within the space of twenty days, after such delivery aforesaid and not longer."

It became the practice, soon after this act was passed, to require the return to be made to the first writ, and to enforce obedience by an attachment.'

One of the courts of the United States, although regarding this act as furnishing a reasonable rule of proceeding merely, refused to grant an attachment before the expiration of the three days allowed in the act for the return.'

In the United States an attachment may issue at once upon default of the party to make return forthwith. But the court must be satisfied by proper evidence, usually the affidavit of the person who makes the service, that the writ has been served before they will grant an attachment. A certificate of service, although given by one who held the office of sheriff, was held insufficient. "A writ of habeas corpus was issued, directed to the defendant (Wm. Raborg), to bring up the bodies of Walter Wilson and others, persons of color. The sheriff of Somerset sent up a copy of the writ, with a certificate of service upon it. The defendant did not appear, nor return the writ, and it was suggested that *he [242 intended to depart the state, taking with him the persons named in the writ. It was, therefore, moved that an attachment issue; but it was refused because the return and evidence were not sufficient.

At a subsequent day the affidavit of William Hoagland was read, proving the service of the habeas corpus ; and it appearing that the said writ had not been returned by the said Raborg, it was on motion ordered that an attachment do forthwith issue against him for contempt of the court in disobeying the said writ of habeas corpus.'

1 The King v. Winton, 5 T. R. 89.

U. S. v. Bollman & Swartwout, 1 Cr. C. Rep. 373.

2 The State v. Raborg, 2 South. 545; see also Rex v. Wright, Str. 915.

The court, however, will not grant the attachment unless the circumstances are such as to excite a suspicion of a wilful disobedience.'

Where the writ was only served the preceding day, although returnable immediately, the court, on application for attachment, refused it, there being no ground for supposing that a return would not be made.' In several of the states this matter is regulated by statute.

SECTION II.

FORM OF THE RETURN.

The return is required to be in writing and signed by the party. It should properly be addressed to the court or officer to whom the writ is returnable; but a mistake in the address or direction will not be deemed material. It was moved in Brass Crossby's case,' to discharge the 243] prisoner, on the *ground that there was no legal return to the writ because it was directed to the chief justice only, and not to the other judges of the court. But the court held the direction to be surplusage and that the return might be good without any direction at all.

1 Where a return declining to produce the body, by a military officer who had been required to surrender a citizen held in custody under military authority was held insufficient, a motion for a rule requiring the officer to bring the body of the petitioner into court by a day and hour certain, or that in default an attachment issue, was denied. The court gave the following reason for the denial, "General Elliott" (the respondent)" is undoubtedly acting under the orders of his superior officers. He will doubtless refuse to produce Kemp in court. If an attachment issues, it must necessarily bring on a conflict between the state and federal governments. This is to be avoided if possible." In re Kemp, 16 Wis. 382.

Where a return declining to produce the body was held insufficient, because the respondent did not show authority to arrest petitioner in the first instance,

2 Stockdale v. Hansard, 8 Dowl. 474.

8 2 W. Bl., 754.

SECTION III.

GENERAL REQUISITES OF THE RETURN.

The command of the writ is twofold, the production of the body and a statement of the cause of the caption and detention.

The requisites of the return may be considered under the following heads:

1st. The non-production of the body, with the reasons therefor.

2d. The production of the body, and the cause of the caption and detention.

SECTION IV.

NON-PRODUCTION OF THE BODY AND THE REASONS THEREFOR.

1. Importance of the production of the body.

2. Disability from want of possession, custody or power.

3. Disability from sickness of prisoner.

1. Importance of the production of the body.-The production of the body constitutes an essential element of this proceeding. It is called a summary proceeding. It is one of applied justice. It is nerved with all the energy of the law. It begins with a power which belongs only to the final process *of other proceedings, which is [244 said to be the "life of the law." It deals with present restraints upon the living corporeal man, and it demands his presence before the court face to face with his jailor.

respondent was adjudged in contempt, although the court held that it would have remanded petitioner if he had been before it at the time the decision was made, Ex parte Field, 5 Blatch. 63. In that case the court held that the writ of habeas corpus had been suspended by the President of the United States between the date of the return and of the decision.

Without the production of the body, said the Supreme Court of Massachusetts, the writ is without effect; the case has no status, and the court will hear no evidence upon the question of the validity of the imprisonment.'

They will, however, inquire with great caution into the reasons assigned for not producing the body. There are several reasons which are accepted as sufficient."

2. Disability from want of possession, custody or power. — The strictness of the law upon this point, and the consequences of an evasive return, are fully exemplified and the policy of the rule ably vindicated in the leading case of Rex v. Winton,' which was heard upon a rule to show cause why an attachment should not issue against the defendant. The affidavit of J. Greygoose, on which the writ in that case issued, stated that his wife was, in June, 1790, seduced by the defendant, with whom she continued to live until the month of May last, when she returned to her husband; that about three days afterwards, in consequence of a letter written by the defendant, threatening to publish her conduct in case of a refusal to go back to him, she was induced to go back to the defendant, who, as the deponent believed, detained her by threats, and with whom she was now living in a state of adultery, but that she was desirous of 245] returning to her husband. The *return was: "I had not at the time of receiving this writ, nor have I since had, the body of the within named M. Greygoose detained in my custody, so that I could not have her before the within named W. H. Ashurst, as within I am commanded."

Buller, J. "I will first dispose of the last objection against the attachment, because it is of more general

1 Commonwealth v. Chandler, 11 Mass. Rep. 83.

? The respondent to a writ of habeas corpus must produce the body of the person alleged to be illegally detained, before the judge or court issuing the writ, if in his custody or under his control at the service of the writ, and a return not accompanied by the body will be scanned with great caution. Ex parte Coupland, 26 Texas, 386. 3 5 T. R. 89.

consequence than the two others.

Notwithstanding

what is to be found in some of the old books on this subject, it has long been settled that the court will require a return to be made to the first writ of habeas corpus; and it is of infinite importance to every individual in the kingdom that we should insist on a return being made to that writ without issuing an alias or pluries. If the first writ be not obeyed an attachment must issue immediately. Then it was argued, on the authority of a case in 2 Lev., that this is a sufficient return; but I am of opinion that that case is by no means an authority to support this return. There the words were widely different from those used in this case. There Sir R. Viner returned that he had no such person in his custody, nor had he on the day of issuing that (pluries) writ, or afterwards.' Here the return is, 'I had not at the time of receiving this writ, &c., nor have I since had the body, &c., detained in my custody,' &c. This is an equivocal return; the defendant does not deny having the party, he only denies the detaining of her; but we must inquire when she is brought up whether she is detained or not."

Grose, J., said: "The court always look with a watchful eye at the returns to writs of habeas corpus. The liberty of the subject so essentially depends on a ready compliance with the requisitions of this writ that we are jealous whenever an attempt is made to deviate from the usual form of the return. The general form is, 'that the party has not the person in his possession, custody or power;' that has not been adopted in this case, but another, and that an equivocal *one, adopted in its [246 place, 'detained,' &c., omitting the words 'power and possession.' What the defendant means by the word 'detained,' I know not; but it does not satisfy me that the woman is not under the defendant's control." Rule absolute. In Elizabeth Warman's case,' a writ of habeas corpus

1 W. Bl. 1204.