ed.

not be remov- or damages laid in the declaration do not amount to, or exceed, the sum of 51. But an expedient having been found out to elude the latter branch of the statute, by procuring a nominal plaintiff to bring another action for 51, or upwards (and then by the course of the court the habeas corpus removed both actions together,) it is, therefore, by statute 12 Geo. 1. c. 29. s. 3. enacted, that the inferior court may proceed in such actions as are under the value of 51. notwithstanding other actions may be brought against the said defendant to a greater amount.

Writ of hab.

corp. not to be allowed after one of the jurors

sworn.

No cause under 101. to be removed into a superior court unless bail be given for the debt,

&c.

If judgment be obtained

not be found, how to pro

ceed.

And in order to prevent delays being made in trying causes in inferior courts, which were frequently practised, by the stat. 43 El. c. 5. it is enacted, that such writ of habeas corpus shall be delivered to the judge before the jury have appeared, and one of them sworn to try the Sect. 2.

cause.

By the 19 Geo. 3. c. 70. s. 6, it is enacted, that no cause where the cause of action shall not amount to 101. or upwards, shall be removed into any superior court, by hab. corp. or otherwise, unless the defendant shall enter into recognizance for the payment of the debt and costs, in case judgment should pass against him; as in Sect. 5.

By sect. 4. it is enacted, that in all cases where final judgment shall be obtained in any action in any inferior in the inferior court of record, it shall be lawful for any of his majesty's court, and the courts of record at Westminster, on affidavit made and filed defendant can- therein, of such judgment being obtained, and of diligent search and inquiry having been made after the defendant, or his effects, and of execution having issued against the person, or effects, and they are not to be found within the jurisdiction of such inferior courts, which affidavit may be made before a judge or commissioner, to cause the record of the said judgment to be removed into such superior court, to issue writs of execution thereupon to the sheriff of any county, &c. against the person or effects of the defendant, in the same manner as upon judgments obtained in the said court at Westminster; and the sheriff is authorized to detain the defendant until 20s. be paid to him, or levy the same out of the effects, according to the nature of the execution, for the extraordinary costs of the plaintiff in the inferior court, subsequent to the said judgment, and of the execution in the superior court, over and above the money for which such execution shall be issued.

Upon what conditions

execution shall

That no execution shall be staid upon any writ of error to be sued for the reversing of judgment given in any infe

error, &c. for

rior court of record, where the damages are under 101. be staid upon unless such person, with two sufficient sureties, shall first, any writ of before such stay made, be bound unto the party for whom reversing any such judgment is given by recognizance, to be ac- judgment knowleged in the same court, in double the sum adjudg- given in an ed, to be recovered by the said former judgment, to pro- where the dainferior court, secute the said writ of error with effect, and also to satisfy mages are unand pay (if the said judgment be affirmed, or the said der 101, writ of error be nonprossed) the debt, damages, and costs adjudged, and all costs and damages to be awarded for the same delay of execution. Sect. 5.

George the third, &c. To the sheriffs of London, greet- Habeas coring: we command you, that you have the body of C. D. pus to remove the cause from detained in our prison under your custody, as it is said, the sheriff's under safe and secure conduct, together with the day and court of cause of his being taken and detained, by whatsoever London. name he shall be called in the same, before our right trusty N. B. If from the mayor's and well-beloved Edward Lord Ellenborough, our chief court, Lonjustice, assigned to hold pleas in court before us, at his don, then dichambers situate in Serjeant's-Inn, Chancery-lane, im- rect it to the mediately after the receipt of this writ, to do and receive mayor, alderall and singular those things, which our said chief justice men, and shall then and there consider of him in this behalf; and have there then this writ. Witness Edward Lord borough, at Westminster, the

57th year of our reign.

sheriffs of the city of Lon

Ellen- don. day of in the To bear teste Law and Markham. in term.

London, ha. corp. for C. D. to do and receive, return- Præcipe. able immediately.

T. K. attorney.

ceed.

To be taken to Messrs. Provost and Chambre, pay sign- How to proing, in term 6s. 8d. in vacation 7s. 8d. seal 7d. take same to the office where the action is entered, and if but one cause, and above 101. pay 4s. 10d. for the allowance; fee to the judge 2s. 4d. mittatis 2s. 4d.

made of hab.

If it be brought to remove a cause out of the inferior How to procourt under 101. then bail must be put in below, and two ceed before days notice exclusive given for their coming into that allowance is court, and becoming bail for the defendant, in order that corp, and acthe plaintiff's attorney may have an opportunity of in- tion be under quiring into the sufficiency, and upon their entering into 101. a recognizance, before the judge below, for the payment of the debt and costs, then the judge will order the allow

ance of the writ. Vide stat. 19 Geo. 3. c. 70. s. 5.

But if the debt be above 101. then if the defendant is If above 101, not in custody, he has already given bail in the action, which is bail to render; therefore the cause is of course removed, by the habeas corpus being allowed.

How Plaintiff is to proceed after Cause removed.

After the bail is complete in the court below, the first step the plaintiff's attorney takes, is to apply to one of the judge's clerks for a rule for bail, which is returnable in term, within four days next after notice, in vacation six days next after notice, pay for same in term 3s. 6d. in vacation 4s. 6d. Serve defendant's attorney with a copy thereof; and if he does not put in bail within the four or six days next after service, nor take out a summons for time to put in bail, pay 1s. order 2s. (which he may do), then the plaintiff may issue out a writ of procedendo. N. on R. H. 10 W.

