mitting him to close custody in the jail of the county in which the court or judge is; or, if he is a sheriff, in the jail of a county, other than his own, designated in the order; and, in either case, without being allowed the liberties of the jail. The order must direct that he stand committed, until he makes return to the writ, and complies with any order, which may be made by the court or judge, in relation to the person for whose relief the writ was issued. Code Civ. Pro., § 2028.

3 Abb. N. C. 65.

24 Same: precept to bring up prisoner. The court or judge may also, in its or his discretion, at the time when the warrant of attachment is issued, or afterwards, issue a precept to the sheriff, coroner, or other person, to whom the warrant is directed, commanding him forthwith to bring before the court or judge the person for whose benefit the writ was granted, who must thereafter remain in the custody of the officer or person executing the precept, until discharged, bailed, or remanded, as the court or judge directs. Code Civ. Pro., § 2029.

25 Same: sheriff's posse. The sheriff, coroner, or other person, to whom a warrant of attachment or precept is directed, as prescribed in either of the last two sections, may, in the execution thereof, call to his aid the power of the county, as a sheriff may do, in the execution of a mandate issued from a court of record. Code Civ. Pro., § 2030.

26 Proceedings on return of habeas corpus. The court or judge, before which or whom a prisoner is brought by virtue of a writ of habeas corpus, issued as prescribed in this article,* must, immediately after the return of the writ, examine into the facts alleged in the return, and into the cause of the imprisonment or restraint of the prisoner; and must make a final order to discharge him therefrom, if no lawful cause for the imprisonment or restraint, or for the continuance thereof, is shown; whether the same was upon a commitment for an actual or supposed criminal matter, or for some other cause. Code Civ. Pro., § 2031. 12 Abb. Pr. 38; 2 id. 84; s. c. 2 Park. 650; 1 Duer, 709; 4 Barb. 31; 1 id. 187, 340; 61 id. 540; 6 id. 366; 24 id. 521; 15 id. 153, 162; 1 Park. 129; s. c. 5 N. Y. Leg. Obs. 294; 1 Park. 47; s. c. 4 N. Y. Leg. Obs. 177; 45 How. Pr. 301; 11 id. 418; 21 id. 85; s. c. 10 Abb. Pr. 282; 18 How. Pr. 92; s. c. 4 Park. 656; s. c. 9 Abb. Pr. 393, n.; 1 Hill, 154; 5 id. 164; 3 Hill, 399; 1 id. 400; s. c. 25 Wend. 570; 1 Code Rep. 45; 67 How. Pr. 111; 34 id. 259; 19 id. 456; 29 id. 185; 100 N. Y. 20; 111 id. 587; 89 id. 460; 128 id. 180; 66 id. 8; 60 id. 559; 122 id. 239; 56 id. 182; 77 id. 235; 84 id. 438; 3 Hill, 658, n.; 7 Abb. Pr. N. S. 67; 8 id. 112; 33 N. Y. St. R. 231; 36 id. 750; 63 id. 155; 20 id. 77, 161; 15 id. 121; 40 id. 157; 32 id. 822; 60 id. 767; 36 id. 748; 28 id. 538; 30 id. 382; 5 N. Y. Supp. 861; 7 id. 147; 13 id. 399; 29 id. 211; 24 id. 873; 8 id. 172, 924; 10 id. 516, 673, 710; 12 id. 43, 943; 19 Abb. 394; 11 Abb. N. C. 118; 1 id. 1; 3 id. 65; 9 id. 393; 18 id. 216; 14 Civ. Pro. 28, 241; 11 id. 172; 13 id. 209, 305; 7 id. 406; 59 Hun, 320; 81 id. 336; 48 id. 165; 29 id. 356; 21 id. 154; 10 id. 63; 16 id. 214; 78 id. 586; 35 id. 324; 11 id. 89; 15 id. 320; 5 Abb. 281; 2 id. 84; 1 Daly, 562; 9 Wend. 505; 25 id. 64, 483; 18 id. 637; 19 id. 16; 7 Cow. 472; 5 id. 39; 1 Sandf. 672, 701; 2 id. 724; 8 Paige, 47; 1 How. Pr. N. S. 132, 137; 7 N. Y. Leg. Obs. 49; 3 Park. 126; 1 id. 187, 224, 588; 4 id. 166, 616, 611, 656; 5 id. 62, 77; 2 id. 650; 6 T. & C. 258; 22 W. D. 56, 543; 18 id. 568; 8 id. 128.

