BOOK IV. When Bail required be their discharge, the court refused it (n). And it has been decided, that, in the case of a judgment by default, if the writ is not delivered until after the jury have assessed the damages on the writ of inquiry, the court will award a procedendo (o). When Bail required before Removal.] No cause can be refore Removal, moved from an inferior court of record by habeas corpus, or otherwise, if the cause of action do not amount to 201. (p) or upwards; unless the defendant, with two sufficient sureties, enter into a recognisance, in double the amount in the court below, conditioned for the payment of the debt and costs in case judgment shall pass against him (7). This statute applies only to cases of removal before judgment (r). If the sum in the declaration be 207. or more, the plaintiff is precluded from his right to require a recognisance under either of the statutes, though the sum sought to be recovered be really less (s). The statutes requiring bail, apply to actions of tort; such as trover (t), slander (u), injury to right of way (x), and so forth, where the damages claimed are less than 201. Form, Direc- Consequence of Defects in Form. Form, Direction, Teste, &c., of the Writ.] The writ is directed to the judge or steward of the inferior court, and it is tested on some day in term; and it may be returnable immediate, if directed to the inferior courts of London, Westminster, Southwark, or other court within four miles of London (y); and in all other cases on some day certain in term(≈). If the defendant be in custody, the writ of habeas corpus cum causâ should be directed to the sheriff or other officer in whose custody the defendant is detained (a). With respect to informalities in writs of certiorari it is to be observed, that third persons cannot object to the misdirection of a certiorari to remove a cause from an inferior court, if the proper officer in whose keeping the record is waive the objection, and return the record upon such writ (b). If a plaintiff without improper motives has removed a judgment into a superior court, by an irregular writ of certiorari, issued without leave of the court, such amendments will be allowed and terms imposed as will enable him to avail himself of the judgment without prejudice to the defendant (c). Where a party has by mistake issued a certiorari instead of a re. fa. lo., and (n) Patterson v. Reay, 2 D. & R. 177: (q) 19 G. 3. c. 70, s. 6: 7 & 8 G. 4, c. 71, (r) Crookes v. Longden, 7 Dowl. 413; 5 Bing. N. C. 410, S. C. (8) Brady v. Veeres, 5 Dowl, 416. (t) Furnish v. Swann, 10 B. & C. 458. (u) Lee v. Goodiad, 4 D. & R. 350, (x) Franks v. Quinsee, 7 Dowl. 607. (y) See R. H., 13 & 14 Car, 2: R. M. 1654. (2) R. H., 13 & 14 Car. 2: see Rowel! v. Breedon, 3 Dowl. 324. See the form of the habeas corpus, Chit. Forms, 561; and of the certiorari, &c., Id. 565; and of the different directions of the writs of habeas, &c., Id. 561. (a) Tidd, 9th ed., 349, &c.: see Perrin v. West, 3 A. & E. 405; 5 Nev. & M. 291, S. C. (b) Daniels v. Phillips, 4 T. R. 499; 3 Dowl. 325, n. (c) Rowell v. Breedon, 3 Dowl. 324. the rule to quash it, on his application, is absolute in the first instance (e). CHAP. IV. sued out. Writ how sued out, &c.] In some cases you are obliged to ob- Writ how tain the leave of the court to sue out the writ. But this appears to be necessary only in case of the courts of the counties palatine. In other cases it has been held, that no leave of the court or fiat of a judge (d) is necessary, and the writ may be sued as a matter of course (e). Your affidavit for that purpose must not be intitled in any cause; or, if intitled, it cannot be read (f). The rule for a certiorari is absolute in the first instance (g). Sue out the writ in the manner directed ante, 941, and leave it with the clerk of the papers or secondary of the inferior court. sued out and Within what Time to be sued out and delivered.] The writ within what must be delivered to the judge or officer of the inferior court, Time to be at latest, before any of the jury are sworn (h); and before issue delivered. or demurrer joined, if