want of declaring before the end of two terms one of the two is always included. By analogy therefore to these instances, he thought the court might, in favour of liberty, make the computation in the present case, so as to include one of the days: he chose, however, to lay hold of the circumstance of the first notice, and said there was no surprise on the plaintiff, nor any intention of surprising him, though he acknowledged, that, strictly speaking, two insufficient notices could not amount to one good one. Mr. Justice Willes coming into the same sentiment, and the plaintiff's attorney not disputing it, the prisoner was discharged. 4 Burr. 2525. Morley v. Vaughan. the benefit of one of the acts. Defendant taken in execution on a ca. sa. returnable Although a first return of Michaelmas term, sued out Trin. vacation prisoner escape in exe1790: he escaped from the officer, and was re-taken 20th cution, and be November, and carried to the Marshalsea prison. In retaken, yet Hilary term, 31 Geo. 3. he applied to be brought up he may take under the lords' act before Mr. J. Buller at his chambers, for the purpose of obtaining his discharge; but as there was a mistake in the notice, as to the name of the cause, he was remanded. Motion in Trinity term 31 Geo. 3. that he might be brought up. The court thought the application was made in time, for that the defendant could not be said to be charged in execution, until he was actually delivered over to the marshal: and that 26 Geo. 3. which was made in pari materia, contained a parliamentary exposition of the words "charged in execu"tion," in the lords' act; for it directs all gaolers and keepers of prisons, to give notice of that act to all persons in their custody for debt within three days after such person shall have been committed or charged in execution. They therefore ordered the defendant to be brought up, and recommended him to amend the title to the notice. Vaughan v. Durnell, 4 Term Rep. 367. A defendant in execution for contempt, and for the If in for a costs on a quo warranto information, may be discharg for costs on a contempt, and ed under the lords' act. The fine is merely nominal, and is now considered as a civil suit. Rex v. Pickerill, 4 Term Rep. 809. Vide Cow. 136. 1 Term Rep. 266. quo warranto. Habeas corpus. Enemy. Ha. corp. ad respondendum. PROCEEDINGS BY HABEAS CORPUS. (a) There are several writs of habeas corpus, to which the subject is entitled by common right, when he is deprived of his liberty. But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum, directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, & recipiendum, to do, submit to, and receive, what the judge or court awarding such writ shall consider in that behalf. No habeas corpus lies for an enemy, prisoner of war, however ill used or deceived. 2 Black. Rep. 1324. The writ of habeas corpus in civil cases is a judicial writ issuing out of this court, commanding the sheriff, or other officer to whom it is directed, to have the body of the defendant, together with the day and cause of taking and detaining him, before a judge at his chambers immediately after the receipt, to do and receive what the court or judge shall consider of him; it is called a habeas corpus ad faciendum et recipiendum, though more commonly an habeas corpus cum causa, and is granted of common right at all times, whether in term or vacation, without motion. 2 Mod. 306. This writ is brought for the removal of the body from the custody of the sheriff to the custody of the marshal; or to remove the cause out of the inferior court into this; or may be had by bail, to bring up the defendant and render in their discharge. There are other writs of habeas corpus in civil cases, viz. the habeas corpus ad respondendum, which may be had by a third person against the defendant who is in custody of the warden or other gaoler, to remove him out of the prison where he is, into this court, to answer the plaintiff in the new action therein stated; and which writ is made returnable at a day certain in court. Also the writ of habeas corpus ad satisfaciendum to bring the defendant from the prison of one court, into (a) Writs of habeas corpus shall run into any liberties and into the counties palatine, the Cinque-ports, Wales, Berwick, Guernsey, and Jersey. 21 Car. 2. c. 2. s. 11. Sid. 385. Cro. Jac. 543. 1 Mod. 20. Sid. 481. another court, in order to charge him in execution, upon a judgment against him, of the latter court. There is also a writ of habeas corpus ad testificandum, Ha, corp. ad to bring up a person in custody from the prison where he testificandum. is, to give evidence on the part of the person who sues it. How to remove the Body from the Custody of the Sheriff to the K. B. Prison. A prisoner under criminal process in the house of correction cannot be brought up by habeas corpus ad respondendum for the purpose of being charged with a declaration on a bailable writ, and recommitted to his former custody so charged; for the court cannot make a gaoler of such prison liable for the escape of a prisoner on civil process. 9 East, 154. If the defendant be already in custody of the sheriff How to prounder the process of this court, he has only to sue out a ceed to rewrit of habeas corpus cum causa, sign and seal same, then move from a gaol or spung to leave it with the sheriff for a return. As soon as he ing house, has returned it, he will direct his warrant to his bailiff in either on a whose custody he is, (or if in Newgate or any other gaol, writ issuing to his gaoler) to bring him to the judge's chambers, who out of this will on reading the return, commit him to the custody of the marshal. court. be returnable immediately, This writ in the fifth year of Charles II. could not be Formerly this made returnable immediately, or in the vacation, unless writ could not the party was in prison in London or Middlesex, or in order to deliver him over in discharge of his bail; but unless, &c. since the statute of 4 & 5 W. and M. c. 21. which gave but now may. liberty to a plaintiff (instead of bringing his prisoner to this court at the great expence of the writ of habeas corpus ad respondendum), to charge him with a declaration in prison, it has been determined, that in all civil suits, this writ may be had returnable immediately, before a judge at his chambers, and may now be sued out, without any previous motion made. Vide 3 Burr. 1876. And Attachment. that the sheriff not obeying it, &c. will be subject to a penalty, and an attachment for his contempt. 