sary. 65 [171] G. Operation and Effect of Writ. The writ of habeas corpus is of paramount authority over all other writs.66 Upon the service of the writ on respondent while the prisoner is still in his custody, the original restraint is considered as suspended, and the prisoner is thereafter held under and by virtue of the writ itself,67 and not under the capias or commitment upon which he was originally Pr. 301. 59. See Courts §§ 146-155; Judgments [23 Cyc 1078]. Impeaching and supporting jurisdiction on habeas corpus hearing see infra 193. 60. Allen's Application, 31 Ida. 295, 170 P 921. [a] Rule applied.-Where nothing to contrary appears in record, it will be conclusively presumed on a motion to quash the writ that court of general jurisdiction whose judgment is attacked had full jurisdiction, and that all proceedings were regular. Allen's Application, 31 Ida. 295, 170 P 921. 5. 61. See Dismissal and Nonsuit § 62. State v. Second Judicial Dist. Ct., 35 Nev. 30, 126 P 679; Ex p. Thaw, (Que.) 13 DomLR 710, 22 Can CrCas 1, 49 CanLJ 670. [a] Opposing dismissal. - · One who has procured the detention of the prisoner has no status to appear and oppose the application to withdraw. Ex p. Thaw, (Que.) 13 DomLR 710, 22 CanCrCas 1, 49 Can LJ 670. 23. 63. Ex p. Welsh, (N. J. Ch.) 16 A a Suspension of state proceedings by federal writ. A federal statute provides that further proceedings against the prisoner in a state court, or by or under the authority of any state, after issue of the writ by a federal court, and until final judgment therein, and after final judgment of discharge, shall be deemed null and void." The statute itself operates 140 (where writ issued without jur-] 70. Stallings v. Splain, 253 U. S. 66. Matson v. Swanson, 131 Ill. 255, 23 NE 595; Haley's Case, 1 Mod. 195, 86 Reprint 824. "When properly issued [it] supersedes all other writs." Peo. v. Zimmer, 252 Ill. 9, 13, 96 NE 529. 67. U. S.-Barth v. Clise, 12 Wall. Fla.-State v. Allen, 89 S 398. N. H.-Wilkins's Pet., 71 N. H. 591, 53 A 1019. Pa.-Com. v. House of Correction, Wash.-In re Grant, 26 Wash. 412, 67 P 73. Eng.-Rex v. Bethel, 5 Mod. 19, 87 "Upon the return of the writ the of the court." In re Moyer, 35 68. 398. 69. State v. Allen, (Fla.) 89 S [a] Dismissal by nonresident petitioner.-Where petitioner for habeas corpus to recover custody of his children, who were within the state, was a nonresident of the state, so that he could not be subjected to the jurisdiction of the court in Ex p. Kearby, 35 Tex. Cr. 634, proceeding to determine the custody 34 SW 962; Cardoza v. Epps, (Va.) 23 SE 296 of the children, and no decree de(respondent would termining such custody would be be justified in refusing to deliver up on prisoners an order conclusive on him outside of the the jurisdiction, he will not be permit- the court which committed them); ted, after having submitted to the Haley's Case, 1 Mod. 195, 86 jurisdiction, to dismiss his petition, print 824; Fazacharly v. Baldo, 1 and thereby prevent the court from Salk. 352, 91 Reprint 308. rendering a decree which will be res judicata everywhere. Ex p. Welsh, (N. J. Ch.) 116 A 23. a [b] Cross petition.-Where father had invoked the court's jurisdiction to determine the right to custody of minor children by a petition for habeas corpus, to which the mother had filed answer asserting her right to the children and praying for their custody, no cross petition by the wife was necessary to prevent the husband from voluntarily dismissing his petition. Ex p. Welsh, (N. J. Ch.) 116 A 23. 64. State v. Second Judicial Dist. Ct., 35 Nev. 30. 126 P 679 (holding petitioner released on bail in proceeding cannot dismiss it and thus secure his absolute liberty). of Re [a] The order of a military court promulgating a sentence, although made after the issuance of the writ, was valid where the sentence had been approved before the writ was issued. U. S. v. Barry, 260 Fed. 291. 72. Stallings v. Splain, 253 U. S. 339, 40 SCt 537, 64 L. ed. 940 [aff 258 Fed. 510, 49 App. (D. C.) 38]; Com. v. Hall, 9 Gray (Mass.) 262, 69 AmD 285. But see In re Farez, 8 F, Cas. No. 4,644, 7 Blatchf. 34, 7 AbbPr (N. Y.) 84 (where service of warrant after service of writ on marshal was held improper). 73. Stallings v. Splain, 253 U, S. 339, 40 SCt 537, 64 L. ed. 940. [a] Illustration.-A fugitive from justice arrested without warrant may, after release on bail, pending a hearing on a writ of habeas corpus, be rearrested on a proper complaint in removal proceeding. Stallings v. Splain, 253 U. S. 339, 40 SCt 537, 64 L. ed. 940. an 74. Stallings v. Splain, 253 U, S. 339, 40 SCt 537, 64 L. ed. 940; Peckham v. Henkel, 216 U. S. 483, 30 SCt 255, 54 L. ed. 579 (where application for habeas corpus on the ground that appeal from former application for a order denying a writ of habeas corpus was pending was denied because the detention involved in not the latest application was for the same offense involved in the former application). 75. Pomeroy v. Lappeus, 9 Or, 363. 