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and directs (that if the defendant be convicted, judgment of ouster, (as well as a fine,) may be given against him; and that the relator shall pay or receive costs according to the event of the suit.] By the 32 Geo. III. c. 58, intituled “ An Act for the Amendment of the Law upon Information in the nature of Quo Warranto,” it is also provided that the defendant may plead in bar to any information in quo warranto in respect of any office in a town corporate, (whether exhibited by leave of the court, or by the attorney-general on behalf of the Crown,) that he first took upon himself such office, six years or more before the exhibiting the information; and that such plea may be pleaded with any other pleas that the court may allow, and may be met by a replication that a forfeiture of such office happened within the period of that limitation. And it is further provided, that the title of the defendant derived under
election shall not be affected on account of defect of the title in the person electing,—provided the elector shall have been in the exercise de fucto of his office, six years previous to the information. later statutes, 7 Will. IV. & 1 Vict. c. 78 and 6 & 7 Vict. c. 89, it is further enacted, that every application to the Queen's Bench, for the purpose of calling upon any person to show by what warrant he claims to exercise the office of mayor, alderman, or burgess, in any borough within the Municipal Corporation Act, shall be made before the end of twelve months after the election of the defendant, or the time when he shall become disqualified; - that no election of any mayor shall be liable to be questioned by reason of a defect in the title of such person to the office of alderman or councillor to which he may have been previously elected, unless application shall have been made to the Court of Queen's Bench, calling upon such person to show cause by what warrant
mations in quo warranto to be laid in Middlesex or London, and the trial to take place therein. See
also as to changing venue in quo warranto, Clerk v. The Queen, 9 House of Lords' Cases, p. 184,
he claims to exercise such office of alderman or councillor, within twelve months after his election thereto;—and that every election to the office of mayor, alderman, councillor, or any other corporate office within the said boroughs, which shall not have been called in question within twelve months after such election, shall be deemed good and valid.
V. The writ of Habeas Corpus. This is the most celebrated writ in the English law, and the great remedy which it has provided for the violation of the right of personal liberty (i). We had occasion, in the first volume (k), to make some remarks upon this writ, but a more particular detail of its history, and the practice connected with it, may here be acceptable.
In the first place, we may remark that the vindication of liberty, though the principal, is not the only purpose to which it is applied; for, of the habeas corpus [there are various kinds made use of by the courts at Westminster, for removing prisoners from one court to another for the more easy administration of justice. Such is the habeas corpus ad respondendum, when a man hath a cause of action against one who is confined by the process of some inferior court, in order to remove the prisoner and charge him with [this new action in the court above (?). Such is that ad satisfaciendum, when a prisoner hath had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with the process of execution (m). Such are also those ad prosequendum, testificandum, deliberandum, &-c., which issue when it is necessary to remove a prisoner in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was committed (n). Such is, lastly, the common writ ad faciendum et recipiendum, which issues out of any of the courts of Westminster Hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer -whence the writ is frequently denominated a habeus corpus
(i) As to the remedy by action for false imprisonment, vide sup. vol. 1. p. 498. Blackstone notices, (vol. iii. p. 128,) besides the habeas corpus, three other writs for re. moving the injury of false imprisonment: 1st, The writ of mainprize, manucaptio, commanding the sheriff to take sureries for the appearance of the prisoner, usually called mainpernors, and to set him at large ; 2nd, The writ de odio et atiâ, commanding the sheriff to inquire whether a prisoner charged with murder was committed on ge
neral cause of suspicion, or merely propter odium et atiam, for hatred and ill will, -with the view, if the latter was found the case, of afterwards issuing another writ to admit him to bail; 3rdly, the writ de homine replegiando, commanding the sheriff to replevy a man out of custody in the same manner that chattels taken in distress may be replevied, upon security given that he shall answer any charge against him. All these remedies however have long fallen into complete disuse.
(k) Vide sup. vol. 1. p. 149.
a cum causâ,—to do and receive whatsoever the king's court shall consider in that behalf (o). This is a writ grant[able of common right wịthout any motion in court(m), and it instantly supersedes all proceedings in the court below; but in order to prevent the surreptitious discharge of prisoners, it is ordered by statute 1 & 2 P. & M. c. 13, that no habeas corpus shall issue to remove any prisoner out of any gaol unless signed by some judge of the court out of which it is awarded; and to avoid vexatious delays, by removal of frivolous causes, it was enacted by 21 Jac. I. c. 23, that where the judge of an inferior court of record is a barrister of three years' standing, no cause shall (unless as there excepted) be removed from thence by habeas corpus, or other writ, after issue or demurrer joined.] It is also provided by 7 & 8 Geo. IV. c. 71, s. 6, that no cause under the value of 201. (n), [shall be removed by habeas corpus, or otherwise, into any superior court, unless the defendant so removing the same, shall give special bail for payment of the debt and costs (o).] But by 8 & 9 Vict. c. 127, s. 21 (p), any suit instituted in a small debts court within the meaning of that Act, wherein the claim or demand shall exceed 101., shall be removable into any of the superior courts of law by leave of a judge thereof, on such terms as he shall order (9).
