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c. 100.

56 GEO. III. c. 100.] For the more effectual securing the liberty 56 GEO. III. of the subject.

BRIT. [July 1st, 1816.]

British stat.

1816.

issue in

habeas cor

able imme

cases otber

matter or

56 Geo. III. c. 100, sec. 1.] Whereas the writ of habeas corpus hath been found by experience to be an expeditious and effectual mode of restoring any person to his liberty who hath been unjustly deprived thereof: And whereas, extending the remedy of such writ, and enforcing obedience thereunto, and preventing delays in the execution thereof, will be advantageous to the public: And whereas, the provisions made by an act passed in England [31 Charles II. c. 10, ante] only extend to cases of commitment or detainer for criminal or supposed criminal matter: Judges to Be it therefore enacted, That where any person shall be confined or vacation restrained of his or her liberty (otherwise than for some criminal writ of or supposed criminal matter, and except persons imprisoned for pus returndebt, or by process in any civil suit) within that part of Great diately, in Britain called England, dominion of Wales, or town of Berwick- than for upon-Tweed, or the isles of Jersey, Guernsey, or Man, it shall criminal and may be lawful for any one of the barons of the exchequer, for debt. of the degree of the coif, as well as for any one of the justices of one bench or the other; and where any person shall be so confined in Ireland; and they are hereby required, upon complaint made to them by or on behalf of the person so confined or restrained, if it shall appear by affidavit or affirmation (in cases where by law an affirmation is allowed) that there is a probable and reasonable ground for such complaint, to award in vacation time a writ of habeas corpus ad subjiciendum, under the seal of such court, whereof he or they shall then be judges or one of the judges, to be directed to the person or persons in whose custody or power the party so confined or restrained shall be, returnable immediately before the person so awarding the same, or before any other judge of the court under the seal of which the said writ is issued.

dience to

tempt of

2. If the person or persons to whom any writ of habeas corpus Non obeshall be directed according to the provision of this act, upon such writ to service of such writ, either by the actual delivery thereof to be a conhim, her, or them, or by leaving the same at the place where the court. party shall be confined or restrained, with any servant or agent of the person or persons so confining or restraining, shall wilfully neglect or refuse to make a return or pay obedience thereto, he, she, or they shall be deemed guilty of a contempt of the court, under the seal whereof such writ shall have issued, and it shall be lawful to and for the said justice or baron, before whom such writ shall be returnable, upon proof made by affidavit of wilful disobedience of the said writ, to issue a warrant under his hand and seal for the apprehending and bringing before him or before some other justice or baron of the same court, the person or persons so wilfully disobeying the said writ,

c. 100.

1816.

Punishment.

Judges to

make writs of habeas corpus, issued in vacation, returnable

56 GEO III. in order to his, her, or their being bound to the king's majesty British stat. With two sufficient sureties in such sum as in the warrant shall be expressed; with condition to appear in the court of which the said justice or baron is a judge at a day in the ensuing term to be mentioned in the said warrant to answer the matter of contempt with which he, she, or they are charged, and in case of neglect or refusal to become bound as aforesaid, it shall be lawful for such justice or baron to commit such person or persons so neglecting or refusing to the gaol or prison of the court of which such justice or baron shall be a judge, there to remain until he, she, or they shall have become bound as aforesaid, or shall be discharged by order of the court in term time, or by order of one of the justices or barons of the court in vacation; and the recognizance or recognizances to be taken thereupon shall be returned and filed in the same court, and shall continue in force until the matter of such contempt shall have been heard and determined, unless sooner ordered by the court to be discharged: Provided, That if such writ shall be awarded so late in the vacation by any one of the said justices or barons that, in his opinion, obedience thereto cannot be conveniently paid during such vacation, the same shall and may, at his disin court in cretion, be made returnable in the court of which the said justice or baron shall be a justice or baron, at a day certain in the next term; and the said court shall and may proceed thereupon, and award process of contempt in case of disobedience thereto in like manner as upon disobedience to any writ originally awarded by the said court: Provided also, That if such writ shall be awarded by the court of King's Bench, or the court of common pleas, or court of exchequer in the said counties respectively, which last-mentioned court shall have like power to award such writs as the respective courts of King's Bench or common pleas in each of the said counties now have in term, but so late that, in the judgment of the court, obedience thereto cannot be conveniently paid during such term, the same shall and may at the discretion of the said court, be made returnable at a day certain in the then next vacation before any justice or baron of the degree of the coif, or if in Ireland before any justice or baron of the same court, who shall and may proceed thereupon in such manner as by this act is directed concerning writs issuing in and made returnable during the vacation.

the next

term.

Proviso.

Courts to

make writs issued in term re

turnable in vacation.

Judges to

inquire into

facts con

tained in return.

3. In all cases provided for by this act, although the return to the truth of any writ of habeas corpus shall be good and sufficient in law, it shall be lawful for the justice or baron before whom such writ may be returnable to proceed to examine into the truth of the facts set forth in such return by affidavit or by affirmation (in cases where an affirmation is allowed by law) and to do therein as to justice shall appertain; aud if such writ shall be returned cognizance before any one of the said justices or barons, and it shall appear

Judge to

bail on re

c. 100.

