SECTION V. Habeas Corpus to remove a Prisoner for Trial. In what cases.] Where a prisoner, in custody in one county, is to be tried in another, he must be removed to the gaol of the latter by habeas. There are in fact two writs in this case, the habeas corpus, and the recipias corpus :-the one, commanding the gaoler in whose custody the prisoner is, to deliver him to the sheriff of the other county; and the recipias, commanding the sheriff to receive the prisoner from the gaoler, and convey him to the county gaol, and there to detain him until delivered by due course of law. These writs are familiarly called the habeas and recipias. Where an offence is committed within the county of a city or town corporate, the prosecutor may prefer his indictment in the next adjoining county; 38 G. 3, c. 52, s. 1; and the judges of the court of Queen's Bench, or any justice of oyer and terminer and general gaol delivery for such adjoining county, upon application by the prosecutor ten days before the commission day, may by proper writs of habeas corpus cause the defendants, if in custody, to be removed into the custody of the sheriff of such adjoining county, for trial there. Id. s. 4. Or, if the indictment have been preferred in the county of the city, &c., it may be removed, at the prayer of the defendant, by order of the court of oyer and terminer and general gaol delivery for such adjoining county, together with all depositions, &c.; and the prisoner, if in custody, may be removed by writ of habeas corpus to the gaol of such next adjoining county. Id. So, in the case of manslaughter or murder, if an inquisition be taken, a judge of the court of Queen's Bench, or a justice of oyer and terminer and general gaol delivery for such adjoining county, may order the coroner to return to the court of oyer and terminer, &c., the inquisi-tion and all depositions, &c. Id. s. 4. How obtained, &c.] A judge at chambers will grant his fiat, as a matter of course, for these writs at common law, upon production of a copy of the commitment certified by the gaoler, and the certificate verified by affidavit, where it appears from the commitment that the offence was committed in the county to which the prisoner is to be removed; but if that do not appear, there must be an affidavit stating it. Under the stat. 38 G. 3, c. 52, if the application be made by the prosecutor, it is granted as a matter of course, on production of the like verified certificate, and an affidavit that it is intended to prefer the bill in the next adjoining county. In the case of manslaughter or murder, an application is at the same time made for the order on the coroner to return the inquisition and depositions, &c. At the instance of the defendant, the habeas is also granted as a matter of course, if the judge have made the order to remove the indictment. As soon as you have obtained the fiats, and got the writs (which must be previously engrossed on parchment) indorsed by the judge, indorse upon them the name and address of the attorney or person suing them out, and get them signed, sealed and entered at the crown-office. Then deliver them to the gaoler and sheriff to whom they are respectively directed, and the prisoner will accordingly be removed. In practice the writs are the same under stat. 38 G. 3, as at common law, although in strictness not warranted by that statute. And in practice also, both writs are usually given to the gaoler, and he conveys the prisoner to the county gaol, and delivers the recipias with him. Affidavit for Habeas. (Verifying certified copy of Commitment.) In the Queen's Bench. A. B., of, &c., maketh oath and saith, that he, this deponent, was present at her Majesty's gaol atin and for the county of—, on the day of, and did see C. D., the gaoler or keeper of the said gaol sign the certificate written Gaoler's Certificate. (To be written at the foot of the Copy Commitment.) Habeas Corpus to bring a Defendant (Prisoner) up for If after conviction upon an indictment or criminal information in this court, the defendant be a prisoner in any gaol or prison except the Queen's prison, it is necessary to sue out a habeas to bring him up for judgment. If he be in the Queen's prison, a habeas is unnecessary, as you may obtain at the crown-office a side-bar rule to bring him up. Upon producing a certificate of the conviction from the crown-office, and a certified copy of the commitment from the gaoler, verified by affidavit,-or even an affidavit of the conviction, the court in term time will grant a rule, or a judge in vacation will grant his fiat for the habeas, as of course; and the writ being previously engrossed on parchment, the judge will at the same time indorse his name upon it. Then get the writ signed, sealed, and entered at the crown-office, and deliver it to the gaoler, paying or tendering to him at the same time his charges (not exceeding 1s. a mile) for bringing him up. The writ is tested on the day on which it actually issues; and if it issue in term, it is made returnable immediately, if in vacation, on a day certain in the next term, before the Queen at Westminster. Obedience to this writ may, if necessary, be enforced by attachment, as directed ante, p. 342. Form of the Writ. Victoria, &c. To, greeting: We command you that you have in our court, before us, at Westminster, immediately after the receipt of this our writ, the body of J. S., being [committed to and] detained in your custody, as is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called therein, to undergo and receive all and singular such matters and things as our court shall then and there consider of and concerning him in this behalf. And have you then there this writ. Witness Thomas Lord Denman, at Westminster, the day of, in the year of our reign. By the Court. INDEX. The references to the forms is in italics. A. Abatement of nuisance, judgment for, 108. Abatement of proceedings in mandamus, when not, by death, Abroad, offences committed, criminal information will not lie Abuse of franchise, quo warranto for, 122. Abuse of the process of the court, attachment for, 321. Accounts, mandamus to justices to swear overseers to, 226; to Action, none, for obeying peremptory mandamus, 279. 230. Addition of defendant, in an indictment, 4; none to the pro- Adjoining county, trial in, of indictment or information, in Admiralty, lords of, mandamus to, 274. Admission of freemen, burgesses &c., entries of, in corpora- Admit, mandamus to, to corporate offices, 245, form of it, Admit to a copyhold, mandamus to, 267, form of it, 268. |