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Of the Habeas Corpus ad faciendum et recipiendum, and herein of Declaring.

HE record itself is never removed by habeas corpus, but remains below, therefore the plaintiff inuft declare de novo; and the declaration is exactly the fame as in other cafes and if in B. R. he is ftated to be in cuftodia marefchalli. Salk. 352.

The plaintiff muft declare before the end of the fecond term after the return of the habeas corpus, otherwife 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 muft declare before the end of the fucceeding term. Vide Hutton v. Stroubridge, Stra. 631.

There is no limited time for the plaintiff's getting an order for a procedendo, unless bail be put in. Barnes 90.— But if the defendant puts in bail in time, and the plaintiff does not declare in two terms, the caufe 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 nifi prius feldom go, if the action be tranfitory, it must be laid in the county of Kent, Hampshire, Yorkshire, Staffordshire or Dorfetfhire, or other county in which fuch city or town lies, and the recognizance is to be taken accordingly. Mich. 1654.

When a defendant has removed his caufe into the fuperior court, and perfected his bail, he cannot fign a non-profs, for want of a declaration, as the plaintiff is not in court till he has declared, and the caufe is fuppofed to be removed agains his inclination.

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Of the Habeas Corpus ad faciendum et recipiendum, and herein of Pleading.

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Fa caufe be removed out of London or Middlefex, the Mafhalfea, 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 Middlefex, and delivers his declaration fix days before the end of the term, the defendant fhall plead three days before the effoign day of the fubfequent term, that the plaintiff may enter the iffue if he will; but if the plaintiff does not deliver his declaration fix days before the end of the term, the defendant fhall have an imparlance till the next term. Vide I Mod. 1.

And if a caufe is removed out of any court, except in London or Middlesex, the Marshalfea, or other court within five miles of London, and the plaintiff does not declare in. London or Middlefex, but in fome other county, and delivers his delaration at any time before the end of the terms of Hilary or Trinity, the defendant is bound to plead by the time the rule is out, that the plaintiff may try his caufe at the affizes, if he thinks proper; and for want of a plea in due time, judgment may be entered against him.

And if a caufe is removed by habeas corpus returnable in Michaelmas term, and the plaintiff declares in London or Middlefex, and delivers his declaration before craftinum animarum, the defendant muft plead to trial the fame term.

So, upon an habeas corpus returnable in Eafter term, if the plaintiff declares in London or Middlefex, and delivers his declaration before menfem Pafchæ, the defendant muft plead to trial the fame term. Salk. 515.

But if the declaration is delivered after thefe refpective times, and yet fix days before the end of either of thefe terms, the defendant, wherever the action is laid, fhall plead three days before the effoign day of the fubfequent term; and if not delivered fix days before the end of either of these terms, the defendant 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. 56 Geo. 2. and Mich. 3 Geo. 2.

in C. B.

On all procefs returnable the first or second return [i. e. before the third return] of term, if the plaintiff declares

And by Reg. Tr. 7 Geo. 3. On all procefs returnable the third return of term,

Of the Habeas Corpus ad faciendum et recipiendum, and herein of Pleading.

in London or Middlefex, and the defendant lives within twenty miles of London, the declaration may be delivered with notice to plead within four days after delivery, and the defendant fhall plead within that time; and if the plaintiff declares in any other county, or the defendant lives above twenty miles from London, the declaration is to be delivered, with notice to plead in eight days after; and if the defendant 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, exclufive of the day of delivery, to have a plea of that term.

Since the making of the above rules, fome have proceeded upon an habeas corpus according thereto, as if upon a cepi 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 the four days, as in other cafes of pleas in abatement. Vide Pleas in Abatement in the ft vol.

Debt against a feme fole in the palace court, and after appearance and plea pleaded fhe married, and then removed the cause by habeas corpus; and after the plaintiff had declared against her above, the pleaded her coverture in abatement, viz. that he was married at the time the babeas corpus fued 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 faid, 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 rightful fuit, the court may refuse it. I Salk. 8.

But note: That coverture, after an action brought, cannot abate a plaintiff's writ. Ld. Raym. 1525. Stra. 811.

Though coverture before does, if the action is brought against her as a feme fole, and an habeas corpus to remove a caufe, is confidered as the first commencement of the action in the court above.

An action was brought in the fheriff's court of London, and was removed by hab. corp. into B. R. the 6th of Nov. the first day of Michaelmas term. On the twelfth, plaintiff

delivered

Of the Habeas Corpus ad faciendum et recipiendum, and herein of Pleading.

delivered his declaration, and gave a rule to plead : On which, the defendant moved for an imparlance, and infifted the practice was the fame 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 craf. animarum, the defendant muft plead to try; but on a cepi corpus, he is only to plead to enter.

So in Eafter term, if the declaration be delivered before menfem Pafcha, the defendant, on an habeas corpus, must plead to try, upon a cepi corpus only to enter. But the court in the principal cafe faid, We will not put the plaintiff in a worse condition than he was in the court below, and therefore refused an imparlance. 1 Wilf. 154.

All fubfequent proceedings to the declaration, are the fame upon an habeas corpus as in other cafes.

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Of the Habeas Corpus ad faciendum et recipiendum, and herein of granting a Procedendo.

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HROUGHOUT the foregoing pages under this title, we have seen in what cafes the plaintiff is at liberty to remand the caufe to the original jurifdiction, upon the defendant's not complying, upon removing a fuit commenced against him by habeas corpus, with the ftatutes and rules of court made to regulate the proceedings therein upon fuch removal-as for want of putting in bail, where fpecial bail is required; not juftifying bail in due time, when ferved with a rule; not pleading in time to the declaration delivered, &c.

A procedendo is a writ grantable by any judge of the court into which the caufe was removed, upon application to one of their clerks at chambers.

The writ must be engroffed on a two fhilling ftamped piece of parchment, and must be figned and fealed; for which the ufual fees are paid.

The writ is to this effect:

GEORGE the third, by the grace of God, &c.
To the fheriff of
or judges of, &c.
[ftiling the court and judges thereof properly]
greeting. Although we lately by our writ com-
manded you, that
that you fhould have the body of C.
D. detained in our prifon under your cuftody, as
it was faid, under safe and secure conduct, together
with the day and cause of his being taken and
detained, by whatfoever name the faid C. might
be called, in the fame, before our right trusty and
well beloved William earl of Mansfield, our chief juflice,
affigned to hold pleas in our court before us, at his
chambers, fituate in Serjeant's Inn, Chancery-Lane,
immediately after the receipt of that writ, to do
and receive all and fingular those things which
our faid chief justice fhould then and there con-
fider of him in that behalf. Yet we, being now
moved with certain caufes in our court before us,
command you and every of you, that in all plaints
or fuits against the faid C. at the fuit of A. B. in
our court before you, or any of you levied or af-
firmed, or before you or any of you now depend-
ing undetermined, you proceed with what speed

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