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Of habeas Compus.

A N Habeas corpus is a writ for bringing the body of him

who is imprifoned, before the court, cum caufâ detentionis, and is the proper remedy wherever a perfon is reftrained of his liberty by being confined in a common gaol; or by a private perfon, whether it be for a criminal or a civil caufe, to have his body and caufe removed to fome fuperior jurifdiction, which hath authority to examine the legality of fuch commitment; and on the return thereof, either bail, difcharge, or remand the prifoner. Vaugh. 136.

Of this writ of Habeas corpus there are various forts, viz. The habeas corpus fubjiciendum, which iffues in criminal

cafes.

Alfo, the habeas corpus ad deliberandum et recipiendum, another writ iffuing in criminal cafes to remove a person to the proper place, where he committed an offence, to be tried.

Alfo, the habeas corpus ad refpondendum which iffues where one has a cause of action against a perfon (already confined for a cause of action accruing within an inferior jurifdiction) to charge him with this new action in a fuperior

court.

Alfo, the habeas corpus ad fatisfaciendum, which iffues after a judgment.

This

But the writ of habeas corpus, of which it will be neceffary to treat here, is that of habeas corpus ad faciendum et recipiendum, which iffues only in civil cafes, and lies where a perfon is fued and in gaol, in fome inferior jurisdiction, and is willing to have the caufe determined in fome fuperior court, which hath jurisdiction of the matter. writ is ufually called an habeas corpus cum caufâ, 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 inftantly fuperfedes all the proceedings therein.

But an habeas corpus, where a party is committed for a crime, ought to be on motion. I Lev. 1.

Of

Of the Habeas Corpus ad faciendum et recipien

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dum.

HE court of Common Pleas, as well as the King's Bench, has a general jurifdiction to grant writs of habeas corpus in all cafes 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 cannot take cognizance of it. See Wood's cafe. 3 Wilf

The writ of habeas corpus is engroffed on a five fhilling ftamped 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 feven fhillings.

In fuing out the writ, care must be taken to ftate the ftile of the court, or perfon 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 fuperior court at Westminster to be determined, was formerly very much abufed, as it was ufual for a defendant to fue out a writ of habeas corpus cum caufâ, and keep the fame in his pocket, till iffue was joined, the jury fworn, and the plaintiff below had actually given his evidence, and then to produce the writ, and fufpend 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 hereafter, when the caufe came to be tried. But to prevent this abuse for the future, by the 43 of Eliz. c. 5. it is enacted, "That no writ of habeas corpus, or other writ sued "forth by any perfon whatsoever, out of any of her majefty's courts of record at Westminster, to remove any action, fuit, plaint, or caufe depending in any inferior court, having jurifdiction thereof, fhall be received or "allowed by the judges or officers of such court wherein "or to whom fuch writs fhall be delivered, (but they may "proceed therein, as if no fuch writ were fued forth or de"livered) except, that the faid writ or writs be delivered "to fuch judges or officers of the faid court, before that "the jury which is to try the caufe in queftion, and the party that fued forth the faid writ, or for whofe benefit it was fued forth, have appeared, and one of the said $6 jury fworn to try the said caufe.”

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Of the Habeas Corpus ad faciendum et recipien

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And by the 21 Jac. 1. c. 23. f. 2. it is enacted, "That "no writs of habeas corpus, certiorari, or other writ fued ❝ forth to remove any action or fuit commenced in any "inferior court, having jurifdiction thereof, fhall be al"lowed by the fteward, judges or officers thereof, un"less delivered before iffue or demurrer joined in the faid "cause so depending, fo as the faid iffue or demurrer be "not joined within fix weeks next after the arreft or appear66 ance of the defendant to fuch action or fuit."

And by fect. 3. "If any fuch action or fuit fo as afore"faid commenced in fuch inferior 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 fuit shall never afterwards be removed or stayed before judgment, by any writ out of any court whatsoever."

