Page images
[ocr errors][merged small]

fé to person by beinmedy une course the

A N Habeas corpus is a writ for bringing the body of him A who is imprisoned, before the court, cum caufâ detentionis, and is the proper remedy wherever a person is restrained of his liberty by being confined in a common gaol ; or by a private person, whether it be for a criminal or a civil cause, to have his body and cause rernoved to some fuperior jurisdiction, which hath authority to examine the legality of such commitment; and on the return thereof, either bail, discharge, or remand the prisoner. Vaugh, 136.

Of this writ of Habeas corpus there are various sorts, viz. The habeas corpus fubjiciendum, which issues in criminal cases.

Also, the habeas corpus ad deliberandum et recipiendum, another writ issuing in criminal cases to remove a person to

the proper place, where he committed an offence, to be .tried.

Also, the habeas corpus ad refpondendum which issues where * one has a cause of action against a person (already confined

for a cause of action accruing within an inferior jurisdiction) to charge him with this new action in a superior court.

Also, the habeas corpus ad fatisfaciendum, which issues after a judgment.

But the writ of habeas corpus, of which it will be necelsary to treat here, is that of habeas corpus ad faciendum et recipiendum, which issues only in civil cases, and lies where a person is sued and in gaol, in some inferior jurisdiction, and is willing to have the cause determined in some superior court, which hath jurisdiction of the matter. This wřit is usually called an habeas corpus cum causâ, and is grantable at all times of common right, whether in term or vacation, without any motion in court; and upon the de.. livery thereof to the officer or court below, it instantly lyo persedes all the proceedings therein.

But an habeas corpus, where a party is committed for a çrime, ought to be on motion. I Lev. I.

motion in coight, whetheaula, and is

perfedes altos to the

[ocr errors]

Of the Habeas Corpus ad faciendum et recipien


note of the writst of fix or ale must b

T HE court of Common Pleas, as well as the King's Berich,

1 has a general jurisdiction to grant writs of habeas corpus in all cases whatsoever ; but if, upon the return of such writ to the court of Common Pleas, it appears that the body was in custody for any criminal matter, that court cannit take cognizance of it. See Wood's case. 3 Wilf..

The writ of habeas corpus is engrossed on a five filling stamped piece of parchment, which is made out upon a note given to the office, and in B. R. is figned by the figner of the writs; in C. B. by the prothonotary, who takes fees to the amount of fix or seven shillings.

In suing out the writ, care must be taken to state the stile of the court, or person to whom it is to be delivered, with accuracy.

The liberty which every defendant had, against whom an action was commenced in an inferior court, of removing it into a superior court at Wefminster to be determined, was formerly very much abused, as it was usual for a defendant to sue out a writ of habeas corpus cum caufâ, and keep the same in his pocket, till issue was joined, the jury sworn, and the plaintiff below had actually given his evidence, and then to produce the writ, and suspend all further proceedings; by which piece of knavery, the defendant, from a knowledge of the evidence produced by the plaintiff, had an opportunity of making a better defence herealter, when the cause came to be tried. But to prevent this abure for the future, by the 43 of Eliz. 6. 5. it is enäcted, " That no writ of habeas corpus, or other writ sued " forth by any person whatsoever, out of any of her ma" jesty's courts of record at Westminster, to remove any ac" tion, suit, plaint, or cause depending in any inferior “ court, having jurisdiction thereof, shall be received of " allowed by the judges or officers of such court wherein

or to whom such writs shall be delivered, (but they may " proceed therein, as if no such writ were sued forth or de.

livered) except. that the said writ or writs be delivered “ to such judges or officers of the said court, before that " the jury which is to try the cause in question, and the “ party that sued forth the faid writ, or for whole benefit “ it was sued forth, have appeared, and one of the laid " jury sworn to try the said cause."


alients having into cor caureeriminper,

Of the Habeas Corpus ad faciendum et recipien


And by the 21 fac. 1. 6. 23. 5. 2. it is enacted, That 56 no writs of habeas corpus, certiorari, or other writ sued " forth to remove any action or suit commenced in any 66 inferior court, having jurisdiction thereof, shall be al. “ lowed by the steward, judges or officers thereof, un. « less delivered before issue or demurrer joined in the said 66 cause so depending, so as the said issue or demurrer be 56 not joined within six weeks next after the arrest or appear. 66 ance of the defendant to such action or suit.”

And by feet. 3. “ If any such action or suit so as aforem 66 said commenced in such inferior court be removed by 66 any writ or process, and afterwards remanded back by « writ of procedendo or other writ, that then the said action ss or suit shall never afterwards be removed or stayed before ss judgment, by any writ out of any court whatsoever."

And by feet. 4. it is enacted, “ That if in any action or " suit, not concerning any freehold or inheritance, or title 66 of lands, lease or rent, be commenced or depending in 46 such inferior court of record, it shall appear or be laid s in the declaration, that the debt, damages, or things " demanded, do not exceed 5l. then such action or suit " Thall not be stayed by any writ whatsoever, other than so writ of error or attaint.”

