unless it appear from the application itself or from the documents annexed that the person applying or for whose benefit it is intended is, by this chapter, prohibited from prosecuting the writ.

Code, s. 1628; 1868-9; c. 116, s. 6.

Sec. 389 (1828). Penalty for refusal to grant.

If any judge authorized by this chapter to grant writs of habeas corpus shall refuse to grant such writ when legally applied for, every such judge shall forfeit to the party aggrieved two thousand five hundred dollars.

Code, s. 1631; 1868-9, c. 116, s. 9.

Sec. 390 (1829). When sufficient.

No writ of habeas corpus shall be disobeyed on account of any defect of form. It shall be sufficient

1. If the person having the custody of the party imprisoned or restrained be designated either by his name of office, if he have any, or by his own name, or if both such names be unknown or uncertain, he may be described by an assumed appellation, and any one who may be served with the writ shall be deemed the person to whom it is directed, although it may be directed to him by a wrong name, or description, or to another person.

2. If the person who is directed to be produced be designated by name, or if his name be uncertain or unknown, he may be described by an assumed appellation or in any other way, so as to designate person intended.

the

Code, ss. 1629, 1630; 1868-9, c 116, ss. 7, 8.

IV. THE RETURN.

Sec. 391 (1830). When returnable.

Write of habeas corpus may be made returnable at a certain time, or forthwith, as the case may require. If the writ be returnable at a certain time, such return shall be made and the party shall be produced at the time and place specified therein.

Code, s. 1656; 1868-9, c. 116, s. 31.

Sec. 392 (1831). What to contain; when verified.

The person or officer on whom the writ is served must make a return thereto in writing, and, except where such person shall be a sworn public officer and shall make his return in his official capacity, it must be verified by his oath. The return must state plainly and unequivocally—

1. Whether he have or have not the party in his custody or under his power or restraint.

2. If he have the party in his custody or power, or under his restraint, the authority and the cause of such imprisonment or restraint, setting forth the same at large.

3. If the party be detained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return; and the original shall be produced and exhibited on the return of the writ to the court or judge before whom the same is returnable.

4. If the person or officer upon whom such writ is served shall have had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, the return shall state particularly to whom, at what time, for what cause and by what authority such transfer took place.

Code, s. 1633; 1868-9, c. 116, s. 11.

Sec. 393 (1832). Body produced, when.

If the writ require it, the officer or person on whom the same has been served shall also produce the body of the party in his custody or power, according to the command of the writ, except in the case of the sickness of such party, as hereinafter provided.

Code, s. 1636; 1868-9, c. 116, s. 14.

Sec. 394 (1833). Served, how and by whom.

The writ of habeas corpus may be served by any qualified elector of this state, thereto authorized by the court or judge allowing the same. It may be served by delivering the writ, or a copy thereof, to the person to whom it is directed; or, if such person can not be found, by leaving it, or a copy, at the jail, or other place in which the party for whose relief it is intended is confined, with some under officer or other person of proper age; or, if none such can be found, or if the person attempting to serve the writ be refused admittance, by affixing a copy thereof in some conspicuous place on the outside, either of the dwelling-house of the party to whom the writ is directed, or of the place where the party is confined for whose relief it is sued out.

Code, s. 1657; 1868-9, c 116, s. 32.

V. OBEDIENCE COMPELLED.

Sec. 395 (1834). Attachment for failure to obey.

If the person or officer on whom any writ of habeas corpus shall have been duly served shall refuse or neglect to obey the same, by producing the body of the party named or described therein, and by making a full and explicit return thereto, within the time re

quired, and no sufficient excuse be shown for such refusal or neglect, it shall be the duty of the court or judge before whom the writ shall have been made returnable, upon due proof of the service thereof, forthwith to issue an attachment against such person or officer, directed to the sheriff of any county within this state, and commanding him forthwith to apprehend such person or officer and bring him immediately before such court or judge, and on being so brought such person or officer shall be committed to close custody in the jail of the county where such court or judge may be, without being allowed the liberties thereof, until such person or officer make return to such writ and comply with any order that may be made by such court or judge in relation to the party for whose relief the writ shall have been issued.

Code, s. 1637; 1868-9, c. 116, s. 15.

Sec. 396 (1835). Penalty, judge refusing attachment.

If any judge shall willfully refuse to grant the writ of attachment, as provided for in the preceding section, he shall be liable to impeachment, and moreover shall forfeit to the party aggrieved twenty-five hundred dollars.

Code, s. 1638; 1870-1, c. 221, s. 2.

Sec. 397 (1836). Sheriff attached, writ to coroner; penalty.

If a sheriff shall have neglected to return the writ agreeably to the command thereof, the attachment against him may be directed to the coroner or to any other person to be designated therein, who shall have power to execute the same, and such sheriff, upon being brought up, may be committed to the jail of any county other than

his own.

