Page images

Of Prisoners removing themselves by Habeas

Corpus from the Prisons of inferior Courts into the King's Bench or Fleet Prisons.

habeas como en el or Fleet Pricing or corpus call

A Prisoner in the prison of an inferior court, will often 1 sue out an habeas corpus cum caufâ, in order to turn himself over to the King's Bencb or Fleet prison.

But if it be returned upon any certiorari, or corpus cum caufâ, that the prisoner is condemned by judgment, he shall be remanded, and remain in prison, without being let to bail against the will of the plaintiffs, unless satisfaction be made them of the sums adjudged. 2 Hen. 5. fat. 1. c. 2.

A defendant brought into court by habeas corpus, directed to the sheriff of G. prayed to be committed to the Fleet, with the causes mentioned in the return; which were first, a detainer for want of sureties, by a warrant from a justice of the peace, for leaving a bastard child, whereby a parish became chargeable with its maintenance. — 2dly. An excommunicato capiendo issued out of Chancery, returnable in the King's Bench. And 3dly, With Exchequer process on a recognizance forfeited at the sessions. The court remanded the prisoner, being of opinion, that as to the two first causes of detainer, they had no jurisdiction ; but as to the third cause, the court inclined to think, that as it was not on an extent, the defendant might have been committed therewith abstractedly considered. Barnes 223.

A defendant was taken in execution in the admiralty court, and wanting to procure his liberty, gets a person to whom he was indebted to sue out an habeas corpus ad respondendum, in order to be turned over to the Marshalsea : And being thereby brought into court, it was moved, that he might be committed to the Marshalsea. Sed per cur, 'Tho' upon an habeas corpus ad fubjiciendum, this court, upon a charge of treason or felony, would have turned the defendant over to the marshal; cr if a bill had been filed against him, so that he had been in the custody of the marshal before; but yet, in this case, the court cannot do it, because there is no plea in this court, at this time, depending against him: and it cannot be, because he is not in cuftodia marescalli. And he was remanded by the whole court. Dowler v. Keite. Ld. Raym. 789. Salk. 351.

So in Dr. Watson's cale, who being arrested upon an Excommunicato capiendo, after an excommunication in the Spin ritual Court, for nonpayment of costs, in a fuit in which he was condemned, was brought into B. R. by hab. corp.




Of Prisoners removing themselves by Habeas

Corpus from the Prisons of inferior Courts into the King's Bench or Fleet Prisons.

ad resp. 7. S. de placito debiti, &c. And on motion to be committed, he was remanded, because no suit was depending here against him, the bill of Middlesex not being returnable till next term. Ibid.

If a prisoner in the Compter be removed into the King's Bench, upon an hab. corp. ad resp. and intending to go over into the Fleet, procures some friend to bring an habeas corpus to remove him; he shall not be removed thither, till he has answered to the cause here; and he shall not compel the plaintiff to follow after a prolling defendant; and so vice versa of the Common Pleas. Each court shall retain the defendant in which he is first attached; and after he has answered there, you may carry him where you will. Salk, 350.

Actions having been entered in B. R. against one in custody of a sheriff, upon a ne excat regno, an habeas corpus was said might be granted, although strongly objected to, because the writ of ne exeat regno commands the sheriff to take security, and transmit it into Chancery. Sed per cur.

The habeas corpus ought to be granted : The King's Bench may receive and judge of the security taken; and he ought to remain there, and that they may then grant a supersedeas. Nailor's case. Ld. Raym. 696. “The defendant was brought to the bar by habeas corpus, returnable in one month from the day of St. Michael, to be committed to the Fleet; and the court committed, though the day of the return was past. Barnes 221,

From the above cafes it appears, that where a prisoner is in custody charged with process from another court than that to the prison of which he would be turned over, he must í before ever he can be turned over) procure himself to be charged with some process issuing out of the court into the prison of which he would be turned over, and then bring his habeas corpus, that he may be returned charged with such process.

Where any person shall be brought into court upon an habeas corpus, or before a judge, in order to be committed to the custody of the marínal, the writ, with the return, shall be left with the secondary, or judge's clerk, to be filed; and a copy or note of such return of the writ, under the hand of the judge or secondary, thall be delivered to the mara


Of Prisoners removing themselves by Habeas

Corpus from the Prisons of inferior Ci irts into the King's Bench or Fleet Prisons.

fhal at the time of the commitment of such person to his custody; and such copy or note shall be prepared by the person prosecuting such writ of habeas corpus, or by his attorney. Trin. 3 Anne.


