case the company OF vintner against clerk it be a good custom of London that  some of the freeman of each of the guild shall be choose of the livery by the  company and that the court of mayor and alderman on complaint by a company of  a freeman so choose on the livery refuse after be admonish to accept the  office may commit the person so refuse to the custody of the sheriff or other  officer of the city until he shall consent to take upon he the say office S c  post S c salk S c holt S c comb S c salk S c Mod S c Com upon a habeas corpus  direct to the keeper of Newgate be return that the city of London be a ancient  city and that the citizen and freeman thereof have time out of mind be  incorporate by the name of mayor commonalty and citizen c that there be  several company guild and brotherhood among the say citizen of who the company  of vintner be one which company be incorporate by the name of master warden  freeman and commonalty of the mystery of vintner and that some freeman of that  company be always of the livery and choose by that company who be so choose  and fit person for the say office do usual bold the same without some  reasonable excuse to the contrary that there be a court of record hold in the  say city before the lord mayor and alderman at guildhall twice in every week  where rule and order be make in all thing relate to the several company for  the better government of the city and that the say company be under the  correction of that court that there be a custom in the say city that if any  complaint be make to the mayor and alderman of the say court by the master and  warden of any company of a liveryman choose and refuse to take the office be  admonish by that court to accept it that then the mayor and alderman have use  to commit the person so refuse to the custody of the sheriff of London or any  other officer there to be detain until he shall consent and declare that he  will take upon he the say office then he set forth that these custom be  confirm by Act of parliament and that before the issue forth of the say writ  one Isaac clerk be a citizen of London and a freeman of the company of vintner  be choose of the livery and require to take upon he the say office which he  refuse thereupon complaint be make to the mayor c by the master and warden of  that company the say clerk be summon to appear c which he do and refuse to  take upon he the say modern modern er p office and be admonish by the court to  conform do still refuse that the mayor c by a warrant in write do commit he to  custody there to remain until he shall consent and declare that he will accept  the say office and that this be the cause of his take and imprisonment those  who argue against this return say that it consist of several fact of which  this court can not take any notice but that none of these fact be contain in  the warrant of commitment and that no matter ought to be put in the return  which the warrant itself do not lead unto first that the return be void both  in substance and form and it be void in form for these reason because it be  lie special that the mayor and alderman have a custom to commit till the  offender shall consent and declare his willingness to take upon he the office  but he do not set forth to who he shall signify such consent it be therefore  uncertain to who such a declaration shall be make it be void for that reason  especial in this case where the liberty of the subject be concern which be so  much favour by the law to this first exception it be answer that if the party  declare his consent to any person that he will accept the office it be  sufficient for upon such a declaration of his mind he may be bring before the  court and discharge from his imprisonment curian a commitment till he shall  declare his consent to accept the office be more than if he have be commit  till he shall actual consent therefore though the court of alderman may commit  he until he shall consent yet they may have no power to imprison he till he  shall declare it second exception it be a void and impertinent custom to  commit a man to prison until he shall consent and declare to hold a office the  mayor and alderman may have a power to summon man before they by virtue of  some ancient custom in order to reform or punish offender but the commitment  in this case be not a punishment for the refusal to take the office but  because the defendant will not declare he will do it and when such a  declaration be make then he be at large again and may break his word by refuse  to be of the livery c they may have impose a penalty to be levy by distress  but ought not to commit the offender and thus it be adjudge in clerk case   a  Jones more   a the town of saint Alban be incorporate by Edward the six and  have power to make bylaw and the term be hold there the mayor by the consent  of clerk who be one of the burgess of the town c make a order for assess every  inhabitant to the charge of erect court for the judge and suitor and those who  refuse to pay to be imprison clerk refuse but it be adjudge that the mayor can  not justify his commitment by virtue of that order because he ought to have  inflict a pecuniary punishment or he may have bring a action of debt upon the  bylaw