27 When prisoner to be remanded.

The court or judge must forthwith make

a final order to remand the prisoner, if it appears that he is detained in custody for either of the following causes, and that the time for which he may legally be so detained has not expired:

11 Abb. N. C. 118; 13 Civ. Pro. 313; 8 Misc. 152, 159; 59 N. Y. St. R. 466; 60 id. 141; 63 id. 156.

1. 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.

34 Hun, 465; s. c. 1 How. Pr. N. S. 135.

2. 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 *This subject, § 10-61.

virtue of an execution or other process, issued upon such a judgment, decree, or final order.

11 How. Pr. 418; 15 Abb. N. C. 461; s. c. 7 Civ. Pro. 406; 34 Hun, 465; s. c. 1 How. Pr. N. S. 135; 34 Hun, 394; 100 N. Y. 23; s. c. 3 N. Y. Cr. R. 548; 11 Civ. Pro. 180; 13 id. 214; 5 N. Y. Cr. R. 383; 61 Barb. 547; 81 Hun, 336; 40 N. Y. St. R. 160.

3. For a criminal contempt, defined in section 8* of this act, and specially and plainly charged in a commitment, made by a court, officer, or body, having authority to commit for the contempt so charged. Code Civ. Pro., § 2032.

15 Barb. 153, 162; 5 Hill, 164; 10 Paige, 286; 32 Hun, 594; 88 id. 258; 3 Lans. 408; 3 Abb. App. Dec. 515; s. c. 4 Keyes, 51; 128 N. Y. 180; 68 N. Y. St. R. 554, 555; 7 N. Y. Supp. 147; 34 id. 734; 60 N. Y. 559; 63 id. 8; 89 id. 460; 128 id. 180; 6 T. & C. 258; 58 How. Pr. 393; 8 id. 478; 22 id. 309; 14 Hun, 21; 3 Barb. 162; 29 id. 622; 1 Abb. N. C. 1; 7 Abb. 96; 13 id. 450; 38 N. Y. St. R. 891.

28

When to be discharged in civil cases. If it appears upon the return, that the prisoner is in custody by virtue of a mandate in a civil cause, he can be discharged, only in one of the following cases:

15 Johns. 153; 34 Hun, 465; s. c. 1 How. Pr. N. S. 135; 34 Hun, 394; 13 Civ. Pro. 313; 46 N. Y. St. R. 598.

1. Where the jurisdiction of the court which, or of the officer who, issued the mandate, has been exceeded, either as to matter, place, sum, or person.

3 Hill, 666, n.; 4 Johns. 317; 9 id. 395; 5 Hun, 428, aff'd, 66 N. Y. 8; 100 id. 23; s. c. 3 N. Y. Cr. R. 548; 48 Hun, 590; 64 id. 453; 1 N. Y. Supp. 813.

2. Where, although the original imprisonment was lawful, yet by some act, omission, or event, which has taken place afterwards, the prisoner has become entitled to be discharged.

3 Hill, 666, n.

3. Where the mandate is defective in a matter of substance required by law, rendering it void.

11 How. Pr. 418; 1 Hill, 154; 40 Hun, 43; s. c. 9 Civ. Pro. 405; 46 N. Y. St. R. 577; 17 N. Y. Supp. 939.

4. Where the mandate, although in proper form, was issued in a case not allowed by law.

7 Cow. 472; 4 Johns. 317; 48 Hun, 590; 1 N. Y. Supp. 813.

5. Where the person, having the custody of the prisoner under the mandate, is not the person empowered by law to detain him.

48 Hun, 590; 1 N. Y. Supp. 813.

6. Where the mandate is not court, or by a provision of law. 19 N. Y. Supp. 878; 4 Keyes, 38; 5 Lans. 466; 10 Paige, 284; 7 Hill, 301; 13 Civ. Pro. 305; 2 Hun, 226; 21 N. Y. St. R. 161; 13 Abb. 129, 459; 7 id. 96; 11 id. 147; 37 N. Y. 235; 24 id. 74; 40 id. 135; 22 How. Pr. 309; 24 id. 369; 21 id. 54; 19 id. 475; 15 id. 210; 4 How. U. S. 21; 29 Barb. 622; 26 id. 78; 31 id. 444; 1 id. 340; 3 Abb. App. Dec. 507; 6 Johns. 337; 9 id. 395; 18 id. 305; 60 N. Y. 559; 66 id. 8; 6 T. & C. 258.

authorized by a judgment, decree, or order of a Code Civ. Pro., § 2033.

