Lexington union., 1841-09-18

ubChb uCNldCu lIlut luC1 "ClS ShNlhSu W
bail. The following is an extract from
the order Of the Judge signed by him and
certified to the Clerk, to wit: 81 therefore
"ordered that said prisoners should enter
"Into recoguisance in the sum of $1,000
"each, with two good securities for each
"defeuddnt in the like sum of $1,000"
"The act further provides that "the pro.
"ceetIngs and judgment shall in all cases
"be entered OF record. If they be had in
"vacation before Judge in chancery, they
"shalI be signed by the Judge, certified to
"the Clerk, and by him inserted among
"the records of the chancery cosrt, within
'rhe jurisdiction Of which the Judgment
"shall be rendered: if before Judge Of
"the Supreme Court in vacation, they
shall be in like manner signed, certified
sand entered among the records OF the
"Circuit Court Of law, for the county in
(which the judgment shall he rendered; /;
sand in every case shall be recorded by
"the Clerk of said courts respectively, in
"bound books, TO be kept by them for that
"purpose."
"The judgment so entered of record
"shal be conclusive, until reversed in the
"manner herein provided for: and no per-
"sou remdnded by such judgment, whilst
"the same continue 10 force shall be at
"liberty TO obtain another habeGs corpus
"for the same cause, or by any other pro-
"ceedings to bring the same matter again
sin question, except by writ Of error," &c
The Judgment Of the court was not that
the prisoners should be remanded into Gus
tody, bat that they should be admitted TO
bail. 1t is true that the Jud ge, in the
language of the record, did order them
"into the custody Of the Sheriff." because
they failed to give the security required" "
The order of the Judge remanding the
prisoners into the custody of the Sheriff,
was no part of the judgmet of the court
pronounced on the Habeas Corpus; but
1t was form incident to bis office and
one that it was his duty 10 exercise as a
minister of the law where the prisoners,
as in this case, were unable or unwilling
to give the bail required.
The court could not pronounce two judg-
ments at the same time, and in the same
case, the one at variance with the other.
The language of the law is plain and ex.
pliclt and does not admit Of a doubt. In as
much therefore as the Prisoner was not
'remanded by such Judgment the proceed.
ings had before the Judge of the tenth the
District are no bar to an investigation OF
this case on its merits. There is howey.
eT another reason urged by the council for
the Prisoner, why the proceedings on the
former trial are no bar to an investigation
Of the merits of this case. There is no
evidence that the proceedings and judg-
ment before the Judge OF the tenth
District have been entered of record in
the Clerks Office Of the Circuit Court of
Holmes county, in the manner prescribed
by the statute. The Cle.k does not cerli.
fy that the judgment of the Judge is en-
tered OF record nor that the proceedings
sent up contain true copy of the record,
but 10 the language Of the certificate "Ihat
"the foregoing pages contain full true
"and complete transcript Of all the pro-
"ceedings which remain on file in my Of
fice," &c. Nothing short of solemn
record can operate as bar 10 a second
Habeas Corpus. This however may be
considered rather technical and not enti-
lied to much weight. There is still an
o'her ground why the proceedings in the
former case cannot be bar to an investl.
CATION Of this case on it's merits. AS al
ready stated, the former petition did not
aIledge that the prisoners were innocent
ofthe charge preferred against them nor that
they were "detained in custody without
lawful autbority;" nor did they pray for a
"discharge." In this applicationihe Pris.
"oner "asserts most positively that he IS in
"uocent Of said charge and that he is ad
"vised, and verify believes that the evi.
"dence against him does not by any fair OF
"reasonable construction Of the same does
"not show any reasonable or probable
.'ground for SAID charge and that he verify
"believes his detention is illegal 81 unwar'
"rented by the law of the land" &c; and
sprays that be may be relieved and dis
"charged from confinement" &c. This ha
beas corpus, therefore does not seem 10 have
been brought "for the same cause" but fol
another and different cause from the former
writ in which Coley was included with
the Prisoner, and which was tried before
the Judge OF the tenth Distrct.--ln these
several opinions | am sustained by the
counsel on the part Of the state. who is
more conversant with the recent adIudica'
tons of the courts than am.
BY consent of the counsel, the cour'
proceeded to an investigation OF the merits
of the case on the documentary evidence
and testimony taken before the committing
- L.. k.s NAI