make for the forfeiture of a particular sum winch Ent b modern a custom  for the court of alderman to commit until the offender shall take the oath of  alderman be hold good march c because it be a public office for the  administration of justice and for the government of the city which be thing of  necessity but it do not appear that the office of a liveryman be of any public  concernment there be but few authority in the book relate to this objection  some there be as for instance in a action of false imprisonment style d the  defendant justify under a custom in London to commit a man for disturb the  election of a warden of a company and to continue he in custody until he will  promise not to disturb such election and upon a demurrer to this plea the  plaintiff have judgement so upon the return of a habeas corpus Mod e the cause  of imprisonment appear to be for that he be choose of the livery refuse to  serve and it be not until he shall make a insignificant declaration of his  consent to hold the office and yet in that case the imprisonment be adjudge to  be illegal for they may have fine the offender and have bring a action of debt  for the fine but they can not commit for such a refusal as to the second  exception the illegality of the custom itself to commit for modern er p refuse  to take upon he the office of liveryman it be argue that the custom of London  be confirm by Act of parliament to which all people virtual give their consent  therefore a commitment by virtue of a custom thus confirm in order to enforce  a obedience to it be justifiable by the law of the land the city of London  have many custom more unreasonable than this be and which likewise tend to  restrain n en of their liberty and yet they be allow because they cooperate  with a Act of parliament as for instance there be a custom for a creditor to  arrest a debtor before the day of payment in order to compel he to give better  security for the debt there be another custom for a constable upon suspicion  only of any immorality to break open a house and to commit the offender which  be express contrary to law and yet such custom be the particular usage of the  city be become law loci and be confirm by Act of parliament be bind to the  inhabitant then a commitment until what time may be good accord as the fact be  unless it be in execution and so be the commitment in alderman Langhams case  march a until he shall take the oath of alderman c beside the court of  alderman be a court of record the judge send prohibition to they   I b now it  appear upon the return that the defendant voluntary obstinate et contemptuose  refuse to take upon he the livery of his company and it be incident to a court  of record to commit for a contempt as to the three exception the gaoler have  not set forth his warrant in haec word but only that per a certain warrantum  in scribe good luck experience c the defendant be commit and this be introduce  with a long story not pertinent to the commitment itself of which he have not  set forth any cause now by the statute car c common call the habeas corpus Act  the judge of either court in Westminster may upon application make to they by  the prisoner and upon view of the copy of the warrant of commitment or upon  oath make that it be deny grant a habeas corpus in vacationtime returnable  immediate which statute will be elude if the warrant itself shall not be  return for if the officer shall return any cause different from the warrant of  commitment and such for which a habeas corpus be not allow by that Act then  the person must still be keep in custody though he be real bailable by law and  he have no remedy but to bring a action against the gaoler for a false return  therefore it seem necessary that he shall return the whole tenor of the  warrant that the court may make a proper judgement of it for otherwise by a  return of the commitment general the gaoler make himself a judge of the cause  modern neither do it lie in the power of the officer to mend the warrant of  commitment but he be to return it as it be that the court may judge of it it  be his own excuse for keep the prisoner in custody and if the return and the  warrant do not agree he may keep he in custody long than the law allow the  whole warrant be return in Bethells caseAnte a and this be agreeable to law in  other proceed for if a man be bind to make a sufficient release to another it  be not enough for he to say general that he execute a release but he must set  it forth at large that the court may judge whether it be sufficient or not the  habeas corpus Act take care that a person who be bail shall not be recommit  for the same offence under the penalty of five hundred pound to the party  grieve two any colourable pretence or variation in the warrant of commitment  notwithstanding from which it may reasonable be infer that the maker of that  law do intend the warrant shall be return otherwise if the party shall be  recommit how can it appear to be for the same cause for which he be in custody  before now it do not appear upon this return but that the warrant may be  illegal and the commitment not to be justify by law therefore it ought to be  set forth at large that the court may judge of the legality of