the subject and the honour of the king, which ought to be more regarded than his profit. R. 9 Co. 131 a. 10 Co. 67. b. R. 6 Co. 61 $ As, if there be a grant to discharge one from the collection of tithes granted per clerum Angliæ; he shall be discharged if the grant be per clerum provincia Cantuariensis: for it is not usual to have a grant by both provinces together. R. 21 Ed. 4. 48. b. R. per all the J. 2 R. 3, 4. If the king grant all lands, tenements, and hereditaments to a priory pertin., and all piscaries, &c. spectan. to the said manor; a piscary, &c. in gross passes: for it was not restrained by the last, being within the first words. R. 2 Rol, 185. 1. 50. If the king grant a manor and all waifs, estrays, bona felonum, &c. eidem manerio spectan.; bona felonum, &c. which cannot be claimed by prescription without charter, pass, though never used with the manor. R. 2 Rol. 192. 1. 45. 9 Co. 27. b. So, if the king's grant be ex certâ scientiâ et mero motu, it shall be taken more strongly against the king, and beneficial for the subject: as, if the king pardon a sheriff all contempts, he shall be excused of a false return. 36 H. 6. 24. b. 37 H. 6. 21. b. Co. Ent. 384. If he pardon A. B. all debts ex certâ scientiâ &c. debts as sheriff are discharged, as well as others. R. 2 R. 3. 7. a. R. 1 H. 7.13. a. Agr. 1 Co. 49. a. So, a grant ex certâ scientiâ, &c. dispenses with uncertainties. Per Manwd. Sav. 5. But a grant ex certa scientia, &c. shall not be expounded contrary to the proper signification of the words: as, if he grant a portion of tithes in N. where he has only tithes parcel of a rectory, it shall not be extended to them: for portio decimarum imports tithes in gross. 4 Co. 35. a. R. So, a grant of all the demesnes lands of a manor shall not be extended to copyholds, though by law they are parcel of the demesnes. R. 1 Co. 46. b. (a) (G 13.) When a grant shall be presumed. [Though the crown is not bound by the statute of limitations, yet a grant may be presumed from great length of possession. Cowp. 215.] [Possession for 350 years was held by the court as sufficient ground of presumption, to be left to a jury. Id. 102.] [Though the record be not produced, nor any evidence given of its being lost; yet under circumstances, it may be left to the consideration of a jury, or a court of equity, whether there be not sufficient ground to presume a charter. (b) Id. 110.] Vide more relating to Grant, in Annuity, (A 1, &c.) - Biens, (D 2.) Chimin, (D 3.) — Common, (O). — Condition, (A 2, 3. — D 4.) (a) 1. An exception in a crown grant of a rectory of "all churches and vicarages thereto belonging," does not include a perpetual curacy. 1 H. B. 418. 2. By a grant to a ranger of a forest, of "all wood blown or thrown down by the wind, and all dead wood, and the boughs and branches of trees, and wood in the said forest cut off or thrown," branches cut from trees felled for his majesty's uses do not pass. 2 Anst. 592. (b) A grant from the crown, which it might lawfully have made, may be presumed as against a stranger from 20 years uninterrupted possession. 11 East, 488. Copy Copyhold, (C 1, &c.) - Courts, (P 1.) Ireland, (D). - Liberties, (B) Market, (C 1, &c.) — Officer, (B 1, &c.) - Pardon, (A—B— G)-Prærogative, (D 24.) Rent, (C 8.)- Toll, (G 2.) - GREAT SEAL. GREEN CLOTH. GUERNSEY, (ISLE OF.) Vide NAVIGATION, (F 4.) HABEAS CORPUS. (A) By what court granted, infra. (B) For what cause: -Habeas corpus ad subjiciendum, et recipiendum. p. [431.] (C) When it shall not be allowed. p. [433.] (E 2.) What shall be a good return. p. [435.] (F) When the party shall be discharged, or remanded. p. [438.] (G 1.) Habeas corpus ad faciendum, et recipiendum. [p. 440.] (G 2.) When it shall not be allowed. p. [440.] (H 1.) Habeas corpus ad respondendum. p. [442.] (H2.) To what court. p. [443.] (I) How an habeas corpus shall be made`return= able. p. [443.] (A) By what court granted. An habeas corpus is a writ for bringing the body of him, who is imprisoned, before the court, cum causâ detentionis. And it may be granted, in respect of an unlawful commitment, or in respect of a privilege, which the party claims, to be imprisoned elsewhere. By By the common law, the writ of habeas corpus cum causâ detentionis might be granted out of the chancery within the term, or vacation; for the chancery is always open. 2 Inst. 53. 4 Inst. 81. 290. And by B. R. within term. 2 Inst. 53. And that, in all cases for persons privileged or not privileged, 2 Inst. 52, 53. 4 Inst. 71. 290. (a) 4 Inst. 81. 290. So, it lies out of C. B. or exchequer, for persons there privileged. 2 Inst. 53. marg. 4 Inst. 290. 2 H. Hist. P. C. 144. So, though they are not privileged there. Vau. 154, 155, 156. 