Third. When the process is defective in some matter of substance required by law, rendering such process void. Fourth. When the process, though proper in form, has been in a case not allowed by law. Fifth. When the person having the custody of the prisoner is not the person allowed by law to detain him. Sixth. Where the imprisonment or restraint is not authorized by any judgment, order, or decree of any court, nor by any provisions of law. Seventh. Where a party has been committed on a criminal charge without reasonable or probable cause.

SEC. 21. If any person be committed to prison, or be in custody of any officer, on any criminal charge, by virtue of any warrant or commitment of a justice of the peace, such person shall not be discharged from such imprisonment or custody on the ground of any defect of form in such warrant or commitment.

SEC. 22. If it shall appear to the judge, by affidavit, or upon the hearing of the matter, or otherwise, or upon the implication of the process or warrant of commitment and such other papers in the proceedings as may be shown to such judge, that the party is guilty of criminal offence or ought not to be discharged, such judge, although the charge be defectively or unsubstantially set forth in such process or warrant of commitment, shall cause the complainant or other necessary witnesses to be subpoenaed to attend at such time as shall be ordered, to testify before such judge; and upon the examination he shall discharge such prisoner, let him or her to bail (if the offence be bailable), or recommit him or her to custody, as may be just and legal.

SEC. 23. Whenever any person may be imprisoned or detained in custody on any criminal charge, for want of bail, such person shall be entited to a writ of habeas corpus, for the purpose of giving bail, upon averring that fact in his petition, without alleging that he or she is illegally confined.

SEC. 24. Any judge before whom any person who has been committed on a criminal charge, shall be brought on a writ of habeas corpus, if the same be liable, may take a recognizance from such person, as in other cases, and shall file the same in the proper court without delay.

SEC. 25. If any person brought before the judge on the return of the writ be not entitled to his discharge, and be not bailed, where such bail is allowable, such judge shall remand him or her to custody, or place him or her under the restraint from which he or she was taken, if the person under whose custody or restraint he or she was, be legally entitled thereto. SEC. 26. In cases where any party is held under illegal re

straint or custody, or any other person is entitled to the restraint or custody of such party, such judge may order such party to be committed to the restraint or custody of such person as is by law entitled thereto.

SEC. 27. Until judgment be given on the return, the judge before whom any party may be brought on such writ may commit him or her to the custody of the sheriff of the county, or place him or her in such care or under such custody as his or her age or circumstances may require.

SEC. 28. No writ of habeas corpus shall be disobeyed for defect of form, if it sufficiently appear therefrom in whose custody or under whose restraint the party imprisoned or restrained is, the officer or person detaining him or her, and the judge before whom he or she is to be brought.

SEC. 29. No person who has been discharged by the order of the judge upon a habeas corpus, issued pursuant to the provisions of this act, shall be again imprisoned, restrained or kept in custody for the same cause, except in the following cases: First. If he or she shall have been discharged from custody, on a criminal charge, and be afterwards committed for the same offence, by legal order or process. Second. If, after a discharge for defect of proof, or for any defect of the process, warrant or commitment in a criminal case, the prisoner may be again arrested, on sufficient proof, and committed by legal process for the same offence.

SEC. 30. Whenever it shall appear, by satisfactory proof, by affidavit, to any judge authorized by law to grant a writ of habeas corpus, that any one is illegally held in custody, confinement or restraint, and that there is good reason to believe that such person or persons will be carried out of the jurisdiction of the judge before whom the application is made, or will suffer some irreparable injury before compliance with the writ of habeas corpus can be enforced, said judge may cause a warrant to be issued, reciting the facts, and directed to the sheriff or any constable of the county, commanding such officer to take such person thus held in custody, confinement or restraint, and bring him or them forthwith before such judge, to be dealt with according to law.

SEC. 31. Such judge may also, if the same be deemed necessary, insert in such warrant a command for the apprehension of the person charged with such illegal detention and restraint.

SEC. 32. The officer to whom such warrant is delivered shall execute the same by bringing the person or persons therein named before the judge who may have directed the issuing of such warrant.

SEC. 33. The person alleged to have such party under illegal confinement or restraint may make return to such warrant, as in the case of a writ of habeas corpus, and the same may be denied, and like allegations, proofs and trial shall be had thereon, as upon the return to a writ of habeas corpus.

SEC. 34. If such party be held under illegal restraint or custody, he or she shall be discharged; and if not, he or she shall be restored to the custody of the person entitled thereto, or left at liberty, as the case may require.

SEC. 35. Any writ or process authorized by this act may be issued and served on the first day of the week, commonly called Sunday, or any other non-judicial day.

SEC. 36. All writs, warrants, processes and subpoenas authorized by the provisions of this act, shall be issued by the clerk of the court, and (except subpoenas) sealed with the seal of the court, and shall be served and returned forthwih, unless the judge shall specify a particular time for any such return.

