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The Form of the Writ of Habeas Corpus ad faciendum et recipiendum.
* i v H E form of the writ of habeas corpus cum causa, &c.
GEORGE the third, Ue. To the [describe the sheriff, judge, or steward of the court to which it is directed properly] greeting. We command you, that you have the body of C. D. detained in our prison under your custody, as it is said, by whatsoever name he may be called, in the same, together with the day and the cause of the taking and detaining the said C. D. before our right trusts and well beloved William earl of Mansfield, our chief justice, assigned to hold pleas in fur court before us, [or if in C. B. before Sir William De Grey, knight, our chief justice of the Bench} at his chambers, situate in Serjeant's Inn, in Chancery-Lane, [or if to be returnable in term, make it returnable at a day certain in term] immediately after the receipt of this our writ, to do and receive all and singular those things which our said chief justice shall then and there consider or him in this behalf, and have there this writ. Witness, &c. •
If the writ be returnable before the chief justice, any other judge of the court may commit the desendant to the prison of the court.
Besides the sees paid upon suing out the writ and sealing the same, sees are paid in the inserior court to the sheriff, or judge thereof, for the allowance of the writ, for the return thereof, for the number of causes there happen to be against the desendant in such inserior court, &c. Also sees paid upon the warrant to the bailiff to bring him up, and to the gaoler to deliver him, besides the sees paid at the judge's chambers; or if it is returnable in court, to the secondary, crier, tipstaff, &c. to the amount sometimes of three or four pounds.
Of the Habeas Corpus ad faciendum et reclpien. '>diun, and herein of returning the Writ, &c.
K u v H E writ of habeas corpus, immediately upon being; .'iA. served, suspends the power of the inserior court; and if they proceed afterwards, the proceedings are void, and cor am non judice. i Salk. 352. Cro. Car. 261. 2 Jones 209. 2 Mod. 195.
A habeas corpus to the town court of Nottingham, was delivered to the proper officer in open court, to remove a plaint from that court before trial, yet the court belovv went on to the trial ; and desendant moved for an attachment against the sheriff for proceeding to trial after habeas corpus delivered, and rule made to shew cause. On shewing cause it appeared, that the issue was joined 27th. of April, and the habeas corpus was not delivered till May% so the court below was warranted to proceed [vide 21 °Jac. 1. ante]. And the rule wasdischarged. Barnes 221.
The record itself is not removed by habeas corpus as it is by teriiorari, but remains below; and the return is only a history of the proceedings.
The writ must be returned by the fame person to whom it is directed; and where the writ was awarded to a sheriff', who before the return left his office, and a new sheriff was made who returned languidus, the court held the return not good; but it ought to be returned by the two sheriffs;by the old sheriff that he had the body, and had delivered it to the new sheriff; and then the new sheriff might have returned languidus. Peck v. Crestett. Pas. 26 Car. 2.
The writ must be returned, otherwise an alias and p.'uries goes; and after that, an attachment.
A defendant bring in custody of the sheriff of Bristol, brought his habeas corpus to be removed to the Fleet-; and tendered it to the sheriffs, with seven .guineas, (exceeding .. I s. per mile) which the sheriffs resused to accept, insisting on 10/. On which the dssendaiu moved fur an attachment • against the sheriffs; which, on shewing cause was made. .absolute. Barnes 377..
It was held, that a sheriff upon an habeas corpus is not bound to bring up ;he prisoner, Unless reasonable charges • -. be tendered him. Cox v. Doiul. Hil. 20 &' ^v Ca". 2.
But in Hopmanv'. Barber, Stra. 814. It 'was held since,that an officer must obey the writ of habeas co'pus, though the party refuses to pay him his sees, for he has a remedy for them..
Vol. II. . , • A a. Bu&
Of the Habeas Corpus ad faciendum et recipiettdum, and herein of returning the Writ, &c.
But then the court will not, upon his being brought up, order him to be turned over to the prison of the court, till the officer is satisfied his charges for bringing him up. Vide Stra. 308.
An habeas corpus cum causa went to the portreeve of Yeovil in SomersetJhire, who returned, that before the coming of the writ the party was bailed; and the plaintiff's counsel moved for a better return; and it was ruled that he should make a better return; fur though the body be bailed, he ought to ie:urn the cause—and the body cannot be bailed after the writ received. Salmon v. Slade, Hil. 25, 26 Car. 2.
An habeas corpus went to the stannary court, to which an insufficient return was made, and therefore disallowed. Et per cur. The warden of the stannaries must be amerced, and you mav go to the coroners and get it affeered, and Hlreat it; and an alias habeas corpus must go for the insufficiency of the return to the first, and upon that the body and cause must be removed up; if another excuse be returned, we will grant an attachment. Salk. 350. pi. 8.