it it be always  so in the common case of order make by justice of peace for it may not appear  in the order itself that those who sign it be justice of peace at that time  and though it shall appear so upon the return of the certiorari to remove such  order yet this court will quash itSee the case of the king v inhabitant of  Wootton river ante page b as to this three exception videlicet that the  warrant be not return in hc word modern er p it be say that it be not  necessary for though the law favour liberty yet it favour likewise magistracy  and proceed in court of justice if the commitment have be by mesne process  then it may be necessary to set out the warrant at large but when it be in a  judicial way by a court of justice it be not usual to do it as if a commitment  be make by the court of king bench and a habeas corpus be direct to the  marshal he never return the warrant itself therefore this be not within the  habeas corpus Act for it be a commitment in execution by a court of record for  a contempt of their authority and in such case the warrant itself be never  return it be sufficient to say that the person be commit per mandatum domini  porter well a master in council and it be likewise sufficient as in this case  to set forth that it be per warrantum in scribe secundum experience community  c at commonlaw it be sufficient to set forth the substance and not the thing  itself which must be understand where the officer do not take upon he to  disclose the whole fact but here he have return the whole matter which if not  true it be at the peril of he who make the return and the party grieve may  have a remedy by action curian the warrant be always set forth at large in a  return make upon a extrajudicial commitment but when a matt be commit by a  court of record there be no warrant at all therefore the court of alderman in  this case can be intend to proceed judicial because the commitment be per  warrantum in scribe they be the proper judge of a excuse make by the defendant  why he will not take upon he the livery and if they adjudge it insufficient  and appoint he to accept it and he refuse it be a contempt of their authority  for which they may commit he the four exception and the most insist on be that  in the return a custom be lie for the mayor c to commit the offender to the  custody of the sheriff of London or other officer and the gaoler have return  that he be commit watch I when it do not appear that he be either sheriff or  officer at that time so that more be put in the judgement than that be  wartanted by the custom it be likewise say that he be commit to prison but do  not say where if he have return that the prisoner be commit to Newgate it may  have be better yet that will have be insufficient for though Newgate be the  king gaol and admit that the person to who the defendant be commit be then  keeper thereof yet that do not make he appear to be a officer of the city at  that time as to this four exception videlicet that it be not return that the  keeper of Newgate be a officer of the city it be answer that the return begin  thus ego jacobus fall custos gaolae domini king de Newgate c and when he come  to the warrant he set forth that the defendant be commit to prison in  custodian of me which can be intend of no other person than he who be at that  time keeper of Newgate who be well know to be a officer of the sheriff of  London for the judge deliver that gaol every month curian he be commit to the  keeper of Newgate who may be a officer of the city but not one attend the  court of alderman so that it do not appear that he be a proper officer of that  court to receive he and therefore not like a commitment by the court of king  bench to the marshal who be a proper officer always attend that court and so  be the sheriff where the commitment be make by a judge of oyer and terminer  neither do it appear that Newgate be in London but if it do he ought to be  commit to the sheriff and not to the keeper of Newgate though they may have  take he as their officer but this court can take notice that he be a officer  to the sheriff no more than they can what borough send burgess to parliament  as for instance by the statute car c S those who preach in conventicle shall  not come or be within five mile of a borough which send burgess to parliament  a man be indict upon this statute for live in such a borough but it be quash  in this court because it be not aver that the borough wherein the defendant  live do send burgess to parliament now certain it be as well know to this  court what borough send burgess to parliament as that the keeper of Newgate be  a officer of the sheriff of London five exception it be say he be commit until  what time concetiret which be void and insensible there be no such word then  as to this six exception videlicet that the word concetiret be insensible  modern er p it be therefore void it be say that the follow word to disclose  have a certain signification and be more comprehensive than to agree if it  have be right because a man may consent to a thing and never declare his  consent open but when he make a declaration thereof he do both and for the  four exception the return be hold insufficient and the defendant be discharge