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Ad Respondendum. This is the writ of habeas corpus granted, when a man has a cause of actior 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.
Ad Satisfaciedum, This writ issues, where a prisoner has had judgment against him in an action, and the plaintiff wishes to bring him up to some superior court to charge him with process of execution.
Ad Prosequendum, Testificandum, Deliberandum, etc. These 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, where the fact was committed.
Ad Faciendum et Recipiendum. This issues, when a person is sued in some inferior jurisdiction, and is desirous of removing the action into the superior court, commanding the inferior judges to produce the defendant, together with the day and cause of his caption and detainer, to do and receive what the king's court may consider best. This is a writ of right, without any motion in court, and it instantly supersedes all proceedings in the court below. All writs of habeas corpus must be signed by a judge of the court, out of which they are awarded. No cause, under the value of ten pounds, shall be removed by habeas corpus into any superior court, unless the defendant so removing the same, shall give special bail for payment of debt and costs.
Ad Subjiciendum. This is a great and efficacious writ in cases of illegal confinement, ordering a person detaining another to produce him with the day and the cause of his caption and detention, to do, submit to and receive whatsoever the judge or court awarding such writ shall consider in that behalf. This writ may issue from the court of king's bench, or the court of common pleas, in term time, or in vacation by a fiat from any law judge, or from the lord chancellor, and runs into all parts of the dominion. If it issue in vacation, it is usually returnable before the judge who awarded it. If the term intervene, it may be returned into court.
When Granted. In the king's bench and common pleas, it is necessary to apply for it by motion to the court, as is the case in all other prerogative writs (certiorari, prohibition, mandamus, etc.), which do not issue, as of mere course, without showing cause for the exercise of such power. It will only be granted for probable cause. When once granted, the person to whom it is directed can return no satisfactory excuse for not bringing up the body of the prisoner. If it issued of mere course, without disclosing good cause, a party might obtain temporary enlargement thereby, though sure to be remanded when brought in court. If probable ground be shown, that the party is imprisoned without just cause, and therefore has a right to be delivered, the writ of habeas corpus is then a writ of right, which may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained.
Commitments. There exists an absolute necessity for expressing upon every commitment the reason for which it is made, that the court, upon a habeas corpus may examine into its validity; and, according to the circumstances of the case, may discharge, admit to bail, or remand the prisoner.
The Habeas Corpus Act. This was passed during the reign of Charles II of England, and is considered as another magna carta. The statute enacts:
(1.) That on complaint and request in writing, by or on behalf of any person committed and charged with any crime, (except for treason or felony, expressed in the warrant, or as accessory, or on suspicion thereof, plainly expressed in the warrant, or unless he is convicted or charged in execution by legal process), the chancellor or a judge in vacation shall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for such prisoner, returnable immediately before himself or any other of the judges, and, upon the return made, shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature.
(2.) That such writs shall be endorsed as granted, in pursuance of this act, and signed by the person awarding them.
(3.) That the writ shall be returned, and the prisoner brought up, within a limited time, according to the distance, not exceeding twenty days.
(4.) That officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent, within six hours after demand, a copy of the warrant of commitment, or shifting the custody of a prisoner, without sufficient reason or authority, shall forfeit 100 pounds for the first offence, and 200 pounds for the second.
(5.) That no person, once delivered by habeas corpus, shall be recommitted for the same offence, on penalty of 500 pounds.
(6.) That every person committed for treason or felony shall, if he require it, the first week of the next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail, unless the king's witnesses cannot be produced at that time; and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from his imprisonment for such imputed offence; but that no person after the assizes be open for the county in which he is detained shall be removed by habeas corpus, till after the assizes are ended, but shall be left to the justice of the judges of assize.
(7.) That any such prisoner may move for and obtain his habeas corpus, as well out of the chancery or exchequer as out of the king's bench or common pleas, and the lord chancellor or judges denying the same, on sight of the warrant, or oath that the same is refused, shall forfeit to the party aggrieved 500 pounds.
(8.) Extending the writ to certain neighboring islands.