76. Pomeroy v. Lappeus, 9 Or. 363 (release on bail); Com. v. Kirkbride, 7 Phila. (Pa.) 1; Ex p. Coupland, 26 Tex. 386. statute 77. U. S. Rev. St. § 766. [a] The object of the (1) was to stay the hands of state courts and state officials while the question whether the detention was in violation of the constitution, laws, or treaties of the United States was being examined by the federal courts. McKane v. Durston, 153 U. S. 684, 14 SCt 913, 38 L. ed. 867; In re Shibuya, 140 U. S. 291, 11 SCt 770, 35 L. ed. 510; In re Strauss, 126 Fed. 327, 63 CCA 99. (2) "The statute aims to entirely prevent action which shall interfere with the perfect freedom of the Federal courts to inquire into the case and make such orders and render such judgment as they shall see fit." Rogers v. Peck, 199 U. S. 425, 436, 26 SCt 87, 50 L. ed. 256. [b] Certificate of reasonable doubt.-The stay of proceedings worked by the statute does not have the same effect as a certificate of reasonable doubt given by a state [c] Procedendo may be granted judge, under the state law, after to take off suspension lower court execution of the judgment of conmay be under by the writ of hab-viction has commenced, McKane V. eas corpus. Fazacharly v. Baldo, Durston, 153 U. S. 684, 14 SCt 913, 1 Salk. 352, 91 Reprint 308. 38 L. ed. 867. as a stay of such proceedings; no order staying proceedings is necessary.78 But the jurisdiction of the state courts is restrained only pending the proceedings in the federal courts and until the final judgment therein.79 The statute refers to, and invalidates, only proceedings against the prisoners which may interfere with the full examination and final judgment in a habeas corpus proceeding in the federal courts, ,81 and not proceedings taken with a view to securing to the prisoner the benefit of the federal writ,82 or totally different proceedings not determined in, or in process of being determined in, the federal habeas corpus proceedings. 83 [172] H. Return to Writ-1. In General. The officer or other person to whom a writ of habeas corpus is directed must make a return thereto in accordance with the command of the writ,84 and as required by statute.85 It has been held that the court has no jurisdiction to proceed with the determination of an application for relief under a writ of habeas corpus in the absence of a return, 78. Lambert v. Barrett, 159 U. S. 660, 16 SCt 135, 40 L. ed. 296. 79. In re Shibuya Jugiro, 140 U. S. 291, 11 SCt 770, 35 L. ed. 510. [a] As soon as final judgment has been entered, if favorable to its jurisdiction, the state court may proceed with the case without waiting for the mandate of the supreme court to be handed down. The court remarked, however, that, although it was not necessary to wait| for the mandate, yet it was much better and safer to do so. In re Shibuya Jugiro, 140 U. S. 291, 11 SCt 770, 35 L. ed. 510. 80. Rogers v. Peck, 199 U. S. 425, 26 SCt 87, 50 L. ed. 256; State v. Humason, 4 Wash. 413, 30 P 718. [a] Settling a case on appeal at the instance of the prisoner to enable him to prosecute an appeal taken by him from a conviction is not a proceeding against him, and is not prohibited by the statute. State v. Humason, 4 Wash. 413, 30 P 718. [b] A reprieve postponing the excution of a death sentence to permit the prisoner to appeal to the supreme court of the United States from an order denying habeas corpus is not a proceeding against the prisoner within the meaning of the statute. Rogers v. Peck, 199 U. S. 425, 26 SCt 87, 50 L. ed. 256 [aff 138 Fed. 961]. 81. Rogers v. Peck, 199 U. S. 425, 26 SCt 87, 50 L. ed. 256 [aff 138 Fed. 961]. [a] Order for execution.—(1) An order of a state court directing infliction of the death penalty pending an appeal from an order of a federal court denying a writ of habeas corpus to release the prisoner is void. In re Ebanks, 84 Fed. 311 [aff 168 U. S. 707, 18 SCt 942, 42 L. ed. 1214]. (2) The federal court may take custody of the prisoner by habeas corpus so as to prevent his execution pursuant to such void order. In re Ebanks, supra. [b] Continued confinement at hard labor pursuant to the sentence which is attacked is not prohibited by the statute. In re McKane, 61 Fed. 205 [aff 153 U. S. 684, 14 SCt 913, 38 L. ed. 867]. [c] Trial and acquittal.-Where after the issuance of a writ of habeas corpus out of a federal court to review petitioner's arrest for violation of a state criminal statute, he was tried and acquitted in the state court, such trial and acquittal were null and void, and not ground for dismissal of the habeas corpus proceeding. Ex p. Martin, 180 Fed. 209. 82. Rogers v. Peck. 199 U. S. 425. 26 SCt 87, 50 L. ed. 256 [aff 138 Fed. 961]. 83. In re Strauss, 126 Fed. 327, 63 CCA 99. a [a] Illustration.—(1) Where fugitive from justice was arrested 86 87 but in other jurisdictions, the courts may proceed in a summary way to determine the cause upon a verified and undenied petition,s although empowered to enforce obedience to the writ and to require a return; 88 and want of a return will not impair the judgment rendered.89 A mere failure to make a return does not operate to discharge the prisoner. 