to be commit

gaol, &c. soon

as may be-and

not confined

Persons ordered ordered to be committed for any criminal or supposed crimted, to be carri- inal matter, shall be carried as soon as may be, and confined ed to common in some common gaol and not elsewhere, (except persons sent to the work house or house of correction for due cause,) and elsewhere, ex shall not be delivered from one officer to another, except for the more easy and speedy conveyance of the prisoner to such Penalty for re- gaol, nor be removed without his consent, from one county to moving prison- another unless by habeas corpus, or some other legal writ, out habeas cor- under the penalty of forfeiting for every offence to the party grieved, the sum of four hundred dollars.

cept

ers, &c. with

pus.

charged on ha

be again restrained for

less, &c.

No penalty in

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

vent recovery

common law.

son may appear

for one secret

ed, securing costs.

how and from

what Courts to be issued.

[Approved February 27, 1821.]

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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 RepresentaAndita querela, lives, 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 Form of Wit of audita querela shall be under the seal of the Court out of which the same shall issue signed by the Clerk thereof, 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 liable to pay to the To be endorsed. respondent such cost as he shall have final judgment for, in

that suit, to be recovered by action of debt."

SEC. 3. Be it further enacted, That the said writ of audita Mode of service. 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 of When issued as audita querela shall be issued in the form of a writ of attach- ment-form. ment with summons, or by original summons, they shall be in form prescribed by law.

of officer.

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

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

ings.

SEC. 7. Be it further enacted, That the general issue in all Form of pleadactions 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.

Appeal allowed

from C. C. C.

Court.

SEC. 8. Be it further enacted, That in cases where the writ Pleas to S. J. 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 aggrieved thereat may appeal 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.

Court may lib.

crate plaintiff,

certain condi

tions.

SEC. 9. Be it further enacted, That in cases where the from prison, on complainant in such writ of audita querela is in gaol by 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 freehold ers within this 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 directed by the Court, conditioned, if final judgment be rendered for the respondent, that the complainant shall within thirty days after the entering such final judgment, surrender himself to the gaol keeper to be detained in custody under the same execution, or within that time satisfy the same execution, and also such final judgment as shall be rendered as aforesaid for the respondent. And if the said complainant shall surrender himself to the gaol keeper as aforesaid, he shall be in custody under said execution, as fully and to all intents and purposes as if the said writ of audita querela had not been brought, nor the said complainant admitted to bail.

[Approved January 23, 1821.]

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CHAPTER LXVI.

An Act establishing the Right to the Writ for replevying a Person.

SEC. 1. BE it enacted by the Senate and House of RepresentaWho are entit- tives, in Legislature assembled, That every person within this led to the writ. State, who shall be imprisoned, confined, or held in duress,

shall be entitled as of right, to the writ for replevying a person, and to be thereby delivered; unless, while the writ of habeas corpus is suspended by the Legislature, he shall stand committed by the special order of the Supreme Executive Power of the State as dangerous to the public safety, or by the same, or by some subordinate authority of the govern

ment, for treason, the death of man, counterfeiting the common currency, house burning, burglary, robbery, or some other offence, for which if he is convicted, he may suffer death or banishment, or unless he is held in execution upon judgment of debt, forfeiture, withernam, or by distress for taxes, or under sentence after conviction, for fine, costs or in punishAnd where any person stands committed by lawful authority for any crime for which he may not suffer death, or otherwise than is above in this Act specified, the writ shall be in form prescribed by law.

from Sup. Jud.

