"The court having examined and considered the return of the said Thomas N. Davis to the writs of habeas corpus aforesaid, and having heard counsel thereupon, do adjudge the said answer to be evasive and insufficient, and that the said Davis is bound to produce the bodies of the said negroes, mentioned in the said writs, before the court; and the said Davis being now present in court and refusing to produce the said negroes, it is therefore, this 16th day of January, 1840, ordered that the said Davis be committed to the custody of the marshal, until he shall produce the said negroes, or be otherwise discharged in due course of law." It appearing to the court afterwards, that the negro Israel Brinkley had run away, and had been taken up and lodged in jail in Baltimore, they modified, on the 18th of January, the order of commitment so as to relate only to the cases of the other two. On the 20th of January, being the last day of the term, Davis caused these to be brought into court, who subsequently, under a petition for freedom, filed in accordance with the laws of Maryland, of 1796, established their right to freedom and were discharged.

The allegation in the return, that the party is not in the possession, power or custody of the defendant, will not entitle the defendant to be discharged if there is any reason to suspect that he has not stated the whole truth. In United States v. Green,' Story, J., said: "The court will look into all the facts stated in the return, and will not discharge the defendant simply because he declares *the infant not to be in his possession, power or [252 custody if the conscience of the court is not satisfied that all the material facts are disclosed."

In some of the foregoing cases, it appears that the court heard proofs, and by them determined the return to be evasive; and in the case of Leonard Watson,' the court received an affidavit to the falsity of the return as 236 Eng. C. L. 254.

13 Mason, 482.

a predicate for a rule upon the defendant to show cause why he should not be attached for contempt."

The identical words "possession, custody and power" are not essential, though the court regards any deviation from them with jealousy, per Grose, J.; but where the facts stated, not being controverted, satisfy the judgment of the court, the return will be sufficient, as in the the case of Rex v. Wright,' the habeas corpus being directed to the defendant, a doctor, to bring up a woman under his care for lunacy, he returned "that before the delivery of the writ he had delivered the woman to her husband, and that he does not know where she is, nor can he produce her." The court held the answer sufficient.

1 If a return which on the face of it is ambiguous is not fortified by affidavits clearing up all doubt, it will be held evasive and bad. Reg. v. Roberts, 2 F. & F. 272.

A return to a writ of habeas corpus that a child under fourteen, "is not detained by or in the custody, power or possession, or under the care or control of the defendant or any person employed by him, held insufficient." Ib. The word "detained" overrides the entire sentence, and merely denies a compulsory detention, which would be sufficient in the case of an adult but not in the case of a child who is not sui juris. See also In re Race, 26 L. J. Q. B. 169.

In same case it was held that a case of cruelty should be waived on the return, and not brought in by affidavit merely to uphold a return which is evasive and bad. 2 F. & F. 272.

In Dumain and wife v. Gwynne, 10 Allen, 270, where the writ had been issued to the matron of a charitable institution to whom children had been committed by their mother "to be placed out or for adoption into a good family," the children were not produced. The respondent declining to produce them or to state where they were, alleged that she had given them to a family where they were well treated and educated; that they had become much attached to the family and the family to them; and that the rules and practice of the institution forbade her to produce them or to disclose where they were. The court did not require the production of the children, and said: "This may be just ground for the suggestion made by the respondent's counsel, that if the former character of the father were made known among the present schoolmates and associates of the children, it might cause annoyance and injury to them at their present tender age. The children ought not to be thus exposed, unless the judge who hears the cause shall have some ground to believe that their welfare requires it."

2 Rex v. Winton, 5 T. R. 89.

3 Str. 915.

So if the return be that before the coming of the writ, the prisoner was discharged out of defendant's custody by competent legal authority.' Also it is a good return that, before the coming of the writ, the party "had by force and arms broke the said prison, and out of my custody, without any leave and against my will, escaped and fled to places to me unknown, and is not yet brought back or retaken.""

*2. Disability from sickness of prisoner. It is a good [253 return by the defendant to the writ that the party is sick and languishing, so that he could not have the body without danger and peril of his life.'

