Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-04-03
PETRI'S HABEAs CORPUS.
NANsEKoND COUNTY cAsE.

Deeizisa sf the supreme Court sf Appesis
Yssseraay In Csse That Mas Caused siseA
Ersisemsns in Nss~ms
In the Supreme Court yesterday the
opinion of the court in er pdrfs Pctri
was delivered as follows by Judge
Lacy, Judges Lewis and Hinton dis
senting
Petri :. FalgAsas, Sheriff Of Naass-
moHd County.
This is writ Of Aabeas corpss,
awarded upon the petition Of Joseph s.
Petri, alleging that he is illegally held
in custody and confined in jail by the
sheriff of Nansemond county.
The return to the writ shows that the
| petitioner is held under capias pro
fine issued upon conviction Of the pc
titioner Of misdemeanor, upon which
he was adjudged to pay tine Of ten
dollars and the costs Eof the prosecu-
ton, The conviction was upon the
23d day Of January, 1885. Where
upon, on the 2sth day of January fol-
lowing, the said capias pro fine was
issned, under which, on the 9th day Of
February, 1885. the said Petri was ar
rested and committed TO jail. No ether
process was issued upon the said judg-
ment. .s
The petitioner claims that under
the statute Of Virginia no sspias
pro fine can now issue until writ
Of .feri .faeids has been first issued
and returned net satisfied. Sections
l3 and IA of chapter Al Of the
Code were amended by an act approved
February 25, 1884, so as to read as
follows:
l3. On every judgment for fine
going in whole or in part TO the Com
monwealth, the clerk Of the court shall
Immediately after the return Of 8 JUS
tice, under section Gof this chapter, or
after the term Of the court at which it
is rendered, issue writ Of feri .tdcias
thereon returnable within ninety days,
and shall Immediately cause the same
to be placed in the hands of the sheriff,
or any constable Of the countyeor COR
poration wherein the defendant resides,
and il shall be the duty of the attorney
for the Commonwealth to superintend
the issuing OF all such executions and
to cause all delinquencies in relation to
the service OF return Of such executions
to be duly prosecuted.
IA. IL such writ of .feri fdcias be
returned to the clerks Office from which
it is issued unsatisfed in whole or in
part, the clerk shall within five days after
the next succeeding term Of his court is
sue cdpias pro. fae against the defend
ant or defendants in such judgment, and
cause the same to be placed. without
delay. in the hands Of the sheriff or any
constable Of the county or corporation
wherein such defendant resides or may
be found, unless the attorney for the
Commonwealth, with the consent Of the
Judge Of such court entered Of record,
for good cause, direct that such caDids
pro fne do not issue. And for any
failure of the clerk or the attorney for
the Commonwealth Of any court to per-
form the duties imposed upon him un-
der this or the preceding section Of this
chapter. without good cause, he shall
forfeit twenty dollars.
These sections as they stood before
the above-recited act was passed pro-
vided that the attorney for the Com
monwealth in every court should su-
perintend the issuing of all executions
on judgments of such court for fines
( going who'll on in p.srs 10 the Ceumrs-'
wealth. and should cause all delin-
quencies in relation to the service or
return of such executions to be duly
prosecuted, and that if no such directions
were given by such attorney the clerk
of the court should Immediately after
the term Of the court issue a writ of
feIi facias.
The writ Of eapias pro fne is COM
mon law writ, and has been recognized
by our laws and been the subject Of
consideration in this court.
In Chapmsn's case, reportedin LIST Vir-
| ginia Cases, and decided in 1903 in the
General Court, it was held that pri-
soner so held could not discharge him
self by surrender Of his property, as
under a "a. sd., which led TO the pas
sage by the Legislature Of the act Of
1903, ch. q, sec. ] lst Rev. Code 1919,
Oh. 1874, sec. A, which provided for
this relief to the prisoner. That act,
however, did not abolish the writ.
[Webster's case, Sth Graft, 1851 In
the Code Of 1S49 this provision was
omitted concerning the cdpiGs pro tine.
This remedy cannot be considered to be
abolished by the I'd section of ch. ls7,
providing the feri fecids or writ Of etsgh
on judgment, and abolishing other writs
named, not naming this. Nor by the
I'd sec. Of ch. lSS, Code Of l849, which
abolished the writ Of eopias ad salts
faeiendum. The object Of the law
makers seems to have been to substi-
tute the writs Of il. fla. and elega in the
place Of all process to take the body
for debt, as is set forth at page S43 Of
btt ttpOit VI tlt iN'iSSiS Va shN SVhN'
This writ, however, was held not TO be
abolished by the General Court in Web
ster's case supra, Judge Leigh dissent
ing.
This view Of that court has been
since sustained in this court, and the
writ held to be in full force,--see AL
lan's case, 23d Graft, and Fields's
case, 33d Gratt.--though it has been
abolished in England-3d Bla. CON-,
39S; lst Bonvier's Law Die.
However, by the late act of Fesru-
ary, 1884. supra, the writ is expressly
provided for by one statute, and it now
exists by express enactment Of the
Legislature, and its use by the Com
monwealth is not dependent upon the
circumstance that it had not been abol-
ished by statute, and existed as COM
mon-law writ. 1t is expressly pro-
yided for by our law, which provides
| that it shall issue within five days after
the next term of the court, after the
return of a 6eri taeias unsatisfied in
whole or in part, unless the judge order
otherwise BY order entered OF record.
The statute providing that the .ieri
l L. &,rof ,oota and ~ that xwr,f