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But now Attorneys and thereupon Ifue was taken: but Query die inrod’d as well of the Oificers 'appearing of Record in the as Officers. Court, may be Trayers'd.
Hence it follows, Tho Proceeding in other Courts against a person privileg'd in Banco might be superseded, yet it was when the Matter proceeded upon in such Courts might as well be prosecuted in the Common Bench : But if'a privileg'd Person in Banci were fued in the Ecclesiastical Courts, or before the High Commission, or Constable, or Marshal, for things whereof the Common-Pleas had no Cognizance, they could not fuperfede that Proceeding by Privilege. And this was the antient Reason and Course of Privilege.
1. Another way of Privilege, by reason of Suit depending in a superior Court, is, when a person impleading or impleaded, as in the Common Bench, is after arrested in a Civil Action or Plaint in London, or elsewhere, and by Habeas Corpus is brought to the Common-Pless, and the Arrest and Cause return'd. If it appear to the Court, that the Arreft in London was after the Party ought to have had the Privilege of the Common-Pleas; he shall have bis Privilege allow'd, and be discharg'd of his Arrest, and the Party left to prosecute his Cause of Action in London, in the Common-Pleas, if he will.
2. If the Cause of Imprifonment return'd be a lawful Cause, but which can't be prosecuted in the Common-Pleas, as Felony, Treason, or some Cause wherein the High-Commisión, Admiralty, or other Court, had power to imprison lawfully; then the Party imprison'd, which did implead, or was impleaded in the Common Bench before such Imprisonment, shall not be allow'd Privilege, but ought to be remanded.
3. The third way is, when a Man is brought by Habeas Cor. pus to the Court; and upon return of it, it appears to the Court, that he was against Law imprison’d and detain'd, tho there be no Cause of Privilege for him in this Court, he shall never be by the Act of the Court remanded to his anlawful "Imprisonment; for then the Court should do an Act of Injustice in Imprisoning him, de novo, against Law. Whereas the Great Charter is, Quod nullus liber Homo imprisonetur nifi per legem terra. This is the present Case, and this was the Cafe upon all the Precedents produc'd, and many more that might be produc'd; where upon Habeas Corpus many have been dircharg'd and baild, tho there was no Cause of Privilege in the Care.
This appears plainly by many old Books, if the Reason of then be rightly taken; for insufficient Causes are as no Cau.
ses return'd; and to send a Man back to Prison for no Cause return'd, seems unworthy of a Court.
If a Man be impleaded by Writ in the Common-Pleas, and is after Arrested in Lonilon 9 H. 6. 54, 58. upon a Plaint, there upon an Habeas Corpus he Br.n.g. 146.7. Thall have Privilege in the common- Pleas, if f.6.n.19. 9 E.4. the Writ upon which he is impleaded bear 47. n. 24. 12 H. Date before the Arreft in London, and be re. 4. f.21.1.!1. Br. turn'd, altho the Plaintiff in the Common-Pleas he Nonsuit, Efroin'd, or will not appear, and consequently the Case of Privilege at anend before the Corpus cum Cauja return'd: but if the firft Writ be not return'd, there is no Record in Court that there is such a Defendant,
The like where a Man brought Debt in Banco, and after for the fame Debt arrested the Defendant in London, and became Nonfuit in Banco ; yet the Defendant upon a Mabess Corpus had his Privilege, because he had Cause of Privilege at the time of the Arreft. 14 H. 7.6. Br. Privilege n. 19.
The like Cafe 9 E. 4. where a Man appear'd in Banco by a Cepi Corpus, and found Mainprise, and had a Day to appear in Court; and before his Day was arrefted in London, and brought a Corpus cum Caufa in B.inco Regis ; at which Day the Plaintiff became Nonsuit, yet he was dischargd from the Serjeant at London, because his Arreft chere was after his Arrest in Banco, and consequently unlawful. Coke Mag. Chart. © E. 4. f. 47. Br. Privilege 24. and a Man f.53.855 cannot be imprison'd at the fame time lawfully in two Courts.
The Court of King's Bench cannot pretend to the only discharging of Prisoners upon Habeas Corpus, unless in Case of - Privilege, for the Chancery may do it without question.
And the same Book is, That the Common-Pless, or Exchequer, may do it, if upon the Return of the Habeas Corpus it appear the Imprisonment is against Law.
