As to the cafe of Wells verfus Cotterel, in 3 Lev. 48. if that cafe was of a court leet, it would in a great degree be decifive in favour of the defendant, but being of a court baron, the fleward is not the judge, but merely an officer of that court; the homage are thejudges there, and therefore taking the power from the homage, and placing it in the fteward, is fubverfive of the jurifdiction of the homage: but in the prefent cafe, the cuftom will warrant the making the bye-law in the leet. This is not a new cafe; for in 1 Roll. Abr. 365. pl. 10. there had been a court (called curia legalis) held by the lord of the manor immemorially, in a large moor, parcel of the manor, (wherein many men had common) for the better ordering of the common there; at which court all the commoners ought to appear by the cuflom; and there had used to be a homage fworn by the fteward, which ho mage had ufed to prefent all oppreffions and offences in the common, and to make bye-laws and ordinances for the better ordering of the common: which ordinances the commoners ought to obey, under a reasonable penalty, to be affeffed upon them, to be forfeited to the lord, &c. And the homage being fworn, made a bye-law, that no commoner fhould put his fheep within one part of the moor, under the penalty of 3s. 4d. to be forfeited to the lord, and this bye-law was published and proclaimed in court; this is a good bye-law, and fhall bind all the commoners, because the bye-law arifes out of the cuftom, which commenced by confent of the parties. This cafe in Rolls Abr. is very ap plicable to the cafe at bar, it is there called curia legalis; the court leet is curia legalis, and is only a tranflation of the name of the court.

In the cafe of the Earl of Exeter verfus Smith, 2 Keb. 367. this very queftion now before the court was determined; that the court leet might by custom make bye-laws for ufing and re gulating their common, and judgment was given accordingly: the fame cafe is more fully and clearly reported in Carter's Rep. 177. where judgment is given accordingly by two judges against one.

Lord Chief Juftice de Grey-The principal objection which The principal flicks with us, is, that the bye-law ftates, that no perfon or perfons objection to fhall depafture any fheep, &c. on pain of forfeiting 20s. for the bye-law in the opinion every fheep which fhould be depaftured, &c. contrary to the of the court, faid bye-law and all former bye-laws; how can the court judge whether the offence fet forth be contrary to all former byelaws, when thofe bye-laws are not fet forth? For those other laws may (perhaps) modify and qualify the offence, or excufe from the penalty, for any thing we know to the

contrary.

Gould

Gould Juftice-The bye-laws may be good, but not being fet forth and difclofed, the court can give no judgment about

them.

Blackstone Juftice-The bye-law itfelf is uncertain, for the penalty is given for an offence against all former bye-laws, and therefore they must be set forth for the court to judge of them.

Lord Chief Juftice-Suppofe the plaintiff had offended against his bye-law, yet no penalty is incurred unless he had offended against all former bye-laws,

The caufe was ordered by the court to ftand over for further argument, with liberty for the defendant to confider, whether he would not move for leave to amend his cognizances; but I never heard that this cafe ever came again before the court; and I believe it did not.

Wood's Cafe. C. B.

Adjournatur.

The court of GEORGE WOOD having married 4. B. and cohabited

Common

general jurifdiction to

in all cafes

with her for fome fhort time, and the being detained, and in Pleas has a the private cuftody of C. D. Wood made an affidavit of this matter; whereupon my brother Whitaker moved for a writ of habeas corpus grant writs of to be directed to C. D. commanding him to have the body of A. babeas corpus B. before the King's justices at Westminster, by whatsoever name whatever. fhe was called, together with the day and cause of her being taken and detained, (on fuch a day) that the juftices, feeing the caufe, might do that which of right, and according to the law and cuftom of England, ought to be done; and further to do and receive what the fame juftices here fhall then confider in that behalf. He cited Bufhel's cafe; and faid, that if, upon the return of the writ of habeas corpus, it fhould appear to the court that A. B. was in cuftody of C. D. for any criminal matter, they would not take cognizance thereof; but if it fhould appear, that fhe was in cuflody under colour of civil process, or for other fuppofed civil cause, contrary to law, they would difcharge her out of custody; or if the was in legal cuftody in a civil cafe, they would remand her. The court having taken a few days to confider granted the writ, and feverally fpoke to the following effect.

