The cause of the caption appears not to be material, only as it stands connected with continuing restraint, or the good faith of the defendant in not complying with 256] the command of the writ to produce the body. *It is not to be prosecuted as an independent inquiry in this proceeding, for it furnishes no remedy for false imprisonment already overpast.

2. Statement of the cause of detention. The production of the body does not satisfy the demand of the writ. If the party having brought the body into court, refuses to return the cause of the caption and detention, he is subject to be proceeded against for contempt; and may, by attachment, be compelled to make the return.'

To justify the detention, the return must show it to be founded on sufficient authority, either public or private. Detention by public authority may be by commitment in writing, as by special warrant, or by process of law not in writing, as by an order of court or by authority of law.

Detention by private authority must be founded upon some right, growing out of the domestic or civil

relations.

1st. Where there is a warrant in writing it must be returned, for otherwise it would be in the power of the jailor to alter the case of the prisoner and make it either better or worse than it is upon the warrant, and if he may take upon himself to return what he will, he makes himself judge; whereas the judge ought to judge and that upon the warrant itself."

The whole commitment must be set out.'

The return in such cases need not be confined to the particular warrant placed in the hands of the 257] *officer. If it contains recitals or references to other papers, documents or proceedings relating to

1 Newman's case, 2 West. Law Jour.; Ex parte Coupland, 26 Texas, 387. 2 Bac. Abr., Hab. Corp. B., sec. 9; Semb., 5 Mod. 159; 1 Salk. 349. 3 Matter of Power, 2 Russ. 583.

the authority to commit, they may be embodied in the return.1

Where, however, a written warrant is not material to the legality of the imprisonment, it may be omitted from the return, although it exists; and if attempted to be set forth, the general return will not be vitiated by great mistakes in setting it out."

2d. Where the commitment is not under any warrant in writing, or the restraint is by private authority, the return must set forth all the facts which are relied on, to justify the imprisonment or restraint.

Where the commitment is in court to a proper officer there present, there is no warrant of commitment, and therefore there can be no return of a warrant in hæc verba, but the officer must return the truth of the whole matter.'

Where an officer holding a prisoner thus committed by a court of record, is called on to show the cause of detention he must produce a copy of the record of the commitment as the cause.

"A commitment for legal cause of any man present in court, by an order of a competent court entered of record, is still a legal commitment and the sheriff is bound to obey the order. The prisoner knows for what cause and by whom he is committed; and he may at any time have a copy of the record. And the sheriff, if called upon to justify the imprisonment, or to certify the cause of it,

1 A return to a writ of habeas corpus setting up a will as the written authority for the restraint but containing no copy of the will is bad. Shaw v. Smith, 8 Ind. 485.

* Leonard Watson's case, 36 E. C. L. 254. Where a petition for a habeas corpus alleges that the petitioner is confined in jail on an execution against his person, which was issued irregularly, or in an action in which the petitioner was not liable to arrest, the return of the jailor is sufficient, if it shows that the petitioner is held by virtue of an execution against his person, which is valid upon its face and which is produced, and a copy of it annexed to the return; and the petitioner should allege by way of answer or avoidance any facts which would show that the imprisonment though apparently lawful is really not so. In re Mowry, 12 Wis. 58.

3 Rex v. Clark, 1 Salk. 349.

may have access to the same record, a copy of which the clerk will give him, ex officio. Where a prisoner comes 258] into court on *recognizance, and after conviction is sentenced to imprisonment, the sheriff is obliged immediately to obey the order of the court, and to commit the prisoner in execution; and on application to the clerk, he may have a copy after sentence.'

991

In such cases the return need not be confined to the simple copy of the order of commitment but may include copies of any other orders or proceedings referred to in the order of commitment, showing the grounds of the commitment.

Where the sheriff returned that he held the prisoner by order of the Court of Chancery, which order referred to a former attachment setting forth the grounds of commitment and from which the prisoner had been discharged by a judge of the Supreme Court in vacation, on another habeas corpus, and the sheriff also returned the attachment and proceedings prior to the last order of commitment; held that the sheriff could not return the true cause of the caption without also stating the original attachment and subsequent orders; and that the whole might be received and examined by the court.'