such issue or demurrer be not joined within six weeks after the arrest or appearance of the defendant (i); and before judgment by default (j); or, at all events, before any one of the inquest are sworn, after a judgment by default (k); otherwise the writ shall not be received or allowed by such judge or officer, and the inferior court may proceed in the cause. If the judge or officer of the inferior court receives the certiorari after the time thus limited, a procedendo will issue, and that although in the meantime the record has been filed in the court above (7). and returned, How obeyed and returned.] In cases where the writ lies, How obeyed it has the effect of suspending all proceedings in the actions against the defendant in the inferior court, immediately upon its being delivered to the officer (m), and the writ must be obeyed without delay (n). The habeas corpus is obeyed, by bringing up the defendant (if in custody (o)), and by returning the causes with which he stands charged; the record itself is not removed into the court above, but remains in the (e) Ruffman v. Thornwell, 7 Dowl. 613. (d) Walkington v. Davis, 29th April, 189, at chambers, coram Erskine, J., after consulting with other judges. It was the case of an habeas to the Palace Court. (e) See per Littledale J., in Landens v. Shiel, 3 Dowl. 90: Walkington v. Davis, ubi supra. It has been said, that in the Exchequer the fiat of a baron is necessary where the defendant obtains such a writ, and it is the common practice to procure the fiat. It does not clearly ap pear why a writ which is as much of right in the other courts as a writ of error, (see per Littledale, J., and Erskine J., ubi supra), should be clogged with this condition in the Exchequer. Perhaps it is because the right to sue in that court in civil cases was originally founded on the fiction that the plaintiff was the queen's debtor; and as this removal is in general effected by the defendant, and not by the plaintiff, the fiction did not apply in these cases; and, consequently, the court would only allow the removal as a (f) Ex p. Nohro, 1 B. & C. 267, semb. (i) 21 J. 1, c. 23, s. 2. (j) Ante, 946: Wyatt v. Markham, Barnes, 221. (k) Cor v. Hart, 2 Burr. 759: see Lawes v. Hutchinson, 3 Dowl. 506: Smith v. Sterling, 3 Dowl. 609. (1) Laverack v. Bean, 3 M. & W. 62. (m) Fazacharly v. Baldo, 1 Salk. 352. (n) See Betterworth v. Bell, 3 Burr. 1875. BOOK IV. Bail and Ap Removal. court below (p). The return to the habeas is, in fact, a mere account or history of the proceedings in the inferior court. The certiorari is obeyed by returning the record itself, formally made up, into the court above, in order to be further proceeded upon there (9). If, under the particular circumstances of the case, the writ does not lie, those circumstances must be stated specially in the return(r). Bail and Appearance after Removal.] Previously to the 1 & 2 pearance after V. c. 110, if the defendant were in custody when the habeas corpus was delivered to the court below, he was removed by it into custody of the marshal or warden, after which he might have been discharged on putting in bail. Or, if he were not in custody, he must have put in special bail, or filed common bail in the court above, according as the action was bailable or not bailable. And by putting in bail in the court above, those in the court below were discharged (s). It will be unnecessary further to notice the practice as to putting in special bail on removal from inferior courts, for it would seem, that, as since the 1 & 2 V. c. 110, there can be no arrest on mesne process in any inferior court, special bail cannot now in any such case be required (t). Common Bail In actions, removed by habeas or certiorari, you file comhow filed, &c. mon bail, thus:-Engross the bail-piece, and annex it to the writ and return, as above directed; file the same at the judge's chambers, and give notice to the plaintiff's attorney or agent of your having done so (u). It would seem that common bail cannot be filed before the writ is returned (x). The plaintiff may at any time, after the return of the writ (y), compel the defendant to put in common bail, by obtaining, from one of the judge's clerks, a rule for a procedendo, unless the defendant put in common bail within four days after notice thereof, if in term, or in six days if in vacation (2). And if there be several defendants, and the cause be removed by one, common bail must be put in for all, otherwise a provedendo may be awarded (a). Procedendo. For not putting in Bail. Procedendo.] If the defendant do not put in bail within the time limited by the rule for that purpose, the plaintiff may sue out a writ of procedendo. This writ is grantable by any judge of the court into which the cause was removed, upon application to one of their clerks at chambers. Engross the writ upon plain parchment (b), directed to the inferior court, commanding them to proceed in the action. Make out a præcipe for the office. Get the writ signed by one of the masters. it to the seal office and get it sealed. Take it to the secondary of (p) Fazacharly v. Baldo, 1 Salk. 352. (r) See forms of return, Tidd's Forms, (8) MS., M. 1814: Taylor v. Shapland, 3 M. & Sel. 328. (t) See the 1 & 2 V. c. 110, s. 1: and see the former practice as to putting in special bail, in the 6th edition of this Work, Vol. II. 996, 997. (u) See the form of the common bail Take piece, Chit. Forms, 547; and of the notice of having filed it, Id. 547. (x) R. M. 1651: R. E., 29 C. 2: R. H., 10 W. 3. (y) Clarke v. Harbin, Barnes, 90: see Lee v. Goodlad, 4 D. & R. 350. (2) See R. M. 1654, s. 8: R. H., 10 W. 3. See the form, Chit. Forms, 563 (a) Keat v. Goldstein, 7 B. & C. 525; 1 M. & R. 305, S. C. Jameson v. Schonswar, 1 Dowl. 175. (b) See forms of procedendo, Chit. Forms, 564. the inferior court, and file it; and the cause will be then pro- CHAP. IV. ceeded in, in the inferior court, from the stage in which it was at the time the habeas or certiorari was served. But, if bail be put in, or the defendant has rendered himself, after the expiration of the rule, and before the procedendo sued out, it seems the procedendo cannot be sued out afterwards (c). And, generally, if the defendant, upon removing a suit For other commenced against him, does not comply with the statutes Causes. and rules of court, made to regulate the proceedings therein, upon such removal, as by not pleading in due time to the declaration delivered, or the like, the plaintiff may obtain a procedendo. Also, if the court below state, in their return to the habeas or certiorari, circumstances from which the court judge that the writ ought not to have issued, a procedendo will be awarded (d). If the procedendo has been improperly awarded or issued, Quashing the opposite party may apply to the court out of which it Procedendo. issued, to have it quashed. The court will not quash a regular writ of certiorari, unless Quashing there is an admission, or something tantamount to it, by the Certiorari. party suing it out, that he has done it for the purpose of delay (e). dendo. By stat. 21 Jac. 1, c. 23, s. 3, after the cause has thus been Removal remanded, it can never afterwards be removed before final after Procejudgment (ƒ). Even where the plaintiff, after the cause was thus remanded, recovered in the court below, and then sued the bail below upon their recognisance, who removed the proceedings into the King's Bench by habeas, the court, upon application, awarded a procedendo (g). But this provision of the statute of James does not extend to applications by bail (h). after Re Proceedings after Removal.] After the cause has been removed Proceedings into the court above, by the plaintiff, the plaintiff may be com- moval. pelled to proceed, as pointed out ante, 798, on such a removal. Declaration. The plaintiff must declare within the second term, inclusive, after bail has been put in and perfected, otherwise he may be nonprossed, but, if not nonprossed, the cause is not out of court till a year after the return of the writ for the removal of it (i). After the cause has been removed by the defendant, the plaintiff may proceed in the action or not, at his discretion; there are no means of compelling him to do so (k); and the defendant cannot, in such a case, nonpros the plaintiff (); but the cause will be out of court if the plaintiff do not declare within a year after the return of the writ for the removal of it; and after that time the defendant need not receive the (e) Johnson v. Walker, 4 B. & Ald. 535: and see Wiggins v. Stephens, 5 East, 533. (d) See Watson v. Clerke, Carth. 