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£>f habeas Coipus.
AN Habeas corpus is a writ for bringing the body of him who is imprisoned, before the court, cum causa 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 removed to some superior 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 subjiciendum, 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 respondendum which issues where one has a cause of action against a person (already confined for a cause of action accruing within an inserior jurisdiction) to charge him with this new action in a superior court.
Also, the habeas corpus adsatisfaciendum, which issues after a judgment.
But the writ of habeas corpus,-of which it will be necessary 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 inserior jurisdiction, and is willing to have the cause determined in some superior court, which hath jurisdiction of the matter. This writ is usually called an habeas corpus cum causa, and is grantable at all times of common right, whether in term or vacation, without any motion in court; and upon the delivery thereof to the officer or court below, it instantly supersedes all the proceedings therein.
But an habeas corpus, where a party is committed for a crime, ought to be on motion. 1 Lev. 1.
Of Of the Habeas Corpus ad faciendum et recipient
THE court ofCmmtn Pleas, as Well as the King's Bench, 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 cuftody for any criminal matter, that court cannct take cognizance of it. See Wood's case. 3 IVils.
The writ of habeas corpus is engrossed on a five shilling stamped piece of parchment, which is made out upon a note given to the office, and in B. R. is signed by the signer of the writs; in C. B. by the prothonotary, who takes fees to the amount of six 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 desendant had, against whom fin action was commenced in an inserior court, of removing it into a superior court at Wejlminjler to be determined, Was formerly very much abused, as it was usual for a defendant to sue out a writ of habeas corpus cum causa, 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 surther proceedings; by which piece of knavery, the desendant, from a knowledge of the evidence produced by the plaintiff, had an opportunity of making a better desence hereafter, when the cause came to be tried. But to prevent this abuse for the suture, by the 43 of £liz. c. 5. it is enacted, "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 Wejlminjler, to remove any ac'• tion, suit, plaint, or cause depending in any inserior •' court, having jurisdiction thereof, shall be- received or "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 M 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 said writ, or for whose benefit
it was sued forth, have appeared, and one of the said "jury sworn to try the said cause."
Of the Habeas Corpus ad faciendum et recipient
And by the 21 Jac. 1. f. 23. / 2. it is enacted, " That ** no writs of habeas corpus, certiorari, or other writ sued *' forth to remove any action or suit commenced in any "inserior court, having jurisdiction thereof, shall be al"lowed by the steward, judges or officers thereof, un"lefs delivered before ijj'ue or demurrer joined in the said "cause so depending, so as the said issue or demurrer be "not joined within fix weeks next after the arrest or appear* '* ance of the desendant to such action or suit."
And by sect. 3. " Is any such action or suit so ac afore* "said commenced in such inserior court be removed by "any writ or procefs, and afterwards remanded back by €* writ of procedendo or other writ, that then the said action. "or suit shall never afterwards be removed or stayed before '* judgment, by any writ out of any court whatsoever."
And by sect. 4. it is enacted, " That if in any action or "suit, not concerning any freehold or inheritance, or title "of lands, leafe or rent, be commenced or depending in "such inserior court of record, it (hall appear or be laid "in the declaration, that the debt, damages, or thing* "demanded, do not exceed 5 /. then such action or suit "shall not be stayed by any writ whatsoever, other than "writ of error or attaint."
And by the secl, 6. it is provided, that this act shall ex*' tend only to such inserior courts of record, and for so "long time only, as there is or shall be an utter barrijler of "three years standing at the bar of the four inns of courts "steward or under-steward, town-clerk, judge, or recorder "of such inserior court, or assistant to the judge or judge* "of the same, as shall not be an utter barrister of that "standing, and there prefent, and not of counsel in any "action or suit there depending.".
After this statute was made, an expedient was hit upon by some knavifh desendants to render the fourth clause thereof ineffectual; which was, by setting up a fictitious action against themselves, (when the suit below was under 5/.) for a pretended demand of 5 /. or upwards, and then bring an habeas corpus thereon, which writ removed all causes against them in that court; and thereby, notwithstanding this clause, the smaller action under 5/. was removed into the superior court, to the prejudice of many poor plaintiffs, who, for want of ability and means to carry on a suit in
Of the Habeas Corpus ad faciendum et rtcipieti*
the superior court, was obliged often to desist from prosecuting their suits, and thereby submit to the loss of their demands.
But by 12 Geo. r. c. 29. /. 3. to prevent such practice in suture it is enacted, "That the judges of such inseri'' 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'c tions against such desendant, whereih the plaintiff's de"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 desendant by process out of the superior courts—And where the cause of action amounts to forty Jhillings or upwards, within the jurisdiction of inserior courts, to arrest the desendant by process out of such inserior 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 Marjhalsea or other inserior court, to arrest their bodies, and imprison and withhold them from their samilies and work, the Jlat. 19 Geo. 3. c. 70. extends the former part of the 12 Geo. 1. c. 29. to inserior courts; so that neither in the superior nor inserior 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 inserior courts, by the same statute, iqGeo.^- e. 70. it is surther enacted, "That no cause, '' where the cause of action shall not amount to the sum of "10/. or upwards, shall be removed or removeable into any "superior court by any writ of habeas corpus, or otherwise, "unless the desendant who shall be desirous of removing "such cause, shall enter into a recognizance with two "sureties in double the sum 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 recipient dum, when grantable, and to what Places.
BY Reg. Micb. 1654. seli. 7. A writ of habeas corpus to remove the body of a prisoner directed to the sheriffs of London or Middlesex, the judges of the Marjhalfea court, or inserior courts within five miles of London, may be granted in vacation or term time, returnable immediately j but if the habeas corpus be directed to any other sheriff or court sarther distant, 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. 1.
But notwithstanding the above rule in both courts, it was held in B. R. in the case of Doclor Bettesworth v. Bell. Burr. ^pt. 1875. That such writ of habeas corpus ad faciendum et recipiendum, directed to a gaoler, &c. of an out county, may be returnable before a judge, and immediate, as well as on a day certain in term. And it was there said, that the above rule, Mich. 1654. was sallen 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. 1 Rol. Abr. 69. Cro. Jac. 543. It lies ta Jersey and Guernsey. Vent. 347. Sid. 386. —To Berwick and to counties palatine. Latch. 160. 3 Keb. 279. And to the marjhes 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 being 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 Bat, Abr. and authorities there cited. 3 Vol. 4.