The Form of the Writ of Habeas Corpus faciendum et recipiendum.

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THE form of the writ of habeas corpus cum caufâ, &c.

GEORGE the third, &c. To the [defcribe the fheriff, 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 prifon under your cuftody, as it is faid, by whatsoever name he may be called, in the fame, together with the day and the cause of the taking and detaining the faid C. D. before our right trufly and well beloved William earl of Mansfield, our chief juftice, affigned to hold pleas in our court before us, [or if in C. B. before Sir William De Grey, knight, our chief justice of the Bench] at his chambers, fituate 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 fingular those things which our faid chief juftice fhall then and there confider 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 defendant to the prifon of the court.

Befides the fees paid upon fuing out the writ and fealing the fame, fees are paid in the inferior court to the sheriff, or judge thereof, for the allowance of the writ, for the return thereof, for the number of caufes there happen to be against the defendant in such inferior court, &c. Alfo fees paid upon the warrant to the bailiff to bring him up, and to the gaoler to deliver him, befides the fees paid at the judge's chambers; or if it is returnable in court, to the fecondary, crier, tipftaff, &c. to the amount fometimes of three or four pounds.

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Of the Habeas Corpus ad faciendum et recipiendun, and herein of returning the Writ, &c.

HE writ of habeas corpus, immediately upon being ferved, fufpends the power of the inferior court; and if they proceed afterwards, the proceedings are void, and coram non judice. 1 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 below went on to the trial; and defendant moved for an attachment against the sheriff for proceeding to trial after habeas corpus delivered, and rule made to fhew caufe. On fhewing cause it appeared, that the iffue was joined 27th of April, and the habeas corpus was not delivered till May, fo the court below was warranted to proceed [vide 21 Fac. 1. ante]. And the rule was difcharged. Barnes 221.

The record itfelf is not removed by habeas corpus as it is by certiorari, but remains below; and the return is only a hiftory of the proceedings.

The writ must be returned by the fame perfon to whom it is directed; and where the writ was awarded to a fheriff, 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 fheriffs; by the old fheriff that he had the body, and had delivered it to the new fheriff; and then the new fheriff might have returned languidus. Peck v. Creffett. Paf. 26 Car. 2.

The writ must be returned, otherwife an alias and pluries goes; and after that, an attachment.

A defendant being in cuftody of the sheriff of Bristol, brought his babeas corpus to be removed to the Fleet, and tendered it to the fheriffs, with feven guineas, (exceeding 1 s. per mile) which the fheriffs refufed to accept, infiiting on 107. On which the defendant moved for an attachment against the sheriffs; which, on fhewing caufe was made abfolute. Barnes 377.

It was held, that a fheriff upon an habeas corpus is not bound to bring up the prifoner, unless reafonable charges be tendered him. Cox v. Dowl. Hil. 2021 Gar. 2.

But in Hopman v. Barber, Stra. 814. It was held fince, that an officer must obey the writ of habeas corpus, though the party refuses to pay him his fees, for he has a remedy. for them..

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Of the Habeas Corpus ad faciendum et recipiendum, 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 prifon of the court, till the officer is fatisfied his charges for bringing him up. Vide Stra. 308.

An habeas corpus cum caufâ went to the portreeve of Yeovil in Somerfetfhire, 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; for though the body be bailed, he ought to eturn the caufe-and the body cannot be bailed after the writ received. Salmon v. Slade, Hil. 25, 26 Car. 2.

An habeas corpus went to the ftannary court, to which an infufficient return was made, and therefore difallowed. Et per cur. The warden of the ftannaries must be amerced, and you may go to the coroners and get it affeered, and eftreat it; and an alias habeas corpus must go for the infufficiency of the return to the firft, and upon that the body and cause must be removed up; if another excufe be returned, we will grant an attachment. Salk. 350. pl. 8.

