Bond of.

compensation shall be taken from the Fund appropriated by the Territory.

SEC. 10. The society may, by a majority of the votes present at any annual meeting, prescribe the duties of and require bond and security from any of its officers.

SEC. 11. This Act shall take effect from and after its passage.

Writ of

habeas cor

pus, who

CHAP. XCIII-An Act concerning the Writ of Habeas Corpus. [Approved December 19, 1862.]

Be it enacted, by the Governor and Legislative Assembly of the Territory of Nevada, as follows:

SECTION 1. Every person unlawfully committed, detained, confined, or restrained of his liberty, under any pretence whatmay prose- ever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.

cute for.

SEC. 2. Application for such writ shall be made by petition, signed either by the party for whose relief it is intended, or by some person in his behalf, and shall specify:

First-That the person in whose behalf the writ is applied for is imprisoned or restrained of his liberty; the officer or person by whom he is so confined, restrained, and the place where, naming all the parties if they are known, or describing them if they are not known.

Second-If the imprisonment be alleged to be illegal, the petition must also state in what the alleged illegality consists.

Third-The petition must be verified by the oath or affirmation of the party making the application.

SEC. 3. Such writ of habeas corpus may be granted by any Judge of the Supreme or District Courts, at any time in term or vacation.

SEC. 4. Any Judge empowered to grant a writ applied for under this Act, if it appear that the writ ought to issue, shall grant the same without delay.

SEC. 5. Such writ shall be directed to the officer or party having such person in custody or under restraint, commanding him to have the body of such person, so imprisoned or detained, as it is alleged by petition, before the Judge, at such time as the Judge shall direct, specifying in such writ the place where the petition will be heard, to do and receive what shall then and there be considered concerning such person, together with the time and cause of his detention, and have then and there such writ.

SEC. 6. If such writ be directed to the Sheriff or other ministerial officer, it shall be delivered by the Clerk of the Court presided over by the Judge issuing said writ, to such officer without delay.

SEC. 7. If such writ be directed to any person other than is specified in the last preceding section, the same shall be deliv

ered to the Sheriff or his Deputy, and shall be by him served upon such person by delivering the same to him without delay. SEC. 8. If the officer or person to whom such writ is directed How served. cannot be found, or shall refuse admittance to the officer or person serving or delivering such writ, the same may be served or delivered by leaving it at the residence of the officer or person to whom it is directed, or by affixing the same on some conspicuous place on the outside of his dwelling house, or the place where the party is confined or under restraint. The service of said writ is made by serving a copy and exhibiting the original, and where posting is required, by posting a copy.

obey.

SEC. 9. If the officer or person to whom such writ is directed Refusal to refuse, after due service as aforesaid, to obey the same, it shall be the duty of the Judge, upon affidavit, to issue an attachment against such person, directed to the Sheriff, or if the Sheriff be the defendant, to an Elisor, appointed for the purpose by the Judge, commanding him forthwith to apprehend such person and bring him immediately before such Judge; and upon being so brought he shall be committed to the Jail of the county until. he make due return of such writ or be otherwise legally discharged.

SEC. 10. The party upon whom such writ shall be duly served Return of. shall state in his return plainly and unequivocally:

First-Whether he have or have not the party in his custody,

or under his power or restraint.

Second-If he have the party in his custody or power, or under his restraint, he shall state the authority and cause of such imprisonment or restraint, setting forth the same at large.

Third-If the party be detained by virtue of any writ, warrant, or any other written authority, a copy thereof shall be annexed to the return, and the original shall be produced and exhibited to the Judge on the hearing of such return.

Fourth-If the officer or person upon whom such writ shall have been served shall have had the party in his power or custody, or under his restraint, any time prior or subsequent to the date of the writ of habeas corpus, but such officer or person has transferred such custody or restraint to another, the return shall state particularly to whom, at what time and place, for what cause, and by what authority such transfer took place.

Fifth-The return must be signed by the person making the same, and, except when such person shall be a sworn public officer, and shall make such return in his official capacity, it shall be verified by his oath or affirmation.

brought.

SEC. 11. If the writ of habeas corpus be served, the person Party in or officer to whom the same is directed shall also bring the body custody to be of the party in his custody or under his restraint, according to the command of the writ, except in the cases specified in the next two sections.

