was directed to Sir David Murray, Baronet, commanding him to produce the body of Elizabeth, wife of Edward Warman, with the causes of her taking and detaining; and upon affidavit that he detained her by force from her husband for unlawful and suspicious purposes, he returned that he did not detain and never had detained her. The court thought this was no answer to the taking, and gave leave to amend his return, which he did, &c.

The same doctrine was held and applied in the case of Samuel Stacy, Jr.,' where it was also held that an attachment, where the return was evasive, would not in all cases be delayed until a rule to show cause why it should not issue had been served. In that case the writ was directed to Morgan Lewis, as commander of the troops of the United States at Sackett's Harbor, and under his title of "General of Division in the army of the United States." He returned "that the within named Samuel Stacy, Jr., is not in my custody."

Kent, Ch. J. "This was evidently an evasive return. He ought to have stated, if he meant to excuse himself for the non-production of the body of the party, that Stacy was not in his 'possession or power.'

"The only question that can be made is whether the motion for an attachment shall be granted, or whether there shall be only a rule upon the party offending to 247] show cause, *by the first day of next term, why an attachment should not issue. It is the indispensable duty of this court, and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. One of the most valuable of those means is this writ of habeas corpus, which has justly been deemed the glory of the English law.

"On ordinary occasions the attachment does not issue

1 10 Johns. 328.

1

until after a rule to show cause, but whether it shall not issue in the first instance must depend upon the sound discretion of the court, under the circumstances of the particular case. It may and it often does issue in the first instance, without a rule to show cause, if the case be urgent or the contempt flagrant."

The court granted the attachment, regarding the case as urgent, but gave it an alternative form, indicating thereby that they did not regard the contempt as flagrant. The following is a copy of the order:

"Ordered, that an attachment in this cause issue against General Morgan Lewis, but that the same be accompanied with a copy of this rule, which is to operate as instructions to the sheriff not to serve the same, if General Morgan Lewis shall forthwith, upon service of a copy of this rule upon him, discharge the said Samuel Stacy, Jr., or shall cause him to be brought before Nathan Williams, Esq., commissioner, &c., in obedience to the habeas corpus heretofore issued by him in this cause."

It was formerly held that the return should show that the defendant had not the party in his possession, custody or power, not only at the time of the *return, [248 but also at the time of granting the writ. "Habeas corpus are always returned in the preterperfect tense." Upon a pluries habeas corpus, the return was, "I have no such person in my custody, nor had I on the day of the obtaining of this writ, nor at any time since." The return was held bad, for it did not appear that he had not the custody on the day of the obtaining of the first writ.' There is no doubt that it ought to show at least that

1 Rex v. Jones, Str. 185; Davies ex dem. Powers v. Doe, 2 Bl. Rep. 892; Rex v. Earl Ferrers, 1 Burr. 631.

2 Sid. 273; The King v. Wagstaff and others, Viner's Abr., Hab. Corp., F.

3 32 Lev. 128; The King v. Sir Robt. Viner, Vin. Abr., Guardian and Ward, p. 4, marg. note.

1

he had not the person in his "possession, custody or power," at the time of the service of the writ or at any time after. In the case of The State v. Philpot,' this point was fully discussed. The defendant had been imprisoned for contempt in making an evasive return. It was objected that "the order of imprisonment was illegal in this, that it was impossible for him to perform, and because the court was not authorized to require the production of the boy as the condition of his purging his contempt if any were committed."

The Court answered: "As has been repeatedly said the attachment was for an evasion and disobedience of the writ, and the only condition imposed on him was obedience. His obedience was not made to depend upon the arbitrary will of the judge, but upon his own will if that will should lead to action. That such an order is not illegal must be manifest to any one who considers the order and allows to the court the power of enforcing 249] its own process. Such orders are of *common occurrence and are absolutely necessary for the attainment of justice. They are issued and enforced against sheriffs, justices of the peace and constables who collect money and neglect or refuse to pay it over when ordered to do so; to compel the production of personal chattels under a warrant of restitution, and in a variety of instances of small importance compared with personal liberty; and it would be a very singular defect of power in the court not to possess the same means of enforcing the writ of habeas corpus. If the court had the right to issue the writ it had the right to compel the production of the boy, and to use the only means adequate to that end. Senator Clinton's opinion in the case of Yates,' contends that the commitment to be legal must be definite, and terminable either by the efflux of time, or on the doing of some act by the prisoner. We are of opinion that Philpot ought to remain attached until he pro

