ARTICLE THIRD. The Writ of Habeas Corpus, and the Writ of Certiorari, to Inquire into the Cause of Detention. SEC. 2015. Who entitled to prosecute the writs. 2016. When neither writ shall be allowed. 2017. How and to whom application for habeas or certiorari made. 2018. Application in another county; proof required. 2019. Contents of petition. 2020. When writ must be granted; penalty for refusing. 2021. Form of writ of habeas corpus. 2022. Form of writ of certiorari. 2023. When writ returnable before another judge. 2024. When writ sufficient. 2025. When writ to issue without application. 2026. Return; its contents. 2027. Habeas corpus; body of prisoner to be produced, unless, etc. 2028. Proceedings on disobedience of writ. 2029. Id.; precept to bring up prisoner. 2030. Id.; power of county may be called. 2031. Proceedings on return of habeas corpus. 2032. When prisoner to be remanded. 2033. When to be discharged in civil cases. 2034. The last section qualified. 2035. Proceedings on irregular commitment. 2036. Id.; when prisoner may be committed to another officer. 2037. Custody of prisoner pending the proceedings. 2038. Notice to person interested in detention. 2039. Prisoner may controvert return; proofs thereupon. 2040. Proceedings upon sickness, etc., of prisoner. 2041. When certiorari to issue on application for habeas corpus. 2042. Proceedings upon its return. 2043. Id.; when discharge to be granted; when proceedings to cease. 2044. When certiorari does not prevent habeas corpus. 2045. Bail on certiorari; when and how ordered. 2046. Id.; by whom and how taken. 2047. Discharge of prisoner bailed. 2048. Order substituted for writ of discharge; service and effect thereof. 2049. Enforcing order for discharge; penalty, etc. 2050. When prisoner discharged not to be re-imprisoned; when he may be. 2051. Penalty for violating the last section. 2052. Id.; for concealing prisoner, etc., to avoid writ. 2053. Id.; for aiding, etc. 2054. Warrant to bring up prisoner about being removed. 2055. When offender to be arrested. 2056. Execution of warrant; proceedings to relieve prisoner. 2057. Id.; proceedings to punish offender. 2058. When appeal may be taken in cases under this article. 2059. Id.; by people. 2060. Prisoner who appeals may be admitted to bail. 2061. Id.; recognizance, etc. 2062. Id.; on appeal to court of appeals. SEC. 2063. Custody of prisoner until he gives bail. 2015. Who entitled to prosecute the writs. A person imprisoned or restrained in his liberty, within the State, for any cause, or upon any pretence, is entitled, except in one of the cases specified in the next section, to a writ of habeas corpus, or a writ of certiorari, as prescribed in this article, for the purpose of inquiring into the cause of the imprisonment or restraint, and, in a case prescribed by law, of delivering him therefrom. A writ of habeas corpus may be issued and served under this section, on the first day of the week, commonly called Sunday; but it cannot be made return-yy able on that day. From 2 R. S. 563, Part 3, ch. 9, tit. 1, § 21 (2 Edm. 583). V § 2016. When neither writ shall be allowed. 143 244 212 A person is not entitled to either of the writs specified in the last section, in either of the following cases: 1. Where he has been committed, or is detained, by virtue of a mandate, issued by a court or a judge of the United States, in a case where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of legal proceedings in such a court. 2. Where he has been committed, or is detained, by virtue of the final judgment or decree, of a competent tribunal of civil or criminal jurisdiction; or the final order of such a tribunal, made in a special proceeding, instituted for any cause, except to punish him for a contempt; or by virtue of an execution or other process, issued upon such a judgment, decree, or final order. From Id., § 22. §2017. How and to whom application for habeas or certiorari made. Application for the writ must be made, by a written petition, signed, either by the person for whose relief it is intended, or by some person in his behalf, to either of the following courts or officers: 1. The supreme court, at a special term or the appellate division thereof, where the prisoner is detained within the judicial district within which the term is held. 2. A justice of the supreme court, in any part of the state. 