Page images


S. 3.

livered writs to remove such causes, &c. which was great cause of perjury and subornation of perjury, and of great expenses to the plaintiffs ; and therefore enacts that no habeas corpus, or other writ, sued forth of any of the courts at Westminster, to remove any cause depending in any court, shall be allowed, except the said writ be delivered to the judge or officer before the jury have appeared, and one of the jury sworn. And the 21 Jac. 1. 21 Jac. 1.c 23.

s. 2. Eng. c. 23. s. 2. Eng. further provides, that no habeas corpus, certiorari, or other writ or process, (other than writ of such terit to be

deliverer before error or attaint) to be sued forth of any court having or issue or demurpretending to have power to award such writ, to stay or

rer joined. remove any cause depending in any court of record, which shall have jurisdiction to hold plea in that cause, shall be received or allowed, except such writ be delivered to the steward, judge, or officer, before issue or demurrer joined, so as the said issue or deinurrer be not joined within 6 weeks next after the arrest or appearance. And by, s. 3. if any such cause be removed or stayed by any such writ, &c. and afterwards the same cause be remanded by

A suit remanded procedendo, or other writ, the same cause shall never shall never be afterwards be removed or stayed before judgment by any writ whatsoever. By s. 4. if in any cause (not concerning freehold, or title of land, lease, or rent) it appear, or be laid in the declaration, that the debt, damages, or Where demand

, thing demanded, do not amount to or exceed £5. such suit not renwied. cause shall not be stayed, nor removed into any other court, by any writ, other than writ of error or attaint. And by s. 5. if any writ be sued forth contrary to this act, it shall be lawful for the judge or officer, to whom such writ shall be directed, to disallow the saine, and to proceed as if such writ had been granted. [*Provided (s. 6.) that this act shall extend only to such courts of record, and for so long time only, as there shall be

Proviso, an utter barrister of 3 years standing, that shall be steward, town-clerk, judge, or recorder of said court, or that shall be assistant to such judge, and there present, and not of counsel in any cause there depending in said court. And by s. 7. this act shall not extend to any cause

Proviss. These clauses within the crotchets not in the 9 W. 3. c. 13. Ir.


S. 4.


S. 5.

$. 6.

s. 7.

H 2






£10, not re

wherein any such plea shall be pleaded, as could not be

tried within the jurisdiction of such inferior court.] And 12 Gco. 1.c.29. the 12 Geo. 1. c. 29. s. 3. Eng. recites, that the statute s. 3. Eng.

(21 Jac. 1. c. 23.) was evaded by defendants setting up Evasion of the fictitious actions against themselves for £5. or upwards, 21. Jac. 1. obe and by such contrivance procured the smallest actions viated

to be removed by habeas corpus ; and therefore enacts,
that the judges of such inferior courts, as are described
in the 21 Jac. 1. c. 23. supra, may proceed in such causes
as therein specified, which appear, or are laid, not to
exceed £5. though there may be other actions against
such defendants, wherein the plaintiffs demands may ex-

ceed £5. And by the 19 Gev. 3. c. 70. s. 6. Eng. no
19 Geo. 3.c.70.
g. 6. Eng.

cause, wherein the cause of action shall not amount to

the sum of [*£10.) shall be removed into any superior Causes under

court by any writ of habeas corpus, or otherwise, unless moved unless the defendant shall enter into a recognizance, to be ackupon security to pay debt and nowledged in the inferior court, with 2 sufficient sureties,

in double the sum for which such action is brought, for

payment of the debt and costs, in case judgment shall W. 3. c. 13. pass against him. In Ireland the 9 W. 3. c. 13. Ir, con

tains clauses corresponding to the 21 Jac. 1. c. 23. s. I.
2. 3. 4 & 5. supra ; omitting to follow the 6th & 7th

sections : And the 19 & 20 Geo. 3. c. 38. Ir. contains c. 38. 3. 7. Ir. also a provision (s. 7.) similar to -that of the 19 Geo. 3.

c. 70, s. 6. supra, except as to such distinction as is noted
in the margin: But the 43 Eliz. c. 5. supra, as also the
12 Geo. 1. c. 29. s. 3. supra, bave remained without
adoption in Ireland.

The 43 Geo. 3. c. 140. E. is a statute which respects
Habeas corpus

the writ of habeas corpus ud testificandum : This act probring prisoners for trial, or to vides, that it shall be lawful for any judge of the courts be examined as witnesses, before

of K. B. or C. B. or for any baron of the court of Exc. courts martial, of the degrec of the coif, at his discretion, to award a 43Geo.3.c.160. writ of habeas corpus for bringing any prisoner detained E.

in any gaol or prison in England, before any court
martial, or before any commissioners of bankrupt,
commissioners for auditing the public accounts, or other



[ocr errors]

19 & 20 Geo.3.

may issue 10


* £5. is the sum mentioned in the 19 & 20 Gea. 3. C. 38. Ir.



