in. in at any time pending the rule, before a judge in town, commissioner in fore whom put the country, or judge of assize in his circuit: and they are either absolute, or de bene esse, as upon a cepi corpus. The recognizance of bail, in Recognizance the King's Bench, is general, that if the defendant be condemned at the of, in K. B. suit of the plaintiff (or plaintiffs) in the plaint, he shall satisfy the costs and condemnation, or render himself to the custody of the marshal : but, In C. P. in the Common Pleas, it is taken in a penalty or sum certain, being double the amount of the sum sworn to, upon condition that the defendant do appear to a new original, to be filed within two terms; and that if he be condemned in the action, he shall pay the condemnation money, or render himself a prisoner to the Fleet: and in that court, on a removal by habeas corpus, the original should it seems be shewn, upon tendering the declaration, if insisted on; and agree in the nature of the action, the sum in demand, and the county, otherwise the bail are not liable. When special bail are put in upon a habeas corpus, notice thereof should be given in writing, before the expiration of the rule, to the plaintiff's attorney; who is allowed twenty eight days in the King's Bench, or in the Common Pleas twenty days 5, after they are put in, to except to them: and if he do not except to them for insufficiency within that time, the bailpiece should be filed by the defendant's attorney, within four days after h If the bail in an inferior court offer to become bail in the action in the King's Bench, the plaintiff is in general compellable to take them; because he might, but did not except to them below: But it is otherwise, when a cause comes hither out of London; for the sufficiency of the bail there is at the peril of the clerk, and he is responsible to the plaintiff; so that the plaintiff had not the liberty of excepting to them; and the clerk is not responsible, if they be deficient in this court, though he was in London'. If the plaintiff be dissatisfied with the bail put in by the defendant, he should obtain a rule or order from a judge, for better bail, which will entitle him to a procedendo, unless they are perfected in four days after service of the rule *: and thereupon the same or different bail must justify, (as in other cases,) within the four days, if the rule be served in term; but if served in vacation, it is sufficient for the defendant to give notice, within the time allowed by the rule, of an intended justification on the first day of the ensuing term. The court of King's Bench, we have seen TM, will not give time to correct a misnomer in the notice of justification of bail; and it is a rule in that court, not to allow time for justifying Notice of, and exception to. Rule for better bail, and justifi cation. Misnomer in no tice of justification. Further time to lowed. justify, when al- bail on a habeas corpus, on account of the delay, except in case of unavoidable accident, such as the unexpected illness of the bail. Where the rule for better bail was served on the 14th of January, and the bail did not justify until the 19th, the court held, that the plaintiff's procedendo was regular : But where the rule expired in vacation, a render on the first day of the ensuing term, sedente curiâ, was deemed good; though notice was not given till afterwards on the same day, and after a writ of procedendo had issued to an inferior court, where the cause originated d. Render, when rule expires in vacation. How far bail are liable. When not dis charged, by defendant's privilege. Procedendo, what, and when not. The bail upon a habeas corpus are liable to all the actions mentioned in the return of it, wherein the plaintiff or plaintiffs shall declare within two terms e. But this must be understood of the bail upon a habeas corpus before declaration; for it is said, that if the plaintiff have declared before the habeas corpus delivered, in one action which requires special bail, and in another wherein common bail is sufficient, the bail shall be special only as to that action which requires special bail, and common to the other f. On a removal after declaration, special bail are liable, though the plaintiff declare in a different kind of action in the court above, so as it be for the same cause 8. And where one of the Yeomen of the King's guard had been arrested, without leave from the Lord Chamberlain, by process issuing out of the Palace court; and that court had refused to discharge him out of custody, on filing common bail; and, bail above having been put in and perfected in that court, the defendant, after interlocutory judgment signed, removed the cause into the King's Bench by habeas corpus, and put in and perfected bail; the court, under these circumstances, refused to order an exoneretur to be entered on the bail-piece 1. If bail be not put in and perfected in due time, a procedendo may be it lies, and