90 Permission to file. In some jurisdictions. a return cannot be filed until it has been read before the judge, but a second return may be made after the unauthorized filing of a first return.' 91 92 [§ 173] 2. By Whom Made. The return must be made by the person or officer to whom the writ is directed.93 A return by a party other than that to which the writ is addressed, or the party having custody of the prisoner, is insufficient, but may be given some consideration.95 94 96 [174] 3. Time of Making. A return should be made within the time directed by the writ, or governing statute.97 A reasonable time will be and child, the wife could not make the return, although the writ was delivered to her). See also cases supra § 172 note 84. 94. Peo. V. Kings County Jail, 160 App. Div. 480, 145 NYS 1064. to enable requisition to be made in | bring before the court relator's wife extradition, the allowance of a writ of habeas corpus for the purpose of testing the validity of such temporary commitment by the magistrate was no bar to subsequent extradition proceedings before the governor, the proceedings before the magistrate and the governor being entirely dissimilar. In re Strauss, 126 Fed. 327, 63 CCA 99. (2) Where court having imposed void sentence pronounced a second sentence, pendency of habeas corpus proceedings in United States district court for purpose of having first sentence declared void, did not invalidate second sentence. In re McCready, 179 Cal. 514, 177 P 459. [a] Illustration.-A return made by the clerk of the court where the writ was addressed to a warden of the jail and a sheriff of the county and other persons having prisoner in custody, was held insufficient to comply with the statute. Peo. v. Kings County Jail, 160 App. Div. 480, 145 NYS 1064. [b] Joint custodians of infant.Where an infant was in the custody of its grandfather and grand[b] Writ of error to state mother, it was held not error that court.-Where a party under indict- the court permitted the grandmother ment and awaiting trial was granted to join in the answer to the writ of a writ of habeas corpus, but upon habeas corpus with the grandfather a hearing was remanded to custody, and to defend, although the habeas and obtained a writ of error to the corpus proceeding was brought supreme court of the United States against the grandfather only. Mcon the claim that the order of re- Coy v. Brookins, 150 Ga. 636, 104 SE mand was in contravention of his 572. rights under the United States conA return by an attorney-genstitution, the writ of error does not eral on behalf of the collector of stay proceedings in the court having customs in an exclusion case is sufjurisdiction of the indictment. Ruefficient. Que Quay v. Collector of v. San Francisco Super. Ct., 150 Cal. Customs, 33 Philippine 128. 657, 89 P 604. 84. In re Collins, 151 Cal. 340, 90 P 827, 91 P 397, 129 AmSR 122; Ex p. Zeehandelaar, 71 Cal. 238, 12 P 259; Clayborn v. Tompkins, 141 Ind. 19, 40 NE 121: Matter of Haller, 12 Hun (N. Y.) 131, 3 Abb NCas 65; Wattles v. Marsh, 5 Cow. (N. Y.) 176; Bacon Abr. Habeas Corpus B 7. Remedy for disobedience see infra § 186. 85. See statutory provisions. 86. Lowndes County v. Leigh, 69 Miss. 754, 13 S 854; Peo. v. Kings County Jail. 160 App. Div. 480, 145 NYS 1064; Matter of Haller, 12 Hun (N. Y.) 131, 3 AbbNCas 65. See In re Poole, 9 D. C. 583, 29 AmR 628 (where no return has been made, it is irregular to order a minor forthwith to be delivered into the custody of the party who sued out the writ). 87. Ex p. Wood. 58 Okl. 278. 159 P 483 (where petitioner released). 88. Ex p. Wood, 58 Okl. 278, 159 P 483. Compelling obedience to writ see infra § 186. 89. Bearden v. Donaldson, 141 Ga. 529, 81 SE 441; McConologue's Case, 107 Mass. 154; State v. Quimby, 104 Nebr. 590. 178 NW 202. 90. Patterson v. State, 49 N. J. L. 326, 8 A 305 [aff 50 N. J. L. 421, 14 A 125]. 91. Reg. v. Reno, 4 Ont. Pr. 281. 92. Reg. v. Reno. 4 Ont. Pr. 281. 93. Peo. V. Mercein, 8 Paige (N. Y.) 47 (on habeas corpus by relator against his father-in-law to [c] 95. Peo. v. Grant, 111 N. Y. 584, 19 NE 281. [a] Illustration.-Although a party to, a civil suit receiving notice of the proceeding may not properly make a return to the writ, an attempted return which sets forth facts omitted by the detaining officer may be used to supply omitted facts if not objected to; and if objection to it is made the court may require a further return from the detaining officer or take oral evidence to ascertain the truth. Peo. v. Grant, 111 N. Y. 584, 19 NE 281. 96. See cases infra this section. 97. See statutory provisions. [a] In federal courts.-(1) Return is required within three days where place of detention is within twenty miles; within ten days, if place of detention is beyond twenty miles and within one hundred miles; within twenty days, if place of detention is beyond one hundred miles. Rev. St. § 756. (2) "This section was taken almost literally from the Habeas Corpus Act. chap. 2 of the 31 St. Car. II, which was designed to remedy procrastination and trifling with the writ." Ex p. Baez, 177 U. S. 378, 388, 20 SCt 673, 44 L. ed. 813. (3) Three days after service will be allowed before attachment will issue. U. S. v. Bollman, 24 F. Cas. No. 14.623. 