Page images
PDF
EPUB

cept in the case of the sickness of such party, as hereinafter provided.

§ 265. If the person, on whom the writ shall have been duly served shall refuse or neglect to obey the same, by producing the party named in such writ, and making a full and explicit return to such writ, 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, directed to the sheriff of any county within this state, and commanding him forth with to apprehend such person and to bring him immediately before such court or judge ; and on such persons being so brought, he shall be committed to close custody, in the jail of the county, in which such court or judge shall be, without being allowed the liberties thereof, until he shall make return to such writ, and comply with any order that may be made by such court or judge in relation to the person, for whose relief the writ shall have been issued.

§ 266. If a sheriff shall have neglected to return the writ, the attachment may be directed to the coroner, or other person to be designated therein, who shall have full 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.

$ 267. The court or judge, by whom such attachment may be issued, may also, at the same time, or afterwards, issue a precept to the sheriff, or other person to whom such attachment shall have been directed, commanding him, to bring forth with, before such court or judge, the party for whose benefit the writ of deliverance shall have been granted, who shall thereafter remain in the custody of such sheriff or person, until he shall be discharged or remanded, as the court or judge shall direct.

§ 268. In the execution of such attachment or precept, the sheriff or other person, to whom it shall be directed, may call to his aid the power of the county as in other cases.

$ 269. The court or judge, before whom the party shall be brought, on the writ of deliverance, shall immediately, after the return thereof, proceed to examine into the facts contained in such return, and into the cause of the imprisonment or restrainst of the party, whether the same shall have been upon commitment for any criminal or supposed criminal matter or not.

§ 270. If no legal cause be shown for such imprisonment or restraint, or for the continuance thereof, such court or judge shall discharge the party from the custody or restraint under which he is held.

$ 271. It shall be the duty of the court or judge, forth with to remand the party, if it appear, that he is detained in custody either,

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

2. By virtue of the final order, judgment, or decree of a competent court of civil or criminal jurisdiction, or of an execution issued upon such final order, judgment or decree; or

3. By virtue of a warrant of commitment for a contempt, specially and plainly charged therein, and issued by a court, officer or body having authority to commit for the contempt so charged, and

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

$ 272. If it appear, on the return, that the party is in custody by virtue, of civil process from a 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, although the original imprisonment was lawful, yet by some subsequent act, omission, or event, 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 prisoner under such process, is not the person empowered by law to detain him; or

6. Where the process is not authorised by a judgment, order or decree of a court, or by any provision of law.

§ 273. But no court or judge, on the return of a writ of deliverance, shall have power to inquire into the legality or justice of any order, judgment, decree, execution, or process, specified in section 271, nor into the justice or propriety of any commitment for a contempt, made by any court, officer, or body, according to law, and charged in such commitment, as hereinafter provided.

§ 274. If it appear that the party has been legally committed for a criminal offence, or if he appear by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offence, although the commitment be irregular, the court or judge before whom such party shall be brought, shall forth with remand him to the custody, or place him under the restraint, from which he was taken, if the person under whose custody or restraint he was, be legally entitled thereto; if not so entitled, he shall be committed, by such court or officer, to the custody of the officer or person legally entitled thereto.

$ 275. Until judgment be given upon the return, the court or judge, before whom the party shall be brought, may eith-r commit the party to the custody of the sheriff of the county where the court or judge may be, or place him in such care or under such custody, as his age and other circumstances may require.

$ 276. When it appears from the return to the writ, that the party named therein is in custody on process, under which another person has an interest in continuing his imprisonment, or restraint, no order shall be made for his discharge, until it snall appear that the party so interested, or his attorney, if he have one, shall have had the like notice of the time and place, at which such writ shall have been made returnable, as is required to be given of motions in the supreme court of this state.

§ 277. When it shall appear from the return, that the party is detained upon a criminal accusation, the court or judge shall make no order for the discharge of the party, until sufficient notice of the time and place, at which the writ shall have been returned, or shall be made returnable, shall be given to the district attorney of the county, where the party is detained.

« PreviousContinue »