff in the case before us says that the defendant should not be discharged — because, although supersediable for want of charging in execution, he was regularly charged in execution before the supersedeas was ordered.

In behalf of the defendant, it is said that the capias ad satisfaciendum, with which he is supposed to have been charged, was too late, because the defendant was in jail in the same case when the ft. fa. was lodged, and as the plaintiff could not have at the same time the body and execution against the goods, the ft. fa. was void, and not a sufficient process to keep alive the judgment, so as to authorize the suing out of acó;, sa. The ground of this application, on part of the defendant, is, that the plaintiff did not take the body in execution in time, and this cannot be sustained by assuming that he had the body. The body was imprisoned, but it was not taken in execution. “ It is no objection to a ft. fa. that the defendant is in custody in the action, if he has not been charged in execution.”—Lush’s Pr. 500. It is the plaintiff’s right to choose in execution between the body and goods, and this defendant, by neglect to give bail, cannot take away this choice, at least for a reasonable time.

The plaintiff further objects that the ca. sa. having been lodged six years after the entry of judgment, and there having been no previous ca. sa., the ca. sa. was not, under our Act of 1827, (6 Stat. 324,) a renewal of the ft. fa.; that only an alias or pluries ft. fa. could have been such renewal, and that therefore the ca. sa. is irregular, and the body of the defendant has not been charged in execution. The Act of 1827, however, seems to have been plainly intended to substitute other periods of time for those within which theretofore the active energy and the renewability, without sei. fa. of final process had been limited — to wit, four years,- and until the next term thereafter for the time prior to the end of the first term after the teste, and seven years and until the rule term thereafter for a year and a day after the end of the first term following the teste. According to the phrasd used in our cases of Primrose v. Becket, 3 McC. 418, and Jackson v. Mayrant, 3 McC. 360, both decided in 1826, a ca. sa. may be a renewal of a fi. fa.; and there was therefore no irregularity in continuing process of execution within the seven years, by suing out a ca. sa. after the return of the fi. fa.

The chief question then remains, which has divided the Court, Had the plaintiff the right, after the defendant was supersediable, and after the rule to show cause why the super-sedeas should not be granted, had been served, to deprive the defendant of his discharge, by lodging a ca. sa. ?

Lodging a ca. sa. with the Sheriff, whose prisoner the defendant is, is, under our practice, a sufficient charging in execution — the only mode known to us. It is the mode used in England whenever the prisoner is in the Fleet or the King’s Bench prison, (with some diversities of proceeding, according as he is confined at the suit of the plaintiff or otherwise,) a committitur is obtained from the Court by the plaintiff, and lodged for detention of the prisoner, in order to charge him in execution.

It is certainly true, that as the practice is now in England, if a prisoner be not charged in execution within two terms, the trial term inclusive, a committitur will not be granted afterwards — of course a ca. sa., where the defendant is in the hands of a Sheriff and not in the prison of the Court, ought not to be afterwards issued ; and so it is laid down by Leigh in his Modern Practice, page 651 ; “ if the plaintiff lets the time pass by, the defendant becomes absolutely entitled to his discharge from imprisonment with respect to that judgment at any time afterwards.” Reference is made to Mult and Howell, 2 Dowl. P. C. 71, and Colburn v. Hall, 5 D. P. C. 534. Without being able to find Dowland’s points of Practice in the Practice Court, I am persuaded that the cases depend upon late Statutes and rules of Court in England not at all obligatory upon us, after the great changes which were introduced by the uniformity of Process Act, 2 W. 4, c. 39. At Hil. Term, 2 W. 4, general rules wese adopted under which the Marshal of (he King’s prison and the Warden of the Fleet were required to give notice to the Marshal or Warden of any proposal of compromise or other special matter which authorized the detention of a prisoner otherwise supersediable, and it is ordered that “ all prisoners who have been or shall be in custody of the Marshal or Warden, for the space of one calendar month after they are supersediable, although not superseded, shall be forthwith discharged out of the King’s Bench or Fleet prison as to all such actions in which they have been or shall be supersediable.” These rules made the duty of discharging after the month imperative. See Leigh's Pr., 654 ; 14 Pctersd. Abridgt. 763, note. Neither of these rules applied to the case of a prisoner in the custody of a Sheriff, but to their influence, I doubt not, are to be ascribed the cases above cited from Dowland’s F. C., and the only modern case 1 have seen, where a defendant actually charged in execution was discharged because he was not charged in due time, is the case of Bone v. Baker, 1 Adol. and El., 860, 1834; the defendant in custody of a Sheriff, after surrender was charged in execution by ca, sa. after two terms, and was discharged. There is a case Webb vs. Dorwill, Barnes notes 400, 29 Geo. 2, 1756, where the plaintiff’s agent, after he had received a Judge’s summons for a supersedias, in the time allowed to him to write to his client, declared, proceeded to judgment and charged the defendant in execution by ca. sa.;' the Court holding the proceedings subsequent to the time of defendant’s being supersediable and having applied for a supersedias, to be irregular, set aside the judgment and ca. sa,, and discharged the defendant. This case rests probably upon the ground that the plaintiff’s agent had abused the indulgence of the Court, and is supposed to be irreconcileable with another case, Clayton v. Staff, Barnes 394, 11 Geo. 2, 1738, in which the Court granted at the peril of the plaintiff a committitur for a defendant, for whom an order of supersedias had been made out at the preceding term, which Was lodged with the Warden and appearance entered ; but the defendant had not allowed the supersidias till after habeas corpus had been lodged. This last Was however probably a case where supersedias had been ordered for want of proceeding, and the defendant, who, if he had gone at large, would after judgment have been subject to arrest under a ca. sa., was held liable to be charged in execution whilst he remained in prison of his own accord.

