habeas corpus may admit the record of conviction, although it has no power to compel its production by certiorari. In England the Court of Exchequer has power to issue a habeas corpus, but none to issue a certiorari. In re Allison,' there was a rule to show cause why a habeas corpus should not issue on the ground of a defect in the commitment. In answer to the rule, cause was shown, and the conviction produced, verified by affidavit. *The reading of the conviction was objected to on [360 the ground that it had not been removed into court by writ of certiorari, and the case of Regina v. Chancy,' was cited in support of the objection. Alderson, B.: "If the court cannot look at a conviction unless it is regularly brought before it by a writ of certiorari, a prisoner, who was improperly convicted, could never obtain relief by habeas corpus in this court. And, moreover, in a case like the present, the consequence would be, that though, on an application to the Court of Queen's Bench, the rule was discharged, yet the party might obtain a different decision in this court, because it has no power to bring the conviction before it by certiorari." Parke, B.: "Since there is no other mode of bringing the conviction before the court, it is sufficient to produce it verified by affidavit." The conviction was read and appeared unobjectionable. The commitment also on further examination was found to be in the form prescribed by the statute and the rule was discharged. But although the court may admit the record where it has no power to issue a certiorari, it does not follow that it has the same power over it which a court authorized to grant the writ possesses. It may examine it to see whether it be void, and if so may discharge the prisoner although the commitment be regular. But it can 1 29 Eng. Law and Eq. 406. 2 6 Dowl. Pr. C. 281. not act upon errors or defects which only render it voidable. And herein lies an important difference between the powers of courts having jurisdiction over both writs and those having power only over the habeas corpus. The former, where both writs have been issued, 361] may for errors *which render the conviction only voidable, reverse or quash the conviction and discharge or remand the prisoner. The latter can only remand him and leave him to his remedy by writ of error or certiorari.' In a late case, In re Freestone,' the Court of Exchequer discharged a prisoner for a defect which was properly cognizable only on certiorari. By the act of Geo. 4, c. 83, sec. 4, it is enacted that "every person playing or betting in any street, road, highway or other open and public place, at or with any table or instrument of gaming, at any game or pretended game of chance,' shall be deemed a rogue, &c. The defendant was brought up on habeas corpus and the commitment showed that he was duly convicted, for that, &c., he "did unlawfully play in a certain open and public place, to wit, in a third-class carriage used on the London, Brighton and South Coast Railway," &c. Pollock, C. B.: "We are all of opinion that the place of gaming here designated does not come within the statute. For anything that appears to the contrary, the gaming, such as it was, may have taken place in a thirdclass carriage, used indeed on the line of railway, but at the time of the gaming, shunted away into some yard or warehouse." Prisoner discharged. 1 Stewart's case, 1 Abbott's Pr. Cas. 210; Baker's case, 11 How. Pr. R. 418. 36 Eng. Law and Eq. 632. *CHAPTER VII. VALIDITY OF LEGAL PROCESS. [362 Section I. JURISDICTION OF THE SUBJECT MATTER. II. JURISDICTION OF THE PERSON. III. JURISDICTION OF THE PROCESS. IV. JURISDICTION MUST BE EXERCISED IN THE MANNER PRESCRIBED BY LAW. V. PRESUMPTIONS RELATING TO JURISDICTION. VI. GENERAL WARRANTS. VII. REQUISITES OF SPECIAL WARRANTS. VIII. ORDERS of court. IX. AUTHORITY OF LAW. X. COMMITMENTS IN EXECUTION. XI. WARRANT DEFECTIVE, PRISONER NOT ALWAYS DISCHARGED. SECTION I. JURISDICTION OF THE SUBJECT MATTER. THE various subjects of judicial cognizance being apportioned by statute, or usage having the force of law, to the several courts it is not generally difficult to determine whether in a given case a court had jurisdiction of the subject upon which it assumes to adjudicate. It is oftentimes a question of statutory construction, but in all cases the subject matter, whether relating to prosecutions in criminal or remedies in civil cases, must be such as affords a lawful predicate for the imprisonment. If the liability of officers, for acts done under void process, were the subject of inquiry it would be necessary to note the distinction which obtains between magistrates, who *issue it, and the executive officers whose duty it [363 is to execute it. It would be seen on such an investiga tion that the latter are protected in some cases where the former are not. As, where the process is regular upon its face and the subject matter within the jurisdiction of the magistrate, though the officer executing it will be protected by it even if informed that some condition essential to the exercise of such jurisdiction in the particular case has been omitted, yet the magistrate may not.' But the test of the officer's liability to the injured party, in an action of trespass or false imprisonment is not the criterion by which to determine the prisoner's claim to discharge under the writ of habeas corpus. If the process be void the prisoner cannot be held by it, whatever may be the legal character of his claim upon the officers for the injury. SECTION II. JURISDICTION OF THE PERSON. The person must not only be subject, but subjected to the jurisdiction of the court. Even the example of the Creator and judge of men has been quoted in support of this principle of the law. In Rex o. The Chancellor, &c.' "The laws of God and man," says Fortescue, J., "both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence." 364] *The accused must "have his day in court." No conviction for crime or misdemeanor can be had without personal notice and for the most part actual appearance, but judgments in civil actions where the service of process is not actually made upon the person may, other 1 Welch v. Scott, 5 Iredell, 72. 21 Str. 557. statutory conditions being strictly complied with, authorize an execution for the body of the debtor.' The notice to be effectual must be served by some one duly authorized.' In the case of Mead v. Deputy Marshal of Virginia,' it appeared on habeas corpus that the petitioner was detained in custody on account of non-payment of a fine of $48, assessed by a court-martial, and that the court proceeded without notice. "For this reason, said Ch. J. Marshall, "I consider its sentence as entirely nugatory and do therefore direct the petitioner to be discharged from the custody of the marshal.” SECTION III. JURISDICTION OF THE PROCESS. Where the statute prescribes the mode of acquiring jurisdiction, it must be strictly followed." A warrant was held void where it issued against a man of a family, without the proof required by statute.' So if a justice of the peace issue a search warrant without oath that the goods are stolen, or suspicion that *they are concealed in the particular place to be [365 searched." A justice's execution was made returnable in sixty If one be illegally arrested (as under a void writ), he is entitled to be set at perfect liberty and he cannot be detained under other valid writs in the hands of the sheriff. He is not liable to be arrested under them while he is suffering false imprisonment under the void writ. The sheriff cannot arrest him because he has already been deprived of his liberty; the sheriff cannot detain him because he is entitled to be discharged. Hooper v. Lane, 5 H. L. C. 443. 2 Reynolds v. Orvis, 7 Cow, 269. 8 2 Wheeler Cr. Cas. 569. 4 Collins. Batterson, 3 Mill Lou. Rep. 242, 245. 5 Curry v. Pringle, 11 Johns. 444; Gold v. Bissell, 1 Wend. 210. • Grummon v. Raymond, 1 Conn. 40. |