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." Randall v. Bridge, 2 Mass., 549.

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. Yates' case, 4 Johns., 317.

In Indiana the officer or person upon whom the writ is served is required to state in his return,

"Plainly and unequivocally: 1. Whether he have or have not the party in custody or under his power or restraint. 2. If he have the party in his custody or power or under his restraint, he shall state the authority and the cause of such imprisonment or restraint, setting forth the same at large. 3. If the party be detained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return, and the original shall be produced and exhibited

to the court or judge, on the hearing of such return. 4. If the officer or person upon whom such writ shall have been served shall have had the party in his power or custody or under restraint at any time prior or subsequent to the date of the writ of habeas corpus, but such officer or person has transferred such custody or restraint to another, the return shall state particularly to whom, at what time and place, for what cause, and by what authority, such transfer took place."

If from sickness or infirmity the prisoner cannot be produced without danger, that fact may be returned under oath, and the court, if satisfied of the truth of it, may proceed as if the party was produced, or adjourn the hearing until he can be produced.

Somewhat similar provisions are contained in the laws of Alabama, Arkansas, Maine, Massachusetts and Ohio.

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, City of London case, 8 Co., 127, b, 128, a; 2 Roll. Rep., 158, it was said, "It was 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 inform 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, Cowp., 672, 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, Doug. Rep., 150, 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.

"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, 9 Ad. & E., 371; 36 E. C. L., 254, 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 alleged. They will not be presumed. Where the habeas corpus was brought for the discharge of an apprentice above the age of twenty-one, a return stating the custom of London, that every citizen and freeman of the city may take as an apprentice any person above the age of fourteen and under twentyone, to serve for seven years or more, must show that the apprentice was within those ages when he bound

himself apprentice; for the court will not intend that from matter dehors the return. Eden's case, 2 M. & S., 226.

SECTION VII.

AMENDMENT OF THE RETURN.

In England it seems that before the return be filed any defect in form, or the want of an averment of a matter of fact may be amended; but this must be at the peril of the officer in the same manner as if the return were originally what it is after amendment. After the return is filed it becomes a record of the court and cannot be amended. 1 Mod., 102, 103. So the omission of the words in which the contempt consists. Cro. Car., 133. In like manner the writ may be amended before it is returned and filed, but not afterwards. 2 Lib. Abr., 2.

It was held, however, in Leonard Watson's case, 36 Eng. C. L., 254, that the return might be amended after return filed. It has been customary in the United States to allow amendments to be made at any time before the decision of the case, where it appeared to the court to be necessary to the ends of justice.

In Pennsylvania, the Act of 1785, section 1, provides that "the return by leave of the judge may be amended before or after it is filed." So in Delaware, Rev. Stat., 1852, p. 412, sec. 5.

Undoubtedly anywhere in the United States it is competent for the court to permit an amendment at any time before the final disposition of the case.