The case of Gibbes v. Tupigny de Maily, Barnes, 398, and other cases cited in the case from Term Rep., and the case from Burrow, below mentioned, leave however no doubt, that at one time the maxim, once supersediable always supersediable, was carried to such lengths in the Court of Common Pleas, that if a defendant was once supersediable, his subsequent confinement was considered unlawful, and ho process for detention of him, by the same plaintiff or another, was held to be regular. The gross injustice of this, in the case of other plaintiffs, who were thus prevented from proceeding against a defendant supersediable, who remained in custody either as against a person at large or against a prisoner, was exposed and corrected in the case of Hubilins v. Kenrick, 2 Burr. 1048, in 1760. Afterwards, a further limitation of the maxim gained ground in all of the Courts at Westminster, as will be seen in the case of Rose v. Christfield, 1 Term Rep. 591, where the case of the London Assurance Co. v. Palmer was cited by counsel, and the case of Fay v. Percy, in C. P. 1768, was cited by Buller, J. who said the rule, that where a person is once supersediable he is always so, must be understood with this qualification, that he is only supersediable as long as he remains in the same custody, and under tne same process. For the moment the nature of the custody is changed, the rule ceases. Therefor© if the prisoner be supersediable for any irregularity, as for want of a demand of plea, he cannot take advantage of that after he is charged in execution, supposing he has any opportunity of applying on that ground before he is charged in execution. Here the defendant had ample time.” The delivery of a declaration, after the time limited, does not cure the default of not declaring in timebut the charging in execution cures either the default of not declaring in time, or of not charging in time, if opportunity of the prisoner’s applying for such default, had been previously allowed — for the charging in execution changes the process, and the nature of the custody, which declaring does not. The charging in execution involves a new order from the Court, alters the responsibility of the gaoler, and affects a new relation between plaintiff and defendant, and between either of them and third persons. The right which the plaintiff, thus after judgment, exercises of taking his debtor’s body in satisfaction, would exist notwithstanding a supersedeas for want of declaration, but would be wholly taken away by a supersedeas for want of charging in execution. Most of the books of practice, to which we usually resort, seem ,lo consider a defendant, once charged in execution, as no longer superse-diable for any previous default of the plaintiff. (See 2 Sell. Pra. 40 ; 2 rule Pr. 121. Semb. contra, 1 Tidd. Pr. 328, citing only the rule of Court, George 1.) This we hold to be-conformable to the practice, as it was expounded, when adopted by us. It is reasonable, for if the defendant have, after a short time, subsequent to judgment, the right of putting the plaintiff to his election, whether to take the body in execution, or permit it to be discharged, the plaintiff ought not to be concluded of his election, so long as the defendant delays his application. Furthermore, the right of plaintiff to.have the body after judgment, is undeniable, notwithstanding there may have been a supersedeas before judgment, and although a supersedeas, after judgment, deprives the plaintiff of the right of arresting the defendant again in that action, or by mesne process in debt upon that judgment, after judgment ip a second action, he may again have a ca. sa. (Cowp. 72.) Why should this circuity be resorted to, so productive of nn, necessary delay and vexatious expence, and so much discountenanced by our statutes of 1815, (6 Stat. 5,) and 1827, (6 Stat. 324,) and by our case of Lee & Giles, 1 Bail, 449 ? In New York, where,- by statute, the discharge of a defendant in. prison, charged in execution within three months after judgment, is provided for, it has been held that the intent was to enable the defendant to put the plaintiff to his election between the body and the estate of the debtor; and that a ca. sa. lodged by the plaintiff, after service of the notice, to show cause, would deprive the defendant of his right to be superseded. Brontinghanrüs case, Coleman’s ed. 47; Minturn v. Phelps, 3 John. 441.

It is said, that the right of defendant to be superseded for want of charging in execution, is illusory, and the rule of the Court is insulted, if, after notice of the defendant’s application, the plaintiff be permitted to do that which shall defeat the application. But if the defendant’s right is only to be charged or to be discharged, he has obtained it when he has been charged, and is in just the same situation he would have been in if he had been charged sooner. Ofi the other hand, if, after the plaintiff has made the election required of him, by lodging his ca. sa. the defendant be superseded, the plaintiff may be put in a much worse condition than that he was in ; all the advantages which the continued restraint of his debtor’s person might have afforded, will be taken from him ; his fi. fa. may possibly be no longer issuable or renewable without sci.fa. | and it may happen, (as has been suggested in the case be* fore us,) that the defendant, with money sufficient to pay the debt, which a fi. fa. had not been able to reach, would leave the State under no fear of arrest by ca. sa. in the present action, or by mesne process founded thereon, and little apprehension from process of execution in an action of debt on this judgment.

All proper indulgence to such unfortunate debtors as will avail themselves of it, seems to be given by the practice we have adopted in a matter to which attention has not heretofore been directed in this State. If both parties here are to be supposed to have known the law, the miscarriage of the defendant’s application must be attributed to' his own delay,

It therefore' appears to this Court, that the defendant, having been regularly charged in execution, notwithstand* ing he was supersedeable, is no longer entitled to a super-sedeas : and the motion, in behalf of the defendant, is dismissed.

Richardson, J, and ErosT, .T, concurred.

Withers, J. absent.

O’Neall, J. and Evans, J.

dissented, on the ground that the defendant was clearly entitled to the supersedeas wnen the rule was taken out. The lodgment of the ca. sa, after the rule could not defeat that right.

Motion refused.  