How to put in Bail.

If the defendant puts in bail, he must first obtain the return to the habeas corpus.

It is ordered, that no bail shall be put in upon any writ of habeas corpus before the writ be returned, and that such bail shall not be taken by any justice of this court, unless that writ, with the return thereof, shall be offered before the said justice, to be filed at the time of putting in thereof. R. H. 10 W. 3.

When you have obtained the habeas corpus and return, annex a bail-piece thereto, and fill it up thus: pay in term 4s. in vacation 4s. (a)

(a) The bail may be put in the country before a commissioner, or before a judge of assize in his circuit. R. T. 8 W. 3. Reg. 3. s. 1.

Take the bail, habeas corpus and return to a judge's How to prochambers, who will enter them in the following recog- ceed. nizance, if above 101. on the receipt of a memorandum or warrant to defend on a 5s. stamp.

66

of bail on

"You do jointly and severally undertake, that if the Recognizance "defendant be condemned at the suit of the plaintiff (or habeas corpus. plaintiffs) in the plaints that he shall satisfy the costs "and condemnation, or render himself to the custody of "the marshal of the Marshalsea of the court of King's "Bench, or you will do it for him, if under 101." Vide stat. 19 Geo. 3. c. 70. Pay in term 4s. in vacation, 5s.

Notice is to be given forthwith to the plaintiff's attor- As to giving ney, of the names and additions of the bail, the time notice of bail. when, and the judge before whom the same is put in.

R. M. 1654, sect. 8.

In the King's Bench.

A. B. plaintiff,
and
C. D. defendant.

Take notice that special bail was this day put in upon Notice of bail the habeas corpus issued in this cause, before the hono- being put in, rable Mr. Justice at his chambers in Serjeant'sInn, Chancery-lane, London, and the names are John Doe, of London, gentleman, and Richard Roe, of the same place, gentleman. Dated, &c. Yours, &c.

R. C. defendant's attorney,

To Mr. R. T. attorney for the plaintiff.

Of Plaintiff's further Proceeding.

If the plaintiff's attorney does not like the bail, he may, When plaininstead of entering the exception (as in common cases), tiff may ap apply to the same judge for a rule for better bail, pay for better bail. ply for a rule 3s. 6d. in term, vacation 4s. 6d. which is returnable within four days next after service, whether in term or vacation. N. on Ř. M. 16 Car. 2. a copy of which is to be served on the attorney for the defendant: if the bail do not justify within the four days (provided there are four days in the term left,) then a procedendo may be issued; but if there be not four days in term, then upon the defendant's giving notice to justify the first day of the next term, before the rule expires, and the bail justifying on that day, no procedendo can issue.

That every

It is ordered that, every defendant, not being an exe- defendant not cutor or administrator, who shall sue out any writ of being execu→ habeas corpus to remove any suit out of any inferior court, tor, &c. upon

a habeas cor- shall put in special bail in all actions whatsoever (actions pus to remove for scandalous words, and small assaults only excepted), inferior causes, unless one of the justices of this court shall otherwise to put in bail. order. R. H. 2 Jac. 2.

When to be

given.

If rule expire in vacation, render first day of next term sedente curia, good.

Bail are liable

to all the ac

tions mentioned in the return.

Of Exception to Bail and justifying.

If the plaintiff does not except against the bail, by taking out such rule within twenty-eight days after the putting in thereof, then the bail-piece shall be filed by the defendant's attorney, within four days next after the end of the twenty-eight days, under the penalty of 5s. to the box, R. M. 16 Car. 2.; and for the second offence to be struck off the roll.

Take notice that the bail already put in for the defendant in this cause, upon the writ of habeas corpus, and of whom you have had notice, will, on next, justify themselves in open court, Westminster-hall, in the county of Middlesex, as good bail for the said defendant. Dated, &c. R. C. defendant's attorney. To Mr. R. T. attorney for the plaintiff.

Yours, &c.

This notice must be given as in other cases of justifi; cation, and defendant may add to the bail already put in new bail, and justify as in other cases; make affidavit of the service thereof, and give brief to counsel to move to justify, fee 10s. 6d. court fees 9s. rule for allowance 7s. serve copy thereof on plaintiff's attorney.

If the rule expire in vacation, a render on the first day of the ensuing term sedente curia is good; though notice were not given till afterwards on the same day, and after a writ of procedendo had issued to an inferior court, where the cause originated. 5 East, 533. Wiggins v. Stephens. The bail upon habeas corpus are liable to all the actions mentioned in the return of it, wherein the plaintiff or plaintiffs shall declare within two terms. N. on R. Hil 2 Jac. 2. (a)

If plaintiff de- On removal after declaration, special bail are liable, clare different though the plaintiff declare in a different kind of action from the cause in the court above, so as it be for the same cause. 1 Wils.

returned be

low.

If more causes

than one, bail must be put

in for the whole.

277. Gum v. Mackenry.

If there be more causes than one returned on the habeas corpus, bail in that case must be put in for the whole. Salk. 352, and there must be separate bail-pieces annexed to the habeas corpus and warrants.