259]

*SECTION VI.

CERTAINTY REQUIRED IN THE RETURN.

The same strictness has never been applied to the return to a habeas corpus which was applied to pleadings in civil actions. In an early case,' it was said, "It was

1 Randall v. Bridge, 2 Mass. 549. When a petitioner had been imprisoned for contempt of court by the laws of Jersey, which did not require any other warrant of commitment than the sentence, it was held that the return was not objectionable for want of showing a warrant for the caption or detainer. In re Carus Wilson, 7 Q. B. 984.

2 Yates' case, Johns. 317.

3 City of London case, 8 Co. 127, b, 128, a; 2 Roll. Rep. 158.

objected that the said return consists much in recital, which ought to have been directly and certainly alleged. To which it was answered and resolved, that this is not on a demurrer in law, but a return on a writ of privilege, upon which no issue can be taken or demurrer joined; neither upon our award herein doth any writ of error *lie, and therefore the return is no other but to in- [260 form the court of the truth of the matter in which such a precise certainty is not required as in pleading." It will be seen that this "resolution" of the court fell far short of settling the law, even in England, in respect to some of the propositions or recitals contained in it. It shows, however, that the same certainty was not required in the return which was required in pleading, yet some certainty was required, and precisely what that was, it would be difficult to define. In the case of Rex v. Horne,' Lord Chief Justice De Gray speaking upon the general rule of certainty in pleading, observed: "Though the law requires certainty, we have no precise idea of the signification of the word, which is as indefinite in itself as any word that can be used." We have, however, a statement of the rule and the reasons of it in the case of The King v. Lyme Regis,' with as much precision as, perhaps, can elsewhere be found. Buller, Justice, speaking of returns to mandamus, in which he said the same certainty was required as in returns to writs of habeas corpus, says: "It is one of the first principles of pleading that you have only occasion to state facts; which must be done for the purpose of informing the court whose duty it is to declare the law arising upon those facts, and to apprise the opposite party of what is meant to be proved in order to give him an opportunity to answer or traverse it."

"Lord Coke has distinguished certainty in pleading into three sorts:

"1st. Certainty to a common intent, which is sufficient in a plea in bar.

1

Cowp. 672.

2

Doug. Rep. 150.

261] 2d. Certainty to a certain intent in general, as in counts, replications, &c., and so in indictments. "3d. Certainty to a certain intent in every particular, which is necessary in estoppels.

"The second of those sorts is all that is requisite here; and I take it to mean, what upon a fair and reasonable construction, may be called certain, without recurring to possible facts which do not appear."

In Watson's case,' the subject was particularly considered, and the court held that: The return does not require minute correctness, if the substance of the facts is stated.'

If the return alludes to documents which are not material to the validity of the imprisonment, they need not be specially set forth."

If, however, in attempting to set out such documents, the defendant intentionally misstate them, neither their immateriality nor the circumstance that the prisoner had not been injured by the falsehood, will protect him from an attachment for contempt.

A return stating a capital conviction for high treason and felony and a commutation of the sentence, is sufficient without specifying the treason or felony.

"Minute correctness" is not required; but the facts necessary to warrant the detention must in substance be

1 9 Ad. & E. 731; 36 E. C. L. 254.

2 In Michigan a return denying generally that the respondent had the pe titioner in custody or under restraint at the time the application was made or afterward was held bad, and the respondent was required to specifically answer the matters set out in the petition. In matter of S. W. Jackson, 15 Mich. 418 See also Sears v. Dessar, 28 Ind. 472.

When a return shows that an inferior court had jurisdiction over the offense, upon a conviction for which petitioner was imprisoned, the court issuing the writ must assume prima facie that the sentence being unreversed was correct, and could not require the authority of the court to pass the sentence to be set out in the return. In re Brennan, 10 Q. B. 492.

3 Com. v. Kirkbridge, 7 Philadelphia, 1. In that case it was held that upon a return to a writ of habeas corpus that the relator was held as an insane patient the doctor's certificate, upon which he was originally examined, need not be

attached.