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article,* must obey and make return to the writ, according to the exigency thereof, whether it is directed to him or not. Any other person, upon whom such a writ is served, having the custody of the individual for whose benefit it was issued, must obey and execute it, according to the command thereof, without requiring any bond, or the payment of any charges, except such as are specified in the certificate allowing the writ. Code Civ. Pro., $ 2004. 7 Wend. 132; 10 Paige, 606; 18 Johns. 49; 21 Abb. N. C. 303; 8. C., 15 Civ. Pro. 20; 1 N. Y.
Supp. 144; 27 id. 821; 76 Hun, 119. 2 Return, when made. Where a writ of habeas corpus is returnable on a day certain, the return must be made at the time and place specified therein. Where such a writ is returnable forthwith, at a place within twenty miles of the place of service, the return must be made, and the prisoner must be produced, within twenty-four hours after service; and the like time must be allowed, for each additional twenty miles. Code Civ. Pro., § 2006.
The Writ of Habeas Corpus, to Bring up a Person to Testify. 3 When issued by court or judge. A court of record, other than a justice's court of a city, or a judge of such a court, or a justice of the supreme court, has power, upon the application of a party to an action or special proceeding, civil or criminal, pending therein, to issue a writ of habeas corpus, for the purpose of bringing before the court, a prisoner, detained in a jail or prison within the state, to testify as a witness in the action or special proceeding, in behalf of the applicant. Code Civ. Pro., $ 2008. 18 Johns. 49; 5 Cow. 176; 7 Wend. 132; 69 N. Y. St. R. 614.
4 Same; when allowed by judge. Such a writ may also be issued by a justice of the supreme court, upon the application of a party to a special proceeding, civil or criminal, pending before any officer or body, authorized to examine a witness therein. In a case specified in this section, the writ may also be issued by a county judge, or a special county judge, residing within the county where the officer resides, before whom, or the court or other body sits, in or before which the special proceeding is pending. Code Civ. Pro., $ 2009, as am'd L. 1895, c. 946. 5 Cow. 176.
5 Same, in suit before justice of the peace, etc. Such a writ may also be issued by a justice of the supreme court, upon the application of a party to an action pending before a justice of the peace, or in a justices' court of a city, or a district court of the city of New York, to bring before the justice or court, to be examined as a witness, a prisoner confined in the jail of the county where the action is to be tried, or an adjoining county. In a case specified in this section, the writ may also be issued by a county judge, or a special county judge, residing within the county where the justice resides, or the court is located, or the prisoner is confined, as the case may be. Code Civ. Pro., $ 2010, as am'd L. 1895, c. 946.
6 The last three sections qualified. A writ shall not be issued, by virtue of either of the last three sections, to bring up a prisoner sentenced to death. Nor shall it be issued to bring up a prisoner confined under any other sentence for a felony; except where the application is made, in behalf of the people, to bring him up as a witness on the trial of an indictment, and then only by and in the discretion of a justice of the supreme court, upon such notice to the district attorney of the county wherein the prisoner was convicted, and upon such terms and conditions, and under such regulations, as the judge prescribes. Code Civ. Pro., $ 2011, as am'd L. 1880, c. 301, and L. 1895, c. 946. 35 N. Y. Supp. 237; 69 N. Y. St. R. 614.
7 Writ, how applied for. An application for a writ, made as prescribed in either of the foregoing sections of this article,t must be verified by affidavit, and must state:
1. The title and nature of the action or special proceeding, in regard to which * Code Civ. Pro., SS 1991–2007; see State Writs, SS 9–13. This subject, SS 3-9.
ado. The Pher the priorney-genof counse testifying aus
were to accordingcued upon theo the party But
the testimony of the prisoner is desired; and the court, or body, in or before which, or the officer before whom, it is pending.
2. That the testimony of the prisoner is material and necessary to the applicant, on the trial of the action, or the hearing of the special proceeding, as he is advised by counsel and verily believes.
3. The place of confinement of the prisoner. 4. Whether the prisoner is or is not confined under a sentence for a felony.
But where the attorney-general or district-attorney makes the application, he need not swear to the advice of counsel. Code Civ. Pro., § 2012.
8 Return; prisoner remanded after testifying. The return to a writ, issued as prescribed in this article,* must state for what cause the prisoner is held; and if it appears therefrom, that he is held by virtue of a mandate in a civil action or special proceeding, or by virtue of a commitment upon a criminal charge, he must, after having testified, be remanded, and again committed to the prison, from which he was taken. Code Civ. Pro., Š 2013. 15 Abb. Pr. N. 8. 38; 10 Paige, 606; 7 Hill, 301; 4 How. U. 8. 21.