1 Cranch C. C. 373. [b] In Vermont an officer after receiving a writ of habeas corpus has from three to twelve days to serve and return it (Rev L. § 1355), depending upon the distance of the place of imprisonment from 3 allowed in which to make the return.98 A writ returnable immediately, or forthwith, is not fixed to an hour, but to a convenient time,99 but a slight delay may, under the circumstances, constitute a disobedience of the writ. A statute which provides a maximum limit of time within which the return must be made is no excuse for unnecessary delay in obeying the writ.2 The court may decline to receive a return before the return day. The time for making the return may be enlarged for proper cause. A return to the writ made after the date specified, and after the filing of a motion to discharge the prisoner, may be considered, and where it discloses a good cause for detention, the prisoner should not be released. Courts having discretion in entertaining proceedings in habeas corpus have fixed the return date to avoid interference with the regular business of the court." [175] 4. Form and Sufficiency-a. In General. Statutory provisions regulate the form and contents of the return to a greater or less extent in practically all jurisdictions. The principal elements of a return are a showing as to the custody the place of return. It is in all cases, however, more convenient for all parties interested to have some day named when the judge signing the writ will hear the case than to have no time assigned and the date left uncertain. State v. Ferry, 61 Vt. 624, 18 A 451. 98. U. S. v. Bollman, 24 F. Cas. No. 14,623, 1 Cranch C. C. 373; Stockdale v. Hansard, 8 Dowl. P. C. 474. "A reasonable time has always been allowed for making the return." Ex p. Baez, 177 U. S. 378, 389, 20 SCt 673, 44 L. ed. 813. 99. Mosdell's Case, 1 Mod. 116, 86 Reprint_775. [a] Returns forthwith.-(1) A writ returnable the first secular day after its issue is a sufficient compliance with Rev. Laws Vt., § 1348, requiring habeas corpus to be returnable forthwith. State v. Ferry, 61 Vt. 624, 18 A 451. (2) Attachment refused on day after service of writ returnable immediately. Stockdale v. Hansard, 8 Dowl. P. C. 474. 1. Peo. v. Kuhne, 57 Misc. 30, 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. [a] A willful delay of one hour by a police official in order to obtain the measurements and photograph of a prisoner for police records was held a contempt of the court, where the object of the writ was to prevent the_taking of the prisoner's record. Peo. v. Kuhne, 57 Misc. 30. 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. 2. Peo. v. Kuhne, 57 Misc. 30, 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem. 89 NE 1109 mem)]. 3. Mash's Case, W. Bl. 805, 96 Reprint 473. 4. Rex v. Clarke, 3 Burr. 1362, 97 Reprint 875. of the prisoner,8 and of the cause and authority for his detention.9 The return should be in writing, 10 signed by the respondent,11 and should be addressed or directed to the court or officer before whom it is returnable, 12 but error in this is immaterial.13 While the strict technical rules of pleading will not be applied,14 14 and the return should be liberally construed, is the general rules of good pleading should be observed.16 Averments should be distinct, positive, and definite, leaving no material matter to intendment.17 The return should state facts as distinguished from conclusions of law18 or mere matters of hearsay.1 A return setting up as a defense that the custody of an infant is held pursuant to a decree of a court which is still effective, and that the habeas corpus court has no jurisdiction to change the custody, raises only the question of jurisdiction, and is not a plea in abatement.20 [176] b. Averments as to Custody. The return should state whether or not the respondent has the person in question in his custody.21 If the party is not in the custody of the respondent, or if for any other reason he cannot be produced in an cation to the probate and common 9. See infra § 177. 10. Barkham's Case, Cro. Car. 507, 79 Reprint 1037; McConologue's Case, 107 Mass. 154. 11. Seavey v. Seymour, 21 F. Cas. No. 12,596, 3 Cliff. 439; Clayborn v. Tompkins, 141 Ind. 19, 40 NE 121; Ex p. Wood, 58 Okl. 278, 159 P 483; Barkham's Case, Cro. Car. 507, 79 Reprint 1037. 12. Barkham's Case, Cro. Car. 507, 79 Reprint 1037; Rex v. Hall, (N. S.) 32 DomLR 236, 27 CanCrCas 1. 13. Rex v. Hall, (N. S.) 32 Dom LR 236, 27 CanCrCas 1. [a] A mistake in the address or direction of the return to the writ does not vitiate it. In fact, the court held the direction to be surplusage, and that the return might be good without any direction at all. Crosby's Case. W. Bl. 754, 96 Reprint 441. 