3. An officer authorized to perform the duties of a justice of the supreme court at chambers, being or residing within the county, where the prisoner is detained; or, if there is no such officer within that city or county, capable of acting, or, if all those who are capable of acting and authorized to grant the writ, are absent, or have refused to grant it. then to an officer, authorized to perform those duties residing in an adjoining county. From Id., § 23. Am'd by ch. 946 of 1895. § 2018. Application in another county; proof required. Where application for either writ is made as prescribed in subdivision third of the last section, without the county where the prisoner is detained, the officer must require proof, by the oath of the person applying, or by other sufficient evidence, of the facts which authorize him to act as therein prescribed: and if a judge in that county authorized to grant the writ, is said to be incapable of acting, the cause of 219 the incapacity must be specially set forth. If such proof is not produced the application must be denied. From Id., § 24. § 2019. Contents of petition. The petition must be verified by the oath of the petitioner, to the effect that he believes it to be true; and must state, in substance: 1. That the person in whose behalf the writ is applied for, is imprisoned, or restrained in his liberty; the place where, unless it is unknown, and the officer or person by whom, he is so imprisoned or restrained, naming both parties, if their names are known, and describing either party whose name is unknown. 2. That he has not been committed, and is not detained, by virtue of any judgment, decree, final order, or process, specified in section 2016 of this act. 3. The cause or pretense of the imprisonment or restraint, according to the best knowledge and belief of the petitioner. 4. If the imprisonment or restraint is by virtue of a mandate, a copy thereof must be annexed to the petition; unless the petitioner avers, either, that by reason of the removal or concealment of the prisoner before the application, a demand of such a copy could not be made, or that such a demand was made, and the legal fees for the copy were tendered to the officer or other person, having the prisoner in his custody, and that the copy was refused. 5. If the imprisonment is alleged to be illegal, the petition must state in what the alleged illegality consists. 6. It must specify whether the petitioner applies for the writ of habeas corpus, or for the writ of certiorari. From Id., § 25. § 2020. When writ must be granted; penalty for refusing. A court or a judge, authorized to grant either writ. must grant it without delay, whenever a petition therefor is presented, as prescribed in the foregoing sections of this article, unless it appears, from the petition itself, or the documents annexed thereto. that the petitioner is prohibited by law from prosecuting the writ. For a violation of this section, a judge, or, if the application was made to a court, each member of the court, who assents to the violation, forfeits to the prisoner one thousand dollars, to be recovered by an action in his name, or in the name of the petitioner to his use. From Id., §§ 26 and 31. § 2021. Form of writ of habeas corpus. up: The writ of habeas corpus, issued as prescribed in this article, must be substantially in the following form, the blanks being properly filled The people of the State of New York, to the sheriff of, et cetera, (or to A. B."): We command you, that you have the body of C. D.. by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatsoever name the said C. D. is called or charged, before," ("the supreme court, at a special term or term of the appellate division thereof, to be held" or E. F.. justice of the supreme court. or otherwise, as the case may be.) at (or. immediately after the receipt of this writ"). "to do and receive what shall then and there be considered concerning the said C. D. And have you then there this writ. 'Witness. one of the justices" (or "judges ")" of the said court (or county judge." or otherwise, as the case may be), "the day of in the year eighteen hundred and From Id., § 27. . on Am'd by ch. 946 of 1895. § 2022. Form of writ of certiorari. 66 The writ of certiorari, issued as prescribed in this article, must be substantially in the following form, the blanks being properly filled up: The People of the State of New York, to the Sheriff of," et cetera, (or to A. B."): 'We command you, that you certify fully and at large, to ("the supreme court, at a special term or term of the appellate division thereof, to be held," or "E. F. justice of the supreme court,' or otherwise, (as the case may be), at (or immediately after the receipt of this writ)," the day and cause of the imprisonment of C. D., by you detained, as it is said, by whatsoever name the said C. D. is called or charged. And have you then there this writ. Witness, one of the justices (or judges ") "of the said court" (or "county judge," or otherwise, as the case may be), "the in the year, eighteen hundred and day of From Id., § 28. on 39 Am'd by ch. 946 of 1895. § 2023. When writ returnable before another judge. If application for either writ is made to the supreme court, or to a justice thereof, in a county other that that where the person is imprisoned or confined, the writ may be made returnable, in its or his discretion, before any judge authorized to grant it, in the county of the imprisonment or confinement. From ch. 240 of 1837, § 1 (4 Edm. 681). § 2024. When writ sufficient. The writ of habeas corpus or the writ of certiorari shall not be disobeyed for any defect of form, and particularly in either of the following cases: 1. If the person having the custody of the prisoner, is designated, either by his name or office, if he has one, or by his own name; or, if both names are unknown or uncertain, by an assumed appellation. Any person, upon whom the writ is served, is deemed to be the person to whom it is directed, although it is directed to him by a wrong name or description, or to another person. 