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* HABEAS CORPUS. 425 HABENECK. by a proper api>eal to the Feileral courts. But where the denial of right by the State court in- volves not only an error of law, but such a re- fusal as places the court in a i)i)silion of acting without jurisdiction, as in acting under an un- constitutional State law, a basis is laid fur the remedy of a habeas corpus from the Federal court." This power of the Federal courts to grant the writ under the special grotnids mentioned above is discretionary, and the writ is frequently refused in cases where the granting of it would tend to subvert the ordinary course cf justice in the State courts. The general function and purpose of the writ is to determine whether the person in whose behalf the writ is granted is detained or held in custody lawfully or unlawfully. The cases where the writ is used may be broadly classified as those where the person is detained without any legal ])rocess. and where he is held under some form of legal proceedings, which may or may not be lawful. The first of these classes is ex- emplified where one parent seeks to obtain the custody of a child under the control and in the custody of the other parent or some other per- son, and for that purpose obtains a writ in be- half of the child, setting up the illegal confine- ment of the child. Here the merits of the wliole case nuist be heard and determined in order to decide to whom the custody of the child lawfully belongs. So, in the case of a person confined as an insane person, without legal process, the mer- its of the case must be heard and decided, both as to whether the person is insane, and if so whether the confinement is lawful. Where the confinement is under legal process, how'ever, the purpose and function of the writ is to procure a hearing and determination as to the question whether the confining authority is lawfully exer- cising its jurisdiction or not. Here irregularity does not necessarily deprive the court of jurisdic- tion : but when the irregularity is so material that no jurisdiction over the prisoner has been obtained for the purpose of confinement, then the prisoner will be discharged. In other words, generally speaking, the writ cannot be used to do away with the regular trial of an action, or to inqtiire into the merits of proceedings any further than this is necessary to determine the legality of the confinement complained of. The procedure by which the Avrit is obtained, both at connnon law and under the various stat- utes regulating the subjects in some of the States, is by some form of a petition or motion signed by the party or some one in his behalf, setting up such facts as are necessary to make out a prima facie case. The person entitled to custody of one illegally detained by another, as a father deprived of his chilil. may himself apply for the writ. The courts of the Federal Govern- ment in the United States have the discretionary right to withhold it ; but in some of the States the writ must be granted, as in England, upon a proper petition or motion. The question as to when the Federal and when the State courts have authority in cases where their authorities clash with each other is deter- mined by the general principles governincr the conflict of laws between the two. For a discus- sion of that subject, and of the method of return of the writ, the general principles of jurisdiction, etc.. see the titles Coxfltct of L.ws ; Consti- tutional Law; Writ; Jleisdiciio^', etc. Habeas Corpls ad Facienuiim et Recipien- Dl Ji. A writ by which a superior court com- mands an inferior court to produce the body of a defendant, together with the cau.se (whence the writ is also called a lidhras ciir/iiis cdiii viiiish), or grounds of nis being taken and held, there to do aiul receive whavsoever shall be adjudged of him in the superior court. The writ is some- times used in the United States. Habeas Corpus ad Prosequendum. A writ issued to remove a prisoner for trial in the juris- diction where the act was committed. Habeas Corpus ad Eespondeadi m. A writ for bringing up a prisoner from a lower court to be charged with a new ofi'ense. Habeas Corpus ad S.tisfaciendum. A writ used to bring up a witness to a superior court to charge him with process of execution ( q.v. ) upon a judgment. Habeas Corpus ad Testificandum. A writ used to bring a witness into court when he is in custody at the time of the trial. It directs the sheriff to have his body in court. The power to issue writs of habeas cor/ius ad teslificaiidum in eases where it is necessary to bring prisoners into court to testify is vested in the Federal courts by the C4eneral Judiciary Act of 1789. Consult: Church, Uaheas Corpus, v:ith Prac- tice ami Forms, containing an extended account of its -history in the United States (2d ed., San F'rancisco, 189.3) ; Spelling, A Treatise on Ex- iraordinary Relief in Eqtiitii and Law; the com- mentaries of Kent, Story, Blackstone, and Ste- phen; Encyclopcedia of the Laics of England (London. 1897-981 ; .Jenks, "The Story of the Habeas Corpus," 18 Loir Quarterly Revieio, 64; and the authorities referred to under Constitu- tion ; Constitutional Law ; Conflict of Laws ; Writ. etc. HABEAS CORPUS ACT. The name com- monly given to the act 31 Charles II., ch. 2 (1679), which greatly facilitated the granting and enforcing of the writ habeas corpus ( q.v. ) . Similar statutes in some of the States are also called habeas corpus acts. HABEN'DUM. A technical term in the com- mon law of conveyancing, to describe the part of a grant, or deed of lands, which immediately follows the description of the premises conveyed. This was formerly written in Latin, habetidum et tenendum (to have and to hold), whence the name of the clause. Though not essential to the validity of a conveyance, it is still commonly employed in the English form of the words. Its purpose is to qualify or define the estate granted, as "to have and to hold, to the said .John Doe (the grantee), his heirs- and assigns forever." whereby a fee simple is created ; or "to the said ,Tohn Doe and the heirs of his body." .showing the estate granted to be a fee tail. Where the habendum is clearly repugnant to the 'granting part' of a deed, it will be rejected, but if it be consistent with the grant it will control it. See Conveyancf: Deed: Crant. HABENECK, ab'nek'. Franc^ois Antoine (1781-1849). A French violinist and conductor, born at Mezi&res. He entered the Conservatory in Paris (ISOl). where he studied under Baillot. and obtained the first violin prize (1804). .After- wards he was appointed first violin at the Op6ra,