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CHAPTER V.

THE WRIT OF DELIVERANCE FROM IMPRISONMENT.

SECTION 1306. Writ of habeas corpus to be known as writ of deliverance from

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1314. Writ may be made returnable before another officer.

1315. Writ not to be disobeyed for defect of form.

1316. If supreme court or judge know of illegal imprisonment, writ

must issue, without application.

1317. Contents of return.

1318. Person to be produced.

1319. If return be not full, warrant to issue.

1320. If sheriff neglect, warrant to issue to coroner.

1321. Precept to sheriff.

1322. Cause of imprisonment inquired into.

1323. If no legal cause shown, discharge granted.

1324. Party to be remanded, in what cases.

1325. In certain cases, party discharged.

1326. Legality of certain order and process not inquired into.
1327. On commitment for criminal offence, how to proceed.

1328. Until judgment given, party how kept.

1329. Notice, when to be given.

1330. When notice to district attorney.

1331. Return may be controverted.

1332. In case of sickness, production of person dispensed with.

1333. So in case of imprisonment, not bailable.

1334. Judgment of discharge, if imprisonment illegal.

1335. New writ in certain cases requiring production of person.

1336.

Obedience, how enforced.

1337. Officer not liable to action, for disobeying.

1338. Person once discharged, cannot be again imprisoned.

1339. Judge re-committing, liable.

1340. Transferring party to elude writ, a misdemeanor.

1341. Party committing, also guilty.

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1343. In case of danger that party will be carried off, warrant to issue. 1344. Arrest also of the person having the custody of the party.

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1347. For refusing a copy of order, forfeiture of $200.

1348. When attorney general or district attorney may apply for writ.

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SECTION 1349. Writ, on whom served.

1350, 1351. Writ, how served.

1352. Duty to obey writ.

1353. Charges of bringing up prisoner, may be ordered to be paid.

1354. Within what time return to be made.

1355. Question once adjudged, not to be re-examined.

§ 1306. The writ of habeas corpus ad subjiciendum, known in the constitution and statutes of this state as the writ of habeas corpus, is herein designated, and may hereafter be known, as the writ of deliverance from imprisonment. Every other writ of habeas corpus is abolished.

See 2 R. S. 563-576, § 21-86.

§ 1307. Every person, imprisoned or restrained of his liberty, within this state, for any criminal or supposed criminal matter, or under any pretence whatsoever, except in the cases specified in the next section, may prosecute a writ of deliverance, according to the provisions of this chapter, to inquire into the cause of such imprisonment or restraint; and if illegal, to be delivered therefrom.

§ 1308. The following persons are not entitled to prosecute the writ:

1. Persons 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 have acquired exclusive jurisdiction by the commencement of suits in such courts:

2. Persons committed or detained by virtue of the judgment of a competent tribunal, of civil or criminal jurisdiction, or by virtue of an execution. issued upon such judgment, but no order of commitment for contempt, is to be deemed a judgment nor an warrant or other process, issued upon such an order, an execution, within the meaning of this section.

§ 1309. Application for the writ must be made in writing, signed, either by the party for whose relief it is intended, or by some person in his behalf, as follows: 1. To the supreme court at a special term:

2. To any one of the judges of the supreme court, or any county judge, being or residing in the county where the party is detained: or, if there be no such officer within the county, or if he be absent, or for any cause incapable of acting, or have refused to grant the writ, then to such officer residing in an adjoining county;

3. In the city and county of New-York, to a judge of the superior court of the city of New-York, or a judge of the court of common pleas of the city of New-York, or the city judge of that city.

§ 1310. Whenever application for the writ is made to an officer, not residing within the county where the party is detained, he must require proof, by the oath of

the applicant, or by other sufficient evidence before granting the writ, that there is no officer in the county authorised to grant the writ, or if there be one that he is absent, or has refused to grant it, or for some cause to be specially set forth, is incapable of acting.

§ 1311. The application must state, in substance,

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

2. That such person is not imprisoned or restrained, by virtue of any order, judgment, or process, specified

in section 1308.

3. The cause or pretence of such imprisonment or restraint, according to the best of the knowledge or belief of the applicant:

4. If the imprisonment or restraint be in virtue of an order, warrant, or process, a copy thereof must be annexed, or it must be alleged, that by reason of the removal or concealment of the party before the application, a demand of such copy could not be made, or such demand was made, and the legal fees therefor tendered to the person having the party in his custody, and that a copy was refused:

5. If the imprisonment be alleged to be illegal, the application must also state in what the alleged illegality consists:

6. That the legality of the imprisonment has not been already adjudged, upon a prior writ of deliverance, to the knowledge or belief of the applicant:

7. It must be verified by the oath of the applicant, to the effect, that he believes it to be true.

§ 1312. Any court or judge, empowered to grant the writ, to whom such application is presented, must 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.

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§ 1313. The writ of deliverance must command the defendant to produce the person imprisoned or restrained, by whatsoever name he may be called or charged, and certify and return therewith the time and cause of his imprisonment or restraint, before the supreme court, at a special term to be held at a specified time and place, or before the judge allowing the writ, or another judge as provided in the next section, at a specified time and place, or immediately after the receipt of the writ, to do and receive what shall then and there be considered concerning the person so imprisoned or restrained;

Or when, for the reason hereinafter mentioned, the

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