
    Johnson vs. Medtart.
    wiZhinth^lnot am*oi ’tTi"e<w.urts <ri lawoiiiHB state.
    AppEAD from Frederick County Court. In this case & writ de homine replegando issued, (bond with security for pUrp0ge )lav¡no¡ been first given,) to-replevy the plaintiff, (now appellant,) out of the possession of the defendant, (the appellee.) The writ commanded the sheriff, “that justly and without delay you cause to be replevied J Johnson, whom .7. Medtart hath taken, and doth keep taken, as it is said, unless he ivas taken by the command of any of the justices of the said state for death of maD, or for any other right for which he. may not be replevied according to the laws of this state, that we may hear no more clamour thereupon for want of justice. Hereof fail not,” &c. The sheriff returned the writ, “Replevied, and the defendant summoned.” The defendant appeared and moved the court ex offieio to quash and abate the writ, for the following reasons: t. Because it has been issued by the clerk of this court contrary to the practice of this court, and contrary to the laws of this state. 3. Because the writ upon the face of it is ds facto a nullity and destroyed, having no practice of this court, or laws of this state, to support it, and ought to abate by the direction of the court ex oficio ^ without any plea thereto on the part of the defendant. 3» Because the writ is defective in form. 4, Because this court can take no cognizance of any such writ by any practice of this court, or any law of this state. The county court, for the reasons assigned, quashed the writ, and ordered that the plaintiff redeliver himself to the defendant. The plaintiff appealed to this court.
    
      Ross, .for the Appellant.
    The motion in the court below was to quash the writ de homine replegiando, on the ground that the county courts of this state have np jurisdiction to sustain such a writ; and the court determined that they had no jurisdiction to issue the writ, and ordered it to he quashed. The writ ds homine replegiando lies to replevy a man out of prison, or opt,of the custody of any private person. 3 Blk. Com. 139, It is an original writ, and the party may sue it of right. It is properly .returnable in the courts of law, and may.be there declared upon, Trehle.codds case, 1 Aik. 633. Being an original writ, and consequently issuing from the court of chancery, which in England is the oficina justitia, furnishes no argument against the jurisdiction of the county courts in this state, where their writs and process, like their laws, are formed on a plan which by experience ha.ve been found applicable to their local and other circumstances. Thus in Englands the original writ is the king’s warrant for the judges of the eommon pleas, &c. to proceed to the determination of the eause, and is the foundation of their jurisdiction; but the county courts of this state derive their authority from a different oficina justitia, and their jurisdiction does not yest upon the mandatory writ of the chancellor. The writ of replevin at common law in England is an original writ, and issues from chancery, and it is the common law reple-vin that has been adopted in this state, for there can be no replevin in this state under the statute of Marloridge« The county courts have been in the constant practice of issuing the common writ of replevin, without any special mandate from the court ef chancery, and their jurisdiction has never been called in question; and if there is in Eng* ¿and & difference between the writs de homine replegiandos and the common replevin at common law, in what consists their difference in this state that the county courts should have jurisdiction in the one case and not in the other? Does the habeas corpus act create that discrimination, by rendering the writ de homine replegiando in a great mea» sure obsolete? The common law, and its remedies, are not repealed by nonuser, nor does the giving a new writ take away the old remedy, unless it. be so expressly provided. The writ de homine replegiando issued in many cases in England, after the passage of the habeas corpus act. Designy'>s case, Sir T. Raym. 474, decided in 1682. Moor vs. If alts* 2 Salk. 581, decided in the reign of William ill. They have also issued in Baltimore and Harford counties. By the third section of the bill of rights, the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law. By the twenty first, section, no free man ought tobe taken and imprisoned, &c. or deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land. The court will perceive by a perusal of the habeas corpus acts of this state, that many instances may occur, (and none more striking than the plaintiff’s case, who was denied the right of controverting the return to the habeas corpus, which he had obtained,) in which an inhabitant of this state may be deprived of his liberty contrary to the common law, and without thejudg-inent of his peers, unless the county courts have jurisdiction to issue' writs de homine replegiando. The habeas corpus act makes it the duty of the chancellor, judge or justice, either to discharge, admit to bail, or commit, &c. To admit to bail by the act supposes the party committed for some offence cognizable in the criminal court. The commitment is ordered where the party is charged with an of-fence not bailable; and the party is only restored to his liberty if it shall appear to the judge that he is detained without any legal warrant or authority. In the two first cases the inhabitant will be tried according to the course of the common law, and have the benefit of a trial by his peers; but if the party is in the custody of a recruiting officer, and detained upon a pretended or illegal enlistment, this offence, not being cognizable in the criminal court, no recognizance can be taken for his appearance in the ,county court the term following, to try him by his peers, but he Js either discharged or committed, as the opinion of the judge may be on the enlistment? and if committed — to whom? To the custody of him by whom he was detained —•the recruiting officer? And is thus deprived of his liberty without the judgment of his peers passing upon him, and left to his remedy upon the false return to the habeas corpus, should it be false; for a return may be true, and the original caption totally illegal, in which case the suf% fering individual would be deprived of even this shadow of redress, by an action for the false return. The general form of a return to a habeas corpus is, “that the party has not the person in his custody, possession or power.” The. king vs. Winton, 5 T. It. 91. An officer may order his recruit to a distant post, under a superior officer, and distinct command, and upon a return to a habeas corpus, is - sued by the father for his son, or master for his apprentice, may with truth make the aboye return, though the taking of the son or apprentice, in the first instance, was the most flagrant invasion of personal liherty. The habeas corpus act, in such a case, would furnish no remedy, but the writ de Imnine rephgiando would punish him for the illegal taking, though at its service upon him, the son, &c. was neither in his custody, possession or power. The writ tie homine rephgiando is a writ not unknown to the laws of this state, for it is specially recognized by the legislature in the act of 1810, ch. 63, s. 2; and surely it wiü be unnecessary to argue, that the county courts, having jurisdiction under this act to issue this writ upon the application of a negro for his freedom, have also the power to issuq. it upon the application oí a tree man to recover his liberty.
