
    NOVEMBER TERM, 1844.
    William Hardy and Geo. W. Hardy v. John Smith, Sen.
    A writ of habeas corpus to recover the possession of a slave, cannot be maintained, if the party against whom the writ issues, had in good faith parted with the possession of the slave previous to its issuance or service.
    The affidavits made to obtain a writ of habeas corpus, cannot be regarded as evidence upon the hearing.
    This was a writ of habeas corpus ad subjiciendum issued upon a petition to the Hon Stephen Adams, Judge of the Ninth Judicial District, by John Smith, senior, to recover the possession of a negro boy named Jerry, alleged to be in the possession of William and George W. Hardy. The petition alleges that they took 'the slave from the possession of the petitioner by force, one being armed with a gun, and the other with a knife. The affidavits of two witnesses were annexed to the petition. George W. Hardy answered, and denied that he ever had the possession or control of the said slave. William Hardy’s answer admits that he once had possession of the slave, and asserts that he bought him and paid for him, and that he had made a bona fide sale of him for a valuable consideration, and delivered the possession of him to Abner Prewett, who resided in the same county with the defendants, before the issuance or service of the writ. Upon the hearing, no evidence being offered on either side, the counsel for the petitioner objected to the sufficiency of the return ; the Judge sustained the objection, and ordered the slave to be returned to the possession of the petitioner within ten days ; and, on the defendants’ failure to do so, that they be considered in contempt, and imprisoned until they did deliver the slave, and pay costs, &c.
    The defendants excepted, and removed the case to this Court by writ of error.
    
      Stephen Cocke, for plaintiffs in error.
    This is a writ of. error to the proceedings had before the Honorable Stephen Adams, Judge of the Ninth Judicial District, on habeas corpus, against the plaintiffs in error, at the suit of the said John Smith, seeking the restitution of the possession of a negro man slave by the name of Jerry.
    The law upon which the proceedings are founded, is contained in sec. 11, page 665, How. & Hutch. Digest. This is in the nature of criminal proceedings, and the law upon the subject should be pursued strictly. To give a Judge jurisdiction by proceedings on habeas corpus to restore possession of a slave, the petition should state that the slave is the property of the petitioner, and that he was taken or seduced out of his possession by force, fraud, or stratagem, or unlawfully detained from him. In this case, the petition does not make out any such case. Neither the one nor the other of said causes is shown by the petition to exist. The only allegations of the petition are, that John Smith senior respectfully asks the award of the writ of habeas corpus ad subjiciendum, directed to William Hardy and George W. Hardy, or either of them, having the possession of a negro man slave named Jerry, commanding them, or him, to produce the body of the negro man slave, with the day and cause of his caption and detainer. There is, then, nothing shown in the petition over which a Circuit Court Judge in vacation can have any jurisdiction.
    But to the writ of habeas corpus, the plaintiff in error made the following return.
    “ The within named George W. Hardy states that he has not now, nor never had the possession or control of the said boy Jerry ; but that the possession has been in one William Hardy. 5th January, 1843. (Signed) G. W. Hardy.”
    William Hardy returns that “ he once had the boy Jerry, whom he purchased and paid for, and that, since his purchase and possession, and before the service and issuance of this writ, he sold the said boy Jerry to one Abner Prewett of this county, bona fide, and for a valuable consideration, and delivered the said boy into his (Abner Prewett’s) possession, and that he has now no power or control over the said boy Jerry. (Signed) W. Hardy.”
    At Common Law, this return was conclusive, and is, under our statute, at least prima facie. See How. & Hutch. Dig. p. 663, sec. 4. • '
    
      It is true the Judge might have received evidence in contradiction. But the Judge, without any evidence at all beyond the mere ex parte preliminary affidavits on which to issue the writ, and without the appropriate petition in this behalf,'ordered and decreed that the defendants (below) should return to the then plaintiff the said negro in ten days, or they be considered in contempt, and be imprisoned until they comply with this order.
    On behalf of the plaintiffs in error, it is contended that the proceedings and order aforesaid are highly erroneous and unjust.
    1. Because there was no complaint before the Judge by petition, showdng that the said slave Jerry had been taken or seduced from the possession of said Smith by the said plaintiffs in error, or either of them, by, force, fraud, or stratagem, or unlawfully detained from him.
    