Lord Chief Juftice De Grey-I wondered, when this matter was moved, how there could be the leaft fcruple against iffuing a habeas corpus by THIS COURT, for protecting the liberty of one

fubject

fubject against another: I had no doubt at all myfelf; however,

I have looked into the books, to fee what is therein faid touching this matter.

P.C. 1441

145.

The firft inftance of this kind is upon the ftatute of magna 2 Hale, H. charta, 2 Inft. 55. a. where Lord Coke in his comment fays, "If a man be taken or committed to prifon against the law of the land, what remedy hath the party grieved?" It is there anfwered, that he may have an action, or he may cause the party to be indicted at the King's fuit; or he may have an habeas corpus out of the King's Bench or Chancery, though there be no privilege; or in the court of Common Pleas or Exchequer, for any officer or privileged perfon there; and if it appears upon the return of the writ, that his imprifonment be juft and lawful, he fhall be remanded; but if it fhall appear to the court that he was imprifoned againft the law of the land, they ought by the force of this ftatute to deliver him: if it be doubtful, he may be bailed.

So in 4 Inft. 290. if a man be imprisoned by a judge of the foreft for killing or chafing deer, and afterwards offers fufficient pledges, it may be demanded, what remedy is there for the party? The answer is, he may have a habeas corpus out of the King's Bench; or if he have privilege, out of the Common Pleas, or of the Exchequer, or out of the Chancery without any privilege, either in the term or vacation, and may be bailed to appear at the next Eyre. ·

In Dier 175. Scroggs verfus Colfehill, the office of exigenter of London and other counties, became vacant by the death of Hennings, in the year 1558; and afterwards Sir R. Brooke, the Chief Justice of the Common Bench died; and in the time of the vacancy of the office, Queen Mary granted the office of exigenter to one Colfehill, by letters patent; and afterwards, by letters patent of the fame date, granted the office of chief justice to Anthony Brown, who was admitted juftice, and fworn the first day of Michaelmas term in the year abovefaid; who refufed Colfehill, and admitted his nephew Scroggs to it. And now in this term, (Mich. 1&2 Eliz.) maxima lis mota fuit inter ipfos pro officio pradicto, et domina Regina nunc mandavit Nicholao Bacon militi cuftodi magni figilli, ad examinandum jus et titulum dicti Colfehill, et inde relationem faciendum eidem Regina. Qui quidem cuftos poft finem hujus termini, convocatis omnibus jufticiaris Banci Regina: videlicet, Catlyn, Whyddon, Raflall et Corbet, ac Saunders Capitale Barone, ac Gerrard Attornato Generali, ac etiam J. Caril Attornato Ducatus (exclufis omnibus jufticiariis de Commum Banco)accepit refolutionem planam poft longam deceptationem et hæfitationem

omnium prædicorum, quod titulus Colfehill nullus fuit, et quod ad dominam Reginam donatio officu pradicti, nullo modo et nullo tempore pertinet, aut pertineat, fed tantummodò ad difpofitionem capitalis jufticiarn pro tempore exiftentis, ut incidens infeperabile ad perfonam dicti capitalis fpectans: et hoc, ratione prefcriptionis et ufus. Ex quo fequitur quod Regina ipfamet non poteft effe capitalis justiciarius in banco pradicto. And notwithstanding the faid refolution of the juftices aforefaid, the Queen, upon importunate fuit directed her commiffion to the Earl of Bedford, and nine others, of whom were Juftice Corbet, Justice Wefton, Sir Roger Cholmeley Sir W. Cordel Mafter of the Rolls, and Richard Goodrike; giving to them full authority to hear and determine the intereft and title of the faid office, between the parties aforefaid, and to place Colfehill in the office, if, &c. and that if Scroggs refufed to make anfwer before them, that they might commit him to prifon, &c. And afterwards, in Michaelmas term fol lowing, Colfehill exhibited a bill of complaint to the faid commillioners against Scroggs, comprehending all his title as above, and that he was diffeifed and deforced of it by Scroggs; and Scroggs came and demurred upon the bill and jurifdiction of the court by the faid commiflion, and would not make other aufwer; and for this contempt he was committed by them to the prison of the Fleet, and there remained for two weeks; and then the court of Common Bench was moved by three ferjeants to grant a habeas corpus cum caufa to be directed to the warden of the Fleet. And upon good deliberation of the court, viz. Ja. Dier, A. Browse and R. Weften, the motion was held reasonable, and was granted, becaufe he was a perfon in the court, and a necessary member thereof.