And by the feat. 6. it is provided, that this a&t fall ex. • tend only to such inferior courts of record, and for lo s long time only, as there is or thall be an utter barrister of so three years Nanding at the bar of the four inns of couri, " {teward or under-steward, town-clerk, judge, or recorder “ of such inferior court, or affiftant to the judge or judges " of the same, as shall not be an utter barrister of that “ ítanding, and there present, and not of counsel in any 65 action or suit there depending.”.

After this tatute was made, an expedient was hit upon by some kaavish defendants to render the fourth clare there. of ineffećtual; which was, by setting up a stitious action against themselves, (when the suit below was under 5 l.) for a pretended demand of 51 or upwarde, zod then bring an babeas corpus thereon, which wiit rencyed a caults against them in that court; and thereby, potwitikercing this claule, the smaller action under 51. was removed in's the superior court, to the predice of many post pianist, who, for want oi ability and 12.5 10 02:17 ca 2.!

Of the Habeas Corpus ad faciendum et récipiena


[ocr errors]

the superior court, was obliged often to defift from prosetuting their suits, and thereby submit to the loss of their demands.

But by 12 Geo. 1. 6. 29. f. 3. to prevent such practice in future it is enacted, “That the judges of such inferi“ or courts of record, as are described in the statute of " Ja. 1. may proceed in such actions commenced as are " therein specified, which appear or are laid not to exceed “ the sum of five pounds, although there may be other ac« tions against such defendant, wherein the plaintiff's de6. mands may exceed the sum of 5).

The statute of 12 Geo. 1. c. 29. empowers the plaintiff, upon an affidavit made and filed that his cause of action amounts to ten pounds or upwards, to arrest the defendant by process out of the superior courts.And where the cause of action amounts to forty shillings or upwards, within the jurisdiction of inferior courts, to arrest the defendant by process out of such inferior courts. Which last part being found very inconvenient, and prejudicial to the lower class of people, by putting it in the power of any one to whom they were indebted in forty shillings, within the jurisdiction of the Marshal fea or other inferior court, to arrest their bodies, and imprison and withhold them from their families and work, the flat. 19 Geo. 3. C. 70. extends the former part of the 12 Geo. I. c. 29. to inferior courts; so that neither in the superior nor inferior courts, can any one now be arrested or held to special bail, unless by process founded on an affidavit duly made and filed in the court, that the cause of action amounts to ten pounds or upwards-But to prevent inconveniencies and delay to plaintiffs prosecuting for small debts in such inferior courts, by the same statute, 19 Geo. 3. c. 70. it is further enacted, “ That no cause, .66 where the cause of action shall not amount to the sum of " 101. or upwards, shall be removed or removeable into any “ superior court by any writ of habeas corpus, or otherwise, “ unless the defendant who shall be desirous of removing “ such cause, shall enter into a recognizance with two u sureties in double the fum laid in the court from which :“ it is to be removed for payment of the debt and costs, in " case judgment shall pass against him.”

Of the Habeas Corpus ad faciendum et recipien. . dum, when grantable, and to what Places.

D Y Reg. Mich. 1654. feet. 7. A writ of habeas corpus to

D remove the body of a prisoner directed to the iheriffs of London or Middlesex, the judges of the Marshalfea court, or inferior courts within five miles of London, may be granted in vacation or term time, returnable immediately ; but if the habeas corpus be directed to any other theriff or court farther diftant, it must be returnable at a day certain in court, unless it be to deliver over a prisoner in discharge of his bail. Prax. U. B. i.

But notwithstanding the above rule in both courts, it was held in B. R. in the case of Doctor Bettesworth v. Bell, Burr. 4 pt. 1875. That such writ of babeas corpus ad faciendum et recipiendum, directed to a gaoler, &c. of an out county, may be returnable before a judge, and immediatè, as well as on a day certain in term. And it was there said, that the above rule, Mich. 1654. was fallen long since into diffuse. .

The writ of habeas corpus being a prerogative writ, lies by the common law to any part or the king's dominions, for he ought to have an account why any of his subjects are imprisoned. i Rol. Abr. 69. Cro. Jac. 543. It lies to Jersey and Guernsey. Vent. 347. Sid. 386. - To Berwick and to counties palatine. Latch. 160. 3 Keb. 279. And to the marthes of Wales, as it does to all other courts which derive their authority from the king, as all the courts exercising jurisdiction within his dominions do ; and that it be ing a prerogative writ, does not come within the rule brevia domini regis non currunt, &c. for that must be understood of writs between party and party. 2 Rol. Abr. 69. Wetherley v. Wetherley.

But an habeas corpus ad faciendum et recipendum does not lie to the cinque ports, at the suit of a subject. Vide Bac. Abr. and authorities there cited. 3 Vol. 4.


« PreviousContinue »