THIS was a Habeas Corpus commanding the defendant to bring up the body of Margaret Reap whom he detained and claimed as a slave.

On the return of the writ, Williamson for defendant moved to quash the writ on the ground that it had been issued improvidd without airy affidavit being filed or cause being shown.

In civil actions the Habeas Corpus to remove a cause from. an inferior court issues of course, and there is no necessity to lay before the court any special circumstances to authorize this proceeding, but when the writ is issued for the purpose of examining a question of property or trying the rights of parties, before they can be required to come forward to prove , . . - . J . 1 . , - , . . . ,. •heir title, or incur the expense and trouble which such a call imposes, it is necessary and highly reasonable that some grounds should be shown to satisfy the court that it is proper and necessary. In this case no such ground has been disclosed, and it has not been made to appear that there is an_y reason to question the title of the defendant. 3 BL Cbm. 129? 131,2.1 BL Rep. 412.1 Burr. 636,7. show that an affidavit is the proper course.

Chetwood J. When the question was first started, it struck me that a distinction might be thought to exist between cases where the writ issued in the vacation, and where it issued in term; but upon reflection I am satisfied that the ■same principle must exist in both cases. In the first case i£ is necessary that the Judge should be satisfied before the writ is allowed, and the court, in the latter. Neither of them ought to act without some probable cause being exhibited, to raise at least a reasonable question as to the legality of the claim under which the negro is detained. But there is no authority for confining the mode of showing this probable cause to any one course, whether by affidavit or otherwise; nor is there any reason for this restriction. I signed the writ in the present case during the vacation, and I was at the time perfectly satisfied of the propriety of allowing it.

Smith J. There must have been some ground exhibited to. the Judge who allowed this writ, or unquestionably he would not have done it. We cannot presume that he would have acted without some sufficient motive; but it is perfectly immaterial in what manner he obtained the information upon which he acted. It would have been an adequate ground if he knew the circumstances of the case from his own personal knowledge, and in such a case it would have been wholly unnecessary and superfluous to have required testimony to be produced to inform him of facts which he previously knew.

For the defendant it was then moved, that he’should not be compelled to answer the writ until security was given that the costs should be paid in case the negro should be adjudged a slave.

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How this case has been treated — in progress