29 Legality of certain mandates, etc., not to be questioned. But a court or judge, upon the return of a writ issued as prescribed in this article, shall not inquire into the legality or justice of any mandate, judgment, decree, or final order, specified in the last section but one, except as therein stated. Code Ciz. Pro., § 2034.

2 N. Y. Cr. R. 429; s. c. 32 Hun, 537; 7 Civ. Pro. 409; s. c. 15 Abb. N. C. 464; 3 N. Y. Cr. R. 548; 5 id. 383; 100 N. Y. 24; 2 Hun, 234; 25 id. 587; 75 id. 278; 64 id. 453; 88 id. 260; 128 N. Y. 180; 40 N. Y. St. R. 160; 46 id. 598; 58 id. 227; 60 id. 143; 68 id. 554; 7 N. Y. Supp. 147; 19 id. 878.

30

Proceedings on irregular commitment. If it appears that the prisoner has been legally committed for a criminal offence, or if he appears, by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offence, although the commitment is irregular, the court or judge, before which or whom he is brought, must forthwith make a final order, to discharge him upon. * Courts, § 8. This subject, §§ 10-61.

his giving bail, if the case is bailable; or, if it is not bailable, to remand him. Where bail is given pursuant to an order, made as prescribed in this section, the proceedings are the same as upon the return to a writ of certiorari, where it appears that the prisoner is entitled to be bailed. Code Civ. Pro., § 2035.

21 How. Pr. 85; s. c. 10 Abb. Pr. 282; 30 How. Pr. 202; 10 id. 567; 5 Cow. 39; 5 Park. 519; 3 id. 316; 8 Barb. 158; 8 Abb. Pr. N. S. 28; 5 C. H. Rec. 11; 14 Hun, 133; 4 N. Y. St. R. 659; 77 N. Y. 39; 4 Park. 519; 1 Sandf. 701; 60 Barb. 480; 58 How. Pr. 393.

31 Same: to whose custody prisoner committed. Where a prisoner is not entitled to his discharge, and is not bailed, he must be remanded to the custody, or placed under the restraint, from which he was taken, unless the person, in whose custody or under whose restraint he was, is not lawfully entitled thereto; in which case, the order remanding him must commit him to the custody of the officer or person so entitled. Code Civ. Pro., § 2036.

50 Hun, 246: 3 N. Y. Supp. 752, 793; 17 id. 574; 45 Barb. 142; 31 How. Pr. 228.

32 Custody of prisoner pending proceedings. Pending the proceedings, and before a final order is made upon the return, the court or judge, before which or whom the prisoner is brought, may either commit him to the custody of the sheriff of the county wherein the proceedings are pending, or place him in such care or custody, as his age and other circumstances require. Code Civ. Pro., § 2037. 10 Paige, 606; 18 Johns. 48; 1 Keyes, 521; 7 Wend. 132; 111 N. Y. 586, aff'g 47 Hun, 605;

77 Hun, 92; 5 N. Y. Supp. 727. 33 Notice to be given before discharging prisoner. Where it appears, from the return to either writ, that the prisoner is in custody by virtue of a mandate, an order for his discharge shall not be made, until notice of the time when, and the place where, the writ is returnable, or to which the hearing has been adjourned, as the case may be, has been either personally served, eight days previously, or given in such other manner, and for such previous length of time, as the court or judge prescribes, as follows:

12 Wend. 229; 53 N. Y. St. R. 936.

1. Where the mandate was issued or made in a civil action or special proceeding, to the person who has an interest in continuing the imprisonment or restraint, or his attorney.

14 Wend. 48; 12 id. 229; 111 N. Y. 587, aff'g 47 Hun, 606.

2. In every other case, to the district-attorney of the county, within which the prisoner was detained, at the time when the writ was served.

5 Hill, 164, 170; 41 Hun, 188; s. c. 4 N. Y. Cr. R. 298; 14 Civ. Pro. 244; 48 Hun, 166; 15 N. Y. St. R. 640; 4 id. 162.

For the purpose of an appeal, the person to whom notice is given, as prescribed in the first subdivision of this section, becomes a party to the special proceeding. Code Civ. Pro., § 2038.