3 Wils. C. P. 188, 95 Reprint 1005. [a] Enlarging time of return.An affidavit from the attending physician of a private madhouse that the person sought is a lunatic and 14. Wilkinson v. Lee, 138 Ga. 360, not fit to be brought into court may 75 SE 477. 42 LRANS 1013; Plunkett be used to enlarge the time of the return of the writ of habeas corpus. Rex v. Clarke, 3 Burr. 1362, 97 Reprint 875. 5. Isakson v. Stevens, 57 Or. 57, 110 P 393. 6. Ex p. Shaw, 7 Oh. St. 81, 70 AmD 55. v. Hamilton, 136 Ga. 72, 70 SE 781, 35 LRANS 583. AnnCas1912B 1259. 15. State v. Merrill, 83 Minn. 252, 256, 86 NW 89; Peo. v. Nevins, 1 Hill (N. Y.) 154. 19 tody is legal." State v. Merrill, supra. 16. Scott v. Spiegel, 67 Conn. 349, 35 A 262. Pleading generally see Pleading [31 Cyc 11. 17. Watson's Case, 9 A. & E. 731, 36 ECL 384, 112 Reprint 1389; Rex v. Horne, Cowp. 672, 98 Reprint 1300; Brice's Case, Cro. Car. 593, 79 Reprint 1109; Seeles's Case, Cro. Car. 557, 79 Reprint 1080; Rex v. Regis, Dougl. 149, 99 Reprint 98; Eden's Case, 2 M. & S. 226, 105 Reprint 366; Rex. v. Winton, 5 T. R. 89, 101 Reprint 51. [a] Degree of certainty.-(1) "While less certainty is required in returns to writs of habeas corpus than in pleadings in civil actions, yet 'certainty to a certain intent in general' is required in the return. and the facts necessary to warrant the detention of the party must in substance be alleged, so as to apprise the opposite party of what is intended to be proved, in order to give him an apportunity to answer or traverse it, and these facts ought not to appear by way of recitals only." Woods, J., in State v. Reuff, 29 W. Va. 751, 763, 2 SE 801, 6 AmSR 676. But see Barnes' Case, | 2 Rolle 157, 81 Reprint 722 (holding that precise certainty is not required, but it suffices if the court, by the return, can be apprised of the substance of the matter). (2) Allegation in response in habeas corpus proceedings that plaintiff abused the child concerned in defendant's presence until he told plaintiff not to abuse her further is more than a mere conclusion, but is a defense defectively stated; if plaintiff desired to be more specifically informed, he should have filed a motion to make allegation more definite and certain. Greenhaw v. Williams, 140 Ark. 471, 215 SW 734. 18. Stretton v. Shaheen, 176 Fed. 735, 100 CCA 389. 19. Greenhaw V. Williams, 140 Ark. 471. 215 SW 734. [a] Matters held hearsay.Allegation in response to petition in habeas corpus that child involved declared her intention of not returning to the home of plaintiff and wife, "saying that they had maltreated her, whipped her, and beat her with a window stick," is hearsay. Greenhaw v. Williams, 140 Ark. 471. 215 SW 734. 20. Ex p. Garcia, (Tex. Civ. A.) 187 SW 410. "It is elementary that, in considering the return upon habeas corpus proceedings, no narrow and techni[a] In Ohio supreme court it has cal construction of the commitment, been held that it is within the dis-or the grounds upon which it is iscretion of the judge of the supreme sued, is to be indulged in behalf of court who allows a habeas corpus to the petitioner. A showing on remake it returnable in term time or turn is sufficient if it discloses the in vacation and where the parties fact that, within the spirit and genmay in general have relief by appli-eral purview of the law, the cus 21. Ala. Bray v. State, 140 Ala. 172. 37 S 250. Kan.-Terr. v. Cutler, McC. 152. Nebr.-State v. Quimby, 104 Nebr. swer to the writ, that fact should be clearly and unequivocally stated.22 This custody, possession, or control should be denied as existing not only at the time of the return, but also at the service of the writ.23 Generally a person who has transferred the custody or restraint to another must state in the return, to whom, at what time, and for what cause, and by what authority, such transfer took place,24 but it has been held that it is only necessary to state 590, 178 NW 202. Philippine.-Que Quay v. Collector of Customs, 33 Philippine 128. Tex.-Ex p. Oates, (Cr.) 234 SW 675. 22. U. S.-Ex p. Benedict, 3 F. Cas. No. 1,292; U. S. v. Davis, 25 F. Cas. No. 14,926, 5 Cranch C. C. 622; U. S. v. Green. 26 F. Cas. No. 15,256, 3 Mason 482; U. S. v. Williamson, 28 F. Cas. No. 16,725, 4 AmLReg 5. Cal.-In re Murphy, 154 Cal. 168, 97 P 188. 46. Ga.-State v. Philpot, Dudl. Mass.-Dumain v. Gwynne, 10 Al len 270. N. Y. In re Stacy, 10 Johns. 328. Oh.-Ammon V. Johnson, 3 Oh. Cir. Ct. 263, 2 Oh. Cir. Dec. 149. Pa.-Com. v. Friends' Home for Children, 7 Pa. Dist. 653. 22 Pa. Co. 61; Com. v. Kirkbride, 1 Brewst. 541, 7 Phila. 1. Eng.-Rex v. Bethuen, Andr. 281, 95 Reprint 399; Reg. v. Roberts, 2 F. & F. 272; Rex v. Wright, Str. 915, 93 Reprint 939; Rex v. Winston, 5 T. R. 89, 101 Reprint 51: Warman's Case, W. Bl. 1204, 96 Reprint 709. N. S.-In re Mahoney, 24 N. S. 86; In re Stirling, 23 N. S. 195; Reg. v. Stirling, 22 N. S. 547. 