[ocr errors]

commissioners acting by virtue of any commission or warrant from the king, for trial, or to be examined touching any matter depending before such courts martial, or commissioners ; and the like proceedings shall be had upon such writs, as upon writs of habeas corpus for bringing persons detained in gaol before magistrates, or courts of record, for such purposes. And by the 44 Geo, 3. c. 102. E. & I. it shall be lawful for any judge 44 Geo. 3.c. 102, of the court of K. B. or C. B. of England and Ireland L. & I. respectively, or any baron of Exe, of the degree of the Habeas corpus coif in England, or baron of Exc. in Ireland, or any dum by tolona justice of oyer and terminer or gaol delivery, being such issuble. judge or baron as aforesaid, at his discretion, to award a writ of habeas corpus for bringing any prisoner detained in any gaol or prison' before any of said courts, or any sitting of nisi prius, or before any other court of record in said parts of the united kingilom, to be examined as a witness before such courts, or any grand, petit, or other jury, in any cause or niatter, civil or criminal. An:!by s. 2. every justice of great session in Wales, and in the county palarine of Chester, shall have the like authority. The 38 Geo. 3. c. 26. s. 2. Ir. also provides, 38 Geo. 3.c.26. that it shall be lawful for justices of assize, nisi prius, s. 2. Ir. or commissioners of oyer and terminer, and gaol de

Judges of aslivery, by order in writing, to be by them respectively size, &c. may

order persons in signed, to direct any person in execution, and in the erecntion to be custody of any sheriff or other officer, in any coumty examined as

brought up to be where they shall sit, to be brouglit up for the purpose of witnesses. giving evidence in any cause or trial before them. And by s. 3. if any action be brought against any sheriff, or other officer, for bringing ip any person in execution in obedience to such order, he may plead the general issue, &c. and shall recover double costs of nonsuit, discontinuance, or verdict. I have in a preceding part of this work (Book 1. Chap. 1.) Hrit of hakeas

corpus ad sub, already stated the provisions of the 16 Car 1. c. 10. Eng. jiciendum in which asserted and enforced the right of the subject to chat cases to obtain the great remedial writ of habeas corpus ad subji= 16 Car. 1. c.10. ciendum, in cases either of imprisonment within the realm by the king, or his privy council, or by any court Eng. exercising any arbitrary jurisdiction similar to the court


[ocr errors]


31 Car. 2. c. 2.

vice to be re

of Star Chamber which was thereby abolished. And I,
have referred to the same place the provisions of the
31 Car. 2. c. 2. Eng: (commonly called the Habeas Corpus
Act) which relate to imprisonments beyond the seas: But
I have reserved for this part of the work, the provisions
of this latter statute, which were calculated to prevent
the delays and shifts which were used by sheriffs, and

other officers, to avoid the due execution of this writ. 31 Car. 2. c. 2. By s. 2. when any person shall bring any habeas corpus S. 2, Eng. directed to any sheriff, gaoler, or other person, for any

, Writs of habea's corpus within 3 person in his custody, and the writ shall be served upon days after ser

the said officer, or left at the prison with any of the unturned, &c.

der officers ; such officer shall, within 3 days after service thereof, (unless the commitment were for treason or felony expressed in the warrant,) upon payment or tender of the charges of bringing the prisoner, (to be ascertained

by the judge or court that awarded the same, and in*"6d per mile” dorsed upon the writ,) not exceeding (*12d, per milen] 91& 20 Geo. 3. and upon security given by his own bond to pay the c. 11. Ir.

charges of carrying back the prisoner, if he shall be remanded, and that he will not make escape by the way,, make return of such writ; and bring the body before the lord chancellor, or the judges or barons of the court from whence the writ shall issue, or before such other person before whom such writ is returnable, according to the command thereof, and shall certify the causes of liis detainer or imprisonment; unless the commitment be in any place beyond the distance of 20 miles from the place where such court or person shall be residing; and if beyond 20 miles, and not above 100 miles, then within 10 days; and if beyond 100 miles, theu within 20 days after such delivery. And by s. 3. all such writs shall be marked in

this manner, [tper statutum tricesimo primo Caroli secundi Writs of habeas corpus and pro- regis) and shall be signed by the person that awards the ceedings thereon in vacation. same; and if any person shall stand committed or de

tained for any crime (unless for felony or treason expressed in the warrant) in the vacation time, it shall be lawful for the person, (other than persons convict, or in

by the

[ocr errors]

t" By the statute of the 22d year of the reign of king George the third" in 21 & 29 Geo. 3. c. 11. Ir,


not in

execution) or any one on his behalf, to complain to the lord chancellor, or any one of the justices of the one bench or the other, or the barons of the exchequer [*of * These words the degree of the coif;] and the lord chancellor, justice, 21 & 22 Geo. 3. or baron, upon view of the copy of the warrant of com- c. 11. Ir. mitment and detainer, upon oath that such copy was denied, are required, upon request made in writing by such person, or any on his behalf, attested by 2 witnesses present at the delivery of the same, to grant a hubeas corpus under the seal of such court whereof he shall be one of the judges, directed to the officer in whose custody the party shall be, returnable immediate before the lord chancellor, or such justice or baron, or any other justice, or baron (of the degree of the coif*) of said courts; and upon service thereof as aforesaid, the officer, or his deputy, shall bring such prisoner before the lord chancellor, or such justices, barons, or one of them, before whom the writ is returnable, and in case of his absence, before any other of them, with the return of such writ, and the causes of commitment and detainer; and thereupon, within 2 days, the lord chancellor, or such justice, or baron, shall discharge the prisoner, taking his recognizance, with one or more sureties, in any sum according to their discretions, (having regard to the quality of the prisoner, and the nature of the offence) for his appearance in the court of king's bench, the term following, or at the next assizes, sessions, or general gaol-delivery, for such county or place where the commitment was, or where the offence was committed, or in such other court where the offence is cognizable; and sball certify the writ, with the return and the recognizance, into the court where the appearance is to be made ; unless it shall appear to the said lord chancellor, justice, or baron, that the party is detained upon a legal process, order, or warrant, out of some court that hath jurisdiction of criminal matters, or by some warrant signed and sealed with the hand and seal of any of the said justices or barons, or some justice of peace, for such matters for which the prisoner is not bailable. Provided, (s. 4.) that if any person shall have wilfully neglected 2 whole terms Proviso.



« PreviousContinue »