1816.

to appear'

doubtful to him on such examination whether the material facts 56 Gɛo. 'II set forth in the said return, or any of them, be true or not; in British stat. such case it shall and may be lawful for the said justice or baron to let to bail the said person so confined or restrained, upon his or her entering into a recognizance with one or more sureties, in term, &c. or in case of infancy or coverture, or other disability, upon security by recognizance in a reasonable sum, to appear in the court of which the said justice or baron shall be a justice or baron, upon a day certain in the term following, and so from day to day, as the court shall require, and to abide such order as the court shall make in and concerning the premises; and such justice or baron shall transmit into the same court the said writ and return, together with such recognizance, affidavits, and affirmations; and thereupon it shall be lawful for the said court to proceed to examine into the truth of the facts set forth in amine into the return, in a summary way, by affidavit or affirmation (in facts set cases where by law affirmation is allowed), and to order and forth in determine touching the discharging, bailing, or remanding the party.

Court to ex

the truth of

return.

controvert

4. The like proceeding may be had in the court for contro- Court may verting the truth of the return to any such writ of habeas truth of corpus, awarded as aforesaid, although such writ shall be return. awarded by the said court itself, or be returnable therein.

run into

cinque

privileged

5. A writ of habeas corpus, according to the true intent and Writ may meaning of this act, may be directed and run into any county counties palatine, or cinque port, or any other privileged place within palatine, that part of Great Britain called England, dominion of Wales, ports, and and town of Berwick-upon-Tweed, and the isles of Guernsey, places, &c. Jersey, and Man respectively; and also into any port, harbour, road, creek, or bay upon the coast of England or Wales, although the same should be out of the body of any county; any law or usage to the contrary in any wise notwithstanding.

contempt

be

vacation

sons dis

habeas cor

within stat.

6. The several provisions made in this act touching the Process of making writs of habeas corpus, issuing in time of vacation, may returnable into the said courts, or for making such writs awarded awarded in in term time, returnable in vacation, as the cases may respec- against pertively happen, and also for making wilful disobedience thereto a obeying contempt of the court, and for issuing warrants to apprehend writs of and bring before the said justices or barons, or any of them, any pus in cases person or persons wilfully disobeying any such writ, and in case 31 Car. 11. of neglect or refusal to become bound as aforesaid, for committing the person or persons so neglecting or refusing to gaol as aforesaid, respecting the recognizances to be taken as aforesaid, and the proceeding or proceedings thereon shall extend to all writs of habeas corpus, awarded in pursuance of the imperial act [31 Car. II. c. 2, ante] in as ample and beneficial a manner

c. 2.

c. 100.

56 GRO. III. as if such writs and the said cases arising thereon had been British stat. herein before specially named and provided for respectively. (a)

1816.

(a) This statute, from its context, is limited to Britain and the Channel Islands, but may be presumed in force

in Jamaica and the colonies, being in aid

and amendment of the common law.

XXII. CERTIORARI.

Island Act.

3 VIC. c. 65.] For the improvement of the administration of 3 Vic. c. 65. justice in the courts of this island. ISLD. [11th April, 1850.] 1840.

certiorari

3 Vic. c. 65, sec. 23.] All writs of certiorari must be moved Writs of for and made returnable into the supreme court and not else- must be

where.

moved in Bupreme court.

21 JAMES I. c. 8.] To prevent the abuses in procuring process and writs of certiorari out of the courts at Westminster, and for the removing of indictments found before justices of the peace in their general sessions.

ENGL. [A.D. 1623.]

[blocks in formation]

shall not be

less party

bound to

provisions

certiorari.

21 James I. c. 8, sec. 7.] All writs of certiorari shall be deli- Certiorari vered at some quarter sessions of the peace in open court: and allowed unthe parties indicted shall, before the allowance of such certiorari. indicted become bound unto such person or persons which shall prosecute become such bills of indictment against them, in the sum of £10, with pay costs. such sufficient sureties as the justices of the peace at their said Further quarter sessions of the peace shall think fit, with condition to relating to payment unto the said prosecutors of such bills of indictment, within one month after the conviction of such parties indicted, such reasonable costs and damages, as the said justices of peace of such counties where such bills of indictment shall be found, in the said sessions of the peace, shall assess or allow, and in default thereof it shall be lawful for the said justices to proceed to trial of such indictments, any such writs or certiorari to remove the same indictments notwithstanding.

21 JAMES I. c. 23.] For avoiding of vexatious delays caused by 21 JAMES I. removing actions and suits out of inferior courts.

c. 23.

Engl. stat.

ENG. [A.D. 1623.] 1623.

remove a

an inferior

21 James I. c. 23, sec. 2.] No writ or writs of habeas corpus, No writ to certiorari, or any other writ or writs, process or processes whatso- suit comever, other than writs of error or attaint, shall be sued forth by any menced in person or persons whatsoever, out of or from any of his majesty's court shall courts of Westminster, or the court of the great sessions in Wales, unless it be or out of any other court or courts having or pretending to have

C C

be obeyed

delivered

unto the

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