SEC. 12. Whenever, from sickness or infirmity of the person Exception. directed to be produced by any writ of habeas corpus, such person cannot, without danger, be brought before the Judge, the officer or person in whose custody or power he is, may state that fact in his return to the writ, verifying the same by affidavit.

SEC. 13. If the Judge be satisfied of the truth of such alle

in absence

of party.

Proceedings gation of sickness or infirmity, and the return to the writ is otherwise sufficient, such Judge may proceed to decide on such return, and to dispose of the matter, as if such party had been produced on the writ, or the hearing thereof may be adjourned until such party can be produced.

Hearing

of return.

Pleadings.

Court to proceed to trial.

Witnesses.

When party

SEC. 14. The Judge before whom a writ of habeas corpus shall be returned shall, immediately after the return thereof, proceed to hear and examine the return, and such other matters as may be properly submitted to their hearing and consideration.

SEC. 15. The party brought before the Judge on the return of the writ may deny or controvert any of the material facts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge.

SEC. 16. Such Judge shall thereupon proceed in a summary way to hear such allegation and proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require.

SEC. 17. Such Judge shall have full power and authority to require and compel the attendance of witnesses by process of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case.

SEC. 18. If no legal cause be shown for such imprisonment may be dis or restraint, or for the continuation thereof, such Judge shall discharge such party from the custody or restraint under which he is held.

charged.

When remanded.

SEC. 19. It shall be the duty of such Judge, if the time during which such party may be legally detained in custody has not expired, to remand such party, if it shall appear that he is detained in custody by virtue of the final judgment or decree of any competent Court of criminal jurisdiction, or of any process issued upon such judgment or decree, or in cases of contempt of Court. SEC. 20. If it appears on the return of the writ of habeas charged corpus that the prisoner is in custody by virtue of process from tody on pro- any Court of this Territory, or Judge or officer thereof, such Court of the prisoner may be discharged in any one of the following cases, Territory subject to the restrictions of the last preceding section:

How dis

when in cus

cess from a

First-When the jurisdiction of such Court or officer has been exceeded.

Second-When the imprisonment was at first lawful, yet by some act, omission, or event, which has taken place afterwards, the party has become entitled to be discharged.

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 issued 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 process is not authorized by any judgment, order, or decree of any Court, nor by any provision of law.

Seventh-Where a party has been committed on a criminal charge without reasonable or probable cause.

discharged

SEC. 21. If any person be committed to prison, or be in cus- Not to be tody of any officer on any criminal charge, by virtue of any from defect warrant or commitment of a Justice of the Peace, such person of warrant. shall not be discharged from such imprisonment or custody on the ground of any defect of form in such warrant or commit

ment.

SEC. 22. If it shall appear to the Judge, by affidavit, or upon Examination hearing of the matter, or otherwise, or upon the inspection of of witnesses. 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 a 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 subpœnaed 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 to bail, if the offence be bailable, or re- Bail commit him 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 entitled to a writ of habeas corpus, for the purpose of giving bail, upon averring that fact in his petition, without alleging that he is illegally confined.

zance.

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

custody.

SEC. 25. If any party brought before the Judge, on the return Remand to of the writ, be not entitled to his discharge, and be not bailed where such bail is allowable, such Judge shall remand him to 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.

restraint.

SEC. 26. In cases where any party is held under illegal re- Illegal 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.

of party

SEC. 27. Until judgment be given on the return, the Judge Disposition before whom any party may be brought on such writ may com- pending mit him or her to the custody of the Sheriff of the county, or proceedings. place him or her in such care or under such custody as his or her age or circumstances may require.

defect of

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

SEC. 29. No person who has been discharged by the order of when disthe Judge upon a habeas corpus issued pursuant to the provisions to be again of this Act, shall be again imprisoned, restrained, or kept in imprisoned. custody for the same cause, except in the following cases:

Exceptions.

Warrant may issue instead of writ, etc.

Who warrant may include.

Execution of

Return to, trial.

Discharge

First-If he 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 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 will be carried out of the jurisdiction of such 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 forthwith bring him or her 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 thereon had as upon the return to a writ of habeas corpus.

SEC. 34. If such party be held under illegal restraint or cusor remand. tody, 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.

When writ may issue.

Who by.

Return.

Penalty for refusing writ.

Penalty for refusing to obey writ

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 forthwith, 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,