2. If the prisoner directed to be produced, is designated by name, or otherwise described in any way so as to be identified as the person intended. From 29 of the R. S. § 2025. When writ to issue without application. Where a justice of the supreme court, in court or out of court, has evidence, in a judicial proceeding taken before him, that any person is illegally imprisoned or restrained in his liberty, within the State; or where any other judge, authorized by this article to grant the writs, has evidence, in like manner, that any person is thus imprisoned or restrained, within the county where the judge resides; he must issue a writ of habeas corpus or a writ of certiorari, for the relief of that per son, although no application therefor has been made. From Id., § 30. 2026. Return; its contents. The person upon whom either writ has been duly served, must state, plainly and unequivocally. in his return: 1. Whether or not, at the time when the writ was served, or at any time theretofore or thereafter, he had in his custody, or under his power or restraint, the person for whose relief the writ was issued. 2. If he so had that person, when the writ was served, and still has him, the authority and true cause of the imprisonment or restraint. setting it forth at length. If the prisoner is detained by virtue of a mandate, or other written authority, a copy thereof must be annexed to the return, and, upon the return of the writ, the original must be produced, and exhibited to the court or judge. 3. If he so had the prisoner at any time, but has transferred the custody or restraint of him to another, the return must conform to the return required by the second subdivision of this section, except that the substance of the mandate or other written authority may be given, if the original is no longer in his hands; and that the return must state particularly to whom, at what time, for what cause, and by what authority, the transfer was made. The return must be signed by the person making it, and, unless he is a sworn public officer, and makes his return in his official capacity, it must be verified by his oath. From Id., § 32. § 2027. Habeas corpus; body of prisoner to be produced, unless, etc. The person, upon whom a writ of habeas corpus has been duly served, must also bring up the body of the prisoner in his custody, according to the command of the writ; unless he states, in his return, that the prisoner is so sick or infirm, that the production of him would endanger his life or his health. From Id., § 33 and part of § 49. § 2028. Proceedings on disobedience of writ. Where a person. who has been duly served with either writ, refuses or neglects. without sufficient cause shown by him, fully to obey it, as prescribed in the last two sections, the court or judge, before which or whom it is made returnable upon proof of due service thereof, must forthwith issue a warrant of attachment, directed generally to the sheriff of any county where the delinquent may be found, or if the delinquent is a sheriff. to any coroner of his county, or to a particular person specially appointed to execute the warrant, and designated therein commanding such officer or other person forthwith to apprehend the delinquent, and bring him before the court or judge. Upon the delinquent being so brought up, an order must be made, committing him to close custody in the jail of the county in which the court or judge is; or if he is a sheriff, in the jail of a county, other than his own, designated in the order: and, in either case, without being allowed the liberties of the jail. The order must direct that he stand committed, until he makes return to the writ, and complies with any order, which may be made by the court or judge in relation to the person for whose relief the writ was issued. From Id., §§ 34 and 35. § 2029. Id.; precept to bring up prisoner. The court or judge may also, in its or his discretion, at the time when the warrant of attachment is issued, or afterwards, issue a precept to the sheriff, coroner, or other person, to whom the warrant is directed commanding him forthwith to bring before the court or judge the person for whose benefit the writ was granted, who must thereafter remain in the custody of the officer or person execut.ng the precept, until discharged, bailed, or emanded, as the court or judge di rects. From Id., § 36. § 2030. Id.; power of county may be called. The sheriff. coroner, or other person. to whom a warrant of attachment or precept is directed, as prescribed in either of the last two |