2 Jon. 13. 17. R. cont. per three J. 2 Mod. 198. Semb. 2 Mod. 306. Cont. per North, 1 Mod. 235. It shall not be granted. 2 Vent. 24. R. acc. per three J. Vaughan cont. Cart. 222. But though an habeas corpus may be granted by C. B. yet it is not the proper court for it; because it cannot discharge, or intermeddle as B. R. may, if it is a criminal matter. Per Vaughan, Cart. 222. [C. B. has a general jurisdiction to grant it in all cases whatsoever. Wood's case, H. 11 G.3. 3 Wils. 172. 2 Bl. Rep. 745.] By the st. 31 Car. 2.2. an habeas corpus may be obtained in term out of the court of chancery or exchequer, as well as B. R. or C. B., by any prisoner. And in vacation on complaint, &c. the chancellor or keeper, any justice of the one bench, or the other, or baron of the coif, shall on view of the copy of the commitment, or oath of denial of the copy of it, and request of the party, or some other in his behalf, in writing subscribed by two witnesses present at the delivery, award an habeas corpus to the officer in whose custody the party is, returnable immediate before himself, or some other justice, or baron, under the seal of the court whereof he is a judge, &c. on pain of 500l. to the party grieved. And it may be directed and run to any county palatine, Cinque-Port, or other privileged place in England, Jersey, or Guernsey. Latch. 160. So, to Ireland. Semb. 1 Vent. 357. So, it lies, though a certiorari be taken away in such case by statute. Per Hale, 1 Mod. 102. [Habeas corpus ad testificandum, lies to remove a prisoner in execution, to be a witness; yet, where it appears to be a contrivance, the court will not grant it; as, if A. convicted of bribery on the oath of B. indicts him for perjury in that very oath, they will not grant it. Rex v. Burbage, T. 3 G. 3. 3 B. M. 1440.] [So, a habeas corpus lies to bring up a prisoner to give evidence. But a habeas corpus ad testificandum ought not to be granted to bring up a sailor on board a ship, who is not detained there as a prisoner, without an affidavit that he has been served with a subpoena, and is willing to attend. Cowp. 672.] [Neither will it lie, to bring up a prisoner of war. Doug. 419.] (B) For what cause:—Habeas corpus ad subjiciendum et recipiendum. An habeas corpus ought to be granted of right. R. 2 Inst. 615. R. in Parl. 1 Rush. 513. Vide post, (G 1, 2.-—H 1, 2.) (a) A habeas corpus to bring up one in custody on criminal process, must issue on the crown side of the court, not the plea side. 3 East, 232. And And therefore, if a man be imprisoned for any cause, except upon a conviction for a crime, or in execution, he may have an habeas corpus cum causa detentionis, &c. 2 Inst. 52. 2 H. Hist. 143. So, by the st. 31 Car. 2. 2. a person committed or detained for any crime, unless for treason or felony plainly expressed in the warrant, (other than persons convict, or in execution by legal process,) may in vacation complain or appeal to the chancellor, justice, or baron, &c. who shall award an habeas corpus, &c. And by this statute C. B. has jurisdiction to bail, discharge, or remand. 2 H. Hist. 144. And if the crime appears, C. B. may bail quoad the action, and remand quoad the crime. Ibid. If he be committed by warrant of the chief justice of B. R. he ought to be brought to the court by habeas corpus, not by rule. 1 Sal. 349. So, if a person be lawfully imprisoned, and afterwards unlawfully detained, he may have an habeas corpus for his discharge; as, if a forester take a man with the manner within a forest, or a man may be indicted for killing or hunting a deer in the forest, as he may, who afterwards offers sufficient pledges which are refused; the offender shall have an habeas corpus, whereupon he shall be bailed for his appearance at the next eyre. 4 Inst. 290. [It will be granted for detaining a child under age from her father. 1 Bl. 386.] (a) [If (b) 1. In case of a question of identity of the person of a defendant to an information, who is in prison, the court will grant a habeas corpus to bring him up to be present at the trial, at his own expence, and paying the costs. 1 Price, 403.-2. A habeas corpus ad test. lies to remove a person in execution, that he may be a witness. 3 Burr. 1440. Unless a prisoner of war. 2 Dougl. 419.-3. Where an apprentice has voluntarily enlisted as a sailor, the master is not entitled to a habeas corpus to bring him up. 7 T. R. 745.4. A habeas corpus will not be granted to the master of an apprentice, impressed, when being of competent years of discretion, he is willing to enter the service. 5 East, 38.-5. A habeas corpus will not lie to discharge an apprentice, an adult from his indentures. 5 Smith, 369. 7 East, 376.