34 Prisoner may controvert return, etc. A prisoner, produced upon the return of a writ of habeas corpus, may, under oath, deny any material allegation of the return, or make any allegation of fact, showing either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. Thereupon the court or judge must proceed, in a summary way, to hear the evidence, produced in support of or against the imprisonment or detention, and to dispose of the prisoner as the justice of the case requires. Code Civ. Pro., § 2039.

3 Hill, 658, n.; 4 Barb. 31; 45 How. Pr. 301, 312; 4 C. H. Rec. 47; 1 Wh. Cr. C. 323; 9 Abb Pr. 393, n.; 3 Park. 126; 33 Hun, 108; s. c. 2 N. Y. Cr. R. 415; 34 Hun, 395; 100 N. Y. 23; 11 Civ. Pro. 177; 3 N. Y. Cr. R. 547; 128 N. Y. 180; 40 N. Y. St. R. 161; 19 W. D. 357; 28 N. Y. Supp. 300; 77 Hun, 92.

35 Proceedings on sickness of prisoner. Where the return to a writ of habeas corpus states that the prisoner is so sick or infirm, that the production of him would endanger his life or health, and the return is otherwise sufficient, the court or judge, if satisfied of the truth of that statement, must decide upon the return, and dispose of the matter, as if a writ of certiorari has been issued. Code Civ. Pro., § 2040.

36 When certiorari granted, on application for habeas corpus. Where an application is made for a writ of habeas corpus, as prescribed in this article,* and it appears to the court or judge, upon the petition and the documents annexed thereto, that the cause or offence, for which the party is imprisoned or detained, is not bailable, a writ of certiorari may be granted, instead of a writ of habeas corpus, as if the application had been made for the former writ. Code Civ. Pro.. § 2041.

29 Barb. 622, 627; 1 How. Pr. N. S. 134; s. c. 34 Hun, 465; 48 Hun, 586; 5 N. Y. Cr. R. 527; 1 N. Y. Supp. 811; 29 id. 329; 8 Misc. 152; 59 N. Y. St. R. 463. 37 Proceedings on return of same. Upon the return to such a writ of certiorari, the court or judge, before which or whom it is returnable, must proceed as upon a return to a writ of habeas corpus, and must hear the proofs of the parties, in support of and against the return. Code Civ. Pro., § 2042.

5 N. Y. Cr. R. 527.

38 Same: final order. If it appears, that the prisoner is unlawfully imprisoned or restrained in his liberty, the court or judge must make a final order, discharging him forthwith. If it appears that he is lawfully imprisoned or detained, and is not entitled to be bailed, the court or judge must make a final order, dismissing the proceedings. Code Civ. Pro., § 2043.

29 Barb. 622, 627; 5 N. Y. Cr. R. 383; 6 Barb. 366; 27 id. 9; 8 How. Pr. 288; 66 Hun, 408; 12 N. Y. St. R. 411; 1 Duer, 709; 11 Leg. Obs. 228; 7 Connolly, 472.

39 Certiorari does not prevent issue of habeas corpus. Notwithstanding a writ of certiorari has been issued or returned, as prescribed in this article,* the court or judge, before which or whom it is returnable, may issue a writ of habeas corpus, which is, in all respects, subject to the foregoing provisions of this article,* relating to the latter writ. If the court or judge refuses a writ of certiorari, or, upon the return thereof, refuses to discharge the prisoner, the latter may claim, and is entitled to, the writ of habeas corpus, as prescribed in this article.* Code Civ. Pro., § 2044.

40 Admitting to bail on certiorari. If, upon the return to a writ of certiorari, issued as prescribed in this article,* it appears, that the person imprisoned or detained is entitled to be bailed, the court or judge must make a final order, fixing the sum in which he is to be admitted to bail; specifying the court, and the term thereof, at which he is required to appear; and directing his discharge, upon bail being given accordingly, as required by law. If sufficient bail is immediately offered, the court or judge must take it; otherwise, bail may be given afterwards, as prescribed in the next section. Code Civ. Pro., § 2045.

