bers of the court in refusing a discharge. That was a case of habeas corpus. The prisoner had not been tried at the second term he had been sick of the small por and though convalescing, his aspect was so loathsome, as to spread a general panic; and on the testimony of the physician of the prison that he might still communicate infection, he was remanded, though insisting on being tried. The court remanded him, saying: "There is no doubt that necessity, moral or physical, may raise an available exception to the letter of the habeas corpus act. A court is not bound to peril life in an attempt to perform what was not intended to be required of it. The legis lature intended to prevent wilful and oppressive delay; and it is sufficient that there is no color for an imputation of it." In Ex parte Walton,' the court refused to discharge the prisoner on habeas corpus, who had moved to quash the indictment at the second term, which motion, the court being unable to determine, was continued under advisement, the court holding that such postponement should be construed to be with the assent of the prisoner. The court also held that the power of discharging a prisoner when he had not been tried at the second term, was confined to the court in which he was indicted, and that although they were bound to allow the writ of habeas corpus, they should not for the future, if the commitment was unexceptionable in the frame of it, 557] consider themselves bound to look *farther, This construction of the act was approved in the case of Commonwealth v. The Sheriff." In Mississippi when their code contained a provision similar to that in Pennsylvania, it was held in the case of Byrd v. The State,' that a prisoner charged as acces sory to a murder is not entitled to a discharge because 12 Whart. 501. 27 Watts & Serg. 108. 31 How. Miss. 163. 1 he has not been indicted, although the stated times of holding two terms of court have elapsed. To bring the prisoner within that statute it must appear that the state has been in default, that two terms have actually been holden without being indicted; for if no terms are holden the state cannot be in default.' SECTION II. RECOMMITMENT AFTER DISCHARGE. By the sixth section of the act 31 Car. II., it was provided: "And for the prevention of unjust vexation by reiterated commitments for the same offence; Be it enacted, by the authority aforesaid, That no person or persons which shall be delivered or set at large upon any habeas corpus, shall at any time hereafter be again imprisoned or committed for the same offence, by any person or persons whatsoever, other than by the legal order and process of such court wherein he or they shall be bound by recognizance to appear, or other court having jurisdiction of the cause; and if any other person or persons shall knowingly, contrary to this act, recommit or *imprison, or knowingly procure or cause to be [558 recommitted or imprisoned, for the same offence or pretended offence, any person or persons delivered or set at 1 In Ohio, to entitle a prisoner to a discharge on the ground that he has not been brought to trial during the time limited by the statute, he must make application to the court therefor, and if when he makes the application, the state is ready to proceed with the trial, or make a showing for a continuance that there is material evidence on the part of the state which cannot be had; that reasonable exertions have been made to procure the same, and that there is just ground to believe that such evidence can be had at the succeeding term," he will not be entitled to be discharged. Where a prisoner is discharged under that statute, the order of discharge is to be regarded not as a mere temporary release of the prisoner from confinement, but as a final judgment in the cause, and a bar to all subsequent prosetions for the same crime or offence. Ex parte McGehan, 22 O. S. 442, large as aforesaid, or be knowingly aiding or assisting therein, then he or they shall forfeit to the prisoner or party grieved the sum of £500; any colorable pretence or variation in the warrant or warrants of commitment, notwithstanding, to be recovered as aforesaid.” The provisions of this section have been in substance incorporated in the statutes of the several states. In New York, under a similar section, in the case of Yates v. Lansing,' where the Chancellor had committed one of the officers of chancery for malpractice and contempt, and a judge of the Supreme Court, on a habeas corpus, discharged the officer; and he was afterwards. recommitted by the Chancellor for the same offence, it was held that the Chancellor was not liable to an action by the officer for the penalty; that the penalty given by the statute is imposed on individuals acting ministerially out of court, and does not apply to the acts of a court done of record." 66 In Ex parte Milburn,' it appeared that the petitioner for the writ after having been discharged on habeas corpus from an arrest under capias, on the ground that it had been irregularly issued, was again arrested on another capias upon the same indictment; and this being urged as a ground of illegal imprisonment, &c., the 559] court said: *"A discharge of a party under a writ of habeas corpus from the process under which he is imprisoned discharges him from any further confinement under the process; but not under any other process which may be issued against him under the same indictment." It was very confidently maintained by Chief Justice Kent in the case of Yates v. Lansing,' that "if a person convicted at court of oyer and terminer or sessions of the peace of a felony, and imprisoned in a state prison, be discharged by a judge on habeas corpus, on the ground that the court had no authority to commit, or 15 John. 282; S. C., 9 ib. 395. 35 John. 282. that the order of commitment was invalid, the court might cause the convict to be further reimprisoned either upon the same warrant, if it judged it sufficient, or by awarding a new and better one. And this upon the ground that the statute never intended such a destruction of principle as to entrust to a judge in vacation the power to control the judgment or check the jurisdiction of a court record." This view, however, was combatted with great earnestness by Senator Clinton in the same case on error,' who maintained that the commitment on conviction determined the jurisdiction of the court, in which the conviction was had, over the cause. He argued that it was one thing to have jurisdiction over the subject matter, and another to have it over the cause. That the subject matter is the crime in the abstract. The cause is the case of the individual. That to give jurisdiction of the cause there must therefore be jurisdiction of the person, *which being lost by the process of final commit- [560 ment, the court was without jurisdiction over the cause, and could not recommit under the exception in the statute. The argument of the senator did not prevail. The judgment of the Supreme Court was affirmed. The provisions of the Statute of New York, on this subject, are as follows: "g 59. No person who has been discharged by the order of any court or officer, upon a habeas corpus or certiorari, issued pursuant to the provisions of this article, shall be again imprisoned, restrained or kept in custody, for the same cause; but it shall not be deemed the same cause, "1. If he shall have been discharged from a commitment on a criminal charge, and be afterwards committed for the same offence, by the legal order or process of the 19 Johns. 440. court wherein he shall be bound to appear, or in which he shall be indicted or convicted for the same offence: or "2. If after a discharge for defect of proof, or any material defect in the commitment, in a criminal case, the prisoner be again arrested on sufficient proof, and committed by legal process for the same offence: or "3. If in a civil suit, the party has been discharged for any illegality in the judgment or process, hereinbefore specified, and is afterwards imprisoned by legal process for the same cause of action: or "4. If in any civil suit, he shall have been discharged from commitment on mesne process, and shall afterwards be committed on execution, in the same cause, or on mesne process in any other cause, after such first suit shall have been discontinued."1 In Pennsylvania, in the case of Hecker v. Jarret,' it 561] was held that under the habeas corpus *act of that state, the penalty for recommitting a person who has once been delivered for the same cause on a habeas corpus, is limited to recommitments for the same criminal offence, and is not incurred by taking the party a second time in custody upon civil process; and the reason for the distinction in the law was suggested to be "that the object of the habeas corpus act was to protect the liberty of individual citizens; and the danger of oppression is not so great in civil matters, as in case of crimes or supposed crimes. Governments often magnify real crimes, and sometimes impute offences falsely to innocent persons, for the purpose of oppression. From this quarter has generally arisen the danger to liberty; and this might have induced the legislature of Pennsylvania to omit the penalty in civil cases.' 1 2 New York Statutes at Large, 592. 21 Binn. 374. 993 3 In Com. v. McBride, 2 Brews. (Pa.) 545, it was held that a discharge under the habeas corpus act, is a final discharge, to hold that one charged with a felony can be arrested again and again for the same offence is to nullify the law inhibiting second jeopardy. |