1 Dudley Geo. Rep. 46.

26 Johns, 507.

duce the boy James, or shows that it is impossible to produce him." The evidence showed that after the service of the habeas corpus Philpot had had possession of the boy and sold him, and that he had been taken away west. "If Philpot's return had shown that neither at the service of the writ nor at any time since had the boy been in his possession, custody, power or control, it would have been full and perfect; but he evades a part and will not swear that at the service of the writ the boy was not in his power or control. Had Philpot, however, sworn that the boy was not in his possession, power or custody, still if, looking into the facts stated in the return, the conscience of the court should not be satisfied that all the material facts were disclosed, it was not bound to discharge him.”

It seems also that the return will be considered evasive although sufficient on its face, if the evidence shows that the party restrained was removed to avoid the process after notice that it would be applied for. *The case [250 of the United States v. Thomas N. Davis' is an interesting one, showing the favorable action of this doctrine."

15 Cr. C. C. Rep. 622, A. D. 1840.

* A return to a writ of habeas corpus which disclosed that recently before the issuing of the writ, the custody of the child in controversy had been transferred to another, was held to be bad because it did not disclose the reason for such change. Sears v. Dessar, 28 Ind. 472.

In Michigan, in Ex parte Samuel W. Jackson, 15 Mich. 417, the court was equally divided as to the question whether a writ of habeas corpus will issue from the Supreme Court to a person in the state, to bring into the state a minor child under guardianship there, and who has been and continues to be detained in another state. Mr. Justice Campbell, with whom Martin, Ch. J., concurred, said of U. S. v. Davis, supra, "There it does not appear that the application for the writ disclosed the absence of the parties. But it appearing after the writ issued, that Davis had sent them out of the District of Columbia, he was attached until he produced two of them, the third being under arrest in Maryland. This case is entirely bald of reason, and the most that can be said in its favor is that the judges probably decided the matter in haste, and looked more to the demerits of the respondent, than to any rules of the law."

Mr. Justice Cooley, with whom Mr. Justice Christiancy concurred, said: "I think the case presented by the petition is one in which we can give relief and the decision in U. S. v. Davis is in point and will warrant it." In that case

That was a proceeding in habeas corpus. The writ was directed to Thomas N. Davis, commanding him to have before the court the bodies of Israel Brinkley, Emanuel Price and Maria Course, persons of color, with the cause of their detention.

The return of the writ by Davis stated upon oath, that he purchased the negroes publicly in the bar-room of Lloyd's tavern in the city of Washington, as slaves for life, from one Joseph Woodall, on the 31st December, 1839, and took from him a bill of sale warranting the title to the negroes, and that they were slaves for life; which bill of sale he produces as part of his return; that he paid for them the sum of $1,200, which he avers to be a reasonable price for them; that he never had any reason to doubt that they were slaves for life as they were warranted to be. It was also averred by Davis in the return, that the said individuals were removed, as he believed, beyond the District of Columbia, before the service of the said writ of habeas corpus, and before he heard of the existence of such process, and that they were now beyond his control and out of his custody, and, as he believed, beyond the District of Columbia.

A number of witnesses were sworn and examined, whose testimony tended to show that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus.

Mr. Key, for the prisoners, moved for an attachment, 251] and contended that the return was evasive, *because it did not deny that the prisoners were in his power, or that he was unable to produce them; also, that the sending the prisoners away with intent to avoid the expected process of the court was itself an obstruction of justice and a contempt of the court.

The court made the following order:

it appeared that the petitioners were the testamentary guardians of the minor, and that the respondent had caused him to be carried out of the state of Michigan and still kept him out after service of the writ.