41 Same: by whom and how taken. Upon the production of the order, or, if it was made by a court, of a certified copy thereof, to a justice of the supreme court, or to the county judge or special county judge of the county where the prisoner is detained, the judge must take the recognizance of the prisoner, with two sureties, in the sum so fixed, conditioned for the appearance of the prisoner, as prescribed in the order. Each person, offering himself as a surety, must show, by his oath, to the satisfaction of the judge, that he is a householder in the county, and worth twice the sum in which he is required to be bound, over and above all demands against him. It is not necessary, that the prisoner should appear in person before the judge, to acknowledge the recognizance; but it may be acknowledged by the prisoner, and certified, in like manner as a deed to be recorded in the county. Code Civ. Pro., § 2046, as am'd L. 1895, c. 946.

42 Filing, etc., recognizance; discharge of prisoner. The judge must immediately file the recognizance with the clerk of the court, before which the prisoner is bound to appear. He must also make a certificate upon the order, or the certified copy thereof, to the effect that it has been complied with. Upon production of the certificate, the prisoner is entitled to his discharge from imprisonment, for any cause stated in the return to the certiorari. Code Civ. Pro., § 2047.

3 Barb. 37; 2 Lans. 71.

This subject, SS 10-61.

*

43 Order substituted for writ of discharge, etc. The writ of discharge is abolished. A final order to discharge a prisoner, made as prescribed in this article, may be served in like manner as an injunction order, and when so served, it may be enforced in the same manner as a final judgment in a civil action, except where special provision for its enforcement is otherwise made in this act. Where such an order directs a discharge, upon giving bail, the service thereof is not complete until service of the certificate, or other proof prescribed by law, showing that bail has been given, as required thereby. Code Civ. Pro., $2048.

11 Hun, 468.

44 Obedience to order, how enforced. Obedience to a final order to discharge a prisoner, made as prescribed in this article,* may be enforced by the court which, or the judge who, made the same, by attachment, as for a neglect to make a return to a writ of habeas corpus, and with like effect. A person guilty of such disobedience forfeits, to the prisoner aggrieved, one thousand two hundred and fifty dollars, in addition to the damages which the latter sustains. Code Civ. Pro., § 2049.

5 Johns. 287, aff'd, 9 Johns. 395.

See § 23-26, ante.

45 When discharge a bar to re-imprisonment. A prisoner, who has been discharged by a final order, made upon a writ of habeas corpus or certiorari, issued as prescribed in this article,* shall not be again imprisoned, restrained, or kept in custody, for the same cause. But it is not deemed to be the same cause, in either of the following cases:

7 Hill, 301, aff'g 10 Paige, 284; 4 Johns. 317; 9 id. 395, aff'g 5 id. 282; 15 id. 152; 9 Hun, 569; 13 Civ. Pro. 193; 63 N. Y. St. R. 863.

1. Where he has been discharged from a commitment on a criminal charge; and is afterwards committed for the same offence, by the lawful order or other mandate of the court, wherein he was bound by recognizance to appear, or in which he has been indicted or convicted for the same offence.

2. Where he has been discharged, in a criminal cause, for defect of proof, or for a material defect in the commitment; and is afterwards arrested on sufficient proof, and committed by a lawful mandate, for the same offence.

1 Code Rep. 45; s. c. 1 Sandf. 701; 7 Abb. Pr. N. S. 67.

3. Where he has been discharged, in a civil action or special proceeding, for an illegality in the judgment, final order, or other mandate, as prescribed in this article; and is afterwards imprisoned, by virtue of a lawful judgment, final order, or other mandate, for the same cause of action.

9 Hun, 569; 13 Civ. Pro. 193.

4. Where he has been discharged, in a civil action or special proceeding, from imprisonment by virtue of an order of arrest; and is afterwards taken in execution, or other final process, in the same action or special proceeding, or arrested in another action or special proceeding, after the first was discontinued. Code Civ. Pro., § 2050.

1 Abb. N. S. 432.

See § 62, post.

46 Violation of last section. If a court, or a judge, or any other person, in the execution of a judgment, order, or other mandate, or otherwise, knowingly violates, causes to be violated, or assists in the violation of, the last section, he, or if the act or omission was that of a court, each member of the court assenting thereto, forfeits, to the prisoner aggrieved, one thousand two hundred and fifty dollars. He is also guilty of a misdemeanor; and, upon conviction thereof, shall be punished by a fine, not exceeding one thousand dollars, or by imprisonment, not exceeding six months, or by both, in the discretion of the court. Code Civ. Pro., 2051.

16 How. Pr. 303.

*This subject, SS 10-61.