23. State v. Philpot, Dudl. (Ga.) 46; Reg. v. Roberts, 2 F. & F. 272. See In re Doo Woon, 18 Fed. 898, 9 Sawy. 417 (holding that unless the return shows that the caption and detention are legal at the time of the service of the writ the prisoner ought to be discharged). But see supra § 18. [a] If more than one writ has been issued, the return must answer as to the time of service of the first one. Rex v. Viner, Freem. K. B. 389, 89 Reprint 289. that the person in question is not in the custody of respondent.25 [§ 177] c. Averments as to Cause and Authority for Restraint. Where the custody of the prisoner is admitted, the return must set forth the cause or authority for his detention.26 A return is good and sufficient in this respect where the facts stated 'authorize or justify the detention complained of; 27 otherwise the return is defective and in der which he is holding defendant, 27. See cases infra this note. tion against his person which is valid upon its face and which is produced and a copy of it annexed to the return). [b] Judgment of a court of competent jurisdiction returned as authority for commitment is an unanswerable return. Smith v. Hess, 91 Ind. 424; Rex v. Bythell, 12 Mod. 74, 88 Reprint 1174. See also supra §§ 46-52. [a] Returns held sufficient. U. S. v. Williams, 203 Fed. 292 (ex- [c] Detention by military authorclusion of feeble-minded alien); In ity.-(1) That the person sought re Moy Quong Shing, 125 Fed. 641 to be released is a member of the (exclusion of Chinese alien); Ex p. army is a sufficient answer to the Noble. 96 Cal. 362, 31 P 224 (it need writ in the Philippine Islands by not show that the ordinance under statute. Matter of Smith, 14 Philwhich the prisoner was convicted ippine 112. (2) An answer to a was properly published); Brooke v. habeas corpus petition stating that Logan, 112 Ind. 183, 13 SE 669, 2 the person is in his custody by virAmSR 177 (where the return is good tue of his being captain of a milion one ground. it is sufficient as tary company of which this person against a general exception); In re is an enlisted member, and which Chipchase, 56 Kan. 357, 43 P 264: answer is properly signed and veriPalmer v. Kalamazoo Cir. Judge, 83 fied, and has attached thereto a copy Mich. 528, 47 NW 355 (where, al- of the enlistment papers. is a sufthough a return to a writ of habeas ficient compliance with Code (1906) corpus was insufficient to comply & 2459 (Hemingway Code 2025). with the statutory requirements, the Birdsong v. Blackman. (Miss.) 90 order under which the prisoner was S 441; (3) Army and navy cases detained was produced, in the ab- generally. See supra §§ 79-83. sence of objection, the court regard- [d] Detention as insane.-(1) ed it as the authority for the de-Failure to apply to proper hospital tention); Peo. V. Protestant Enis- authorities for the release of the recopal House of Mercy. 128 N. Y. 180, lator and absence of modification of 28 NE 473 (the requirement of the the commitment was held a sufwrit for a return of the day and ficient return. State v. Clifford, 106 cause of the imprisonment is suf- Wash. 16, 179 P 90. (2) Generally. ficiently complied with by a return See supra § 100. of the commitment): Peo. v. Work- [e] Extradition.-(1) A return house Warden, 37 Misc. 639. 75 NYS in extradition proceedings which 1111, 16 N. Y. Cr. 401 (a return to a shows that the federal statutes with writ of habeas corpus to produce the reference to the extradition had release of a prisoner from the work- been complied with is sufficient. house which states that he is held un- Kemper v. Metzger, 169 Ind. 112. 81 der a commitment from a city mag- NE 663. (2) Cases holding return istrate is not defective in failing to sufficient. Young v. State, 155 Ala. show that he was arrested under a 145, 46 S 580; Singleton v. State, warrant, as it will be presumed that 144 Ala. 104. 42 S 23: Barriere v. 24. In re Knott, 162 Mich. 10. the magistrate acquired jurisdiction State, 142 Ala. 72. 39 S 55; Kemper 126 NW 1040: Ex p. Wood, 58 Okl. over the prisoner in the proper man- v. Metzger, 169 Ind. 112, 81 NE 663; 278, 159 P 483; Que Quay v. Col-ner; also when the relator claims that U. S. v. Gaynor, 9 CanCrCas 205, lector of Customs, 33 Philippine he is entitled to be released under (a return to a writ of habeas cor128. See Sears v. Dessar, 28 Ind. 472 Greater New York Charter & pus issued pending a remand in ex(reason for transfer of child should authorizing the release of convicts tradition proceedings is good if it be shown). for vagrancy in less than the term discloses an information duly laid of sentence if the records show that before an extradition judge having they have not been committed to jurisdiction over the subject matter the workhouse, penitentiary, or coun- of the inquiry, the appearance of ty jail within two years for public accused before such judge, and a intoxication, disorderly conduct. or warrant under the hand and seal vagrancy, it is not necessary that of the judge remanding him into the return show that he has been custody until the time fixed for proSO committed); In re Newkirk, 37 ceeding with the hearing). (3) Misc. 404. 