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And by fect. 4. it is enacted, "That if in any action or "fuit, not concerning any freehold or inheritance, or title "of lands, leafe or rent, be commenced or depending in "fuch inferior court of record, it fhall appear or be laid "in the declaration, that the debt, damages, or things "demanded, do not exceed 51. then fuch action or fuit "fhall not be stayed by any writ whatsoever, other than ❝ writ of error or attaint."

And by the fect. 6. it is provided, that this act fhall ex"tend only to fuch inferior courts of record, and for fo "long time only, as there is or fhall be an utter barrifler of "three years fanding at the bar of the four inns of court, "steward or under-fteward, town-clerk, judge, or recorder "of such inferior court, or affiftant to the judge or judges " of the fame, as fhall not be an utter barrifter of that ftanding, and there present, and not of counsel in any "action or fuit there depending.".

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After this ftatute was made, an expedient was hit upon by fome knavifh defendants to render the fourth claufe thereof ineffectual; which was, by fetting up a fictitious action against themselves, (when the fuit below was under 57.) for a pretended demand of 5. or upwards, and then bring an habeas corpus thereon, which writ removed all caufes against them in that court; and thereby, notwithstanding this clause, the smaller action under 57. was removed into the fuperior court, to the prejudice of many poor plaintiffs, who, for want of ability and means to carry on a fuit in

Of the Habeas Corpus ad faciendum et récipienà dum:

the fuperior court, was obliged often to defift from prosecuting their fuits, and thereby fubmit to the lofs of their demands.

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But by 12 Geo. I. c. 29. f. 3. to prevent fuch practice in future it is enacted, "That the judges of fuch inferior courts of record, as are defcribed in the ftatute of "Ja. 1. may proceed in fuch actions commenced as are "therein specified, which appear or are laid not to exceed "the fum of five pounds, although there may be other ac"tions against such defendant, wherein the plaintiff's de"mands may exceed the fum of 5 1.

The ftatute of 12 Geo. I. c. 29. empowers the plaintiff, upon an affidavit made and filed that his cause of action amounts to ten pounds or upwards, to arreft the defendant by process out of the fuperior courts-And where the cause of action amounts to forty fhillings or upwards, within the jurifdiction of inferior courts, to arreft the defendant by procefs out of such inferior courts. Which laft part being found very inconvenient, and prejudicial to the lower clafs of people, by putting it in the power of any one to whom they were indebted in forty fhillings, within the jurisdiction of the Marshalfea or other inferior court, to arreft their bodies, and imprison and withhold them from their families and work, the ftat. 19 Geo. 3. c. 70. extends the former part of the 12 Geo. I. c. 29. to inferior courts; so that neither in the fuperior 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 profecuting for fmall debts in fuch inferior courts, by the fame ftatute, 19 Geo. 3. c. 70. it is further enacted, "That no cause,

where the cause of action shall not amount to the sum of "10. or upwards, fhall be removed or removeable into any "fuperior court by any writ of habeas corpus, or otherwise, "unless the defendant who fhall be defirous of removing "fuch cause, fhall enter into a recognizance with two "fureties in double the fum laid in the court from which "it is to be removed for payment of the debt and cofts, in "case judgment shall pass against him.”

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Of

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

Y Reg. Mich. 1654. fect. 7. A writ of habeas corpus to remove the body of a prifoner directed to the sheriffs of London or Middlefex, 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 sheriff or court farther diftant, it must be returnable at a day certain. in court, unless it be to deliver over a prifoner 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 cafe of Doctor Bettefworth v. Bell, Burr. 4 pt. 1875. That fuch writ of habeas 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 faid, that the above rule, Mich. 1654. was fallen long fince 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 fubjects are imprisoned. 1 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 marshes of Wales, as it does to all other courts which derive their authority from the king, as all the courts exercifing jurifdiction 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.

Vide Bac.

But an babeas corpus ad faciendum et recipendum does not lie to the cinque ports, at the fuit of a fubject. Abr. and authorities there cited. 3 Vol. 4.

The

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