Code, s. 1639; 1868-9, c. 116, s. 16.

Sec. 398 (1837). Precept to bring up party detained.

The court or judge, by whom any such attachment may be issued, may also at the same time, or afterwards, direct a precept to any sheriff, coroner, or other person to be designated therein, commanding him to bring forthwith, before such court or judge, the party, wherever to be found, for whose bencfit the writ of habeas corpus has been granted.

Code, s. 1640; 1868-9, c. 116, s. 17.

Sec. 399 (1838). Penalty, judge refusing to grant precept.

If

any judge shall refuse to grant the precept provided for in the preceding section, he shall be liable to impeachment, and moreover shall forfeit to the party aggrieved twenty-five hundred dollars. Code, s. 1641; 1870-1, c 221, s. 3.

Sec. 400 (1839). Penalty, judge conniving at insufficient return.

If any judge shall grant the attachment, or the precept, and shall give the officer or other person charged with the execution of the same verbal or written instructions not to execute the same, or to make any evasive or insufficient return, or any return other than that provided by law; or shall connive at the failing to make any return or any evasive or insufficient return, or any return other than that provided by law, he shall be liable to impeachment, and moreover shall forfeit to the party aggrieved twenty-five hundred dollars.

Code, s. 1642; 1870-1, c. 221, s. 4.

Sec. 401 (1840). Power of county to aid service.

In the execution of any such attachment, precept or writ, the sheriff, coroner, or other person to whom it may be directed, may call to his aid the power of the county, as in other cases.

Code, s. 1643; 1868-9, c. 116, s. 18.

Sec. 402 (1841). Obedience to order of discharge, compelled.

Obedience to a judgment or order for the discharge of a prisoner or person restrained of his liberty, pursuant to the provisions of this chapter, may be enforced by the court or judge by attachment in the same manner and with the same effect as for a neglect to make return to a writ of habeas corpus; and the person found guilty of such disobedience shall forfeit to the party aggrieved two thousand five hundred dollars, besides any special damages which such party may have sustained.

Code, s. 1649; 1868-9, s. 116, s. 24.

Sec. 403 (1842). Not liable civilly for obedience.

No officer or other person shall be liable to any civil action for obeying a judgment or order of discharge upon writ of habeas corpus.

Code, s. 1650; 1868-9, c 116, s. 25.

.VI.

PROCEEDINGS AND JUDGMENT.

Sec. 404 (1843). Notice to interested parties.

When it appears from the return to the writ that the party named therein is in custody on any process, or by reason of any claim of right, under which any other person has an interest in continuing his imprisonment or restraint, no order shall be made for his discharge until it shall appear that the person so interested, or his attorney, if he have one, shall have had reasonable notice of the time and place at which such writ is returnable.

Code, s. 1634; 1868-9, c. 116, s. 12; 1870-1, c. 221, s. 1.

Sec. 405 (1844). Notice to solicitor.

When it appears from the return that such party is detained upon any criminal accusation, the court or judge may, if he thinks proper, make no order for the discharge of such party until sufficient notice of the time and place at which the writ shall have been returned, or shall be made returnable, be given to the solicitor of the county in which the person prosecuting the writ is detained. Code, s. 1635; 1868-9, c. 116, s. 13.

If it appears from the return that the petitioner is detained on a criminal charge the court may continue the hearing for a reasonable time to give the solicitor an opportunity to examine into the case. Jones, 113-669.

Sec. 406 (1845). Witnesses subpoenaed.

Any party to a proceeding on a writ of habeas corpus may procure the attendance of witnesses at the hearing, by subpoena, to be issued by the clerk of any superior court, under the same rules, regulations and penalties prescribed by law in other cases. Code, s. 1659; 1868-9, c 116, s. 34.

Sec. 407 (1846). Facts examined into; proofs heard summarily.

The court or judge before whom the party is brought on a writ of habeas corpus shall, immediately after the return thereof, examine into the facts contained in such return, and into the cause of the confinement or restraint of such party, whether the same shall have been upon commitment for any criminal or supposed criminal matter or not; and if issue be taken upon the material facts in the return, or other facts are alleged to show that the imprisonment or detention is illegal, or that the party imprisoned is entitled to his discharge, the court or judge shall proceed, in a summary way, to hear the allegations and proofs on both sides, and to do what to justice shall appertain in delivering, bailing or remanding such party.

Code, s. 1644; 1868-9, c. 116, s. 19.

Sec. 408 (1847). Party discharged, when.

If no legal cause be shown for such imprisonment or restraint, or for the continuance thereof, the court or judge shall discharge the party from the custody or restraint under which he is held. But if it appear on the return to the writ that the party is in custody by virtue of civil process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by law, such party can be discharged only in one of the following cases: