a Judge it may be returned

to the Court;

in case of ad

journment of Court.

turnable before Court, in the vacation, but before the return thereof, the said Court shall sit in any county, the said writ, with the and vice versa body of the complainant and causes of taking and detaining, be returned, had and certified to the said Court by the may Judge who awarded the same: but if after awarding such writ by the said Court, in term time but before the return thereof, the said Court shall rise, or be adjourned, the same, with the body of the complainant, and causes of taking and detaining, shall be returned, had and certified before some Judge of the said Supreme Judicial Court.

On return of

or Judge must,

amine, &c.

and bail or commit, as

case may require.

SEC. 5. Be it further enacted, That when any person shall the writ, Court be brought by writ of habeas corpus as aforesaid before the within 3 days, said Court, or any Judge thereof, such Court or Judge shall proceed to ex- within three days after proceed to examine the said causes; and if committed for an offence or cause bailable by law, they shall bail him by recognising him with sufficient surety or sureties in a reasonable sum having regard to his quality and circumstances, and the nature of the offence, to appear at such Court as shall have cognisance of the offence; and shall certify the recognizance into such Court; if committed upon mesne process in any civil action for want of bail and the bail required shall appear excessive, it shall be ascertained what bail is reasonable, and he shall be discharged on giving the same; but if it shall appear that the complainant is imprisoned or restrained without due order of law, or sufficient cause, he shall be discharged from such commitment or restraint.

Penalty on an

SEC. 6. Be it further enacted, That if any officer, in whose officer, if he do custody any prisoner shall be, shall not within six hours prisoner, in 6 after demand made, deliver such prisoner a true copy of the of warrant, &c. warrant or process by which he stands committed, such officer shall forfeit to the party grieved, the sum of two hundred dollars.

hours, a copy

holden.

If any minor

SEC. 7. Be it further enacted, That if any minor, under be enlisted in the age of twenty one years shall be hereafter enlisted withto U. S. army in this State, into the army of the United States without the

without

con

sent of parents, consent in writing, of his parent, guardian or master, either &c. any judge of S. J. Court of the Justices of the Supreme Judicial Court, or of the CirPleas shall is- cuit Court of Common Pleas, are hereby respectively authorized and required on application therefor, to award a

or C. C. Com.

sue habcas

writ of habeas corpus returnable forthwith, directed to the corpus on ap plication officer or person restraining such minor; and such Justice therefor: or Judge is hereby authorized and required, after a full hearing of the parties who shall appear before him, to discharge such minor so enlisted.

to be had on

SEC. 8. Be it further enacted, That the Justice or Judge Proceedings aforesaid is hereby authorized and empowered to inquire such writ. into the causes of the imprisonment or restraint of any person brought before him, on such writ of habeas corpus, the return of the officer or person on said writ to the contrary notwithstanding.

to whom the

ceiving and

SEC. 9. Be it further enacted, That if any officer or per- Penalty son, to whom any writ of habeas corpus shall be directed against person shall refuse to receive the same, or, after receipt thereof, writ is directshall refuse or neglect to yield such obedience thereto as ed, for not rethis Act requires (the complainant performing the conditions obeying it-or making a false required) unless prevented by the sickness of the prisoner, return. or other necessity, he, for such refusal or neglect, in each and every particular shall forfeit to the party grieved the sum of four hundred dollars; and for any false return to such writ shall be further liable to the action of the party. SEC. 10. Be it further enacted, That the Court or Judge respectively may further punish every disobedience to such Court or Judge writs as for a contempt, and compel obedience thereto, by punish disobe process of attachment. And in order to prevent any attempts that might be made to deprive any prisoner of the benefit of his habeas corpus, by shifting the custody of such prisoner from one prison or officer to another or sending him away:

may further

dience to such

writ as a con

tempt.

committed, to

&c. soon as

may be-and not confined

SEC. 11. Be it further enacted, That every person duly Persons, orordered to be committed for any criminal or supposed crim- dered to be inal matter, shall be carried as soon as may be, and confin- be carried to common gaol, ed in some common gaol and not elsewhere (except persons sent to the work house or house of correction for due cause) and shall not be delivered from one officer to another, ex- elsewhere, except for the more easy and speedy conveyance of the prisoner to such gaol, nor be removed, without his consent Penalty for refrom one county to another unless by habeas corpus, or some other legal writ under the penalty of forfeiting for eve- ut habeas

cept

moving prison

ers, &c. with

corpus.

No person discharged on

habeas cor

same cause,

unless, &c.

vent recovery

ry offence to the party grieved, the sum of four hundred dollars.

SEC. 12. Be it further enacted, That no person enlarged by habeas corpus shall be again imprisoned or restrained pus to be again restrained for of his liberty for the same cause, unless he shall be indicted therefor, or convicted thereof, or shall neglect to find bail when ordered thereunto by some Court of record: Provided, No penalty in this law to pre- That no penalty established by this Act shall be construed of damages at to bar any action at common law for false imprisonment or common law. unlawful restraint: And when any person shall be unlawfully carried out of the State, or imprisoned in a secret place, any other person shall be permitted to appear for him in curing costs. any action brought in his name: Provided, Such person shall stipulate for the payment of costs as the Court shall direct. [Approved February 27, 1821.]