9 Duty of officer on whom writ is served. Any officer to whom a writ, issued as prescribed in this article,* is delivered, must obey the same, according to the exigency thereof, and make a return thereto accordingly. If he refuses or neglects so to do, he forfeits, to the people, if the writ was issued upon the application of the attorney-general or a district-attorney, or, in any other case, to the party on whose application the writ was issued, the sum of five hundred dollars. But where the prisoner is confined under a sentence to death, a return to that effect is a sufficient obedience to the writ, without producing him. Code Civ. Pro.,
2014. 5 Johns. 357; 18 id. 49; 5 Cow. 176. Habeas Corpus, and the Writ of Certiorari, to inquire into the Cause of Detention.
10 Who entitled to such writs; service on Sunday. A person imprisoned or restrained in his liberty, within the state, for any cause, or upon any pretence, is entitled, except in one of the cases specified in the next section, to a writ of habeas corpus, or a writ of certiorari, as prescribed in this article,* for the purpose of inquiring into the cause of the imprisonment or restraint, and, in a case prescribed by law, of delivering him therefrom. A writ of habeas corpus may be issued and served under this section, on the first day of the week, commonly called Sunday; but it cannot be made returnable on that day. Code Civ. Pro., § 2015. 3 Hill, 399, 650, 654, n.; 5 id. 164; 6 T. & C. 258; 5 Abb. Pr. 281; 1 id, 210; 29 How. Pr. 485;
21 id. 80, 451; 15 id. 210; 25 Wend. 80; 25 id. 567; s. c. 1 Hill, 377; 1 Park. 187, 197; 5 id. 77; 1 id. 129; s. c. 5 N. Y. Leg. Obs. 294; 61 Barb. 619; 60 N. Y. 560; s. c. 11 Alb. L. J. 396, rev'g 3 Hun, 760; 56 N. Y. 182; 96 id. 381; 41 Hun, 353; 46 id. 409; 59 id. 320; 14 id. 21; 26 id. 1, 154, 12 id. 508; 8 How. Pr. 288; 13 Abb. 8; 13 Civ. Pro. 305; 5 N. Y. Cr. R. 383; 24 Barb. 521; 6 Johns. 338; 122 N. Y. 238; 33 N. Y. St. R. 231; 36 id. 750;
68 id. 553. 11. When neither writ allowed. A person is not entitled to either of the writs specified in the last section, in either of the following cases:
1. Where he has been committed, or is detained, by virtue of a mandate, issued by a court or a judge of the United States, in a case where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of legal proceedings in such a court.
2. Where he has been committed, or is detained, by virtue of the final judgment or decree, of a competent tribunal of civil or criminal jurisdiction; or the final order of such a tribunal, made in a special proceeding, instituted for any cause, except to punish him for a contempt; or by virtue of an execution or other process, issued upon such a judgment, decree, or final order. Code Civ. Pro.,
2016. 3 Laps. 408: 24 N. Y. 74; 60 id. 599; 22 W. D. 565; 32 Hun, 537; 88 id. 260: 84 id. 166; 2 N. Y. Cr. R. 429, 440; 38 Hun, 282; s. c. 4 N. Y. Cr. R. 111; 11 Civ. Pro. 180; 133 N. Y.
* This subject, 88 3-9.
the son for whose relief Titust be made, by a whifts corpus or certio
rant it, thening and authorize county, capabisoner is detainourt
207; 84 Hun, 166; 44 N. Y. St. R. 677; 68 id. 553; 44 Barb. 98; 42 id. 479; 48 id. 258; 1
N. Y. Leg. Obs. 314; 3 Abb. N. 8. 137; 2 id. 334; 65 N. Y. St. Ř. 736. 12 How and to whom application for habeas corpus or certiorari made. Application for the writ must be made, by a written petition, signed, either by the person for whose relief it is intended, or by some person in his behalf, to either of the following courts or officers: 3 Hill, 399; 8 Abb. Pr. 188; 36 N. Y. 607; 6 Civ. Pro. 299; 59 Hun, 320; 36 N. Y. St. R. 750;
47 id. 836. 1. The supreme court, at a special term or the appellate division thereof, where the prisoner is detained within the judicial district within which the term is held. 3 How. Pr. 39; 8 id. 288; 6 Civ. Pro. 299; 12 Wend. 229.
2. A justice of the supreme court, in any part of the state. 3 How. Pr. 39; 4 L. B. 85.
3. An officer authorized to perform the duties of a justice of the supreme court at chambers, being or residing within the county, where the prisoner is detained; or, if there is no such officer within that city or county, capable of acting, or, if all those who are capable of acting and authorized to grant the writ, are absent, or have refused to grant it, then to an officer, authorized to perform those duties, residing in an adjoining county. Code Civ. Pro., § 2017, as am’d L. 1895, c. 946. 3 How. Pr. 39; 59 id. 174, 289; 64 id. 7; 33 id. 384; 25 id. 307; 38 id. 402; 60 Barb. 480; 24 id.