In a Hale's Hi. Pl. Coren. (before the habeas corpus act) it is laid down that this writ of habeas corpus is a writ of a high nature; for if perfons be wrongfully committed, they are to be dacharged upon this writ returned; or, if bailable, they are to be bailed, if not bailable, they are to be com cred.

This writ (Gors that bookies out of the great courts of en die dah diferent nies and effects. It may iffue our of the court of Common Pleas or Excheruer, but that is or dracht to deadas where a perion is practiegs, or to charge him madarasha Radeteta 18 Car, 1. cap. 10. they have #gal Servicebon to dal, licharge or commit upon an bakarimys one commia be the Coal Table, as well as the à ́n › Remet, akhough there be no priege for the perfon

I do not find that this matter hath come much in queftion antil a few years before the habeas corpus act. Bushel's case, Sir Thomas Jones 13. 22 Car. 2. anno 1670. The cafe was, that Bufhel, amongst others, jurors in London, upon the trial of a traverse, upon an indictment against divers perfons for conventicling against the form of the ftatute lately made, were fined and imprisoned at the feffions of the Old Bailey, because they gave their verdict contra plenam evidentiam et directionem curia in materia legis, and fo acquitted the prifoners. In this cafe it was debated at the bar and the bench, whether the Common Bench could award a habeas corpus in this cafe. Wild, Archer and Tyrel, Juftices-This court may well award it and for this purpose they cited 1 Anderfon 297, 298. 2 Inft. 615. Moor 839, 1132. Brownl. 33-Vaughan Chief Juftice, to the contrary: and he faid, that fome habeas corpufes are granted of course, others not without motion; that this court had not power of granting the writ in general, but only in cafes of privilege, or excefs of jurifdiction by an inferior court; in which cafe every one had privilege to be difcharged by the courts of Westminster. This court does not grant it because they have conu fance of the cause, but because that there is a probable fuggeftion that this court may deliver the party. If, upon the return, the cause be exprefsly juf, the party ought to be remanded; if exprefsly unjuft, difcharged; if doubtful, bailed. The writ is, ad fubjiciendum et recipiendum quod curia confideraverit, et ut curia noftra vifa caufa illa, or quod de jure & confuetudine regni noftri fuerit faciendum, &c. Now this court, in caufes criminal, cannot iffue this writ. He urged that the want of precedents in this court is a Arong argument that fuch writs are not grantable here. The writ alfo requires that the body una cum die captionis habeat, whereby the court may be certified how long the party hath been in cuftody; because, if for a long time, and no proceeding against him, the court ought to bail the prifoner, although he was committed for felony or treafon; which is improper for this court, which hath not conufance of crimes; for this court is for common pleas between fubject and subject; but in the cafe of a crime, the plea is between the King and his prifoner. He cited 2 Inft. 53. in margine, & 55. Weftm. 1. cap. 15. And to the authority cited on the other fide from Anderson, he faid, that all the four caufes there mentioned are of perfons under the protection of this court; and concluded, that the court ought not to grant the writ in this cafe. But, upon the opinion of the three other judges, the writ was granted. And at a future day, the sheriffs of London, to whom the writ was directed, returned it with the caufe fupra. And upon argument of the fufficiency or infufficiency of the return, the prifoner was discharged.