case TILSDEN against PARFRIMAN if a prisoner in custody of the marshal on  mesne process escape and be retake on a escape warrant under whether c be  commit to Newgate and discharge therefrom on his enter into a agreement with  by the consent of his creditor be can be retake on a second escape warrant for  not perform his agreement or detain on his be afterward in the custody of the  marshal at the suit of another creditor SC salk SC salk Tilsden be now in  Newgate upon the warrant of a judge upon the statute whether c see ante a  against prisoner escape and the regularity of that matter be now refer to Mr  clerk to examine it be report to he that Tilsden have be indebt to Parfriman  and in prison of the marshal at his suit and have escape and be take up by a  warrant lie in Newgate that afterward Parfriman and he come to a agreement  whereupon upon payment of a sum certain in hand and a promise to make other  payment hereafter he consent to have he discharge out of Newgate that  afterward Tilsden not perform his agreement Parfriman endeavour to get he  arrest but can not that he be arrest at the suit of another and commit to the  marshal who let he escape voluntary that afterward be pay that plaintiff but  bad no legal discharge from he that Parfriman hear of the new arrest go to the  marshal and ask he if he have such a one in his custody who answer yes that he  thereupon enter a action against he in the book that be keep in the king bench  office and afterward get he arrest by process of modern the modern er p court  of king bench and keep he in custody thereupon until he get a judge warrant  whereby he be carry to Newgate the commitment by this warrant be what be  complain of darnel sergeant the discharge out of Newgate be no discharge of  the first action for the escape on which he be commit to Newgate for the  plaintiff upon the escape out of the custody of the marshal have his election  to take the party upon a new action or upon a warrant under the late Act or to  have a action of escape against the marshal and the take up upon a warrant  will be no discharge to the marshal therefore the first action remain still  undischarged and the marshal may take he up thereupon and if so be be now  wrongful at large and may be take up by the judge warrant as have be do but  per curian if one in custody of the marshal escape and be take upon a judge  warrant that be no new imprisonment but a continuance of the old and a  discharge of that commitment will be a discharge of the first but if he have  escape out of the county jail without the consent of the jailor there the  marshal may retake he as if one be in custody of the marshal for debt and  escape and after the same plaintiff take he up upon another debt and let we he  go again yet the marshal may retake he for the escape the court agree that if  a man be in custody two term without a declaration he shall be discharge upon  fill common bail and the way to charge one in custody in termtime be by fill a  bill against he and deliver a declaration to the turnkey after which he must  lie two term as to that party before be can be discharge on common bail but in  vacation there be no way but to make a entry in the book that be keep in the  office of a remanet in custodian mareschalli ad sect de c and that be  sufficient to charge he but to make that suffice the party must be actual in  jail and not escape for the reason why such entry be allow good be because of  the necessity of the thing the party have no other way to charge he when he be  in actual custody the method by which a prisoner may be charge in custody with  a new suit in vacationtime undergo great consideration in the case of Hutchins  v Kenrick Trinity term Geo and Lord Mansfield deliver the resolution of the  court upon this point to the follow effect we have consider the practice of  this court and of that of the common plea and we be of opinion that the right  method be like that which be take in the common plea to file a bill as of the  precede term and then to deliver or to leave for the defendant be in custody a  copy of the declaration as of the precede term and to make a affidavit thereof  and there be no occasion for a habeas corpus but see rule easter term Geo No  declaration shall be sufficient to detain such prisoner unless affidavit that  the cause of action amount to ten pound or upward be first make and file with  the clerk of the rule and the sum specify in such affidavit endorse in the  declaration before it be leave with the turnkey a but upon a escape there be  not that necessity for he be at large may be arrest indeed if the marshal will  own a person to be in his custody who be not so that shall conclude he and  subject he to a escape but such confession of the marshal ought not to be  conclusive to any but himself and it be against a principle of the law to  charge a man in custody who be not in custody and the mischief of it will be  very great and this can be call take advantage of the party own wrong for his  escape out of prison where he be in custody at the suit of a can be any wrong  to b though he be thereby deprive of the advantage of charge he in custody  indeed if the marshal suffer one to be in and out at time and during such time  he be charge by a remanet c though he be actual out of prison at that time yet  if he return in again that will be quasi a continuance of the first  imprisonment and by such return he may have notice of the charge and the  meaning of the statute whereby modern the marshal be to acknowledge what  prisoner he have be only in order to charge himself and per curian the second  imprisonment in Newgate be irregular but we can modern er p take notice of any  thing until the warrant be return and the question will be whether we will  relieve on motion or put you to your hearing complaint