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Of the Habeas Corpus ad faciendum et recipiendum, and herein of Declaring.
TH E record itself is never removed by habeas corpus, but remains below, therefore the plaintiff-must declare de novo; and the declaration ts exactly the fame as in other cases: and if in B. R. he is stated to be in cujlodia marefchalli. Salk. 352.
The plaintiff must declare before the end of the second term after the return of the habeas corpus, otherwise the defendant is not bound to accept a declaration. And note: If the habeas corpus is returnable in term, that term is one; and the plaintiff must declare before the end of the succeeding term. Vide Huttonv. Stroubridge, Stra. 631.
There is no limited time for the plaintiff's getting an order for a procedendo, unless bail be put in. Barnes go.— But if the desendant puts in bail in time, and the plaintiff does not declare in two terms, the cause is out of court.
If a cause is removed by habeas corpus out of the courts of Canterbury, Southampton, Hull, Litchfield, Pool, or other counties where the judges of nisi prius seldom go, if the action be transitory, it must be laid in the county of Kent, Hampshire, Yorkjhire, Stafford/hire or Dorsetjhire, or other county in which such city or town lies, and the recognizance is to be taken accordingly. Mich. 1654.
When a desendant has removed his cause into the superior court, and persected his bail, he cannot sign a non-profs, for want of a declaration, as the plaintiff is not in court till he has declared, and the cause is supposed to be removed againft his inclination.
Of the Habeas Corpus ad faciendum et recipieniium, and herein of Pleading.
IF a cause be removed out of London or Middlesex, the Maijhaljea, or any other court within five miles of London, in Hilary or Trinity term, and bail is put in, and the plaintiff declares in London or Middlesex, and delivers his declarations* days before the end of the term, the defendant shall plead three days before the essoign day of the subsequent term, that the plaintiff' may enter the issue if he will; but if the plaintiff does not deliver his declaration fix days before the end of the term, the desendant shall have an imparlance till the next term. Vide 1 Mod. 1.
And if a cause is removed out of any court, except in London or -Middlesex, the Marshalsea, or other court within five miles of London, and the plaintiff does not declare in London or Middlesex, but in some other county, and delivers his delaration at any time before the end of the terms of Hilary or Trinity, the desendant is bound' to plead by the time the rule is out, that the plaintiff may try his cause at the assizes, if he thinks proper; and for want of a plea in due time, judgment may be entered against him.
And isa cause is removed by habeas corpus returnable in Michaelmas term, and the plaintiff declares in London or Middlesex, and delivers his declaration before crajlinum animarum, the desendant must plead to trial the same term.
So, upon an habeas corpus returnable in Eajier term, 'if the plaintiff declares in London or Middlesex, and delivers hii declaration before mensem Pascha, the desendant must plead to trial the same term. Salk. 515.
But if the declaration is delivered after these respective times, and yet fix days before the end of either of these terms, the desendant, wherever the action • is laid, shall plead three days 'before the effoign day of the subsequent term; and if not delivered fix days before the end of either' of these terms, the-dcsendant has an imparlance until the next term.
The above was the practice before the 5^6 Geo. 2. but by rule made in B. R. Tr. 5 &6Geo. 2. and Mich. 3 Geo. 2. in C. B.
On all process returnable the firjl oi second return [/. e. before the * third return] of term, if the plaintiff declares
• And by Reg. Tr. 7 Ceo, 3. On all process returnable the third return of term,
Of the Habeas Corpus ad faciendum et recipien- dum, and herein of Pleading.
in London or Middlesex, and the desendant lives within twenty miles of London, the declaration may be delivered with notice to plead v/\i\\\n sour days after delivery, and the desendant shall plead within that timej and if the plaintiff declares in any other county, or the desendant lives above twenty miles from London, the declaration is to be delivered, with notice to plead in eight days after; and if the desendant does not plead in that time, a rule to plead having been given and expired, and a demand in writing of a plea having been made, the plaintiff may sign judgment.