in others, from

SEC. 2. Be it further enacted, That if the plaintiff stands writ in certain committed for any crime not before in this Act mentioned, cases to issue or for any other offence, whereof if he is convicted, he may Courtnot have sentence of death or banishment thereof passed upon him, he shall have his writ from the Clerk of the Supreme Judicial Court fourteen days before the return day of the same; and the same writ shall be made returnable in the same county where the imprisonment happens, and unto the next Supreme Judicial Court, to be there holden: but if he is held by any person without due order of law, he shall c. c. c. Pleas. have his writ from the Clerk of the Circuit Court of Common Pleas of the county wherein he is held returnable, fourteen days at the least from the day of the date; and where the plaintiff is delivered by a writ returnable into the Supreme Ju- Proceedings in dicial Court, having been committed for any offence, and from S.J. Court. which commitment he is replevisable, he shall, before he is delivered, recognize before the Sheriff of the county, in per son, with sufficient surety or sureties in a reasonable sum for his appearance at the same Court, to answer, abide and perform the order and sentence of the same; which recogniz- Proceedings in ance shall be returned into Court by the Sheriff; and when C. c. C. Pleas. the plaintiff shall be delivered by a writ returnable into the Circuit Court of Common Pleas, he shall before his deliverance give bond to the use of the defendant with sufficient surety or suretics, at the discretion of the Sheriff, to appear at the Court to which the writ is returnable; and there to prosecute his replevin against the defendant, to have his body there ready to be re-delivered, as the Court shall order, and to pay all damages and costs that may be awarded against him; and the Sheriff shall be answerable, if the sureties shall prove insufficient, unless they are such as the defendant agrees to.

shall not be set

SEC. 3. Be it further enacted, That if the plaintiff shall In what cases not prosecute, or in prosecuting, shall be unable to support the plaintiff his replevin, then the defendant shall recover his reasonable at liberty. costs; and if it shall be found upon the trial, that the plaintiff is the ward or infant of the defendant, or that he the said defendant is entitled to the service of the plaintiff, or that the defendant is bail to the plaintiff, then the defendant shall have judgment against the plaintiff for a re-delivery of his

If Sheriff return that defendant has

eloined plainwhat proceed

tiff's bodyings shall be had.

Any person

damages may appear for plaintiff.

body and for such damages as the Jury shall assess against the plaintiff, with reasonable costs.

SEC. 4. Be it further enacted, That if the Sheriff shall return upon the writ, for replevying a person, issuing from the Circuit Court of Common Pleas, that the defendant hath eloined the plaintiff's body, so that he cannot deliver him, then the plaintiff shall on motion to the Court, have a capias in withernam to take the defendant's body, and to keep the same until he shall produce the plaintiff to be delivered according to the commandment of the original writ: Provided nevertheless, That if the defendant shall give full and sufficient bail for his appearance at the Court whereunto the writ is returnable, then and there to traverse the return of the Sheriff upon the writ for replevying a person, that the Sheriff shall take such bail; or if the defendant cannot procure such bail, and is thereupon committed by the Sheriff, he may nevertheless at the next term, (and not afterwards,) be allowed to traverse the Sheriff's return of elongation, or to plead any matter of justification in the same manner as he might have done to the original replevin: and if the Jury shall not find that he is guilty of eloining the plaintiff as set forth in the return, or if they find that the justification is supported, the defendant shall be allowed his costs against the plaintiff; but if the defendant will not traverse the return, and put himself upon the county; or if upon traversing the same, he shall be found guilty of the elongation of the plaintiff; or if upon pleading a justification, he shall not support the same, then the Court shall order him into the custody of the Sheriff, and shall issue an alias writ of withernam to hold him, until he shall produce the body of the plaintiff, or until he can prove that the plaintiff is dead; which fact may be tried at any term of the same Court, and in the same county, by a Jury upon the information and at the expense of the defendant. And the original writ of withernam shall be in form prescribed by law.

SEC. 5. Be it further enacted, That in any stage of the prostipulating for ceedings upon process pursuant to this Act, any person shall be permitted to appear for the plaintiff, who will stipulate as the Court shall direct for the payment of all costs and damages that may be awarded against the plaintiff, although he can produce no special power for that purpose. [Approved January 27, 1821.]

Onicer to re

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CHAPTER LXVII.

An Act regulating Bail in Civil Actions.

SRC. 1. BE it enacted by the Senate and House of Representaturn bail bond tives, in Legislature assembled, That when bail is given in any civil action for the appearance of the party to answer the suit and to abide the order and judgment of the Court thereon, the

with writ.