Where an habeas corpus is directed to an inferior court, and the fteward has liberty to proceed by the 21 Jac. I. c. 23. yet the writ must be returned with the fpecial matter, or the perfon to whom it is directed will be in contempt. Carth. 69.

An habeas corpus was fued 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 defendant's counfel alledged, that neither of the parties lived in London, nor were the words spoken there. And per Hale, ch. juft. If the words were not fpoken there, the plaintiff fhall 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 remove it into B. R. to which the fheriff's returned generally, that at fuch a court came the plaintiff and levied his certain plaint against the defendant in a plea of trefpafs on the cafe, to the damage of 500l. whereupon iffue was joined, which remains ftill undetermined, &c. And upon the return a procedendo was prayed, upon a fuggeftion, that the action was commenced for calling plaintiff whore, which is actionable in London, and not elsewhere; therefore if a procedendo

Of the Habeas Corpus ad faciendum et recipiendum, and herein of returning the Writ, &c.

cedendo fhould be denied, plaintiff would lofe her action, and by this means all fuch actions would be loft; and an affidavit was produced, in which plaintiff depofed, that the only caufe of action was ut fupra. 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 fee 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 cafe of a cuflom 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. Watfon v. Clerke, Carth. 75.

On an habeas corpus to the fheriff's of London, they returned an action on a bye-law, with a penalty; and then it was moved to have the return filed. Per Holt. If a record is once filed here, it can never after be remanded, either in the term it is filed, or any other. 2d. The record itfelf is never removed by hab. corp. the return is only an account of the proceedings; and when it is removed the plaintiff muft declare de novo against the defendant in cuftodia marefchalli, &c. 3d. The bab. corp. immediately fufpends the power of the court below. 4th. The return in this cafe may be filed, because the very record is not returned, and therefore will not be filed; of confequence then a procedendo may be granted, becaufe it will not fend out any record filed, but only remove the fufpenfion. Accordingly, the writ being filed, a precedendo was awarded. Salk. 352.

If a writ of habeas corpus is made returnable immediatè, it ought to be returned the fame day it is delivered, and the body brought up immediately.

By the old rule, Mich. 1654, all writs of habeas corpus directed to any fheriff or officer of an inferior court, at above the distance of five miles from London, if made returnable in Hilary or Trinity terms, muft be made returnable at a day certain preceding the fecond return of thofe terms, in order, if bail be required thereon, the plaintiff may be enabled to declare of the fame term, and the defendant fhall be obliged to plead to iffue as of these terms, fo that the plaintiff may try his caufe the next affizes, if he thinks

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Of the Habeas Corpus ad faciendum et recipiendum, and herein of returning the Writ, &c.

thinks fit; or in default of pleading, that judgment may be entered against defendant of the fame term, if rules to plead are given in due time.

And if the habeas corpus is fued out in Hilary or Trinity terms, or the beginning of the vacations of those terms, the writ must be made returnable the first or fecond return of the fubfequent terms, viz. Eafter or Michaelmas, or the plaintiff, on fummons before a judge, may have a procedendo.

After interlocutory, and before final judgment in an inferior court, an habeas corpus cum caufa was brought; before the return of the writ the defendant died, and a procedendo was awarded; because, by the 8 & 9 W. 3. c. 11. the plaintiff may have a feire 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 unreafonable. Salk. 352.

A caufe was removed, after interlocutory and before final judgment, by habeas corpus, and a procedendo was refused, because this is not within the words of the act 21 Jac. I. c. 23. which are, that the habeas corpus, certiorari, &c. fhall not be received or allowed; but that the inferior judge may proceed; except the writ be delivered to fuch inferior judge, &c. before issue or demurrer joined in the caufe (fo as it be not joined within fix weeks after the arrest or appearance of the defendant). And the practice having been to allow the habeas corpus, if delivered before the jury are fworn, the court refused a procedendo. Burr. 4 pt. 758. but fee Pract. 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 abfolute,

Barnes 221.