But a declaration must be delivered four days before the end of term, exclusive of the day of delivery, to have a plea of that term.
Since the making of the above rules, some have proceeded upon an habeas corpus according thereto, as if upon a tests' corpus, whilst others have adhered to the old practice, as to pleading upon an habeas corpus before mentioned.
A plea in abatement must be pleaded within thesour days, as in other cases of pleas in abatement. Vide Pleas in Abatement in the I st vol.
Debt against a feme sole in the palace court, and after appearance and plea pleaded she married, and then removed the cause by habeas corpus; and after the plaintiff had declared against her above, she pleaded her coverture in abatement, viz. that fiie was married at the time the habeas corpus sued out. And it was ruled a good plea, for the proceedings are de novo, and the court takes no notice of the proceedings below. But the court said, that if this matter had been moved on the return of the habeas corpus, they would have granted a procedendo: for though an habeas corpus be a writ of right, yet where it is to abate a rightsul suit, the court may resuse it. 1 Salk. 8.
But note: That coverture, after an action brought, cannot abate a plaintiff's writ. Ld. Raym. 1525. Stra.
Though coverture before does, if the action is brought against her as a seme sole, and an habeas corpus to.remove a cause, is considered as the first commencement of the action in the court above.
An action was brought in the sheriff's court of London, and was removed by hab. corp. into B. R. the 6th of Ncv. the first day of Michaelmas term. On the twelfth, plaintiff
Of the Habeas Corpus ad faciendum et recipient
dum, and herein of Pleadingdelivered his declaration, and gave a rule to plead: On which, the desendant moved for an importance, and insisted the practice was the same as if the action was originally commenced in this court, and cited Salk. 515. where it was held, that on hab. corp. returnable in Michaelmas term, if the declaration be delivered before eras. animarum, the desendant must plead to try; but on a cepi corpus, he is only to plead to enter.
So in Eajier term, if the declaration be delivered before mensem Pascha, the desendant, on an habeas corpus, must plead to try, upon a cepi corpus only to enter. But the court in the principal case said, We will not put the plaintiff* in a worse condition than he was in the court below, and therefore resused an imparlance. 1 Wils. 154.
All subsequent proceedings to the declaration, are the fame upon an habtas corpus as in other cases.
Of the Habeas Corpus ad faciendum et recipiendum, and herein of granting a Procedendo.
THROUGHOUT the foregoing pages under this title, we have seen in what cases the plaintiff is at liberty to remand the cause to the original jurisdiction, upon the desendant's not complying, upon removing a suit commenced against him by habeas corpus, with the statutes and rules of court made to regulate the proceedings therein upon such removal—as for want of putting in bail, where special bail is required; not justifying bail in due time, when served with a rule; not pleading in time to the declaration delivered, i$c.
A procedendo is a writ grantable by any judge of the court into which the cause was removed, upon application to one of their clerks at chambers.
"The writ must be engrossed on a two shilling stamped piece of parchment, and must be signed and scaled; for which the usual sees are paid.
The writ is to this effect: ,
GEORGE the third, by the grace of God, ferV.
To the sheriff of or judges of, &c.
[stiling the court and judges thereof properly] greeting. Although we lately by our writ commanded you, that you should have the body of C. D. detained in our prison under your custody, as it was said, under sase and secure conduct, together with the day and cause of his being taken and detained, by whatsoever name the said C. might be called, in the same, before our right trujly and well beloved William earl of Mansfield, our chiefjujlice, assigned to hold pleas in our court before us, at his chambers, situate in Serjeant's Inn, Chancery-Lane, immediately after the receipt of that writ, to do and receive all and singular those things which our said chief justice should then and there consider of him in that behalf. Yet we, being now moved with certain causes in our court before us, command you and every of you, that in all plaints or suits against the said C. at the suit of A. B. in our court before you, or any of you levied or affirmed, or before you or any of you now depend• . \ ing undetermined, you proceed with what speed