In Ohio, Connecticut, Virginia, Texas, New Hampshire, the statutes are silent as to any penalties in any case of refusal of the writ.

SECTION III.

SECURITY FOR COSTS AND AGAINST ESCAPE.

By the act 31 Car. 2, the officer to whom the writ was directed was required to make return of it within three days after the service thereof, "upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the judge or court that awarded the same, and endorsed upon the writ, not exceeding 12 pence per mile, and upon security given by his own bond to pay the charges of carrying back the prisoner, if he shall be remanded by the court or judge to which he shall be brought, according to the true intent of this present act, and that he will not make any escape by the way."

It was held, however, that the omission of the prisoner to tender the fees due to the gaoler was no excuse to him for not obeying the writ, though it was said the court would not discharge the prisoner when brought up till the fees were paid. Bac. Abr., Hab. Corp., B., sec. 8.

In Massachusetts, where the party is confined in a common jail or in the custody of any civil officer, the costs of bringing him from the place of confinement must be paid or tendered, or the officer is not bound to obey the writ.

In some states, however, a discretion is vested in the court or judge to exact security.

In Kentucky, by section 5 of the habeas corpus act, it is provided that the "officer granting the writ may previously require bond, with surety in sufficient penalty, payable to the commonwealth or to the person against whom the writ is directed, conditioned that the person detained shall not escape by the way, and for the payment of such costs and charges as may be awarded against him."

In Arkansas, "in order to render the service effectual," the court or judge allowing the writ may require "that the charges of bringing up the prisoner, and conveying him back if remanded, shall be paid by the petitioner; the amount, to be specified by the court on the writ, not to exceed ten cents per mile."

In Missouri, it is provided that the costs of bringing up the prisoner may be required to be paid by the petitioner, and if not paid, and bond given to pay the costs of returning him if remanded, it is declared that the service of the writ shall not be considered complete.

SECTION IV.

ALLOWANCE OF THE WRIT.

1. Mode of allowance.

2. Notice of allowance.

1. Mode of allowance. Where the writ is awarded by the court in term, the fact is shown by an entry upon its journal. When it is awarded by a judge in vacation, the fact is shown by an order under his hand, indorsed usually upon the petition.

The act of 31 Car. 2 provided that the writ, when granted according to its provisions, should "be marked in this manner: 'Per statutum, tricesimo primo Caroli secundi Regis,' and be signed by the person that awards the same, and to the intent that no sheriff, gaoler or other officer may pretend ignorance of the import of any such writ."

The Pennsylvania statute, 1785, still in force, contained the same provision; except the words "By act of Assembly, 1785," are substituted for the words "Per statutum tricesimo primo Caroli secundi Regis."

No such "marking" or indorsement of the writ is required in Ohio, The judge indorses his allowance upon the petition, but even that is not necessary. The order may be on a detached piece of paper.

The omission in England to make and sign the writ under the act 31 Car. 2, rendered it inoperative, Rex v. Roddam, Cowp., 672, and probably would have the same effect in Pennsylvania under their statute.

2. Notice of the allowance. While it is a matter of great moment to the prisoner to be speedily released

from illegal imprisonment, it is also a matter of concern to the state that public offenders should not escape merited punishment, and one of interest to the citizen, that he should not be wrongfully deprived of any remedy, however severe, which the law may afford him. Hence it has been customary for the court in cases of habeas corpus to require notice of the application for or pendency of the writ to be served upon the public prosecutor where the imprisonment is under criminal process, and upon the creditor, or party interested in continuing the imprisonment, where it is under civil process. The King v. Taylor, 7 Doul. & Ryl., 622; Ex parte Smith, 3 McLean, 121; Mr. Justice Foster's Letter, 20 How. St. Tr., 137, sec. 5; Bromley's case, 3 Jac. & W., 453.

The want of such notice to the creditor was held to vitiate the discharge on habeas corpus of the debtor in execution, in the case of Hecker v. Jarrett, 3 Binn., 404. Tilghman, Ch. J., said: "The power of discharging from an execution is a very important one, and should be exercised with great discretion. I will not say that the judge had no right to discharge from imprisonment in a case of this nature. I am of opinion, however, that granting his right to discharge, his proceedings were void for want of notice to the plaintiff in execution. It is contrary to the first principles of justice to deprive a man of his rights without a hearing or the opportunity of a hearing."

In New York, it has been made a statutory duty. The People v. Pelham, 14 Wend., 48; 2 Rev. Stat., 1852, 802, secs. 61, 62. So also in Indiana, notice is required in cases of imprisonment, "on any process under

which any person has an interest in continuing his imprisonment or restraint," to be given to such interested party; and when the detainer is on a criminal charge, notice shall be given to the person, his agent or attorney, on whose complaint such party is held in custody." Rev. Stat., 1843, p. 932, secs. 28, 29.

Also in Alabama, Clay's Dig., 465, except in cases of confinement on a criminal charge, the notice shall be given to the solicitor or attorney-general, as well as the prosecutor.

SECTION V.

THE WRIT.

1. The form of the writ.

2. In what name to issue.
3. To whom directed.

1. The form of the writ. The writ, as has already been observed, took its name from the emphatic words it contained when it was used in the Latin tongue. The following was the usual form when it was addressed to an officer, in the singular number. Rex vicecom. London salutem:

Præcipimus tibi, quod CORPUS A. B. in prisona nostra sub custodia tua detent. ut dicitur una cum causa detentionis suæ quocunque nomine idem A. B. censeatur in eadem HABEAS coram nobis apud Westm. die Jovis prox. post Octabis S. Martini ad subjiciendum et recipiendum ea quæ curia nostra de ea adtunc, et ibidem ordinari contigerit in hac parte et hoc nullatemus, omittatis periculo incumbente, et habeas ibi hoc breve. 2 Inst., 53; Trem. P. C., 354.

Sometimes, instead of naming a time for the production of the body, &c., the words were: "Imme