Where an habeas corpus is directed to an inserior court, and the steward has liberty to proceed by the 21 Jac. 1. c. 23. yet the writ must be returned with the special matter, or the person to whom it is directed will be in contempt. Cart h. 69.
An habeas cirpus was sued to remove a cause out of London; the plaintiff prayed a procedendo, because the action was for calling the plaintiff where, which is not actionable elsewhere.—The desendant's counsel alledged, that neither of the parties lived in London, nor were the words spoken there. And per Hale, ch. just. If the words were not spoken there, the plaintiff shall not have a procedendo, for the words may be made actionable every where, by laying them in London. 2 Roll. Abr. 69.
In a like action in London, before declaration, an habeas corpus was brought to rempve it into B. R. to which the sheriffs returned generally, that at such a court came the plaintiff' and levied his certain plaint against the defendant in a plea of trespass on the cafe, to the damage of 500 1. whereupon issue was joined, which remains Jlill undetermined, &c. And upon the return a procedendo was prayed, upon a suggestion, that the action was commenced for calling plaintiff whore, which is actionable in London, and not eliewherej therefore isa pro
Of the Habeas Corpus ad faciendum et rectpiendum, and herein of returning the Writ, &c.
cedendo should be denied, plaintiff would lose her action, and by this means all such actions would be lost; and an assidavit was produced, in which plaintiff deposed, that the only cause of action was ut supra. Per Holt. It does not appear by this return, what was the cause of action. The declaration itself ought to be returned upon the habeas corpus, and then the court would see what the cause of action was. And if the writ was delivered before the plaintiff had declared, yet he ought immediately to have entered his declaration, that it might be returned upon the writ. For all the proceedings in this case of a custom Ought to be returned, as well as in an action upon a byelaw. Afterwards the return was amended, and then the court granted a procedendo. Watson v. Clerke, Carth. 75.
On an habeas corpus to the sheriffs of London, they returned an action on a bye-law, with a penalty; and then it was moved to have the return filed. Per Halt. If a record Is once filed here, it can never after be remanded, either in the term it is filed, or any other. —> 7.d. The record itself is never removed by hab. corp. the return is only an account of the proceedings; and when it is removed the plaintiff must declare de novo against the defendant in cujlodia marefchalli, &c. 3^. The hab. corp. immediately suspends the power of the court below. Ajh. The return in this case may be filed, because the very record is not returned, and therefore will not be filed ; of consequence then a procedendo may be granted, because it will not send out any record filed, but only remove the suspension. Accoedingly, the writ being filed, a procedendo was awarded. Salk. 352.
If a writ of habeas corpus is made returnable immediate, it ought to be returned the same day it is delivered, and the body brought up immediately.
By the old rule, Mich. 1654, all writs of habeas corpus directed to any sheriff or officer of an inserior court, at above the distance of five miles from London, if made returnable in Hilary or Trinity terms, must be made returnable at a day certain preceding the second return of those terms, in order, if bail be required thereon, the plaintiff may be enabled to declare of the iame term, and the defendant shall be obliged to plead to issue as of these terms, so that the plaintiff may try his cause the next assizes, if he 'i Ata 2 thinks
Of the Habeas Corpus ad faciendum et recipteri-* dum, and herein of returning the Writ, &c
thinks fit; or in desault of pleading, that judgment may be entered against desendant of the same term, if rules to plead are given in due time.
And if the habeas carpus is sued out in Hilary or Trinity terms, or the beginning of the vacations of those terms, the writ must be made returnable the first or second return of the subsequent terms, viz. Eajler or Michaelmas, or the plaintiff, on summons before a judge, may have a procedendo.
After interlocutory, and before final judgment in an inserior court, an habeas corpus cum causa was brought; before the return of the writ the desendant died, and a procedendo was awarded ; because, by the 8 & g IV. 3. c. II. the plaintiff may have a scire facias against the executors, and proceed to judgment, which he cannot have in another court; and by this means he would be deprived of the effect of his judgment, which would be unreasonable. Salk. 352.
A cause was removed, after interlocutory and before final judgment, by habeas corpus, and a procedendo was resused, because this is not within the words of the act 21 Jac. 1. c. 23. which are, that the habeas corpus, certiorari, &c. shall not be received or allowed; but that the inserior judge may proceed; except the writ be delivered to such inserior judge, f$c. before ijsue or demurrer joined in the cause (so as it be not joined within fix weeks after the arrest or appearance of the desendant). And the practice having been to allow the habeas corpus, if delivered before the jury are sworn, the court resused a procedendo. Burr. 4 pt. 758. but see Pracl. Reg. C. P. 217. cont.
Motion for a procedendo to a borough court, the habeas corpus to remove the cause having been brought after interlocutory judgment, and the court of C. P. held the habeas corpus too late, and made the rule for a procedendo absolute, Barnes 22si