when awarded 1: which is a judicial writ, directed to the judges of the inferior court, commanding them to proceed in the cause, notwithstanding the writ before delivered to them. The procedendo removes the suspension created by the certiorari, or habeas corpus1: and this writ may also be awarded where it appears upon the return of the habeas corpus, that the court above cannot administer the same justice to the parties as the court below; as in the cases before mentioned m, where an action is brought in London, for calling a woman whore; or upon a custom or bye-law, which is only suable in the inferior court. So, where a habeas corpus was brought after interlocutory and before final judgment in an inferior court, and the defendant died before the return of it, a procedendo was awarded: because, by the 8 & 9 W. III. c. 11. § 6. the plaintiff may have a scire facias * 1 Chit. Rep. 76. (a). Ante, 273. C 1 Chit. Rep. 130. 5 East, 533. and see 16 East, 387. eR. H. 2 Jac. II. (a). K. B. Serle v. Newton, H. 25 & 26 Car. II. 2 1 Wils. 277. h1 Barn. & Cres. 139. 2 Dowl. & Ryl. 250. S. C. And see further, as to bail on the removal of causes from inferior courts, Petersd. Part I. Chap. XVII. iR. M. 1654. § 8. K. B. R. M. 1654. § 11. R. H. 13 & 14 Car. II. C. P. * Append. Chap. XVI. § 31, 2, 3. 1 1 Salk. 352. 6 Mod. 177. S. C. m Ante, 398. against the executors, and proceed to judgment, which he cannot have in another court; and by this means he would be deprived of the effect of his judgment, which would be unreasonable. So, where an action was brought in the sheriff's court of London, against two partners, and one of them brought a habeas corpus, and put in bail for himself only, a procedendo was granted: for otherwise the plaintiff would have been disabled from going on in either court. And a procedendo was awarded in an action brought in the Palace court, on a bail bond given to the officer, on process issuing out of that court: for, by the statute 4 Anne, c. 16. § 20. the action on the bail bond ought to be brought in the same court where the original action was commenced, in order that the court may give such relief, in a summary way, to the plaintiff and defendant in the original action, and to the bail upon the bond, as is agreeable to justice. But the plaintiff in an inferior court, from which a cause is removed by habeas corpus, is not entitled to a procedendo, after render of the defendant, and notice of such render; although the render be made after the day on which the rule for better bail expires". And a procedendo cannot issue after service of the rule for the allowance of bail, on the ground that the plaintiff was called by a wrong name in the notice of bail; but the rule for the allowance should be first set aside e. In causes removed from the Mayor's court of London, the court above will allow the validity of the custom or bye-law, upon which the action is founded, to be discussed in a summary way, upon the return of the certiorari or habeas corpus, and before it is filed: but where an action was brought in that court, and the defendant, who was an attorney of the King's Bench, sued out a writ of privilege, a procedendo was awarded, without prejudice to the defendant's pleading his privilege in the court below 8. So, where a cause was removed from the Mayor's court of London by habeas corpus, to which a return was made, stating a custom under which the defendant was sued and arrested, error being suggested in the proceedings below, the court above would not stay the procedendo merely on that ground; but said, they would leave the defendant to his writ of error h. But, except in causes removed from London, the court above will not enter into the validity of a custom or bye-law in a summary way, on the return of the certiorari or habeas corpus; but put the parties to declare upon it in that court, and demuri. If a record be filed in the King's Bench, upon a certiorari, it can never be sent back or remanded, either in the term in which it is filed, or any other; and that is plain by the act of 6 Hen. VIII. c. 6. which enables this court to remand it in case of felony, which otherwise they could not have done and therefore the procedendo must be moved for on the re Discussing va lidity of custom return of certio or bye law, on rari, or habeas corpus. Remanding refiled. cord, after it is Cause once remanded, cannot be again removed. On certiorari, proceedings must begin de novo. Declaration de novo. When filed. May be for any cause of action. Non pros. On habeas corpus, plaintiff nrust declare de novo. turn of the certiorari, and before it is filed: But upon a habeas corpus it A certiorari, as we have already seen, removes the record in a civil cause from the inferior court; but though the record be brought up on this writ, into the court above, yet they do not take up the cause where the record leaves off, but begin the whole proceedings de novo; for there is no continuance