75: Pope v. Vaux, 2 W. Bl. 1060: Fazacharly v. Baldó, 1 Salk. 352: Horton v. Beckman, 6 T. R. 760: Jones v. Davies, 1 B. & C. 143: and see Fry v. Carey, 1 Str. 527. (e) Landens v. Sheil, 3 Dowl. 90. See as to writs of error, ante, Vol. I. 361. (f) See Lawes v. Hutchinson, 3 Dowl. 506. (g) Dixon v. Heslop, 6 T. R. 365: see Lawes v. Hutchinson, 3 Dowl. 506; 1 C., M. & R. 766, S. C. (h) Glynn v. Hutchinson, 3 Dowl. 529. (k) Clark v. Dizon, 3 M. & Sel. 93: Clerk (2) Id.: R. M., 16 C. 2: Davies v. James, 1 T. R. 372: Clerk v. Mayor of Berwick, 4 B. & C, 649; 7 D. & R. 104, S. C. PART I. BOOK IV. declaration (m). If the plaintiff do proceed, he must begin de novo, by declaring against the defendant, whatever may have been the stage in which the cause was in the inferior court at the time it was removed, and this, whether the removal was by habeas or certiorari (n). The plaintiff, however, cannot declare before bail is put in. The rule of M. T., 3 W. 4, as to commencements of declarations, does not apply to causes removed from inferior courts; and therefore it seems that the declaration should be in the old form (0). There is no objection, at least if the removal be by habeas, to the plaintiff's declaring in a different form of action from that which he commenced in the court below, provided it be for the same cause of action (p), and not for a larger amount (9). Plea, &c. Costs. 2. Removal of Inferior The time for pleading is the same as in replevin, ante, 801; but no imparlance is allowed, although the plaintiff do not declare until the next term after the bail are perfected, provided he declare on or before the last day of the term (r). The subsequent proceedings are the same as in ordinary cases. If the plaintiff have judgment, he shall be entitled to, and allowed, the costs of the proceedings in the inferior court (s). 2. Removal of Judgments, Rules, &c., of Inferior Courts, for the purpose of Execution (t). Removal of Judgments of Inferior Courts of Record generally Judgments of by 19 G. 3, c. 23.] By statute 19 G. 3, c. 70, s. 4, where judgment is given in an inferior court of record, (or in the courts Record gene- of the counties palatine) (u), any of the superior courts (r) at Courts of rally by 19 G. 3, c. 23. Westminster (upon affidavit of such judgment being obtained, and of diligent search and inquiry having been made after the person of the defendant or his effects, and of execution having issued against his person or effects, as the case may be, and that his person or his effects are not to be found within the jurisdiction of the inferior court) may cause the record of the judgment to be removed into such superior court, and issue writs of execution thereon against the person or effects of the defendant, in the same manner as upon judgment in the said courts at Westminster (a). This statute does not extend to an ejectment (y). Nor to judgments against the garnisher in foreign attachment in the lord mayor's court of London (). Nor to judgments for defendants (a). The amount for which the judgment was obtained is immaterial (b). It seems that the leave of the court is necessary, (m) Clarke v. Harbin, Barnes, 90: Hutton v. Stroubridge, 1 Str. 631: Norrish v. Richards, 5 Nev. & M. 268; 1 H. & W. 437, S. C. (n) R. M., 16 C.2: Fazacharly v. Baldo, (p) Gunn v. Macheury, 1 Wils. 277: (8) R. M. 1654, s. 22. (t) See as to writs of error from inferior courts, ante, Vol. I. p. 385. (u) 32 G. 3, c. 68, s. 1: see Wareing's Practice C. P. L. 249. (e) See Rowell v. Breedon, 3 Dowl. 324. (a) See the form of the affidavit in this latter case, Chit. Forms, 566: of the rule, Id. 567; and of the certiorari, Id. 567. See Jordan v. Cole, 1 H. Bl. 532. (y) Doe Stansfield v. Shipley, 2 Dowl. 408. |