« PreviousContinue »
c. 3. E. & I.
librl shall be de. livered.
But by the 18 Edw. 3. st. 3. c. 5. E. & 1. no pro-, hibition shall go out of chancery, but where the king
hath cognizance, and ought to have it. And by the 2 Hen. 5. st. 1. 2 Hen. 5. st. 1. c. 3. E. & I. at what time the libel is
grantable by law, it shall be delivered to the party withA cony of the out difficulty, that the parties c ted may be informed
whether to give their answer thereto, or otherwise to pure
chase a writ of prohibition. In what case a
The 24 Edw. I. E. & I. provides, that where ecclesition is grantable, astical judges surcease to proceed by force of the king's 24 Faw. 1. prohibition, in cases where remedy could not be given in E. & I.
the king's court by any writ out of chancery, the chancel-,
the ecclesiastical judges, that they proceed therein not-, 50 Fdw. 3.c. 4. withstanding the king's prohibition, And by the 50 Edw. 3. E AI.
c. 4. E. & I. where a consultation is once duly granted No prohibition upon a prohibition to the judge of holy church, the judge
may proceed notwithstanding any other prohibition, pro
vided the matter in the libel be not changed. When aril of With respect to the writ of probibution called indicavit. indicavit is to de granted
The 34 Eilw. I. st. 1. E. & I. contains a provision, that a 34 Edw. 1. st. 1. writ of indicavit shall not be granted before the suit
pending in the spiritual court between the parties be re-
sight of the libel.
be commenced before any ecclesiaștical judge, relating granted in suits to the recovery of any tithes in which any question shall for tithe of barren
arise,, whether the land is exempted from tithes by virtue 33 6co. 3c. 25. of this act,* no prohibition shall be granted, unless the
party demanding such prohibition shall deliver to one of
after consulta dion.
E & I,
der what cir. cumstances,
* An act to encourage the improvement of barren land. vide B. 2. p. 435.
shall be written the suggestion wherefore the party demandeth the prohibition; and in case the said suggestion, by 2 witnesses, be not proved true within 6 months after the prohibition shall be granted, the party letted thereby shall bave a consultation, and shall recover double costs and damages to be assessed by the court where the consultation shall be granted, for which the party may have an action of debt by bill, plaint, or information in any court of record. This clause is taken from the 2 & 3 Edwi 6. c. 13. s. 14. Eng. ante p. 70.
Of Wrongs andtheir Remedies respecting the
rights of Persons.
9 Hen. 3. c. 266
As to the wrongs affecting tlie personal security of individuals: the 37 Hen. 8. c. 6. Eng. which regards the offence of mayhein as a civil injury, as well as punishable criminally, might be referred to this lead, but this statate will be found in another place.
With respect to the violation of the right of personal §. 1. liberty : It was a provision of the great charter (9 Hen. 3. Writ de odio et C. 26. E. & 1.) that the writ of inquisition of life or
atia granlable. member, should be granted gratis, and not denied. And E. & I. by the 3 Edw. 1. c. 11. E. & I. such inquests were required to be taken, by lawful' men chosen out by oatli, Iraquisition (of whom 2 at least should be knights) which by no aflinity with the prisoner, nor otherwise, were to be suspected. But the 6° Edw. 1. st. 1. c. 9. E. & I. enacted, 6 Fdw. 1. st. 1. that no writ should be granted out of chancery for the death of a man, to inquire whether a man did kill ario-issue in cases of țlier by misfortune, or in his own defence, or in oiler centure, Sc.
killing by misad's inanner without felony ; but that he should be impri
3E\w. 1. c. 11. F.. & I.
c. 9, E. & 1. This.writ not to
in all cases.
E. & I.
soned until the coming of the justices in Eyre or justices
the justices to the king, that the king should take him to. 23 Fdw, 3.c. 9. his grace, if it so pleased him. And the 28 Exlw. 3. c. I. E. & l.
E. & 1. recites, that sheriff's had by virtue of cominis-
fore enacts, that no such commissions or writs shall be 42 Edw. 3. c. 1. granted. But the 42 Edw. 3. c. 1. E. & I. having