75 NYS 777, 16 N. The sheriff is not required to allege Y. Cr. 359 (where a return in his return that the petitioners are states that relator is held un- fugitives from the other state or der a warrant for "disorderly con- that the prosecution in the other duct," and is defective in that there state is in good faith, but is merely is no such offense under the stat- required to set forth facts showing utes, but it annears that the relator authority under which he detains is held as a "disorderly person." and petitioners. Ople v. Weinbrenner, the commitment states that he has 285 Mo. 365. 226 SW 256. (4) A abandoned his wife without adequate return is sufficient when there is atsupport. which brings him within tached the governor's warrant rethe definition of a disorderly per- citing the jurisdictional facts. Campson, under Code Cr. Proc. § 899, the bell v. State, 166 Ala. 33. 52 S 399: writ will be dismissed) Peo. v. Fox. Singleton v. State. 144 Ala. 104, 42 34 Misc. 82, 69 NYS 545. 15 N. Y. S 23; Pool v. State, 16 Ala. A. 410, Cr. 373 (the return need not contain 78 S 407 [certiorari den 202 Ala. the evidence on which the prisoner 13. 79 S 3111; Ex p. Dennison, 72 was convicted); Ex p. Russell, 60 N. Nebr. 703, 101 NW 1045. 117 AmSR C. 388: State v. Kings County Super. 817; Peo. v. Pinkerton, 77 N. Y. 245. Ct., 103 Wash. 409, 174 P 973: In re (5) But, where extradition warrant Mowry, 12 Wis. 52. (where a netition is relied upon to sustain return, it for a habeas corpus alleges that pe- is insufficient if recitals of juristitioner is confined in jail on an ex- dictional facts are omitted. State ecution against his person. which v. Richardson, 34 Minn. 115, 24 NW was issued irregularly or in an ac- 354 (return insufficient where it retion in which petitioner was not lia- turns extradition warrant and does ble to arrest, the return of the jailer not recite that executive was furis sufficient if it shows that peti- nished with required indictment or tioner is held by virtue of an execu-affidavit). (6) In proceedings fol 25. Rex v. Bethuen, Andr. 281, 95 Reprint 399. 26. U. S.-Frank v. Mangum, 237 U. S. 309, 35 SCt 582, 59 L. ed. 969. Ala.-Bray v. State, 140 Ala. 172, 37 S 250. Ida.-Martin V. Vincent, 201 Р 492. Ind. Clayborn v. Tompkins, 141 Ind. 19, 40 NE 121. Mich.-Palmer v. Kalamazoo Cir. Judge, 83 Mich. 528, 47 NW 355, Nebr.-State v. Quimby, 104 Nebr. 590, 178 NW 202; Urban v. Brailey, 85 Nebr. 796, 124 NW 467. Nev.-Ex p. Salge, 1 Nev. 449. Okl.-Ex p. Wood, 58 Okl. 278, 159 Philippine.-Que Quay v. Collector of Customs, 33 Philippine 128. Eng.-Devbel's Case, 4 B. & Ald. 77 243, 6 ECL 468, 106 Reprint 926; Adcock v. Fiske, 6 Bing. N. Cas. 17, 37 ECL 485, 133 Reprint 7: Thomlinson's Case, 12 Coke 104, Reprint 1379; Brice's Case. Cro. Car. 593, 79 Reprint 1109: Barkham's Case, Cro. Car. 507, 79 Reprint 1037; Rex v. Bethel, 5 Mod. 21, 87 Reprint 494. N. S.-Rex v. Venot, 6 CanCrCas 209. Ont.-Reg. v. Reno, 4 Ont. Pr. 281. [al The court is bound by the sheriff's return as to the process un 710, 31 sufficient. 28 The return should show the particular! averments in the return may be supplied by aver- 35 If the writ is issued by a state court where the detention is by federal authority, it is still necessary that a return should be made showing such authority. The return should be sufficient in its detail of facts to show distinctly that the imprisonment is under the authority or claim or color of authority of the United States, 36 and to exclude the suspicion of imposition or oppression on the part of the detaining authorities.37 The process or orders under which the prisoner is held should be produced with the return and submitted to inspection. [178] d. Verification. At common law no verification of the return was necessary. By stat lowing extradition, under warrants | Carlsen, 130 Fed. 379. (4) In par- V. [f] Custody of children.-(1) A return showing commitment to institution by court was sufficient. Re Mahoney, 24 N. S. 86. (2) Return by mother that children were within the age where, by statute, she was entitled to custody against father, was sufficient. In re Smart, 11 Ont. Pr. 482 (in determining the right of one parent as against the other to the custody of a child the court should look to the statutory law of the province as well as the common law). (3) Alleging that parent brought sick child to respondents saying that he could not look after it, and if they would, they might have it, they took the child. nursed it, paid its doctor's bills, and gave it [b] Army and navy cases. Disposition of person see infra § 39 38 the petitioner was convicted when such ordinance was set out in the petition for habeas corpus. In re Ah Toy, 45 Fed. 795. [d] Resort to record to show offenses.-Where the certified copy of the minutes of the court furnished to the keeper imperfectly described the crime of which the prisoner was convicted, it was held that the keeper could, upon return to the writ of habeas corpus, show by the record of the court what the precise crime was, and show that the sentence was legal and the detention authorized. It seems that this can- Peo. 30. Matter of Clarke, 2 Q. B. 619, 42 ECL 835, 114 Reprint 243; Barkham's Case, Cro. Car. 507, 79 Reprint 1037: Rex v. Bethel, 5 Mod. 21, 87 Reprint_494. [a] Rule applied.