In Mississippi it was said in the case of Byrd v. The State,' that a discharge under the provision authorizing the discharge of the accused if not tried at the second term, &c., was no bar to another prosecution for the same offence.'

1 1 How. Miss. 163.

2 In Georgia it was held that a judgment of discharge annulled the commitment, and thus deprived the sheriff of authority longer to hold his prisoner. But a judgment reversing that judgment would revise the commitment and thus restore authority to the sheriff, to retake, and hold, the prisoner. Mathis v. Colbert, 24 Geo. 384.

It has never been decided in England that a writ of error will lie to a final order made on a habeas corpus. But it has repeatedly been said that it would not.

"The City of London's case,' was a case of a habeas corpus, issuing out of the Court of Common Pleas to the mayor, aldermen and sheriffs of London, to bring up the body of one Wagoner, who was in their custody upon civil process for breach of a by-law. A return was made to the writ, and upon an objection to its sufficiency, the court resolved it sufficient upon this ground, that, upon the return, no issue could be taken or demurrer joined; that the return was only to inform the court of the truth of the matter, and that a writ of error would not lie upon the award of the court, to be made upon the return."

The doctrine of this case was recognized in the case of The King . The Dean and Chapter of Trinity Chapel, in Dublin.' That was a case of a writ of error from the King's Bench in Ireland to the King's Bench in England, brought upon the award of a peremptory mandamus. The principal point in the case was whether a writ of error would lie upon such an award. The K. B. unani563] mously *resolved that the writ would not lie, and it was quashed. They said that it was against the nature of a writ of error to lie on any judgment, but in causes where issue might be joined and tried, or where judg

1 8 Co. 121, b.

28 Mod. 27.

ment might be had upon demurrer, and therefore that it would not lie on the return of a habeas corpus.

Upon this decision a writ of error was brought into the House of Lords; and all the judges of England being of opinion that the decision was correct, the judgment of the King's Bench was affirmed.'

To the objection that these were but opinions of the courts, not adjudications upon the point, Ch. J. Kent in Yates v. The People,' answered:

"The doctrine was laid down in Lord Coke's day, as of course, as being then the known and established law. The principle is of immemorial standing. It has become the uncontroverted maxim of ages. A great part of the magnificent structure of our jurisprudence is not built upon a sounder basis. * *It has now stood the test of two centuries as an uncontrovertible principle, without a precedent or dictum to oppose it. To overthrow it would be tearing up the common law by the roots.'

The case of The Queen v. Paty and others,' being one of the cases growing out of the Aylesbury election in 1703, is sometimes cited as supporting a contrary opinion. The history of the Aylesbury cases is stated more at large in 8 How. St. Tr. 142.

"It appears that Matthew Ashby, a burgess of the town of Aylesbury, brought an action upon the case at common *law against the constables of the town of [564 Aylesbury (being the proper officers to return members to serve in parliament for that place), for having by contrivance fraudulently and maliciously hindered him, to give his vote at the election. In this action a verdict was found for him; but judgment was given against him in the court of Queen's Bench, which was reversed in the House of Lords on error, when he obtained judgment for his damages, and had execution.

1 2 Bro. P. C. 554.

26 Johns. 429.

32 Salk. 503; 2 Ld. Raym. 1105.

"Five others, burgesses, who complained of like wrong, brought their several actions. For this they were sent to the bar of the House of Commons, and committed prisoners to Newgate, during the pleasure of the House, as having acted contrary to the declaration, in contempt of the jurisdiction, and in breach of the privileges of that House.

"They sued out writs of habeas corpus to the Court of Queen's Bench, but were remanded to Newgate by three of the judges. Contra, Lord Ch. J. Holt.

"The House of Lords then petitioned the Queen to grant a writ of error to the order of the Queen's Bench, remanding the prisoners, reserving themselves upon the question whether a writ would lie in such a case until the question should come regularly before them, and claiming that they being the court to which the writ was returnable, and of the last resort, were the only proper court to decide the question.

"The House of Commons resolved that, 'there is no judgment pronounced in the case of a habeas corpus, or in anything relating thereto.' 'That it had been the uniform opinion of former times, that a writ of error did not lie in any proceeding on a habeas corpus;' and they prayed the Queen not to grant the writ.

"The Queen referred it to all the judges to advise whether the Queen ought to grant the writ of error, of right, or ex debito vel merito justitiæ, or ex gratia.

"Ten of the twelve advised that the writ ought to be granted of right, and not of grace. They added how565] ever, *But we give no opinion whether a writ of error does lie in this case, because it is proper to be determined in parliament, where the writ of error and record are returned and certified."

The Queen at last replied to the prayer of the House of Lords: "I should have granted the writ of error de

1 Burdett v. Abbott, 14 East. 91 n.

sired in this address; but finding an absolute necessity of putting an immediate end to this session, I am sensible there could have been no further proceeding upon that matter."

Ch. J. Kent, in Yates v. The People,' after reviewing the foregoing cases concludes that by the English law a writ of error would not lie to a decision on a habeas corpus, and says: "We have the unanimous opinion of the court of C. B. in the time of Lord Coke. We have the resolutions of the House of Commons in the reign of Queen Anne. We have the unanimous opinion of the court of K. B. in the time of Geo. I., and lastly we have the sanction of Lord Ch. Baron Comyns; and all this without a single case or decision, or precedent, or opinion to oppose such a stream of authority."

To this may be added the testimony of the practice in England of renewing the application for the writ as often as the party desires, which is inconsistent with the supposition that a decision upon it is understood to be of that conclusive character which is necessary to support a writ of error.

The right to make repeated applications was recognized and strongly stated in Ex parte Partington,' which was an application for the writ of habeas corpus on affidavit.

*Parke, B., said: "This case has already been [566 before the Queen's Bench on the return of a habeas corpus; and before my Lord Ch. Baron, at chambers, on a subsequent application for a similar writ. In both instances the discharge was refused. The defendant, however, has a right to the opinion of every court as to the propriety of his imprisonment, and therefore we have thought it proper to examine," &c.

In the United States there has been exhibited in the opinions of the courts and acts of legislation, a tendency

1 6 Johns. 429.

2 13 M. & W. 678.