vered to the Clerk of this Court, until after the first day of the sitting of the Court, in Easter Term, 1865. For these reasons, the Court declined to hear the appeal. The Judge of the Sessions of the Peace, being vested with all the powers of two Justices of the Peace, by c, 102, s. 1, and c. 103, s. 82, of the Con. Stats. Can., and by c. 102, s. 3, of the Con. Stats. of Lower Canada, no appeal lies from a conviction rendered by him under Con. Stat. L. C., c. 6. (a) The 29 & 30 Vic., c. 45, was passed to extend the remedy, by Habeas Corpus, and enforce obedience thereunto, and prevent delays in the execution thereof. In doubtful cases, the Court always inclines in favour of liberty. (b) It, therefore, is the duty of a Judge hearing an application for discharge, under a writ of Habeas Corpus, when a prisoner is restrained of his liberty, under a Statute, to discharge him, unless satisfied, by unequivocal words in the Statute, that the imprisonment is warranted by the Statute. (c) It is also the duty of the Judge, when doubting the sufficiency of the warrant of commitment, to discharge the prisoner. (d) It would seem that a Judge, in Chambers, has, at common law, power to issue writs of Habeas Corpus, in cases not within the 31 Car. 2, c. 2. (e) But it seems doubtful whether a Judge, in Chambers, has power to rescind his own order for a writ of Habeas Corpus, or to quash the writ itself, on the ground that it issued improvidently; or to call upon the prosecutor or Justice to shew cause why a writ of Habeas Corpus should not issue, instead of at once ordering the issue of the writ. (ƒ) (a) Ex parte Slack, 7 L. C. J. 6. (b) Reg. v. Boyle, 4 U. C. P. R. 264, per Morrison, J. (c) Re Slater, 9 U. C. L. J. 21. (d) Re Beele, 3 U. C. P. R. 270. (e) Re M'Kinnon, 2 U. C. L. J. N. S. 327, per A. Wilson, J. (f) Re Ross, 3 U. C. P. R. 301. A Judge, sitting in Banc during term, in the Practice Court, has no authority, under Con. Stats. U. C., c. 10, s. 9, to grant a rule nisi for a writ of Habeas Corpus ad subjiciendum; for, until the rule is moved, there is no cause or business depending, in relation to the prisoner's conviction or commitment. Where such rule had been issued there, returnable in full Court, it was discharged on this preliminary objection. (a) At common law, the Judges of the Superior Courts of common law for Ontario have power to direct the issue of writs of Habeas Corpus ad subjiciendum, in vacation, returnable either in term or vacation. (b) The 29 & 30 Vic., c. 45, s. 1, confers full authority on any of the Judges of either of the Superior Courts of law or equity in Ontario to award, in vacation time, a writ of Habeas Corpus ad subjiciendum, under the Seal of the Court wherein the application shall be made. Where the proper remedy is by writ of error, a Habeas Corpus will not be granted. (c) A writ of Habeas Corpus has been refused in the case of a person confined in gaol, under civil process, such as a capias ad respondendum. (d) As the Imp. Stat. 56 Geo. 3, c. 100, is not in force in this country, it is, at least, doubtful whether a Judge, in Chambers, has power to order the issue of a writ of Habeas Corpus, where the custody is not for criminal or supposed criminal matter. And where, upon the return. of a writ of Habeas Corpus, it appeared that the prisoner was in custody, under a writ of capias, issued out of a County Court, and regular on its face, but which, it was contended, had been improperly issued, on defective (a) Reg. v. Smith, 24 U. C. Q. B. 480. materials, a Judge, sitting in Chambers, refused to discharge the prisoner. (a) The 29 & 30 Vic., c, 45, expressly excepts persons imprisoned for debt, or by process in any civil suit. It would seem, therefore, that the writ cannot now be obtained in the case of a person confined under a capias ad respondendum, in a civil suit. A Habeas Corpus will not be granted to bring up a prisoner under sentence of conviction at the Sessions for larceny. (b) A Judge has no jurisdiction, on a writ of Habeas Corpus, to liberate a person found guilty of simple larceny, and sentenced to be imprisoned in the Penitentiary for life, although it may appear that the sentence is illegal. The Judge to whom an application for such writ is made, having no jurisdiction to reverse the sentence, must abstain from giving an opinion upon the legality or illegality of such sentence. (c) The mere fact of the warrant of commitment having been