SEC. 37. If any judge, after a proper application is made, shall refuse to grant an order for a writ of habeas corpus, or if the officer or person to whom such writ may be directed shall refuse obedience to the command thereof, he or she shall forfeit and pay to the person aggrieved a sum not exceeding five thousand dollars-to be recovered by an action of debt, in any court having cognizance thereof.

SEC. 38. Any person having in his custody or under his restraint or power any person for whose relief a writ of habeas corpus shall have been duly issued, pursuant to the provisions of this act, who, with the intent to elude the service of such writ or to avoid the effect thereof, shall transfer such person to the custody of another, or shall place him or her under the power or control of another, or shall conceal or exchange the place of his or her confinement or restraint, or shall remove him or her without the jurisdiction of such judge, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum not exceeding five thousand dollars, nor less than one thousand dollars.

SEC. 39. Every person who shall knowingly aid or assist in the commission of any offence specified in the last preceding section shall be deemed guilty of a misdemeanor, and punished as in the last preceding section.

SEC. 40. Every person convicted of any offence under the provisions of the last preceding sections, in addition to the punishment therein mentioned, may be also imprisoned in the county jail for a term not exceeding two years.

SEC. 41. This act shall take effect and be in force from and

after its approval by the governor.

APPROVED, January 22, 1864.

MARRIAGES AND DIVORCES.

AN ACT regulating Marriages and Divorces.

Be it enacted by the Legislative Assembly of the Territory of Idaho as follows:

SECTION 1. Marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential.

SEC. 2. Every male person who shall have attained the full age of eighteen years, and every female who shall have attained the full age of sixteen years, shall be capable in law of contracting marriage, if otherwise competent: Provided, however, That nothing in this act shall be construed so as to make the issue of any marriage illegitimate, if the persons contracting said marriage, or either of them, shall not have been of lawful age at the time of the birth of said issue: and Provided, further, That all minors who shall have attained the age provided in this act for the contracting of marriage, shall be deemed in law to have attained their majority upon entering into the bonds of matrimony.

SEC. 3. No marriage shall be contracted while either of the parties shall have a husband or wife living, nor between parties who are nearer of kin than second cousins, computing by the rules of the civil law, whether by the half or the whole blood.

SEC. 4. Marriages may be solemnized by any justice of the peace in the county or judicial district in and for which he is elected or appointed, and they may be solemnized throughout the territory by any judge of a court of record, by any minister of the gospel, and by the governor of the territory.

SEC. 5. If any person intending to marry shall be under the age of twenty-one, if a male, or under the age of twenty years if a female, and shall not have had a former wife or husband, the consent in person, or in writing, of the parent or guardian having the custody of such minor, if he or she have

either a parent or guardian living in this territory, shall be given to the person solemnizing the marriage before such marriage shall take place.

SEC. 6. In the solemnization of marriage, no particular form shall be required, except that the parties shall declare in the presence of the judge, minister, or magistrate, and the attending witnesses, that they take each other as husband and wife, and in every case there shall be at least two witnesses present, besides the person performing the ceremony.

SEC. 7. When a marriage shall have been solemnized, the person solemnizing the same shall give to each of the parties, if required, a certificate thereof, specifying therein the names and residences of the parties, and of at least two witnesses present, and of the time and place of such marriage, and when the consent of the parent or guardian is necessary, stating that the same was duly given.

SEC. 8. Every person solemnizing a marriage shall make a record thereof, and within three months after such marriage shall make and deliver to the recorder of deeds, of the county where the marriage took place, a certificate under his hand containing the particulars mentioned in the preceding section. The certificate may be in the following form:

Territory of Idaho,
County of -

} SS

ss:

This is to certify that the undersigned, a justice of the peace of said county (minister of the gospel, or judge, etc., as the case may be), did on the

day of

A. D. 18join in lawful wedlock A. B. and Č. D., with their mutual consent, in presence of E. F. and G. H., witnesses. Justice of the peace.

J. P.,

SEC. 9. All such certificates shall be filed and recorded by the said recorder, in a book to be kept by him for that purpose; and he shall receive a fee of one dollar from the person solemnizing the marriage, who shall be entitled to receive the same from the parties before the marriage.

SEC. 10. Every person solemnizing a marriage who shall neglect to make and deliver to the recorder a certificate thereof, within the time above specified, shall forfeit for such neglect a sum not less than twenty, nor more than fifty dollars; and every recorder who shall neglect to record such certificate, so delivered, shall forfeit the like penalty.

SEC. 11. If any person shall wilfully make out a false certificate of any marriage or pretended marriage, he shall forfeit for every such offence a sum not exceeding five hundred dollars, or may be imprisoned in the territorial prison not exceeding one year, or by both such fine and imprisonment.