-6. A woman, having the possession of a child for some time, claiming it has her own, was dispossessed of it by artifice; the court granted a habeas corpus for the child. 3 Smith, 577. 7 East, 579.-7. A habeas corpus for an illegitimate child, within the age of nurture, will be granted to its mother, from whom it has been surreptitiously taken. 7 East, 579. 3 Smith, 577.8. By the 23d art. of war, s. 16. it is declared, that, " no officer or soldier who shall be put in arrest or imprisonment, shall continue in his confinement more than eight days, or until such time as a court-martial can conveniently be assembled." If this rule be transgressed, the court of K. B. have jurisdiction to grant a habeas corpus. They granted a rule nisi for a habeas corpus, on the application of an officer who had been under confinement for more than eight days, and whose affidavit disclosed circumstances whence it seemed probable that a court might conveniently have assembled before. But discharged the rule on an affidavit by the judge-advocate-general, satisfactorily accounting for the delay, and to whose statement, being a person in a high situation, public convenience required that credence should be given. 2 M. & S. 428. -9. A habeas corpus to bring up a prisoner in custody, on criminal process, that he may be charged with a civil action, will only be granted where he is in custody of an officer of the court. 9 East, 154.-10. A rule nisi for a habeas corpus ad testificandum to bring up a prisoner, (here in custody on criminal and civil process) to give evidence before a committee of the house of commons, directed to be served on the attorney general, the gaoler, and the creditors, at whose suit he was detained, was made absolute on affidavit of such service, and on no cause being shown. 4 East, 587.-11. A habeas corpus 5 [If the person confined is too weak to be brought into court, they will make a rule that certain persons shall have access to him. Rex D. Wright, M. 1 G. 3. 2 B. M. 1099. Rex v. Turlington, H. 1 G. 3. 2 B. M. 1115.] [But will not give that liberty unless to persons who have some pretension to demand it. Rex v. Clarke, M. 3 Geo. 3. 3 B. M. 1362.] (C) When it shall not be allowed. But by the st. 2 H. 5. 2. none shall be discharged, or bailed upon an habeas corpus cum causa, &c. if it be returned, that he is in prison on condemnation by judgment against him, but he shall be remanded and kept in safe custody till agreement of the party, or payment of the sum adjudged. So, by the st. 31 Car. 2. 2. a person committed for treason or felony, plainly expressed in the warrant of commitment, or convict, or in execution by legal process, is not entitled to an habeas corpus in vacation by force of that act. [To a person committed for high-treason by rule of court. Leonard, H. 5 Geo. Str. 142.] Rex v. [A person committed for high-treason done in Scotland, is not within the act. Rex v. Mackintosh, P. 6 Geo. Str. 308.] Nor, a person wilfully neglecting to pray an habeas corpus by the space of two whole terms after his imprisonment. So, a peer, impeached by the house of commons for high treason, is not de jure bailable in B. R. nor shall be bailed in discretion, though he has continued two years in custody; not being within the st. 31 Car. 2. R. Ray. 381. So, a person, committed by the being a member of the same house, house of peers, or of commons, shall not be discharged upon an habeas corpus. R. 1 Mod. 157, 158. Ld. Shaftsbury. Nor, bailed during the session of parliament. R. 1 Mod. 157, 158. Per Sir W. Jones, in Parl. 30 December, 1680. [2 Bl. Rep. 754. 3 Wils. 188.] Though the commitment be only for a misdemeanor. 1 Mod. 158. So, a person committed by the house of commons for a breach of privilege. Per three J. Holt, cont. Sal. 503. So, if it be used for avoiding a lawful suit, upon shewing of this at the return, the court will grant a procedendo. i Sal. 8. [No habeas corpus lies for an alien enemy, a prisoner of war, how ever ill used or deceived. 2 Bl. 1324.] [Nor, for a prisoner of war, the subject of a neutral power, taken in the enemy's service, into which he was forced when taken prisoner by them in an English ship. Rex v. Schiever, P. 32 Geo. 2. 2 B. M. 765.] corpus to bring up a native of Africa, granted on affidavit of the secretary of the African institution. 13 East, 195.-12. No habeas corpus lies for an alien enemy, prisoner of war, however ill used or deceived. 2 Blk. 1324. Dougl. 419.-13. One who is in custody at the suit of the plaintiff, in the Marshalsea court, cannot be removed by habeas corpus ad respondendum, to answer the plaintiff for the same debt, in a new action in B. R. Cowp. 116. VOL. IV. Ff [1] (D) How |