vived against the personal representative, since a personal representative, as such, is not chargeable with the possession and detention of children. Brown v. Rainor, 108-204.

In such a case each party is liable for his own costs. Ib.

HABEAS CORPUS TO BRING DEFENDANT TO TRIAL.-On indictment for burglary with intent to commit murder, defendant consented to a mistrial and pleaded guilty of larceny," and judgment was then pronounced sentencing him to the penitentiary: Held, that the judgment was erroneous, since his confession of being guilty of the larceny was not a confession of the crime charged against him; but that he was not entitled to be discharged, but the original indictment being still pending against him, he could be taken from the penitentiary by habeas corpus and held to answer the original charge. Queen, 91-660.

FINDING BILL FOR MURDER NOT CONCLUSIVE AS TO PROBABLE CAUSE.-The finding of a true bill for murder does not deprive the court of the power to investigate the evidence and admit the prisoner to bail, and it is reversable error for the court to refuse to hear the evidence on the ground that the finding of the bill was conclusive of the fact that there was probable cause. Merrimon, C. J., dissenting. Herndon, 107-934.

CERTIORARI.-As the statute gives no appeal in such cases, a writ of certiorari will be granted. Herndon, 107-934.

PROCEDENDO TO ANY JUDGE.-If, upon such certiorari, the supreme court reverses and sets aside the judgment of the court below and the proceedings are remanded, no procedendo issues to any particular judge, but the petitioner can exercise his statutory right to apply, de novo, to any judge authorized to grant the writ of habeas corpus. Herndon, 107—934.

WITNESS CONVICTED OF MURDER.-One who has been convicted of murder and is under sentence of death is a competent witness, and the solicitor for the state is entitled to a habeas corpus to obtain his testimony before the grand jury. Harris, ex parte, 73-65.

BURDEN ON THE PETITIONER.-Where, upon the return, it appeared that the petitioners were in custody on a mittimus, regular in every way, from a justice of the peace, for failure to give bond for their appearance at next term of the superior court, to answer a criminal charge of which the court had jurisdiction, the detention, nothing else appearing, was clearly legal, and the burden was on the petitioners to show wherein it was illegal, and not upon the state to show that they were lawfully in custody. Jones, 113-669.

PRESUMPTION OF INNOCENCE.-The presumption of innocence applies only on a trial, and does not avail to furnish a presumption that the detention of a party on regular process, when the committing officer has jurisdiction, is illegal. Jones, 113-669.

Sec. 202 (1624). When the application may be denied. 1868-'9, c. 116, s. 2. Application to prosecute the writ shall be denied in the following cases:

(1) Where the persons are committed or detained by virtue of process issued by a court of the United States, or a judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States, or shall have acquired exclusive jurisdiction by the commencement of suits in such courts;

(2) Where persons are committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution, issued upon such final order, judgment or decree.

(3) Where any person has willfully neglected, for the space of two whole terms after his imprisonment, to apply for the writ to the superior court of the county in which he may be imprisoned, such person shall not have a habeas corpus in vacation time for his enlargement;

(4) Where no probable ground for relief is shown in the appli

cation.

WHEN APPLICATION DENIED.-An application for habeas corpus which states that the prisoner was sentenced to a term of imprisonment on his conviction for a certain offence, and is now undergoing said punishment, must be denied. State v. Brittain, 92-587.

Where the petition fails to state that the legality of the imprisonment has not already been adjudged upon a prior writ, it will be refused. Ib.

Sec. 203 (1625). By whom application may be made. 1868-'9, c. 116, s. 3. Application for the writ may be made either by the party for whose relief it is intended, or by any person in his behalf.

Sec. 204 (1626). Mode of making the application. 1868-'9, c. 116, s. 4. Application for the writ shall be made in writing, signed by the applicant:

(1) To any of the justices of the supreme court;

(2) To any one of the superior court judges, either at term time or in vacation.

Sec 205 (1627). What application must contain.

1868-'9, c. 116, s. 5.

The application must state in substance, as follows:

(1) That the party, in whose behalf the writ is applied for, is imprisoned or restrained of his liberty, the place where, and the officer or person by whom he is imprisoned or restrained, naming both parties, if their names are known, or describing them if they are not known;

(2) The cause or pretence of such imprisonment or restraint, according to the knowledge or belief of the applicant;

(3) If the imprisonment is by virtue of any warrant or other process, a copy thereof shall be annexed, or it shall be made to appear that a copy thereof has been demanded and refused, or that for some sufficient reason a demand for such copy could not be made;

(4) If the imprisonment or restraint be alleged to be illegal, the application must state in what the alleged illegality consists; and that the illegality of the imprisonment or restraint has not been already adjudged, upon a prior writ of habeas corpus, to the knowledge or belief of the applicant ;

(5) The facts set forth in the application must be verified by oath of the applicant, or by that of some other credible witness, which oath may be administered by any person authorized by law to take affidavits.

Sec. 206 (1628). When the writ must be granted. 1868-'9, c. 116, s. 6.

Any court or judge empowered to grant the writ, to whom such application may be presented, shall grant the writ without delay, 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. Sec. 207 (1629). Defect of form. 1868-'9, c. 116, s. 7.

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

Sec. 208 (1630). When the writ sufficient. 1868-'9, c. 116, s. 8.

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 the person intended.

Sec. 209 (1631). Penalty for refusal to grant the writ. 1868-'9, c. 116, s. 9.

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.

Sec. 210 (1632). Writ may issue without application, when. 1868-'9, c. 116, s. 10.

Whenever the supreme or superior court, or any judge of either, shall have evidence from any judicial proceeding before such court or judge, that any person within this state is illegally imprisoned or restrained of his liberty, it shall be the duty of said court or judge

to issue a writ of habeas corpus for his relief, although no application be made for such writ.

Sec. 211 (1633). The return and what to contain. 1868-'9, c. 116, s. II.

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 of 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.

Sec. 212 (1634). Notice to parties interested. 1868-'9, c. 116, s. 12. 1870-'1, c. 221, s. 1.

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.

Sec. 213 (1635). Notice to district solicitor. 1868-'9, c. 116, s. 13.

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 district solicitor of the county in which the person prosecuting the writ is detained.

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. 214 (1636). Production of the body. 1868-'9, c. 116, s. 14.

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.

Sec. 215 (1637). Attachment on failure to obey the writ 1868-19, c. 116, s. 15.

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 required, 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.

Sec. 216 (1638). Penalty for refusing attachment. 1870-'1, c. 221, s. 2.

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.

Sec. 217 (1639). Where a sheriff fails to return. 1868-'9. c. 116, s. 16.

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.