It is also provided by the statute passed Feb. 8, 1847, sec. 1:

"That in case of confinement, imprisonment or detention by any person not a sheriff, deputy sheriff, coroner, jailor, constable, or marshal of this state, nor a marshal, deputy marshal or other like officer of the courts of the United States, the writ of habeas corpus shall be in the form following:

236] *THE STATE OF OHIO,

COUNTY, SS.

[L. S.] To the Sheriff's of our several counties, greeting:

We command you, that the body of

of

by

of imprisoned and restrained of his liberty,

as it is said, you take and have before

Our

court

or,

a judge of in case of his absence or disability, before some other judge of the same court, at , forthwith, to do and receive what our said judge shall then and there consider concerning him in this behalf; and summon the said then and there to appear

before our said judge to show the cause of the taking and detaining of the said , and have you there this

writ, with your doings thereon. Witness, &c.

The common law direction of the writ in all cases of mere private restraint has been altered in this state. No penalty has been prescribed in cases of eloinment, and perhaps in such cases further legislation may be required to give the writ the efficiency which it had at common law.

The writ in Massachusetts and Maine is required to be directed in like manner;' and in Kentucky, on good cause shown, the officer or person serving the writ may be directed to take the applicant into his custody, and produce him on return of the writ.

1 And the same direction is required in those states where a form is prescribed.

In Maine, Massachusetts and Delaware, the concealing of the prisoner or changing his custody, with the intent to elude the service of the writ of habeas corpus, is prohibited under severe penalties; in the last, $3,600. In Indiana, Arkansas and Alabama, the act is declared a misdemeanor, and the offender subjected to fine and imprisonment.'

SECTION VI.

SERVICE OF THE WRIT.

The writ at common law and under the statute 31 Car. II., was not required to be served by an officer. The solicitor of the prisoner or any person in his behalf might deliver it to the person to whom it was directed."

Under the act, 31 Car. II., it might be delivered to the officer to whom it was directed, or "left at the gaol or prison with any of the under officers, under keepers or deputy of said officers or keepers."

In some of the United States, special provisions have been made in reference to the mode of service where an evasion of service is attempted. In Louisiana and Indiana, where the person or officer refuses to receive the writ it will be sufficient service to state to him the con

1 Similar provisions are found in all the states with few exceptions. Hand's Pr. 73. Service of the writ by leaving it with the "brother and agent" of the party called upon held sufficient. In re Hakewell, 22 Eng. L. and Eq. 396. Where a writ of habeas corpus is applied for and issued in open court, in the presence of the person to whom it is directed, having custody of the person, and the fact was known to him, and the writ could have been handed to him had he desired it to make the return, it was held that this amounted to an acceptance of the service, and a waiver of the delivery of the writ to him. People v. Bradley, 60 Ill. 390.

238] tents (and probably in any other state); *and, if the party conceal himself or refuse admittance, it may be posted up on his residence or or the prison where the prisoner is confined.

The service may be proved by the oath of the party making it.

*CHAPTER III.

[239

THE RETURN.

Section I. GENERAL NATURE OF THE RETURN, and MODE OF ENFORCING IT.

II. FORM OF THE RETURN.

III. GENERAL REQUISITES OF THE RETURN.

IV. NON-PRODUCTION OF THE BODY, AND THE REASONS THEREFOR.

V. PRODUCTION OF THE BODY, And statement of CAUSE OF CAPTION AND DE

TENTION.

VI. CERTAINTY REQUIRED IN THE RETURN.

VII. AMENDMENT OF THE RETURN.

VIII. VERIFICATION OF THE RETURN.

IX. EFFECT OF RETURN AT COMMON LAW.

X. EFFECT OF THE RETURN IN THE UNITED STATES,

SECTION I.

GENERAL NATURE OF THE RETURN, AND MODE OF ENFORCING IT.

1. General nature of the return.

2. Must be made without delay.

3. May be enforced by attachment.

1. General nature of the return. The answer in writing, signed by the party to whom the writ is addressed, stating the time and cause of the caption and detention of the prisoner and his production before the court or judge, or, if the prisoner be not produced, then the reasons for not producing him, constitutes the return.

2. Must be made without delay. -It is of the very essence of the proceeding that the return be made without delay. It was the neglect of this duty which supplied the staple of the preamble to the act, 31 Car. II.: "Whereas great delays have been used by *sheriffs, gaolers and [240 other officers, to whose custody any of the King's sub

jects have been committed, for criminal or supposed criminal matters, in making returns of writs of habeas corpus," &c.

Delays, for good cause shown, will be permitted; as, where the person confined is a lunatic, detained by relatives who are proceeding in good faith to obtain a commission of lunacy, the time for making the return will be enlarged.'

It is not indispensable that the party to whom the writ is addressed should attend before the court or judge, in all cases, to make the return, unless so required by statute. If the prisoner is produced, the court may determine the legality of the imprisonment in the defendant's absence.'

3. May be enforced by attachment. Prior to the act, 31 Car. II., the mode of compelling a return to a habeas corpus was by taking out an alias habeas corpus and then a pluries, and if no return was made to that, an attachment issued of course. Sometimes the court made the rule on the officer to return his writ, and if disobeyed they might proceed against such disobedience in the same manner as they usually did against the disobedience of any other rule.'

This oppressive procrastination and shameful trifling with the writ was designed to be remedied by the act, 31 Car. II.

By that act the return was required to be within three 241] days after the service of the writ, "unless the *commitment of the said party be in any place beyond the distance of twenty miles from the place or places where such court or person is or shall be residing, and if beyond the distance of twenty miles and not above one hundred miles, then within the space of ten days, and if beyond the distance of one hundred miles, then

1 Rex v. Clarke, 3 Burr. 1362.

2 In re Hakewell, 22 Eng. Law and Eq. 395.

8 Bac. Abr., Hab. Corp. 13, sec. 8.