confirmed the great charter, and declared all statutes
II. As to the writ of habeas corpus: the 1 & 2 Ph. & M. § 2.
c. 13. s. 7. Eng. provides, that no writ or habeas corpus Writ of habeas corpus to be (or certiorari] shall be granted to remove any prisoner signed by the out of gaol, except the same writs be signed with the prá1 & 2 P!. & M. per hands of the chief justice, or, in his absence, one of 6, 13, s. 7. Eng. the justices of the court out of which suchi writ shall is
sue; upon pain that he that writeth such writs, not being
signed as aforesaid, shall forfeit to the king.£5. for every 10 Car. 1. st.2. such writ. The 10 Car. list, 2. c. 13. Ir. contains a siC. 13. s. 2. Ir. milar provision, but further provides, that such writs Form of such shall contain a clause, to certify the true cause of the terit prescribed, imprisonment, and the cause of the taking of the recog
nizance, and the names of the justices of the peace
were comunitted to gaol, yet by the practice of such courts,
arrest, caused the defendants by writ of habeas corpus to be removed, to be charged in the said courts with declarations of the cause of such actions, such prisoners were upon common bail, or appearance by attorney, discharged from their imprisonnent; and therefore enacts, that where any defendant shall be taken or charged in custody at the suit of any person, upon writ out of any [*court of record at Westm nister) and imprisoned or de- *“ Four courts tained in prison for want of sureties for his appearance 3 Ann. c. 9. Ir. to the same, the plaintiff in such writ shall and may, before the end of the next term after such writ or process shall be returnable, declare against such prisoner in such' court out of which such writ shall issue, and shall cause a true copy thereof to be delivered to such prisoner, or to the keeper of the prison or gaoler in whose custody such prisoner shall be; to which declaration the prisoner shall appear and plead; and if such prisoner shall not appear and plead, fthe plaintiff shall have judgment, as it the, prisoner had appeared and refused to plead. And by s. 3. in all declarations against prisoners detained by vir
writ or any
Declaration issued process out of the court of king's
again.: prisoners bench, it shall be alleged in custody of what sheriff, or in K. K. must other person having the return and execution of writs, custody he is. such person shall be at the time of such declaration; which allegation shall be as good as if such prisoner were
“Fourcourts" in the custody of the marshal of the [I marshalsea.] The In Banu. c. 9. 8 Ann. c. 9. Ir. has followed this statute with such devi. Ir. ation as is noted in the margin. For the better enabling persons to recover their just debts against persons who continue prisoners in the Fieet with intent to delay their creditors; the 13 Car. 2. st. 2. c. 2. s. 5. Eng provides, 13t-ar. 2. st. 2.
c. 2. s. 5. Eug. that erery person who shall have cause of any personal action against any prisoner [şin the fleet,] may sue forth having cause of an original writ; and that a habeas corpus be granted to ceed ngainst prisuch plaintiff, directed to the [llwarden] of said prison, fileet. to have the body of such prisoner before the justices of "!" prison" by the common pleas, s at some certain day in any term, to
|| "Gaoler or answer the plaintiff upon his said cause of action; and if keeper" by?
W.3. c. 25. Ir.
" Or king's p"Bfore the end of next term after such declaration shall be delivered here" bench” added added by 8 Ann. c. 19. 1.
by 7W.3. c. 25. VOL. II.
state in whose
soners in the
7W.3.c. 95. Ir.
said plaintiff, at said day, put into the said court his declaration, according to the original writ, against the said prisoner being present at the bar, said prisoner shall be bound to appear in person, or to put in an attorney to appear for himn in said action; and unless the defendant plead upon a rule given, to be out 8 days at least after such appearance, judgment by nihil dicit may be enter
ed against such defendant. . And such charge in court *" Gaoler or by declaration, signified by rule unto the said [*warden) 7 W. 3.c.25. shall be a good cause of detention of such prisoner, from
which he shall not be discharged without a lawful supersedeas, or rule of court; and if the said [*warden) shall do otherwise, he shall be responsible to the court; and to
the party grieved for dainages by action upon the case. * W. 3. C. 25.
The 7 W. 3. c. 25. Ir. contains a similar provision ; but S. 4. Ir.
this Irish act extends this mode of declaring against prisoners, to the court of king's bench as well as to the court of common pleas; and applies to the prison of the one
as well as of the other. Prisoner not re
Next as to the writ of habeas corpus ad faciendum et habeas corpus recipiendum, more commonly called habeas corpus cum
causa : The 2 Hen. 5. st. 1. c. 2. E & I. provides, that if after judgment. 2 llen. 5. st. i. upon any (certiorari or] corpus cum causu it be return
ed 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, until satis
faction be made to them of the suins adjudged. The 8 Geo. 1. c. 6. 8 Geo. 1. c. 6. s. 9. Ir. provides, that no sheriff or other
officer to whom any habeas corpus taken out for any deDefendant in
fendant shall be directed, shall be obliged to remove the
body of such defendant, being in custody on any exeTemoved by ha
cution taken out on a judgment in any civil action, by till expenses of temosul depusiš- virtue of such writ of habeas corpus, until such defendant ed.
shall deposit such sum to defray the expenses of the said
removal, as the court or judge who grants the said habeas 43 Eliz. c. 5. corpus shall think proper. The 43 Eliz. c. 5. Eng. reEng.
cites, that defendants in actions, plaints, and suits, Ilabeas corpus brought within cities, towns corporate, and other privibe delivered le. leged places, used to suffer such actions, &c. to be progure jury sworn. ceeded in until issue, and the jury sworn, and evidence given on the plaintiff's part, before said defendants de
c. 2. E. 3 I.
S. 9. Ir,