521; 8 Abb. Pr. 188; 1 Duer, 709; 14 Abb. Pr. N. S. 414; 4 T. & C. 467; 46 Hun, 409; 11 id. 89; 2 id. 226; 4 L. B. 84; 23 Civ. Pro. 8; 16 id. 126; 135 N. Y. 76; 74 id. 443; 19 N. Y.
St. R. 903; 60 id. 136; 28 N. Y. Supp. 500; 5 Park. 518. 13 Same, in another county; proof required. Where application for either writ is made as prescribed in subdivision third of the last section, without the county where the prisoner is detained, the officer must require proof, by the oath of the person applying, or by other sufficient evidence, of the facts which authorize him to act as therein prescribed; and if a judge in that county, authorized to grant the writ, is said to be incapable of acting, the cause of the incapacity must be specially set forth. If such proof is not produced, the application must be denied. Code Civ. Pro., 2018. 13 Abb. Pr. 8; 3 How. Pr. 39; 60 Barb. 480; 22 id. 192; 59 How. Pr. 290.
14 Verification and contents of petition. The petition must be verified by the oath of the petitioner, to the effect that he believes it to be true; and must state, in substance: 1 Duer, 709; 2 How. Pr. 61.
1. That the person, in whose behalf the writ is applied for, is imprisoned, or restrained in his liberty; the place where, unless it is unknown, and the officer or person by whom, he is so imprisoned or restrained, naming both parties, if their names are known, and describing either party, whose name is unknown. 1 Duer, 709; 1 Johns. Cas. 136; 59 How. Pr. 292.
2. That he has not been committed, and is not detained, by virtue of any judgment, decree, final order, or process, specified in section 2016 of this act. 6 Civ. Pro. 299; 59 How. Pr. 292.
3. The cause or pretence of the imprisonment or restraint, according to the best knowledge and belief of the petitioner.
4. If the imprisonment or restraint is by virtue of a mandate, a copy thereof must be annexed to the petition; unless the petitioner avers, either, that by reason of the removal or concealment of the prisoner before the application, a demand of such a copy could not be made, or that such a demand was made, and the legal fees for the copy were tendered to the officer or other person, having the prisoner in his custody, and that the copy was refused.
5. If the imprisonment is alleged to be illegal, the petition must state in what the alleged illegality consists.
ein presc incapable is not produce
6. It must specify whether the petitioner applies for the writ of habeas corpus, or for the writ of certiorari. Code Civ. Pro., $ 2019. 14 Civ. Pro. 241; 48 Hun, 165; 15 N. Y. St. R. 640.
15 When to be granted; penalty for refusing. A court or a judge, authorized to grant either writ, must grant it without delay, whenever a petition therefor is presented, as prescribed in the foregoing sections of this article,* unless it appears, from the petition itself, or the documents annexed thereto, that the petitioner is prohibited by law from prosecuting the writ. For a violation of this section, a judge, or, if the application was made to a court, each member of the court, who assents to the violation, forfeits to the prisoner one thousand dollars, to be recovered by an action in his name, or in the name of the petitioner to his use. Code Cit'. Pro., § 2020. 5 Johns. 296; 36 N. Y. 607; 33 How. Pr. 384; 25 id. 307; 16 Abb. 281; 21 Abb. N. C. 299; 15
Civ. Pro. 19. 16 Form of writ of habeas corpus. The writ of habeas corpus, issued as prescribed in this article, must be substantially in the following form, the blanks being properly filled up: “ The people of the state of New York, to the sheriff of, et cetera (or “ to A. B.”): “We command you, that you have the body of C. D., by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatsoever name the said C. D. is called or charged, before
,” (“the supreme court, at a special term or term of the appellate division thereof, to be held,” or “E. F., justice of the supreme court,” or otherwise, as the case may be), “ at on
,” (or “ immediately after the receipt of this writ”), “ to do and receive what shall then and there be considered, concerning the said C. D. And have you then there this writ, “ Witness,
, one of the justices" (or “ judges”) “ of the said court” (or “ county judge,” or otherwise, as the case may be), “ the day of
, in the year eighteen hundred and Code Civ. Pro., § 2021, as am'd L. 1895, c. 946. 84 Hun, 465; 5 Cow. 176.