Any other per

son may appear for one secreted, se

-00

Audita quere. la, how and from what Courts to be issued.

Form of writ.

CHAPTER LXV.

An Act relating to the Writ of Audita Querela, and the proceedings thereupon,

SEC. 1. BE it enacted by the Senate and House of Repre sentatives, in Legislature assembled, That in all cases where by law a writ of audita querela lieth, the same may be sued out in the form of a writ of attachment, or a writ of summons, at the election of the complainant: and in all cases where the said writ is brought to set aside or annul any proceedings had upon a writ of execution, the said writ of audita querela shall be sued out of and be returnable to the Court to which the said writ of execution was returnable: and in all other cases the said writ shall be sued out of and be returnable to the Circuit Court of Common Pleas to be holden in such county whereof one of the parties thereto is an inhabitant or resident, unless where the complainant is not an inhabitant or resident within this State; and in such case the said writ may be sued out of and returnable to any Circuit Court of Common Pleas within this State, at the election of the complainant.

SEC. 2. Be it further enacted, That in all cases the said writ of audita querela shall be under the seal of the Court out of which the same shall issue signed by the Clerk there of, and tested by the first Justice who is not a party to the

same; and the said writ before the service thereof shall be endorsed by one or more of the complainants, or by his or their attorney, by writing his or their names on the back thereof towards the bottom; and such endorser shall be lia- To be endorsble to pay to the respondent such cost as he shall have final judgment for, in that suit, to be recovered by action of debt.

ed.

vice.

SEC. 3. Be it further enacted, That the said writ of Mode of seraudita querela may be served upon the adverse party in the same manner as writs of attachment or scire facias are directed by law to be served; and upon default of the respondent after such service without appearance, the Court may proceed to hear and try the same suit, and thereupon to proceed to final judgment and execution, in the same manner as by law they are authorized when the respondent after appearance becomes defaulted. And in all cases after the said writ is returned served as aforesaid, the Court, in which the suit thereupon is pending, shall have full power to hear and try the said cause, and thereupon to proceed to judgment and execution according as to law and justice doth appertain.

writ of attach

SEC. 4. Be it further enacted, That where the said writ When issuedas of audita querela shall be issued in the form of a writ of ment-form. attachment with summons, or by original summons, they

shall be in form prescribed by law.

SEC. 5. Be it further enacted, That the officer to whom such Power and du writ of attachment is directed, shall have the same power and ty of officer.

authority and be under the same obligations by virtue of said writ, to attach the body of the respondent or his goods, or estate, as he hath or is under by virtue of any other writ of attachment sued out pursuant to the laws of this State and to him directed; and in the same manner and under the same restrictions and regulations, as are by law provided in other cases, the body of the respondent shall be holden to bail and the goods or estate so attached be liable to be taken in execution.

be recovered

SEC. 6. Be it further enacted, That where the complainant Damages may in any writ of audita querela may, by other subsequent ac- in certain tion at law, recover of the respondent any recompense in cases. damages or otherwise, for the wrongs done him by the service

Form of plead

ings.

Appeal allowed from C. C.

C. Pleas to S. J. Court.

Court may lib

from prison,

ditions.

of such execution for the setting aside and annulling of the proceedings upon which the said writ of audita querela is brought, in all such cases the complainant may have the same remedy upon his writ of audita querela and in his declaration therein may declare for the same recompense in damages or otherwise, and judgment shall be rendered and execution issue thereupon accordingly.

SEC. 7. Be it further enacted, That the general issue in all actions prosecuted on writs of audita querela may be the plea of not guilty; and upon such plea being duly pleaded by the respondent, either party may give any special matter in evidence by which the truth and justice of the cause may be known: Provided nevertheless, That the respondent may plead any special matter in bar or the said general issue at his election.

SEC. 8. Be it further enacted, That in cases where the writ of audita querela is returnable to the Circuit Court of Common Pleas in any county within this State, and judgment given in said Court, the party grieved thereat may ap peal to the Supreme Judicial Court of this State, next to be holden within the same county, the said appeal to be granted and prosecuted under the same regulations and restrictions as appeals in other actions from the judgment of any Circuit Court of Common Pleas, are to be granted and prosecuted; and when the appellant shall fail to prosecute his appeal with effect, the Supreme Judicial Court may upon complaint filed by the appellee affirm the judgment rendered by the Circuit Court of Common Pleas with additional damages and costs, and award execution accordingly.

SEC. 9. Be it further enacted, That in cases where the erate plaintiff, complainant in such writ of audita querela is in gaol by on certain con- virtue only of such execution, the Court to which such writ is returnable, or the Supreme Judicial Court upon the appeal may at their discretion, according to the circumstances of the case, enlarge and liberate the complainant from gaol and admit him to bail, upon his sureties (being sufficient freeholders within the State to be approved of by the Court,) giving bond, together with the complainant jointly and severally to the respondent, in such penalty as shall be direct