An Habeas Corpus may be had out of the King's Bench or Chancery, tho there be no Pri- Mic. C. 2. Coke vilege, doc. or in the Court of Common-Pleas f, 55. or Exchequer, for any Officer or Privileg'd perfon there; upon which Writ the Goaler must return by whom he was committed, and the Cause of his Imprisonment; and if it appeareth that his Imprisonment be just and lawful, he shall he remanded to the former Gaoler : but if it shall ap. pear to the Court, that he was imprison'd against the Law of the Land, they ought by force of this Statute to deliver him; if it be doubtful, and under Consideration, he may be bail'd. -The King's Bench may Bail, if they please, in all Cares; but the
Common Bench muft remand, if the Cause of Imprisonment return'd be juft.
The Writ'de Homine replegiando is as well returnable in the Common-Pleas as in the King's Bench.
All Prohibitions for incroaching Jurisdi&ion, issue as well out of the Common-Pleas as King's Benche,
Qualhing the Order of Commitment upon a Certiorari, which the King's Bench may do, but not the Common-Pleas, is not ma. terial in this Case.
1. The Prisoner is to be discharg'd or remanded barely upon the Return, and nothing else, whether in the King's Bench or Common-Pleas.
2. Should the King's Bench have the Order of Commitment certify'd and quafh'd before the Return of the Habeas Corpus, or after, what will it avail the Prisoners ? they cannot plead Nul tiel Record in the one Case or the other.
3. In all the Precedents shew'd in the Common-Pless, or in any that can be shew'd in the King's Bench upon discharging the Prisoner by Habeas Corpus, nothing can be thew'd of qualhing the Orders or Decrees of that Court that made the wrong Commitment.
4. It is manifeft where the King's Bench Glanvill C. Moore, hath upon Habeas Corpus discharg'd à Prisof. 836,
ner committed by the Chancery, the person
hath been again re-committed for the same Cause by the Chancery, and re-deliver'd by the King's Bench; but no qúashing of the Chancery-Order for Commitment ever heard of.
s. In such Cases of re-commitment, the Party hath other and proper Remedy, besides a New Habeas Corpus; of which I shall not speak now.
6. It is known, That if a Man recover in Assize, and after in a Re-diffeisin, if the firft Judgment be Revers'd in the AF fize, the Judgment in the Re-diffeisin is also Revers’d. So if a Man recover in Waste, and Damages given, for which Debt is brought, (especially if the first Judgment be Revers'd before Execution) it destroys the Proceis for the Damages in Debt, tho by several Originals. But it may be faid, That in 2 Writ of Error in this kind, the Foundation is deftroy'd, and no such Record is left.
But as to that in Drury's Cafe & Rep Drury's Cafe, an Outlawry issued, and Process of Capias uport Rep. 8. the Outlawry, the Sheriff return'd Non eft in
ventus ; and the fame Day the Party came into
Court, and demanded Oyer of the Exigent, which was the Warrant of the Outlawry; and fhew'd the Exigent to be altoge. ther uncertain and insufficient, and consequently the Outlawry depending upon it to be null. And the Court gave Judgment accordingly, tho the Record of the Outlawry were never Revers’d by Error; which differs not from this case, where the Order of Commitment is Judicially declar'd illegal, tho not quafh'd or revers'd by Error; and consequently what ever depends upon it, as the fine and Commitment doth; and the Outlawry in the former Cafe was more the King's Incerett, than the Fine in this.
The Lord Chief Justice deliver'd the Opinion of the
Court, and accordingly the Prisoners were discharg'd.
An Apology or Defence of William
the First of Nassau, Prince of Orange, &c. in answer to the Pró clamation against, and Proscription
of bim by the King of Spain. To which is prefixid the said Proscription at
length, with several Letters and Declarations of the Prince of Orange, c. re. lating thereunto.
The Copy of a Letter written by the King with his
own Hand, 10 the Prince of Orange. Have with great Affection receiv'd your Letter of the 27th of May, and since that other which you writ unto
me the 14th of June : And by that which I have written to my Sister, you have been able to understand the small Occafion that you have to think that which you write unto me in that Letter of the 27th of May, but rather the contrary. Also it is certain, that you should much deceive your self to think, that I would not have all Confidence and good Opinion of you: And albeit fome certain one should mean to perform a contrary Duty towards me, yet this thould remain,