Df Dutlawry.
On mesne Process.

[ocr errors]

- Burs dia c

UTLAWR Y is a punishment inflicted on a person

for a contempt and contumacy, in refusing to be amenable to and abide by the justice of that court which hath lawful authority to call him before them; and as this is a crime of the highest nature, being an act of rebellion against that state or community of which he is a member, so doth it subject the party to divers forfeitures and disabiJities; for hereby he loseth liberam legem, is out of the king's protection, &c. Co. Lit. 128. Rol. Ab. 802., *Dr. and Student, dial. 2. c. 3.

But as to the forfeitures for refusing to appear, herein the law distinguishes between outlawries in capital cases, and those of an inferior nature; for as to outlawries in treason and felony, the law interprets the party's absence a sufficient evidence of his guilt, and, without requiring further proof or satisfaction, accounts him guilty of the fact, on which ensues corruption of blood, and 'forfeiture of his whole eftate, real and personal.

But outlawry in lesler crimes, or in personal actions, does not occasion the party to be looked upon as guilty of the fact, nor does it occafion an entire forfeiture of his real estate ; but yet is very faial and penal in its consequences ; for hereby he is restrained of his liberty if he can be found, forfeits his goods and chattels, and the profits of his lands, while the outlawry remains in force. Plow. 941. 9 H. 6. 20. b.

Having stated the difference between outlawury in criminal and civil cafes, I shall proceed to shew in what civil actions process of outlawry lies, in what manner a defendant may be prosecuted to outlawry, and how such outlawry may be avoided, or reversed.

Process of outlawry lies in no case, but where a capias lies. So that when the proceedings are by bill, and not by original, as there can be no capios upon a bill, so there can be no process of outlawry. Leon. 329. 2 Rol. Ab. 76. Sid. 159. Keb. 577.

The process of outlawry, in civil actions, is considered, at this day, nothing more than a process to compel an appearance of the party against whom a suit is commenced, and therefore any plausible caule, however Night, will, in gene

ral, On mesne Process.

ral, be sufficient to reverse it. But in order to make the process to outlawry, and practice therein intelligible, it will be necessary to take a view of the statutes which have altered the process of the courts.

The statute 13 Car. 2. ftat. 2. c. 2. being made to remedy some * abuses which crept in upon authorising the * arrest of the defendant's body by the bill of Middlefex, latitat, Sc. in B. R. and the general writ of capias clausum fregit in C. B. provides, that no person who should happen to be arrested by force' or colour of any writ or process issuing out of the King's Bench or Common Pleas, shall be forced upon such arrest to give security in more than 401. unless the true cause of action be particularly exprefèd in such writ or process. .

This statute not having remedied all the mischiefs that prevailed, as the sheriff was still to take bail for the defendant's appearance in 40 1. even upon a general writ, without the clause of “ ac etiam ;” and upon writs wherein the clause of ac etiam" was inserted, he was authorized to require bail upon the arrest to the amount of double the sum specified therein, which was still an engine of oppression in the hands of a malicious and troublesome plaintiff, as he could express any sum in the clause of “ ac etiam," or lay his damages therein to any amount, and thereby keep the defendant in gaol for want of bail--the statute 12 Geo. I. 6. 29. was made to give a further remedy for such abuses, and provides, that no one thall be held to bail, upon the arrest by process from the superior courts, unless an affidavit is previoufly made, that the cause of action amounts to 101. or upwards, and that where no such affidavit is made, that the party Thall only be served with a copy of the process, in order that he may appear to the action ; and, in case of his non-appearance at the return, the plaintiff has liberty to enter (on affidavit made of due service of the process) an appearance for him, and proceed as if the party had actually appeared. Then came the statute 5 Geo. 2. 6. 27. to remedy the inconveniences from the process being in Latin, and requires the same to be in the English tongue ; and where the party is only to be served with a copy thereof when no affidavit is made of the debt's amounting to 10 l. or upwards, enacts, that an English notice, in writing, shall

'n ride the introduction.

« PreviousContinue »