countersigned, under the 31 Vic., c. 16, s. 1, by the Clerk of the Privy Council, does not withdraw the case from the jurisdiction of a Judge, on a Habeas Corpus. (d) At common law, a writ of Habeas Corpus, ad testificandum, may be issued to the Warden of the Provincial Penitentiary, to bring a convict for life before a Court of Oyer and Terminer, and general gaol delivery, to give testimony, on behalf of the Crown, in a case of murder. The writ may be granted before the sittings of the Court commence. (e) Under the 4 & 5 Vic., c. 24, s. 11, a Court of Oyer and (a) Re Bigger, 10 U. C. L. J. 329; Re Hawkins, 9 U. C. L. J. 298, doubted. See, however, Re Runciman v. Armstrong, 2 U. Ć. L. J. N. S. 165. (b) Reg. v. Crabbe, 11 U. C. Q. B. 447. (c) Ex parte Plante, 6 L. C. R. 106. (d) Reg. v. Boyle, 4 U. C. P. R. 256. (e) Reg. v. Townsend, 3 U. C. L. J. 184. Terminer could, while sitting, make an order to any gaol or prison out of the county where the Court was sitting, to bring up a prisoner, in order to give evidence at the trial. But under this Statute, no order could be made until the opening of the Court. (a) Now, the 32 & 33 Vic., c. 29, s. 60, provides that an order may be made on the Warden of the Penitentiary to deliver the prisoner to the person named in such order to receive him, and the latter shall convey the prisoner to the place of trial, to obey such further order as to the Court may seem meet. Where an offender, for whose arrest a Magistrate's warrant is issued, lives in a county different from that where the warrant issued, and the warrant is backed to take him in the county where he resides, and it is there found that he is a prisoner for debt, in close custody, in such county, he may be removed, under a writ of Habeas Corpus ad subjiciendum. (b) A prisoner is not entitled to a Habeas Corpus, under the 31 Car. 2, c. 2, unless there be a "request, in writing, by him, or any one on his behalf, attested and subscribed by two witnesses, who were present at the delivery of the same." (c) As a general rule, the affidavit on which an order for a writ of Habeas Corpus is moved should be made by the prisoner himself, or some reason, such as coercion, shewn for his not making it. The affidavit should be entitled, in one or other of the Superior Courts, though it is discretionary with the Judge to whom the application is made, to receive an affidavit of a different kind, or one not sworn by the prisoner himself. (d) (a) Reg. v. Townsend, 3 U. C. L. J. 184. (b) Reg. v. Phipps, 4 U. C. L. J. 160. (c) Re Carmichael, 1 U. C. L. J. N. S. 243. (d) Re Ross, 3 U. C. P. R. 301; 10 U. C. L. J. 133. It is sufficient to return to a writ of Habeas Corpus a copy of the warrant under which the prisoner is detained, and not the original. (a) But the authority of this case has been doubted, and seems very questionable. It has been subsequently held that the person to whom a writ of Habeas Corpus is directed, commanding him to return "the cause of taking and detainer," must return the original, and not merely a copy of the warrant. (b) Where a prisoner is brought up upon a writ of Habeas Corpus, and the return shews a commitment bad upon the face of it, the Court will not, on the suggestion that the conviction is good, adjourn the case, for the purpose of having the conviction brought up, and amending the commitment by it. (c) Where a prisoner is, under a writ of Habeas Corpus, discharged from close custody, on the ground that the warrant of commitment charges no offence, he is not, under 31 Car., 2, c. 2, s. 6, entitled to his discharge, as against a subsequent warrant, correctly stating the offence, upon the alleged ground that the second is "for the same offence" as the first arrest. (d) The Court refused to discharge a prisoner brought up on Habeas Corpus, charged with having murdered his wife in Ireland; communication having been made by the Provincial to the Home Government on the subject, and no answer received, and the prisoner having been in custody less than a year. (e) The object of the 31 Vic., c. 16, was to suspend the operation of the writ of Habeas Corpus, and to deprive the subject restrained of his liberty. (f) (a) Re Ross, 3 U. C. P. R. 301; 10 U. C. L. J. 133. (b) Re Carmichael, 10 U. C. L. J. 325. (c) Re Timson, L. R. 5. Ex. 257. (d) Re John Carmichael, 1 U. C. L. J. N. S. 243. (e) Rex v. Fitzgerald, 3 U. C. Q. B. O. S. 300. (f) Re Boyle, 4 U. C. P. R. 261, per Morrison, J. |