    
      Pigman, for the Appellee.
    Upon the first and second reasons assigned in this case for quashing the writ de ho-mhic rephgiando, if there was neither common law, nor statute law of this state, nor practice of the court, to au-thorise the use of it, it was the duty of the court ex officio to quash it, without requiring a plea in abatement. 1 Pac, Jib. tit. Abatement. The court will not call upon a defendant to plead in abatement or in bar, to any writ issued without lawful authority. In the language of the law, if the writ issues without lawful authority, it is de facto a nullity, and deserves no plea or replication of any sort. In Mngland, this writ has long beca disused; on account of the numerous exceptions which it contains, and of the superiority of the writ of habeas corpus. The exceptions will be found in 1 Lili. Ent. 293, and in other books of entries, and if they should be omitted in the writ, it would doubtless-be quashed; for they contribute to mark out the sheriff’s duty, whicli is a qualified one. We have always taken for granted, that homine replegiando could not issue out of our county courts, In England it can only issue from the law side of the court of chancery, as officina jus-titia. It is an original writ — so is the alias and the plu-tries. 14 Pin. Ah. 305, (A.) pi. 1. 4 Com. Dig. tit. Imprisonment, (L. 4.) 361. More vs. Watts, 1 Lili. Ent, 293. Reg. 77. Fitz, Ñ. B. 66. The Withernam which issues upon the return of eloigned, or the pluries, is a judicial writ, and goes from the court to which the pluries is returned; and it is the first judicial process in such an action. Iñ More vs. Watts, 1 Lili, Ent. 293, will be found the entire proceedings in a homine replegiando, in which the plaintiff was nonsuited.- It begins with the pluries from chancery, gives the return of eloigned made by the sheriff to the court of King’s Bench. The Withernam,-founded upon that return, issued by the King’s Bench, and the consequent proceedings which terminated iri a nonpros. It is a great error to confound the homine re-plegiando with the common replevin, or replevin de averis, At common law the replevin de averis issued exclusively from chancery. 3 Elk, Com, 147. Weaver vs. Lawrence, 1* Dali. 156. The statute of Marlbridge authorised the proceedings by plaint, as it is found in all the books of entries;-and it would seem that we have modelled our action of replevin for goods upon the proceedings by plaint. In Weaver vs. Lawrence, 1 Dali. 156, there is a great display of the law relative tb the two modes of proceedings by writ and-by plaint-. From which it is clear,'that the" writ of replevin, éverl de avetís,- could only issue from chancery, it-being an original writ, and nof a judicial one. The-statute of Marlbridge did not touch the'homine reple-giando, it applied wholly to replevin Of goods — 2 Institutes; and our practice' cannot be' said to liave changed the Common law in relat?bn; to the Writ of hotnine replegiando, for-we have no practice', (and never had,) upon the' sub-je'cf? There could be no inducement tb recur to that an» tiquatefl gnd inadequate wit* Tile habeas corpus,- and ~~etitton for freedom, rendere~1 it unnecessary and icile~ jt stands now, therefore, as it aluays has sUwd, upon the coinmoil law, an~l by the common law it must issue from chancery. The writ in this case must therefore be quashed, even if it wth'e admitted that such ~rit could (as it is believed it could not,) be maintained in this state, if i~ sued agreeably to the common law. If it n'ere pf any im~ portauce, it would be easy to show, that the case of ~ per- ~on detained as a recruit, regularly enlitted, is within the ~%ceptiofl of the writ ~[e bomi?re `reylegia~ido; such a persort ~s much "non replegip~i1is," as the person mentioned in ~ iS'aunders 60, (arrested on the King's writ.) Thd two cases are alike, and ought to receive the same judgment, ~nd the sheriff may and ought to return the ~xceptions. `l'he plaintiff was a s~ldier in the United &a~es army~ T1'he mischief of interfering in time of waC with the reCruit~ ing service, would evés~ be greater than that of stopping the prdinary process of the law. The writ of habeas cor- pus can do little prejedic~ to the public, while it may be useful to th~ individual. It can never issue without cause shown on oath, and is soon disposed ot The writ of hv~ ~nine rcplegiando, is e~ debite justitia, without pause shown~ and If the sheriff does not ~io his duty with reference to the exceptions, (as !ie may either upop his own responsi- bility, or by taking the verdict of an inquest,) the recruit- irig service may be destroyecL ~o country could carry o~ war in which such an am~o~aly existed. Even if it had been lawful to issue ~he writ by the clerk of Frede~iek county court, from the very nature of the federal and state govei'znneuts the soldiers of the army ot~ght to have been it~serted as one of the exceptions. To permit any of the courts of any of the states to issue any s~ritm .~herc the proceedings would be tedious and Long, to interfere witit any part of the army, would produce a most dangerou~ conflict of powers between the states and the federal go~ vermuent, which would wea1~eu measures for the general defence, ~n(l ~nigbt produce intestine confusion ~nd disor- 4cr, inimicmd to our soc~ai peace
   and happiness.  