Sec. 218 (1640). Precept to bring up party detained.

1868-'9, c. 116, s. 17.

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 benefit the writ of habeas corpus has been granted.

Sec. 219 (1641). Penalty for refusing to grant the precept. 1870-1, c. 221, s. 3.

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.

Sec. 220 (1642). Penalty for conniving, etc., at any insufficient return, etc. 1870-'1, c. 221, s. 4.

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. Sec. 221 (1643). Power of the county. 1868-'9, c. 116, s. 18.

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.

Sec. 222 (1644). Proceedings on the return of the writ. 1868-'9, c. 116, s. 19.

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.

Sec. 223 (1645). Party to be discharged, when. 1868-'9, c. 116, s. 20.

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 an officer in the course of judicial proceedings before him, authorized by law, such party can be discharged only in one of the following cases:

(1) Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person;

(2) Where, though the original imprisonment was lawful, yet by some act, omission or event, which has taken place afterwards, the party has become entitled to be discharged;

(3) Where the process is defective in some matter of substance required by law, rendering such process void;

(4) Where the process, though in proper form, has been issued in a case not allowed by law;

(5) Where the person, having the custody of the party under such process, is not the person empowered by law to detain him;

(6) Where the process is not authorized by any judgment, order or decree by any court, nor by any provision of law.

Sec. 224 (1646). Party to be remanded, when. 1868-'9, c. 116, s. 21.

It shall be the duty of the court or judge forthwith to remand the party, if it appear that he is detained in custody, either,

(1) By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction;

(2) By virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree;

(3) For any contempt specially and plainly charged in the commitment by some court, officer or body, having authority to commit for the contempt so charged;

(4) That the time during which such party may be legally detained has not expired.

Sec. 225 (1647). Party to be bailed or remanded, when. 1868-'9, c. 116, s. 22.

If it appear that the party has been legally committed for any criminal offence, or if it appear by the testimony offered with the

return of the writ, or upon the hearing thereof, that the party is guilty of such an offence, although the commitment be irregular, the court or judge shall proceed to let such party to bail, if the case be bailable and good bail be offered; if not, the court or judge shall forthwith remand such party to the custody or place him under the restraint from which he was taken: Provided, the person or officer, under whose custody or restraint he was, be legally entitled thereto; if not so entitled the court or judge shall commit such party to the custody of the officer or person legally entitled thereto.

Sec. 226 (1648). Proceedings in case of sickness of the party. 1868-'9, c. 116, s. 23.

Whenever, from the illness or infirmity of the person directed to be produced by a writ of habeas corpus, such person can not, without danger, be brought before the court or judge, where the writ is made returnable, the party in whose custody he is may state the fact in his return to the writ; and if the court or judge be satisfied of the truth of the allegation and the return be otherwise sufficient the court or judge shall proceed to decide on such return and to dispose of the matter in the same manner as if the body had been produced.

Sec 227 (1649). Penalty for disobedience to order of discharge. 1868-'9, c. 116, s. 24.

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.

Sec. 228 (1650). Officer not liable civilly for obedience. 1868-'9, c. 116, s. 25.

No officer or other person shall be liable to any civil action for obeying such judgment or order of discharge.

Sec. 229 (1651). Penalty for committing for same cause. 26.

1868-'9, c. 116, s.

No person who has been set at large upon any writ of habeas corpus shall be again imprisoned or detained for the same cause by any person whatsoever other than by the legal order or process of

the court wherein he shall be bound by recognizance to appear or of any other court having jurisdiction in the case, under the penalty of two thousand five hundred dollars to the party aggrieved thereby; and every officer or other person who shall knowingly offend against this section shall be guilty of a misdemeanor.

Sec. 230 (1652). Penalty for neglecting to obey the writ, or for refusing copy of process. 1868-'9, c. 116, s. 27.

If any person to whom a writ of habeas corpus is directed, shall neglect or refuse to make due return thereto, or to bring the body of the party detained according to the command of the writ without delay; or shall not, within six hours after demand made therefor, deliver a copy of the commitment or cause of detainor, such person shall, upon conviction by indictment, be fined one thousand dollars, or imprisoned not exceeding twelve months, and if such person be an officer, shall moreover be removed from office.

Sec. 231 (1653). False returns a misdemeanor. 1868-'9, c. 116, s. 28.

Every person making a false return to a writ of habeas corpus, shall be guilty of a misdemeanor.

Sec. 232 (1654). Penalty for concealing party. 1868-'9, c. 116, s. 29.

Any one having in his custody, or under his power, any party, who, by this chapter, would be entitled to a writ of habeas corpus, or for whose relief such writ shall have been issued, who shall, with intent to elude the service of such writ or to avoid the effect thereof, transfer the party to the custody, or put him under the power or control of another, or shall conceal or change the place of his confinement, shall be guilty of a misdemeanor.

Sec. 233 (1655). Aiders and abettors. 1868-'9, c. 116, s. 30.

Every person who shall knowingly aid or abet in the violation of the preceding section, shall be guilty of a misdemeanor.

Sec. 234 (1656). Writs returnable, when.

1868-'9, c. 116, s. 31.

Writs 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.

Sec. 235 (1657). By whom served, and manner of service. 1868-'9, c. 116, s. 32.

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 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.

Sec. 236 (1658).

Persons committed for capital offences, when to be tried or discharged. 1868-'9, c. 116, s. 33.

When any person who has been committed for treason or felony, plainly and specially expressed in the warrant of commitment, upon his prayer in open court to be brought to his trial, shall not be indicted some time in the next term of the superior or criminal court ensuing such commitment, the judge of the court, upon notice in open court on the last day of the term, shall set at liberty such prisoner upon bail, unless it appear upon oath that the witnesses for the state could not be produced at the same term; and if such prisoner, upon his prayer as aforesaid, shall not be indicted and tried at the second term of the court, he shall be discharged from his imprisonment.

Sec. 237 (1659). Subpœnas for witnesses. 1868-'9, c. 116, s. 34.

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.

Sec. 238 (1660). Costs. 1868-'9, c. 116, s. 35.

The costs on a writ of habeas corpus may be awarded at the discretion of the court or judge who shall hear the same; and he may direct what officer shall tax such costs; and execution may issue. therefor as in other cases.

Sec. 239 (1661). Custody and disposition of infants in certain cases. c. 53. 1868-'9, c. 116, s. 36.

1858-'9,

When a contest shall arise on a writ of habeas corpus between any husband and wife, who are living in a state of separation, without being divorced, in respect of the custody of their children, the court or judge, on the return of such writ, may award the charge