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case. But by the 18 Edw. 3. st. 3. c. 5. E. & I. 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 without difficulty, that the parties c ted may be informed whether to give their answer thereto, or otherwise to purchase a writ of prohibition.

c. 3. E. & 1.

A copy of the

libel shall be delivered.

In what case a writ of consulta

tion is grantable,

The 24 Edw. 1. E. & L. provides, that where ecclesiastical judges surcease to proceed by force of the king's 24 Edw. 1. prohibition, in cases where remedy could not be given in the king's court by any writ out of chancery, the chancel

E. & I.

lor, or the chief justice, upon sight of the libel, at the instance of the plaintiff, (if they see that the case cannot be redressed by writ out of chancery, but that the spiri-. tual court ought to determine, the matter) shall write to the ecclesiastical judges, that they proceed therein not50 Edw. 3. c. 4. withstanding the king's prohibition. And by the 50 Edw. 3. 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, provided the matter in the libel be not changed.

E. & L.

after consulta tion.

When writ of indicavit is to be

granted

With respect to the writ of prohibition called indicavit.. The 34 Edw. 1. 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-. corded, and the chancellor be certified thereupon by sight of the libel.

E. & L.

Prohibition under what cir

cumstances,

for tithe of barren

land.

$ 2. Ir.

By the 33 Geo. 3. c. 25. s. 2. Ir. wliere any suit shall be commenced before any ecclesiastical judge, relating granted in suits to the recovery of any tithes in which any question shall arise, whether the land is exempted from tithes by virtue 33 Geo. 3 c. 25. of this act, no prohibition shall be granted, unless the party demanding such prohibition shall deliver to one of the justices of the court in which such prohibition shall be applied for, a copy of the libel or petition depending in the ecclesiastical court, subscribed or marked with the band of such party; and under the copy of said libel, &c.

* An act to encourage the improvement of barren land. vide B. 2. p. 435.

shall

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 have a consultation, and shall recover double costs and" damages to be assessed by the court where the consulta-" tion 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 Edw. 6. c. 13. s. 14. Eng. ante p. 76.

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Of Wrongs andtheir Remedies respecting the rights of Persons.'

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As to the wrongs affecting the personal security of individuals the 37 Hen. 8. c. 6. Eng. which regards the offence of mayhem as a civil injury,, as well as punishable criminally, might be referred to this head; but this statate will be found in another place.

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9 Hen. 3. c. 26.

3Edw. 1. c. 11. F. & I.

thereon.

With respect to the violation of the right of personal liberty: It was a provision of the great charter (9 Hen. 3. Writ de odio et c. 26. E. & I) that the writ of inquisition of life or atia granabia member, should be granted gratis, and not denied. And E. & 1. by the 3 Edw. 1. c. 11. E. & I. such inquests were required to be taken, by lawful men chosen out by oatli, Inquisition (of whom 2 at least should be knights) which by no affinity 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 ano- ise in cases of ther by misfortune, or in his own defence, or in other venture, dice manner without felony; but that he should be impri

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soned

c. 9. E, & I. This torit not to

killing by misad

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soned until the coming of the justices in Eyre or justices of gaol delivery, and should put himself on the country before them, for good or evil: And in case it should be found by the country, that he did it in his own defence, or by misadventure, then, report being made thereof by the justices to the king, that the king should take him to 23 Edw. 3. c. 9. his grace, if it so pleased him. And the 28 Edw. 3. c. 9. E. & I. recites, that sheriffs had by virtue of commissions and general writs granted to them at their own suit, and for their own profit, taken divers inquests to indict the people, and had taken fine and ransom of them to their own use, and delivered them without bringing then before the king's justices for their deliverance; and there

E. & l.

Writ abolished

in all cases.

E. & L.

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fore enacts, that no such commissions or writs shall be 42Edw. 3. c. 1. granted. But the 42 Edw. 3. c. 1. E. & I. having confirmed the great charter, and declared all statutes contrary thereto to be void, it is therefore questionable how far this writ de odio et atia is thereby revived.

