case the king against penelope smith discuss r v clarke in re race Elizabeth b  the return to a habeas corpus can be supply by affidavit SC stram SC Cun a  habeas corpus be issue to bring up the body of one James smith a infant  between thirteen and fourteen year old who be in the custody of his aunt and a  general a preparation modern to have be return without specify any reason in  the return for keep he from his father but that be supply by affidavit though  of little or no consequence Hardwicke chief justice object to this practice as  irregular in supply by affidavit what ought to have appear on the return Mr  Bicknell then move on the behalf of the father to have the child deliver over  to he as the person by law entitle to the care and custody of he in the case  of the king v Johnson stram SC Mod a upon a dispute between the guardian of a  infant of the age of nine year appoint by the father will and a curator  appoint by the spiritual court the child be bring into court on the return to  a habeas corpus the court take the child out of the hand of the curator and  deliver he over to the guardian see what be say by Pemberton chief justice in  the case of lady Harriet Berkeley   stat trial b on the other side be cite sir  Robert viner case lev c Lord Hardwicke chief justice there be no justification  return for detain this child he must certain be leave to his liberty as to his  continuance with his aunt but the question be whether the court ought to go  far and deliver he over to his father I think we can the only intent of a  habeas corpus be to provide against any restraint of the party liberty in the  case in viner case no more be do than to set the party at large so in lady  Catherine annesley case who be bring up by habeas corpus the court will make  no order for deliver her over to the duchess of Buckingham her mother though  she have the same right of guardianship to the child as here the father in  that case be dead the case of the king v Johnson be the only case I have hear  of to the contrary and I do not see how that can be right how can we on motion  try the right of guardianship for that will be the consequence which will  disable the party from take the opinion of a superior court by writ of error I  do not know but that the father may take the child wherever he find he however  he have his remedy against any person who detain he illegal he may bring his  writ of ravishment of ware there be a action too in which the guardianship  itself be recoverable the writ de ejection watch at this rate we be to do two  act upon this habeas corpus not only to discharge he from the custody of the  first person but likewise to commit he to the custody of another where a  person be remove into this court by habeas corpus we commit he to the custody  of the marshal but in case of removal from one prison to another there must be  one habeas corpus ad deliberand and another ad recipiend modern er p the other  judge concur see king v mead burr king v sir Francis black Delaval burr d  modern lee justice say the case of the king v Johnson be rule as cite at the  bar but he say Lord Raymond who be then one of the judge tell he that upon  consideration be think the court do wrong in that case