from the inferior to the superior court, and therefore they cannot proceed on that record which was below: and though a certiorari removes the record in the condition in which it was at the time of the service of the writ, and thereby transfers the same into the superior court, yet it cannot make the roll of the inferior court a record of the superior one, but only brings up the record from the inferior to the superior court; and nothing is recorded here but the original: Therefore, where the proceedings in an inferior court of record were removed by certiorari into the Common Pleas, and the question was, whether the plaintiff should declare de novo; it appearing by the return, that the parties were at issue in the court below, it was holden that the plaintiff must declare de novo 8. On the removal of a cause from an inferior court, by writ of certiorari, the plaintiff need not file his declaration, until the end of the term after that in which the writ is returnable h. And, on a certiorari or habeas corpus, the plaintiff may declare in this court, as he pleases; and is not confined to the same species of action as he declared in below 1. When a defendant, however, removes a cause from an inferior court by certiorari, the plaintiff is not bound to follow the suit; and the defendant cannot sign judgment of non-pros, for want of a declaration *. On a habeas corpus, the parties have no day in court: and, as the record is not removed upon this writ from the inferior court, but only an account or history of their proceedings, the plaintiff must begin de novo, and declare against the defendant as in custody of the marshal. But it is otherwise where conusance is demanded and allowed; for there the superior court gives a day to the parties in the inferior one, and transfers the roll itself into that court. And the reason of the difference is, that the inferior court which has conusance, being taken out of a superior one, the judges continue the cause into the inferior court, as into a court erected by the king, and taken out of the ordinary jurisdiction; and therefore, the proceedings go on as in the court in which they were commenced : but where the cause is taken from the inferior to the superior court, they do not proceed as in the same court; for it would be below the higher jurisdiction not to proceed on it as res integra, or to suffer any continuance to be made from a subordinate power to theirs. Time for declar ing. Consequence of not declaring. Plaintiff not bound to declare, in court above., Venue, where laid, on removal from Canter bury, &c. The declaration upon a habeas corpus must be delivered, if at all, before the end of the second term after putting in bail, including the term in which it was put in : If the plaintiff do not declare within that time, the defendant's attorney is not bound to accept a declaration; though the plaintiff cannot be non-prossed for want of it. And if a cause be removed by the defendant, by habeas corpus, out of an inferior court, the plaintiff is not bound to declare in the court above, if he has taken no other step than compelling the defendant to put in and justify bail there. On the removal of a cause by habeas corpus, out of the courts of Canterbury, Southampton, Hull, Litchfield, or Poole, which are counties where the judges of nisi prius seldom come, if the action be transitory, the venue must be laid in the county of Kent, Southampton, York, Stafford, or Dorset, where the town and county lies. And, on a habeas corpus return- Imparlance, able in Michaelmas or Easter term, if the declaration be delivered before the third return, the defendant is not entitled to an imparlance 8. So, when a defendant removes the cause by habeas corpus from an inferior court, and the plaintiff does not declare until the next term, an imparlance is not allowed; for such removals being in general considered as dilatory, it would only be adding to the delay if an imparlance were granted h. when not allowed. of limitations. If a plaint be levied in an inferior court, within six years after the cause Replication to of action arose, and then it be removed into the King's Bench by habeas plea of statute corpus, and the plaintiff declare here de novo, and the defendant plead the statute of limitations, the plaintiff, we have seen', may reply, and shew the plaint in the inferior court, and that will be sufficient to avoid a 1 Salk, 352. 6 Mod. 177. S. C. and see R. M. 16 Car. II. (c). Skin. 215. 2 Ld. Raym. 1102, 3. 2 Atk. 317. Gilb. Repl 114. 1 Durnf. & East, 372. Gilb. Exec. 144. 200. F. N. B. 71. C. Gilb. Repl. 117. 1 Str. 631. Barnes, 90. but see Cro. Jac. 620. by which it appears, that anciently the plaintiff had three terms to declare, after bail put in and see 6 Durnf. & East, 752. 4 Moore, 190. d R. M. 16 Car. II. (c). K. B. Cowp. 117. 1 Durnf. & East, 372. e 3 Maule & Sel. 93. f R. M. 1654. § 9. K. B. R. M. 1654. § 1 Mod. 1. 2 Salk. 515. 1 Wils. 154. i Ante, 27, 8. |