-A return setting up that the party was committed "upon the following order," and [c] Failure to respond to draft then setting out an order purportsummons was not a sufficient returning to be made by the master of the when no averment was made of in- rolls, is insufficient as not directly tent to evade military service, au- averring by whom the order was thorizing_holding petitioner as de- made. Matter B. of Clarke, 2 Q. Farley v. Ratliff, 267 Fed. 619, 42 ECL 835, 114 Reprint 243. 31. Crawford V. Lawrence, 154 Ind. 288, 56 NE 673; Clayborn v. Tompkins, 141 Ind. 19, 40 NE 121; Speaker v. Styant, Comb. 127, 90 Reprint V. 384; Rex Mountnorris, 1 Ridgw. 460. See in re Goldsmith, 24 Kan. 757 (return held sufficient where commitment returned showed an offense within the jurisdiction of the justice, although it did not state that the offense had been committed within the county in which the justice had jurisdiction). 195. 29. Peo. v. Baker, 89 N. Y. 460: In re Newkirk, 37 Misc. 404, 75 NYS 777; Watson's Case, 9 A. & E. 731, ECL serter. every attention it needed was held sufficient. Hicks v. Wil- 682. liams, 135 Ga. 433, 69 SE 547. (4) Stating that because of the age of petitioner the child was not properly controlled, and that there were not sufficient school opportunities 36 was held to where petitioner lived show that conditions had changed since the decree awarding custody to petitioner was rendered, although there was no specific allegation to that effect. Heavrin v. Spicer, 265 Fed. 977, 49 App. (D. C.) 1337. (5) Generally. See supra §§ 101-109. [g] Insufficient tender of fine is a sufficient return. State v. Barnes, 22 N. D. 18, 132 NW 215, 37 LRANS 114. Ann Cas1913E 930. [h] Escape answer to expiration of sentence. Where it appears from the return of the sheriff that the prisoner escaped from detention and remained free from imprisonment until after the term of detention expired and had not served his sentence, the return was held sufficient. Hollon v. Hopkins. 21 Kan. 638. 28. Farley v. Ratliff, 267 Fed. 682. [a] Returns held insufficient. (1) Where a return specifies two warrants of commitment for the same offense, and neither the second warrant nor such return declares the second warrant to be in substitution for, or in amendment of, the first, which is irregular and bad, the prisoner should be discharged. Rex v. Venot, 6 CanCrCas 209. (2) Allegation that petitioner desired bail for purpose of intimidating witnesses properly stricken out as no answer where party entitled to bail. Ford v. Dilley, 174 Iowa 243, 156 NW 513. (3) A return by a hospital that the person seeking release was an alien seaman not regularly admitted to the United States, admitted to the hospital for treatment of injuries received on board ship, and that the immigration authorities were opposed to his release, set up no legal Justification for the detention. 384, 112 Reprint 1389: Souden's Case, 4 B. & Ald. 294. 6 ECL 490. 106 Reprint 945; Deybel's Case, 4 B. & Ald. 243, 6 ECL 468, 106 Reprint 926; Chamber's Case, Cro. Car. 133. 79 Reprint 717. [a] Rule applied. (1) A return stating a capital conviction for high treason and felony and commutation of the sentence is sufficient without specifying the treason or felony. Watson's Case, 9 A. & E. 731, 36 ECL 384, 112 Reprint 1389. (2) A return stating that relator is held after conviction under a warrant of commitment to a magistrate for disorderly conduct is defective, as there is no such criminal offense as disorderly conduct. In re Newkirk, 37 Misc. 404, 75 NYS 777, 16 N. Y. Cr. 359. [b] Commitment for contempt.- [c] Failure to state ordinance 32. Lucas v. Hawkins, 102 Ind. 64, 1 NE 358. 33. Brenan's Case, 10 Q. B. 492, 59 ECL 492, (where 116 Reprint 188 the return alleged that the court had jurisdiction to try and punish the offense, and the sentence of transportation which had been imposed was unreversed, it was held that the proceeding would be presumed to be valid and that it was not necessary that the return should set out the authority of the court to pass such sentence); In re Fell, 3 D. & L. 373; Rex v. Suddis, 1 East 306, 102 Reprint 119. 34. 795; In re Ah Toy, 45 Fed. Com. v. Bell, 145 Pa. 374, 22 A 641. 644 (want of facts in return showing jurisdiction to commit for tempt is immaterial where facts are set forth in petition). con 35. Tarble's Case, 13 Wall. (U. S.) 397, 20 L. ed. 597; Ableman v. Booth, 21 How. (U. S.) 506, 16 L. ed. 169; [appr Ex p. Hill, 5 Nev. 154]; Ex p. Sifford, 5 AmLReg 650; Ex p. Sifford, 22 F. Cas. No. 12,848; Shirk's Case, 5 Phila. (Pa.) 333; Bagnall v. Ableman, 4 Wis. 163; In re Booth, 3 Wis. 1. 36. U. S. v. Tarble, 13 Wall. (U. S.) 397. 20 L. ed. 597. 37. U. S. v. Tarble, 13 Wall. (U. S.) 397, 20 L. ed. 597. 38. U. S. v. Tarble, 13 Wall. (U. S.) 397, 20 L. ed. 597. 39. Watson's Case, 9 A. & E. 731. 36 ECL 384, 112 Reprint 1389; Matter |