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by virtue of an execution issued upon such order, judgment, or decree that the cause or pretence of such imprisonment or restraint, according to the best of the knowledge or belief of the applicant, is (stating the cause, and annexing a copy of the warrant, order, or process, if that be the cause, or stating that by reason of the above named C. D. being removed or concealed before the application, a demand of a copy of such warrant, order or process, could not be made; or, that a demand for a copy of such warrant, order or process, was made of the above named E. F., and the legal fees therefor tendered to him, and that such copy was refused.)
And the applicant further states, that such imprisonment is illegal, as he believes, and for the following reasons: (stating the same.)
And the applicant further states, that the legality of such imprisonment or restraint has not been already adjudged, upon a prior writ of deliverance, to the knowledge or belief of this applicant.
Wherefor the applicant demands a writ of deliverance, to issue to the above named E. F., for the relief of the above named C. D. Dated, &c
County of A. B., being duly sworn, saith, that the allegations of the foregoing application are true. (THIRD REP.)
§ 257. Any court or ollicer, empowered to grant the writ, to whom such application shall be presented, shall grant the writ, without delay, unless it appear from the application itself, or from the documents annexed, that the person applying therefor, is, by the provisions of this chapter, prohibited from prosecuting the writ.
§ 258. The writ of deliverance shall be, substantially, in the following form: (SEAL. The People of the State of New York,
To the sheriff, &c. : (or, to A. B.) S Whereas, it is represented unto us, in our supreme court, that C. D. is imprisoned or restrained of his liberty by you, we command you to produce his body by whatsoever name he may be called, or charged; and certify and return therewith the time and cause of his imprisonment or restraint, before our supreme court, at a special term to be held at —, on
; (or, before E. F., one of the judges, &c., 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 above named C. D. And have you then and there this writ. By order of the court,
G. H. clerk.
or as the case may be.]
Or when, for the reasons herinafter mentioned, the body need not be produced, the writ may be substantially in the following form. [SEAL.] The People of the State of New York,
To the sheriff, &c., (or to A. B.) Whereas it is represented unto us, in our supreme court, that C. D. is imprisoned or restrained of his liberty by you, we command you to certify and return herewith the time and cause of his imprisonment or restraint, before our supreme court, at a special term, to be held at (or before E. F., one of the judges &c., at
) (or immediately after the receipt of this writ) to do and receive what shall then and there be considered concerning the above named C. D
And have you then there this writ.
Albany, January 1. 1849.
or as the case may be.]
§ 259. If application for the writ be made to the supreme court, or a judge thereof, in a county other than that where the party is confined, such court or judge may make the writ returnable before any officer authorised to grant the writ, in the county of the confinement.
$ 260. The writ shall not be disobeyed for 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 was 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 in any other way, so as to designate the person intended.
§ 261. Whenever the supreme court or any judge thereof, shall have evidence from any judicial proceeding before such court or judge, that any person within the county where such court or officer may be, is illegally imprisoned or restrained of his liberty, it shall be the duty of such court or officer, to issue a writ of deliverance for his relief, although no application be made for such, writ.
$ 262. If any court or officer, authorised by the provisions of this chapter, to grant the writ of deliverance, shall refuse to grant such writ, when regularly applied for, every member of such court, who shall have assented to such refusal, and every such officer shall forfeit to the party aggrieved, one thousand dollars.
$ 263. The person, on whom the writ shall have been duly served, shall state in his return plainly and unequivocally,
1. Whether he have, or have not, the party in his custody, or power, or under his restraint;
2. If he have the party in his custody or power, or under his restraint, the authority and true 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 annexsd to the return, and the original shall be produced and exhibited, on the return of the writ to the court or officer to whom the same is returnable ;
4. If the person on whom such writ shall have been served, shall have had the party in his custody or power, 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.
The return must be signed by the person making the same, and, except where such person shall be a sworn public officer, and shall make his return in his official capacity, it shall be verified by his oath.
§ 264. If the writ of deliverance require it, the person or officer on whom the writ shall have been served, shall also produce the body of the party in his custody or power, according to the command of the writ, ex