son, or knowingly procure or cause to be recommitted or imprisoned, for the same offence or pretended offence, any person or persons delivered or set at large as aforesaid, or be knowingly aiding or assisting therein, then he or they shall forfeit to the prisoner or party grieved the sum of £500; any colorable pretence or variation in the warrant or warrants of commitment, notwithstanding, to be recovered as aforesaid."

The provisions of this section have been in substance incorporated in the statutes of the several states.

In New York, under a similar section, in the case of Yates v. Lansing, 5 John., 282; S. C. 9 ib., 395, where the chancellor had committed one of the officers of chancery for malpractice and contempt, and a judge of the Supreme Court, on a habeas corpus, discharged the officer; and he was afterwards recommitted by the chancellor for the same offence, it "was held that the chancellor was not liable to an action by the officer for the penalty; that the penalty given by the statute is imposed on individuals acting ministerially out of court, and does not apply to the acts of a court done of record."

In Ex parte Milburn, 9 Peters, 704, it appeared that the petitioner for the writ after having been discharged on habeas corpus from an arrest under a capias, on the ground that it had been irregularly issued, was again arrested on another capias upon the same indictment; and this being urged as a ground of illegal imprisonment, &c., the court said:

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A discharge of a party under a writ of habeas corpus from the process under which he is imprisoned discharges him from any further confinement under the process; but not under any other process which may be issued against him under the same indictment."

It was very confidently maintained by Chief Justice Kent in the case of Yates v. Lansing, 5 John., 282, that "if a person convicted at court of oyer and terminer or sessions of the peace of a felony, and imprisoned in a state prison, be discharged by a judge on habeas corpus, on the ground that the court had no authority to commit, or that the order of commitment was invalid, the court might cause the convict to be further reimprisoned either upon the same warrant, if it judged it sufficient, or by awarding a new and better one. And this upon the ground that the statute never intended such a destruction of principle as to entrust to a judge in vacation the power to control the judgment or check the jurisdiction of a court of record."

This view, however, was combatted with great earnestness by Senator Clinton in the same case on error, 9 Johns., 440, who maintained that the commitment on conviction determined the jurisdiction of the court, in which the conviction was had, over the cause. He argued that it was one thing to have jurisdiction over the subject matter, and another to have it over the cause.

crime in the abstract.

That the subject matter is the The cause is the case of the individual. That to give jurisdiction of the cause there must therefore be jurisdiction of the person,

which being lost by the process of final commitment, the court was without jurisdiction over the cause, and could not recommit under the exception in the

statute.

The argument of the Senator did not prevail. The judgment of the Supreme Court was affirmed. The provisions of the Statute of New York, on this subject, are as follows:

"75. No person who has been discharged by the order of any court or officer, upon a habeas corpus or certiorari, issued pursuant to the provisions of this article, shall be again imprisoned, restrained or kept in custody, for the same cause; but it shall not be deemed the same cause,

"1. If he shall have been discharged from a commitment on a criminal charge, and be afterwards committed for the same offence, by the legal order or process of the court wherein he shall be bound to appear, or in which he shall be indicted or convicted for the same offence: or

"2. If after a discharge for defect of proof, or any material defect in the commitment, in a criminal case, the prisoner be again arrested on sufficient proof, and committed by legal process for the same offence: or

"3. If in a civil suit, the party has been discharged for any illegality in the judgment or process, hereinbefore specified, and is afterwards imprisoned by legal process for the same cause of action: or

"4. If, in any civil suit, he shall have been discharged from commitment on mesne process, and shall afterwards be committed on execution, in the same cause, or on mesne process in any other cause, after such first suit shall have been discontinued." 2 Rev. St., 1852, p. 804.

In Pennsylvania, in the case of Hecker v. Jarrett, 1 Binn., 374, it was held that under the habeas corpus

act of that state, the penalty for recommitting a person who has once been delivered for the same cause on a habeas corpus, is limited to recommitments for the same criminal offence, and is not incurred by taking the party a second time in custody upon civil process; and the reason for the distinction in the law was suggested to be "that the object of the habeas corpus act was to protect the liberty of individual citizens; and the danger of oppression is not so great in civil matters, as in case of crimes or supposed crimes. Governments often magnify real crimes, and sometimes impute offences falsely to innocent persons, for the purpose of oppression. From this quarter has generally arisen the danger to liberty; and this might have induced the legislature of Pennsylvania to omit the penalty in civil cases."

In Mississippi it was said in the case of Byrd v. The State, 1 How. Miss., 163, that a discharge under the provision authorizing the discharge of the accused if not tried at the second term, &c., was no bar to another prosecution for the same offence.

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CHAPTER XI.

SECTION I.

WRIT OF ERROR.

It has never been decided in England that a writ of error will lie to a final order made on a habeas corpus. But it has repeatedly been said that it would not.

"The City of London's case, 8 Co., 121, b, was a case of a habeas corpus, issuing out of the court of Common Pleas to the mayor, aldermen and sheriffs of London, to bring up the body of one Wagoner, who was in their custody upon civil process for breach of a by-law. A return was made to the writ, and upon an objection to its sufficiency, the court resolved it sufficient upon this ground, that, upon the return, no issue could be taken or demurrer juined; that the return was only to inform the court of the truth of the matter, and that a writ of error would not lie upon the award of the court, to be made upon the return."

The doctrine of this case was recognized in the case of The King v. The Dean and Chapter of Trinity Chapel, in Dublin, 8 Mod., 27. That was a case of a writ of error from the King's Bench in Ireland to the King's Bench in England, brought upon the award of a peremptory mandamus. The principal point in the case was whether a writ of error would lie upon such an award. The K. B. unani