      2. The said petition did not contain any such case as would give a Circuit Court Judge, in vacation or otherwise, any jurisdiction over, or right to control the said slave Jerry.
    3. On adjudging the return insufficient, the Judge should have required a sufficient return to have been made, or at least to have required proof that the boy Jerry was the property of the said Smith, and that he had, in fact, been taken or seduced from his possession by the force, fraud, or stratagem of the then defendants. Those things did not legitimately follow as a consequence from the supposed insufficiency of the return.
    For the plaintiffs in error we submit that the judgment below be reversed, and forasmuch as the petition contains no cause on account of which there is any authority in the law to award to the petitioner the boy slave Jerry, the said petition be dismissed.
    
      Gholson, for defendant in error.
    This is a writ of error to the decision of the Judge of the Ninth Judicial District, on an application for a writ of habeas corpus, under the provisions of the statute. How. & Hutch. 665, sec. II.
    The statute provides that, where any slave shall be taken out of the possession of the master, owner, or overseer, by force, stratagem, or fraud, the- writ may issue on the petition of the person making the application, supported by the testimony of one or more credible witnesses.
    
      In this case, the petition does not state the ground of the application, but it is accompanied by two affidavits taken before the Judge himself, and filed with the petition at the time the writ issued, and which must be considered as part of it. They do most distinctly state a strong and sufficient reason for the application. They show that the slave belonged to the petitioner, and was taken out of his possession by the parties against whom the writ is prayed, by violence and force, by the use of weapons. •
    The only question in this case is as to the sufficiency of the return upon the writ of habeas corpus. The bill of exceptions shows, that the Judge held the return insufficient, because it appeared that the slave had been taken by force. Whether this fact appeared by evidence at the time, or by the affidavits filed, is now immaterial. The fact is admitted in the bill of exceptions, and fully justified the decision of the Judge. -
   Mr. Justice Clayton

delivered the opinion of the Court.

This was a writ of habeas corpus, issued to recover possession of a slave, under, the statute of this State. How. & Hutch. 665. The defendant, William Hardy, answered, that he once had the boy in possession, whom he had purchased, and for whom he had paid ; but, since that time, and before the issuance or service of this writ, he had made a bona fide sale of the boy for valuable consideration, and delivered possession to the purchaser, who resided in the same county.

The counsel for the petitioner objected to this return as insufficient, because the añswe'r admitted the force, and offered no sufficient excuse for failure to produce the slave. The Judge adopted this view, and directed the defendants to deliver the slave to the .petitioner in ten days, or that they then be considered in contempt; that an attachment issue, and that they be imprisoned till they comply with the order.

The statute directS'that, if any person, being in possession of any slave taken by force, stratagem, or fraud, shall refuse, delay, or neglect to obey a writ of habeas corpus, after the same shall have been served, and shall conceal or remove such slave out of the State, to avoid legal process, the person so offending shall be subjected to certain penalties therein prescribed. The question arises, whether the judgment is in accordance with the statute. We think it is not. No evidence was offered to contradict the return; indeed, no testimony of any kind was taken. The affidavits made to obtain the writ cannot be regarded as testimony upon the hearing.

The party had parted with the possession of the slave before the issuance or service of the writ, to a person residing in the same county, under a bona fide sale for valuable consideration, as he alleges. If this were true, — and, in the absence of evidence to the contrary, we cannot say it was not so, — then he was not within the statute, because this did not take place after its service.

The statute, moreover, directs the writ to be issued to the person found in possession of such slave ; it is therefore, in terms, inapplicable to a person not in possession at the time it is issued. A fraudulent or collusive change of possession to avoid the operation of the-writ would be disregarded, but then the petitioner must show the change of possession to be of that character, and that the defendant still virtually has the possession. There was no such evidence in this cause.

The judgment below was erroneous, and the same is hereby reversed.  