case the king against lord grey if a person be convict of secret another and  appear in court at the return of to remove to a writ of a human being  replegiando he may be commit although no capias in withernam have issue and he  be not entitle to be bail until he produce the body SC raym SC h Tr  information a against he for seduce away a daughter of Lord Berkley she be his  own wife sister and detain her secret in his house and commit fornication with  her and upon a trial at the bar he be find guilty thereupon he be afterward  prosecute with a writ de a human being replegiando at the return thereof he  appear and pray his appearance may be record and that he may be admit to plead  and traverse the return which be that he have eloigned dame Henrietta Berkeley  so as the sheriff can not find her on the other side it be pray that he may be  commit for that in f n b d that the quash a indictment be discretionary in the  court upon the circumstance of the case and that they be not bind to quash for  any insufficiency ex debt is owed justiciae see side cro car palm salk sayer  stram will burr Bl Rep dougl Bac Abr term Rep and hawk p c ch S a see lev raym  a see the information verbatim in the appendix to the vol of Mr hargrave Edit  of state trial page shower KB er p it be say that on a return of a to remove a  capias in withernam lie to take the body of the defendant to detain he until  what time c be he peer of the realm or common person and in that book be cite  the case of dame Spencer b and a declaration against her in custodian and in  that case be cite one Matthew redmans in the time of Richard the second and  now his be in court supply a capias in withernam holt e contra we come in at  the return of the writ and appear let they declare and we will plead instanter  c shower KB and he cite Edward if there be a default it may be as they say  jefferies sergeant this be not like the case of a common replevin he ought to  bring in the body Mr pollexfen he be to come in upon a capias in withernam and  not before this be a writ which the law give to relieve against imprisonment  and if it shall be otherwise then the mischief will be of our side we must lie  in your custody till their plea be determine and then the debate and contest  must be between you the defendant and we who be in your custody if he will  bring in the body then he shall plead the lord of a manor may plead that the  plaintiff be his villain but then he must bring in the body first Lord chief  justice now upon this return we find a to remove by my Lord grey and upon his  appearance we see no need of a capias for bail you remember the case of well  where upon solemn debate it be deny and hereupon the Lord grey be commit but  the Lord chief justice tell he that if he will send for the body to sit cur  they will admit he to bail quaere if in such case the sheriff be bind to  return the body or a to remove and may not return a non to take in hand in  Wilmores case last easter term it be rule that nothing else can be return and  the court refuse any other return and force the sheriff to return a to remove  but to I seem the contrary for he may return that the defendant claim he as  his villain f n b and if he may not return a non to take in hand then here may  be a case where a sheriff can make a true return which seem absurd to affirm  for suppose such writ be sue for the body of a against b who know nothing of a  nor ever have he in his custody if the sheriff can make any other return than  a replevin or a to remove then he can make a true return and be of necessity  liable to ail action therefore quaere d Maynard sergeant the next day come and  move on the behalf of the Lord grey that mainprize may be take this be a rare  writ and the course be not determine in king John S time we find never a one  shower KB in Edward first be time but one e the party may plead and justify or  he may deny the take in the reign of Richard the second f there be a writ de a  human being replegiando against the earl of Warwick a to remove be return and  a capias issue and a supersedeas because he have find mainprize for the bring  in the body on pain of five hundred pound in the reign of Henry the four g one  be take upon a capias and there be a concession be that he find mainprize and  he do so and a supersedeas although he be commit for the contempt yet he may  come in and plead then for print case there be the yearbook of Edward the four  h and Rastals entry I he may plead without appearance of the party there be a  prayer to gage deliverance he there find pledge to deliver he but yet  conditional if he have take he and this be declare by vavasor to be the  opinion of all the judge here be no conviction and yet he may plead any thing  here be no unde to express grief here be no plaintiff it be only a capacity be  ut to say b Michaelmas term Henry title a human being Replegiando c see  Treblecocks case that the special matter may be plead to the writ de a human  being replegiando atk d see the case of de la bastide v reynell Mod that the  sheriff can make any other return to a a human being replegiando than to  remove e see yearbook Edward pl f in the king bench in Hilary term Richard  roll g king bench Henry roll h Edward pl I raze Ent shower KB er p Mr holt the  party may be bail king he have liberty to gage deliverance to find mainprize  if he have take he for the have of the body here the return of the sheriff l  can conclude the merit of the cause nor can he make return against the  suggestion of the writ quod capacity be I find no such return as non to take  in hand in a common replevin and then sure a man may plead non to take in hand  m Pemberton chief justice I do not think you may plead in this case but I do  much doubt if he can be bail those plead you mention be general on a special  return and I do yet grant further that upon such a return as this be there may  be plead if he will come and own that he have the party and justify he may and  so it be I suppose in the case of the earl of Warwick it be the same with the  case of executor if a sheriff on a become facias will return a devastavit it  be not traversable though such a return on a to know facias with a inquiry be  traversable I shower KB agree further that if you bring a action against the  sheriff and he be find guilty of a false return we will deliver he or if you  will bring in the body or if my lord will come in and own the take and justify  the same and give security to render her if it be find against he we will bail  he however let we see these case and we will consider thereof afterward he  produce her in court and be bail see the next case