17 Form of writ of certiorari. The writ of certiorari, issued as prescribed in this article, must be substantially in the following form, the blanks being properly filled up: “The People of the State of New York, To the Sheriff of," et cetera, (or “to A. B."): “We command you, that you certify fully and at large, to
' ,” (“the supreme court, at a special term or term of the appellate division thereof, to be held,” or “E. F., justice of the supreme court," or otherwise, (as the case may be), “ at
;” (or “ immediately after the receipt of this writ),” “the day and cause of the imprisonment of C. D., by you detained, as it is said, by whatsoever name the said C. D. is called or charged. And have you then there this writ. “Witness, one of the justices (or “judges ”) “ of the said court” (or “county judge," or otherwise, as the case may be), “ the
, in the year eighteen hundred and
.” Code Civ. Pro., § 2022, as am'd L. 1895, c. 946. 34 Hun, 465; 8 Misc. 152; 59 N. Y. St. R. 463.
18 Before whom returnable, when issued in another county. If application for either writ is made to the supreme court, or to a justice thereof, in a county other than that where the person is imprisoned or confined, the writ may be made returnable, in its or his discretion, before any judge authorized to grant it, in the county of the imprisonment or confinement. Code Civ. Pro., § 2023. 60 N. Y. St. R. 136; 28 N. Y. Supp. 500.
19 Defects of form in writ. The writ of habeas corpus or the writ of certiorari shall not be disobeyed, for any defect of form, and particularly in either of the following cases:
1. If the person having the custody of the prisoner, is designated, either by his name of office, if he has one, or by his own name; or, if both names are unknown
* This subject, ss 10–61.
or uncertain, by an assumed appellation. Any person, upon whom the writ is served, is deemed to be the person to whom it is directed, although it is directed to him by a wrong name or description, or to another person.
2. If the prisoner directed to be produced, is designated by name, or otherwise described in any way, so as to be identified as the person intended. Code Civ. Pro., § 2024. 5 Cow. 176; 18 Johns. 49; 3 Hill, 657, n.
20 When writ to issue without application. Where a justice of the supreme court, in court or out of court, has evidence, in a judicial proceeding taken before him, that any person is illegally imprisoned or restrained in his liberty, within the state; or where any other judge, authorized by this article* to grant the writs, has evidence, in like manner, that any person is thus imprisoned or restrained, within the county where the judge resides; he must issue a writ of habeas corpus or a writ of certiorari, for the relief of that person, although no application therefor has been made. Code Civ. Pro., § 2025. 6 Civ. Pro. 301.
21 Contents, etc., of return. The person upon whom either writ has been duly served, must state, plainly and unequivocally, in his return:
1. Whether or not, at the time when the writ was served, or at any time theretofore or thereafter, he had in his custody, or under his power or restraint, the person for whose relief the writ was issued. 10 Johns. 328.
2. If he so had that person, when the writ was served, and still has him, the authority and true cause of the imprisonment or restraint, setting it forth at length. If the prisoner is detained by virtue of a mandate, or other written authority, a copy thereof must be annexed to the return, and, upon the return of the writ, the original must be produced, and exhibited to the court or judge. 1 Hill, 154; 1 Park. 169; 8 Paige, 47.
3. If he so had the prisoner at any time, but has transferred the custody or restraint of him to another, the return must conform to the return required by the second subdivision of this section, except that the substance of the mandate or other written authority may be given, if the original is no longer in his hands; and that the return must state particularly to whom, at what time, for what cause, and by what authority, the transfer was made. 10 Johns. 328; 3 Hill, 657, n.
The return must be signed by the person making it, and, unless he is a sworn public officer, and makes his return in his official capacity, it must be verified by his oath. Code Civ. Pro., § 2026. 8 Misc. 152; 59 N. Y. St. R. 463; 89 N. Y. 460; 29 N. Y. Supp. 329.
22 Prisoner, when to be produced. The person, upon whom a writ of habeas corpus has been duly served, must also bring up the body of the prisoner in his custody, according to the command of the writ; unless he states, in his return, that the prisoner is so sick or infirm, that the production of him would endanger his life or his health. Code Civ. Pro., § 2027. 21 Hun, 154.
23 Obedience to writ, how compelled. Where a person, who has been duly served with either writ, refuses or neglects, without sufficient cause shown by him, fully to obey it, as prescribed in the last two sections, the court or judge, before which or whom it is made returnable, upon proof of the due service thereof, must forthwith issue a warrant of attachment, directed generally to the sheriff of any county where the delinquent may be found, or, if the delinquent is a sheriff, to any coroner of his county, or to a particular person specially appointed to execute the warrant, and designated therein; commanding such officer or other person forthwith to apprehend the delinquent, and bring him before the court or judge. Upon the delinquent being so brought up, an order must be made, com
* This subject, SS 10-61.