CHAPTER II.

PRACTICE IN PROCURING AND SERVING THE WRIT.

Section I. PRELIMINARY OBSERVATIONS.

II. THE APPLICATION.

III. SECURITY FOR COSTS.

IV. ALLOWANCE OF THE WRIT.

V. THE WRIT.

VI. SERVICE OF THE WRIT.

SECTION I.

PRELIMINARY OBSERVATIONS.

The common law writ of habeas corpus, as has been observed, was not taken away by the act of 31 Car. 2; but was left wholly untouched by it in all cases where the detainer was not for criminal or supposed criminal matter. The courts, however, when the writ was afterwards issued at common law, adopted in practice, so far as the same were applicable, the provisions of the habeas corpus act. Opinions of the judges, 1758, Bac. Abr., Hab. Corp.

A similar course was pursued in this country. In the case of U. S. v. Bollman & Swartwout, 1 Cranch, C. C., Dist. Col. R., 373, Cranch, Ch. J., says: "Since the statute of 31 Car. 2, the practice in cases not within it has been founded upon it, the judges having considered it as furnishing a rule of proceeding in all cases;" and in that case, which was not within the statute, an attachment was refused in accordance

with the provisions of the statute, because three days had not elapsed from the service of the writ.

In the United States the statutory provisions relating to the writ are essentially the same in all the states. They differ sometimes in respect to the courts or officers to whom jurisdiction over it is committed; sometimes in respect to the form of procedure and sometimes in respect to the effect of it. But the general principles of practice are substantially the same as those prevailing at common law and under the statute, 31 Car. 2.

Where material alterations have been introduced in the principles or the form of procedure in any of the states, they will be noted so far as the limited access had to the necessary sources will allow.

SECTION II.

THE APPLICATION.

1. In what cases it may be made.

2 By whom it may be made.

3. The mode of making it.

4. When it may be denied.

5. When it must be granted.

1. In what cases the application may be made. All persons imprisoned or under actual restraint, except those who by the habeas corpus act are excluded, may apply to the proper court or judge for the writ. It is not necessary that the imprisonment or restraint should be close confinement to entitle a party to the writ.

Every restraint upon a man's liberty is, in the eye of the law, an imprisonment, wherever may be the

place or whatever may be the manner in which the restraint is effected. 1 Kent, 631; 2 Inst., 482, 589.

Words may constitute an imprisonment, if they impose a restraint upon the person, and he be accordingly restrained and submits. 1 Kent, 631, note; Homer v. Battyn, Buller N. P., 62; Pike v. Hanson, 9 N. H., 491. It may be on the high street and though the party be not put into any prison or house. Per Thorpe Fitzhugh, Bar.,301, Com Dig., " Imprisonment, G."

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Whenever a person is deprived of the privilege of going when and where he pleases he is restrained of his liberty and has a right to inquire if that restraint be illegal and wrongful, whether it be by a jailor, constable or private individual. It is not necessary that the degradation of being incarcerated in a prison should be undergone to entitle any citizen, who may consider himself unjustly charged with a breach of the laws, to a hearing." Commonwealth v. Ridgeway, 2 Ashm., 247. A mere moral restraint, however, is not such imprisonment as will entitle the party to the writ; as where he was committed on execution and admitted to the prison bounds under bond, according to law, held, he was under no such restraint as authorized a resort to the writ of habeas corpus. Dodge's case, 6 Mart. Low. Rep., 569.

"Persons discharged on bail will not be considered as restrained of their liberty so as to be entitled to a writ of habeas corpus, directed to their bail." 1 Bouv. Law Dic., 574; 3 Yeates R., 263; 1 Serg. and R., 356.

It is immaterial whether the imprisonment be under criminal or civil process; if it be illegal, the prisoner

is entitled to the benefit of the writ of habeas corpus. Hecker v. Jarrett, 3 Binn., 404. It was at one time doubted whether the writ of habeas corpus was a proper remedy in case of illegal imprisonment under a civil process. Ex parte Wilson, 6 Cranch, 52; Cable N. Cooper, 15 Johns., 152.

The doubt originated in too limited a view of the jurisdiction of the British courts in habeas corpus, attending only to their statutory jurisdiction, which by its terms was confined to criminal cases. When their common law jurisdiction was considered, the doubt vanished. Ex parte Randolph, 2 Brock., 447. U. S. Bank v. Jenkins and others, 18 Johns., 305.

2. By whom it may be made. Although the person imprisoned has an undoubted right to make the application, it is not necessary that it should proceed directly from him. An agent or friend may make it in behalf of the prisoner; 14 How. St. Tr., 814, 4th Resolution, 825; the wife in behalf of her husband.

In the case of Cobbett v. Hudson, X Eng. Law & Eq., 318, Campbell, Ch. J., said, "The first day I sat here, Mrs. Cobbett desired to make a motion, on behalf of her husband, for a habeas corpus; and I heard her without the smallest scruple, as my illustrious predecessor, Hale, heard the wife of John Bunyan. On each of those occasions the liberty of the subject was in question; and in such a case great inconvenience might arise from refusing to hear the wife or any other person on behalf of the party who was under restraint.

The husband in behalf of the wife; Anne Gregory's case, 4 Burr., 1991; Rex v. Clarke, 1 Burr., 606.

But no legal relation is required to exist between the prisoner and the person making the application. It may be made by any one. The State v. Philpot, Dudley Geo. Rep., 42; The Hottentot Venus case, 13 East, 195.

Where the application is by a third person it is supposed to be made in accordance with the wishes of the party restrained of his liberty; and is allowed to prevent delay, where the party is represented to be under any disability, or in any manner prevented from making the application in his own right.

But mere volunteers, who do not appear in behalf of the prisoner or show some right to represent him, will not be listened to. Rex v. Clark, 3 Burr., 1363. In Ex parte Child, XXIX. Eng. Law & Eq., 259 Jervis, Ch. J., said: "A mere stranger has no right to come to the court and ask that a party who makes no affidavit, and who is not suggested to be so coerced as to be incapable of making one, may be brought up by habeas corpus to be discharged from restraint. For anything that appears, Captain Child may be very well content to remain where he is." Rule discharged. And in Linda v. Hudson, 1 Cush., 385, it was held that a person brought up on habeas corpus, without his request or authority, might maintain an action on the case against the party who procured the writ to issue.

It is not, however, required as a condition, without which the writ will be withheld, that the party suffering the imprisonment expressly authorized the application; for that would be in many cases to furnish a spur to closer and more rigorous confine