But revived, Qu?

§ 2.

chief justice, &c.

II. As to the writ of habeas corpus: the 1 & 2 Ph. & M. c. 13. s. 7. Eng. provides, that no writ of habeas corpus Writ of habeas [or certiorari] shall be granted to remove any prisoner corpus to be signed by the out of gaol, except the same writs be signed with the pro1 & 2 Ph. & M. per hands of the chief justice, or, in his absence, one of 13, s. 7. Eng. the justices of the court out of which sucli writ shall issue; upon pain that he that writeth such writs, not being signed as aforesaid, shall forfeit to the king £5. for every such writ. The 10 Car. 1. st. 2. c. 18. Ir. contains a similar provision, but further provides, that such writs Form of such shall contain a clause, to certify the true cause of the turds prescribed, imprisonment, and the cause of the taking of the recognizance, and the names of the justices of the peace who committed such prisoner, and took such recognizance: and all writs issued contrary to this act shall be void.

10 Car. 1. st. 2. c. 13. s. 2. Ir.

Issuing babeas corpus not ne

cessary to charge

claration.

One species of this writ, viz. habeas corpus ad respondendum is referred to by the 4 & 5 W. & M. c. 21. prisoner with de- Eng. which recites, that after plaintiffs were at great 4&5 W & M. charge to arrest the defendants upon writs issuing out of c. 21. s. 1. the courts at Westminster, and defendants for want of bail were committed to gaol, yet by the practice of such courts, unless such plaintiffs before the end of 2 terms after such

Eng.

arrest,

Dublin" in

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 imprisonment; 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 Westminster] 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 shali 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, the plaintiff shall have judgment, as if the prisoner had appeared and refused to plead. And by s. 3. in all declarations against prisoners detained by virtue of any writ or process issued out of the court of king's bench, it shall be alleged in custody of what sheriff, or in K. B. 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 in the custody of the marshal of the [‡marshalsea.] The in 8Ann. c. 9. 8 Anu. 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, 13ear. 2. st. 2. c. 2. s. 5. Eng. that every person who shall have cause of any personal How persons action against any prisoner [§in the fleet,] may sue forth having cause of an original writ; and that a habeas corpus be granted to ceed against prisuch plaintiff, directed to the [warden] of said prison, Fleet. to have the body of such prisoner before the justices of "prison" by the common pleas,¶ at some certain day in any term, to answer the plaintiff upon his said cause of action; and if keeper" by

S. 3.

Declaration against prisoners

state in whose

+"Four courts"

action may pro

soners in the

7W.3.c.25. Ir.

"Gaoler or

W. 3. c 25. fr.

q" Or king's

"Before the end of next term after such declaration shall be delivered here" bench" added added by 8 Ann. c. 19. k.

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by 7W.3. c. 25. said Jr.

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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 him 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 entered against such defendant. And such charge in court "Gaoler or by declaration, signified by rule unto the said [*warden] 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 damages by action upon the case. 7 W. 3. c. 25. The 7 W. 3. c. 25. Ir. contains a similar provision; but 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.

keeper," in 7 W. 3. c. 25.

s. 4. Ir.

Prisoner not removeable by habeas corpus

s. 9. Ir.

execution not

1.

Next as to the writ of habeas corpus ad faciendum et recipiendum, more commonly called habeas corpus căm cum causa causa: The 2 Hen. 5. st. 1. c. 2. E & I. provides, that if after judgment. 2 Hen. 5. st. upon any [certiorari or] corpus cum causa it be returnc. 2. E. & I. 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 satisfaction be made to them of the sums 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 removed by ha- body of such defendant, being in custody on any execution taken out on a judgment in any civil action, by till expenses of removal deposit- virtue of such writ of habeas corpus, until such defendant 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, Habeas corpus brought within cities, towns corporate, and other privibe delivered be leged places, used to suffer such actions, &c. to be projure jury sworn, ceeded in until issue, and the jury sworn, and evidence given on the plaintiff's part, before said defendants delivered

beas corpus

ed.

cum causa shall

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