2 Burr. 854. How to remove the Body from the Custody of the Sheriff, on a Common Pleas Writ, to the King's Bench Prison, or from an inferior Jurisdiction, &c. If defendant be detained on If the defendant be detained on a writ out of the Com- a writ from mon Pleas, and wishes to go to the King's Bench prison, Common Pleas. If in an inferior jurisdiction. How to sue it out. Habeas corpus cum causa, in whose custody defen dant is. he must first obtain a writ out of this court for 101. or upwards, against him at the suit of a new creditor; in that case, an affidavit is to be made of the debt, and a writ sued out, directed to the sheriff in whose custody he is, then issue a habeas corpus, which sign and seal, and leave them both at the sheriff's office for a return. If he is in custody in an inferior jurisdiction, as the sheriff's court of London, &c. then he may bring a habeas corpus in the first instance, without a writ being issued against him. This writ cannot be had by the plaintiff to remove his own cause from an inferior court, for the same debt the defendant is detained. Melsome v. Gardener, Cow. Rep. 116. The habeas corpus cum causa is now printed, on a 5s. stamp, and may be had at the stationers in blank, and is as follows: George, &c. to the (a) sheriffs of London, greeting: we command you, that you have the body of C. D. de(a) The sheriff tained in our prison under your custody, as it is said, under safe and secure conduct, together with the day and cause of his being taken and detained, by whatsoever name he shall be called in the same, before our right trusty and well-beloved Edward Lord Ellenborough, our chief justice, assigned to hold pleas in our court before us, at his chambers, situate in Serjeants-Inn, Chancerylane, immediately after the receipt of this writ, to do and receive all and singular those things, which our said chief justice shall then and there consider of him, in this behalf, and have there then this writ. Witness Edward Lord Ellenborough, at Westminster, the in the 57th year of our reign. Præcipe. How to proceed. J. K. attorney. day of Law and Markham. London hab. corp. for C. D. to do and receive returnable immediately. To be signed by Messrs. Provost and Chambre, pay 6s. 8d. in term time; vacation 7s. 8d. seal 7d. take it to the sheriff's office in whose custody the defendant is, he will make his return thereon, and make a warrant to his officer, to take the defendant before the chief justice, who will commit him; pay 9s. 4d. for the first action, 2s. 4d. for every other, and 2s. 6d. for warrant to deliver, officer 10s. 6d. judge's clerk 8s. 6d. The court will not compel the marshal to file of record, a writ of habeas corpus cum causa by virtue of which a person is committed to his custody in execution. Cooper v. Jones, 2 Maule and Selw. 202. Though this writ is returnable before the chief justice, Any judge yet any other of the judges may commit the prisoner to may commit. the King's Bench in his absence. The above form will do for all counties, only direct it The form of to the sheriff, &c, in whose custody the defendant is. the writ will do in all coun If you remove a person from the country, the sheriff is ties. paid Is. per mile for bringing him to town, and the judge Fees in the will not (it is said) commit the defendant, unless the sum country. is paid; but the officer must obey the writ, though the prisoner refuse to pay his fees. 2 Str. 814. Every prisoner who shall be committed to the custody Prisoners of the marshal of this court, by virtue of any writ of committed to habeas corpus ad respondend. or ad faciend. et recipiend. remain for two shall remain in actual custody of the said marshal by the standing any space of two days next after such committal of such pri- other writ of soner to the said marshal, notwithstanding any other hab. corp. writ of ha. corp. issuing out of any other court to the said marshal delivered and allowed. R. H. 5 W. and M. If the defendant be returned in custody on a hab. Defendant in corp. he is not to be discharged until he has justified his custody not to bail, which may be done any time before final judgment, till bail perbe discharged and bail may for this purpose in vacation justify before a fected. judge at his chambers. How to remove the Cause from an inferior Court. ferior courts. Before I proceed to shew how to remove the cause, it How to remay be proper to state the several acts of parliament re- move the lating thereto; and first the act 21 Jac. 1. c. 23. being an cause from inact to avoid vexatious delays by the removal of frivolous No suit shall cases, enacts, that where the judge of an inferior court is be removed, a barrister of three years standing, no cause shall be re- unless writ be moved from thence by habeas corpus or other writ, ex- delivered becept it be delivered before issue or demurrer joined in the fore issue or said cause, so as the said issue or demurrer be not joined within six weeks next after the arrest or appearance of joined. the defendant to such action. Sect. 2. demurrer That no cause, if once remanded to the inferior court A suit once remanded, by writ of procedendo, or otherwise, shall ever afterwards shall never afbe again removed. Sect. 3. terwards be And that no cause shall be removed at all, if the debt removed. Under 51. can< |