(1) Jones's case, 2 Mod. 198. it is provided, that one of her ma
(m) 2 Lilly, Pract. Reg. 4; Gibb jesty's principal secretaries of state, v. King, 1 C. B. 1. By 15 & 16 or a judge of one of the superior Vict. c. 76, s. 127, a habeas corpus common law courts, may at his disad satisfaciendum shall not in future cretion issue a warrant or order for be necessary to charge in execution bringing up a prisoner confined in a person already in the prison of the any gaol (except under process in a court. But he may be charged in civil suit), before any judicature to execution by a judge's order, made be examined as a witness; and he on affidavit that judgment has been shall be dealt with in the same signed ; and if not satisfied, service manner as a prisoner brought up by of such order on the gaoler shall habeas corpus is to be dealt with. have the effect of a detainer. See And by 19 & 20 Vict. c. 108, s. 31, also 25 & 26 Vict. c. 104, s. 2, cited a similar power is given to the sup. vol. 111. p. 239, n. (1).
judge of a county court. (n) As to writs of habeas corpus (0) This writ is still one by which ad testificandum, fc., see 43 Geo. 3, a cause is removable from most of c. 140, and 44 Geo. 3, c. 102 ; Gra- the inferior courts, although, under ham v. Glover, 5 Ell. & Bl. 591 ; the present law of arrest, the operaMarsden v. Overbury, 18 C. B. 34; tion of the writ will usually be conEx parte Cobbett, 3 H. & N. 155; fined to the proceedings. (See Reg. Binns v. Mosley, 2 C. B. (N. S.) Gen. H. T. 1853 (Pr.), rr. 115-117; 116. By 16 & 17 Vict. c. 30, s. 9, and as to the nature of the writ,
[But the most important species of habeas corpus is that of habeas corpus ad subjiciendum ; which is the remedy used for the deliverance from illegal confinement(r). This Bowerbank v. Walker, 2 Chit. 517; limit at 51. and 101. respectively. Clack v. Dixon, 3 M. & S. 93; (0) The bail must be put in within Lawes v. Hutchinson, 5 Tyr. 236 ; eight days after the writ is allowed, Doe v. Dring, 1 B. & C. 253 ; otherwise the plaintiff may have a Mitchell o. Mitchenham, ib. 513.] procedendo. See Reg. Gen. Hil. T. But a removal from a district county 1853 (Pr.), r. 116; Blanchard v. De court takes place not by habeas but la Crouée, 9 Q. B. 869. by certiorari, and only under the (p) As to this Act, vide
vol. regulations contained in the enact- III. p. 396, n. (1). ments cited, post, p. 30, n. (c).
(9) As to removal from the Lord (m) Penrice and Wynn's case, 2 Mayor's Court of London, see 20 & 21 Mod, 306.
Vict. c. clvii. sect. xvi. et seq. (n) This is an extension of the (r) As to the writ of habeas corpus previous statutes of 12 Geo. 1, c. 29, ad subjiciendum, fc., see R. v. Greenand 19 Geo. 3, c. 70, which fixed the hill, 4 Ad. & El. 624 ; Easton's case,
[is directed to any person who detains another in custody; and commands him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum et recipiendum,to do, submit to, and receive whatsoever the judge or court awarding such writ, shall consider in that behalf (s). This is a high prerogative writ,] which existed at common law (), though it has been improved, as we shall presently see, by statute.
And it issues out of any of the superior courts at Westminster, including the Court of Chancery (u), not only in term time, but also during the vacation (v), and runs into all parts of the dominions of the Crown(x); (for the Queen is at all times entitled to have an account why the liberty of any of her subjects is restrained, whenever that restraint may be inflicted (y).] It has, however, been now recently enacted, by 25 & 26 Vict. c. 20, that no writ of habeas corpus shall issue out of England, by authority of any judge or court therein, into any colony or foreign dominion of the Crown where her Majesty has a lawfully established court, having authority to grant and issue such writ, and to ensure its due execution throughout such colony or dominion (2). [If this writ issues in vacation, it 12 Ad. & El. 645 ; R. v. Batcheldor, Leonard Watson's case, 9 Ad. & El. 1 Per. & D. 516; S.C. nom. Leonard 731. Watson's case, 9 Ad. & El. 731 ; (x) As to Jersey, Guernsey, &c., see Ford v. Nassau, 1 Dowl. N. S. 631; Carus Wilson's case, 7 Q. B. 984; In re Parker, 5 Mee. & W. 32; Queen v. Brenan, 16 L. J. (Q. B.) Jones v. Danvers, ibid. 234 ; Carus 289. As to the colonies, see John AnWilson's case. 7 Q. B. 984 ; Queen derson's case, 30 L. J. (Q. B.) 129. v. Brenan, 16 L. J. (Q. B.) 289; In (y) Bourn's case, Cro. Jac. 543. re Dunn, 17 L. J. (Q. B.) 97 ; Re (z) Shortly before the passing of Andrews, 4 C. B. 226; Re Ander- this Act, the Court of Queen's Bench son, 30 L. J. (Q. B.) 129.
had issued such writ to the courts in (s) State Trials, viji. 142.
Canada, requiring them to return (c) BI. Com. vol. iii. p. 137. the body of John Anderson, (a fugitive
(u) 31 Car. 2, c. 2, s. 10; 56 slave from an American slave state,) Geo. 3, c. 100, s. 2. The Lord Chan. held by them in their custody, that cellor can issue the writ of habeas he might be dealt with in this corpus common la in vacation. country. See John Anderson's case, Crowley's case, 2 Swanst. 1.
(v) See Wood's case, 3 Wils. 172;