| 537 court at Nauvoo, this 6th day of May, in the year of our Lord, one thousand eight hundred and forty-four.
WILLARD RICHARDS,
Clerk, M. C., C. N.
I hold the within named Joseph Smith, Senior, under arrest, by virtue of a capias ad respondendum.
Hancock Circuit Court,
To May Term, A. D.. 1844.
Francis M. Higbee,}
Vs. }in case.
Joseph Smith. }
The day of his caption, May 6th, 1844.
To damage, five thousand dollars.
WM. BACKENSTOS, S. H. C.
By J. D. Parker, D. S.
State of Illinois, }
Hancock County. } ss
The people of the state of Illinois: To the sheriff of said county:.....GREETING.
We command you that you take Joseph Smith, if he be found within your county, and him safely keep, so that you have his body before the circuit court of said county of Hancock, on the first day of the next term thereof, to be holden at the court house in Carthage on the third Monday in the month of May, instant, to answer Francis M. Higbee, of a plea of the case; damage, the sum of five thousand dollars as he says; and you have then there this writ, and make due return thereon, in what manner you execute the same.
Witness, J. B. Backenstos, Clerk of said circuit court, at Carthage Seal.] this first day of May, in the year of our Lord one thousand eight hundred and forty-four.
J. B. BACKENSTOS, Clerk,
By D. E. Head, Deputy.
The sheriff is directed to hold the within named defendant to bail in the sum of five thousand dollars.
J. B. BAKENSTOS [Backenstos], Clerk,
By D. E. Head, Deputy.
This is a true copy of the original, now in the possession of William
B. Backenstos, sheriff of Hancock county.
By J. D. PARKER, DEPUTY.
STATE OF ILLINOIS, }
Hancock county } Sct.
City of Nauvoo. }
To Mr. Francis M. Higbee:-
Sir, You will please take notice that Joseph Smith, Senior, has petitioned for a writ of habeas corpus, from the Municipal Court of said city, praying that he may be liberated from the custody of John D. Parker, Deputy sheriff of Hancock county, by whom he is held in custody on a capias ad respondendum, issued by the circuit court of Hancock county, on the first day of May, instant, to answer Francis M. Higbee, on a plea of the case, &c.; which writ is granted, and you will have the opportunity to appear before the Municipal court, at 10 o'clock, A. M., on the 7th of May, instant, at the Mayor's Council Chamber, in said city, and show cause why said Joseph Smith, Senior, should not be liberated on said habeas corpus.
Witness my hand and seal of
[Seal] Court, this 6th day of May, 1844.
WILLARD RICHARDS, Clerk, M. C., C. N.
The above trial is deferred until Wednesday, the 8th instant, 10 o'clock, A. M.
W. RICHARDS. Clerk.
I have served the within, by reading to the named Francis M. Higbee.
John D. Parker, Constable.
Mr. Higbee did not appear either by himself or counsel.
Mr. J. P. Stiles then said that the petition and papers have been read in your hearing; it is a petition for an habeas corpus on the grounds-lst; the insufficiency of the writ, and other causes assigned. The insufficiency of the writ is sufficient to discharge the prisoner, it is the privilege and option of this court, if the writ is invalid. It is the privilege of the prisoner to have all the matters investigated, in order to prove that the prosecutor is joined with other persons in a conspiracy to take away Mr. Smith's life. Although it is competent for the court to discharge on account of the insufficiency of the writ, yet we want an examination into the matters, in order that all may be understood. All warrants should disclose the crimes known to the court, so that the prisoner might know what answer to make; the prisoner might have had to lay in jail six months, because he knows nothing what he is charged with in the writ; it might be that he is charged with debt; that he had to pay Francis M. Higbee the sum of five thousand dollars, or any thing: there is no action specified; is it meant for trespass, for mal-treating, beating, or slander, or what other crime, so that the damage of five thousand dollars might be known for what it is. The, writ is void for want of substance and form, all who are familiar with law; common sense, or justice, must know that it is indefinite; no charge defined. If we are not released here, we shall be released in circuit court, on account of the insufficiency, but we are now willing to investigate the merits of the case. We know nothing but from information from other sources, and we want this court to determine whether we are
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