But regularly, in such case the return should be accompanied and sustained by medical opinion. In the case Ex parte Bryant,' the sheriff to whom the writ was directed returned "that the prisoner was in his custody, but sick and languishing, so that he could not be removed without endangering his life, and he therefore prayed to be in mercy for not obeying the writ." This return was objected to, and a rule upon the sheriff moved for a contempt, but the court refused it, saying: "The return is satisfactory to the court. If the prisoner be dangerously sick, it is a sufficient reason why he should not have been removed; but a return of this nature, it is expected, will in future be accompanied with affidavits of physicians, that the court may judge whether the bodily indisposition of the prisoner be so great as to justify the sheriff in his disobedience to the writ."

It was held at common law, when it was the prevailing opinion that a return could not be contradicted, "that if a gaoler return one languidus when the party himself brings his habeas corpus, and is in good health, an

1 Rex v. Bethuen, Andr. 281.

Impey's Sheriff, 530.

3 Lib. Intr. 190; Kitch. 258; Dalt. 250; Impey's Sheriff, 527.

attachment shall issue against him; otherwise, if the habeas corpus was brought by another.""

If the person confined is too weak or too much deranged to be brought into court, they will make a rule 254] that certain persons have access to him,* *but will not give that liberty unless to persons who have some pretentions to demand it.'

It has been observed that on the application it was made the duty of the court or judge to examine the commitment where a copy was produced to see whether it was "for treason or felony, plainly and especially expressed," or whether the prisoner was "convict or in execution by legal process." Yet if the writ be issued this question may be again presented for more complete consideration and determination; and this appears to have been allowed without the production of the body under the implication arising upon a clause in the 1st section of the act of 31 Car. II.

In a case cited in 10 Pet. C. L. 199, n., it is said that, "although the body of the prisoner is usually returned with the writ, the reasons of the prisoner's detention are, however, sometimes returned without actually bringing up the applicant; as where he is charged with treason or felony, clearly expressed in the warrant of commitment, or imprisoned for any civil cause of action, or in execution; and in either case the return must distinctly show by whom and for what cause the prisoner was committed."

This, however, is not only an exception to the general rule but should be regarded as a particular indulgence, for if the officer had a right to stand upon his construction of the warrant of commitment, there would have been but little gained by the act of 31 Car. II.

1 Bac. Abr. Hab. Corp. 8.

2 Rex v. Wright, 2 Burr. Rep. 1099; Rex v. Turlington, 3 Burr. 1115. 3 Rex v. Clark, 3 Burr. 1362.

PRODUCTION OF THE BODY AND STATEMENT OF THE DAY AND CAUSE OF THE CAPTION AND DETENTION.

1. Statement of the cause of caption.

2. Statement of the cause of detention.

The writ requires not

1. Statement of the cause of caption. only that the cause of the detention should be shown; but also the day and cause of the caption. The supposition of the writ is that the detention is by the same authority under which the caption was made, and the aim and effect of the writ is to require the defendant to show the cause of the imprisonment and when it commenced. For the object of the proceeding in habeas corpus, is to set the prisoner free from present illegal restraint, and he is entitled to it although the original taking was lawful.'

And if at the time of the return the defendant shows a legal cause for restraint then imposed, the prisoner will not be discharged notwithstanding the original taking may have been without any legal authority."

And though the original warrant of commitment be irregular, yet, if a regular warrant of detainer for the same offence, issued subsequently to the writ of habeas corpus, be returned, the court will remand the prisoner.'

1 4 Inst. 290.

2 Dow's case, 18 Penn. Rep. 37.

3 Rex v. Gordon, 1 Barn. & Ald. 572, n.; Queen v. Richards, 5 Q. B. 926, vol. 48, E. C. L.; Ex parte Cross, 2 Hurl. & Nor. 354; In re Phipps, 11 W. R. 730, Q. B.

When a prisoner is brought up on writ of habeas corpus, and the return shows a commitment bad on the face of it, the court will not, on the suggestion that the conviction is good, adjourn the case for the purpose of having the conviction brought up and amending the commitment by it. In re Timson, 5 L. R. Exch. 257.