(9.) That no inhabitant of England shall be transported, unless he has committed a capital offence in the place to which he is to be sent.
Generally. This statute extends only to the case of commitments for such criminal charges, as can produce no inconvenience to public justice, by a temporary enlargement of the prisoner; all other cases of unjust imprisonment being left to the habeas corpus at common law. But even upon writs at common law, it is expected by the court that they should be immediately obeyed, without waiting for an alias or pluries, otherwise an attachment will issue. The remedy, therefore, is now complete for removing the injury of unjust and illegal confinement. It frequently happens, that parties suffer a long imprisonment, because they are forgotten.
Remedy for False Imprisonment. By an action of trespass vi et armis, usually called an action of false imprisonment, which is generally accompanied with a charge of assault and battery. The party therein shall recover damages for the injury he has received.
Third. The right of private property.
Discussed Heretofore. Though the enjoyment of property when acquired is strictly a personal right, yet its nature and the means of its acquisition or loss fall more directly under the second division of this book, the rights of things.
Injuries. We shall now consider the injuries that may be offered to the relative rights of persons, considered as members of society, connected by various ties and relations, as husband and wife, parent and child, guardian and ward, master and servant.
1. Injuries to a Husband. (1.) Abduction. The taking away of a man's wife. This may be by fraud and persuasion or by open
violence. The law in both cases supposes force and constraint, the wife having no power to consent. The remedy is by action of trespass vi et armis. The husband shall recover not only his wife, but damages. Both the king and the husband may entertain this action, and the latter may also recover damages in an action on the case against such as persuaded and enticed the wife to live separate from her husband, without a sufficient cause.
2. Adultery. This is criminal conversation with another man's wife, which is both a crime and a civil injury. The law gives satisfaction to the husband by an action of trespass vi et armis against the adulterer, in which the damages are usually large and exemplary. These are affected by circumstances, as by the rank or fortune of the parties, the relation or connection between them, the seduction or otherwise of the wife, her previous behavior and character, and the husband's obligation to provide for children, which he suspects to be spurious. A marriage in fact must be proved in this case, though generally in other cases reputation and cohabitation suffice, as evidence of marriage.
3. Beating or Otherwise Ill-using a Man's Wife. If it be a common assault and battery, the usual remedy is by an action of trespass vi et armis, which must be brought in the name of the husband and wife jointly, but if the mal-treatment be so severe, that for the time, the husband is deprived of the company and assistance of his wife, the law gives him a separate remedy, by an action upon the case for damages.
II. Injuries to a Parent. (1.) Abduction, The taking of his children away. This is remediable by an action of trespass vi et armis. (2) Marrying his son and heir without the consent of the parent.
III. Injuries to Guardian or Ward. A speedy and summary method of redressing all complaints relative to wards and guardians has obtained, by an application to the court of chancery, which is the supreme guardian of all infants. Testamentary guardians may maintain an action of trespass for recovery of a ward, and also for damages to be applied to the use of the infant.
IV. Injuries to Master and Servant. There are two species of injuries. The one is the retaining a man's hired servant before his time has expired; the other is the beating or confining him in such a manner, that he is not able to perform work.
Hiring Another's Servant. Every master has by his contract purchased for a valuable consideration the services of his domestics for a limited time. The inveigling or hiring his servant, which induces a breach of the contract, is thereby an injury to the master, who is entitled to an action on the case, and he may also sue the servant for the non-performance of the contract. But if the new master was not apprised of the former contract, no action lies against him, unless he refuses to restore the servant on demand.
Beating Another's Servant. This depends upon the property, which the master has by his contract acquired in the labor of the servant. The servant has a remedy in an action of battery against the aggressor. The master also, as a recompense for his own immediate loss, may maintain an action of trespass vi et armis, in which he must allege and prove the special damage he has sustained by the beating of his servant, per quod servitium amisit, and the jury will give satisfaction. A similar practice existed among the Athenians.
The Inferior Party. In these relative injuries, notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom, while the loss of the inferior in such injuries is totally disregarded. The inferior has no property in the company, care or assistance of the superior, as the superior is held to have in those of the infe