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no general law, nor any judgment, order or decree of a court, to authorize the pro
if in a civil suit, nor any conviction, if in a criminal proceeding. No court or judge, on the return of a habeas corpus, shall, in any other matter, inquire into the legality or justice of a judgment or decree of a court legally constituted. In all cases where the imprisonment is for a criminal, or supposed criminal matter, if it shall appear to the said court or judge, that there is sufficient legal cause for the commitment of the prisoner, although such commitment may have been informally made, or without due authority, or the process may have been executed by a person not duly authorized, the court or judge shall make a new commitment in proper form and directed to the proper officer, or admit the party to bail, if the case be bailable.
Sec. 4. When any person shall be admitted to bail, on habeas corpus, he shall enter into recognizance with one or more securities, in such sum as the court or judge shall direct, having regard to the circumstances of the prisoner and the nature of the offence, conditioned for his or her appearance at the next circuit court, to be holden in and for the county where the offence was committed, or where the same is to be tried: where any court or judge shall admit to bail, or remand any prisoner brought before him or them, on any writ of habeas corpus, it shall be the duty of the said court or judge, to bind all such persons as do declare any thing material to prove the offence with which the prisoner is charged, by recognizance, to appear at the proper court having cognizance of the offence, on the first day of the next term thereof, to give evidence touching the said offence, and not to depart the said court without leave; which recognizance, so taken, together with the recognizance entered into by the prisoner when he is admitted to bail, shall be certified and returned to the proper court on the first day of the next succeeding term thereof. If any such witness shall neglect or refuse to enter into a recognizance as aforesaid, when thereunto required, it shall be lawful for the court or judge to commit him to jail until he shall enter into such recognizance, or be otherwise discharged by due course of law: if any judge shall neglect or refuse to bind any such witness or prisoner, by recognizance as aforesaid, or to return any such recognizance, when taken as aforesaid, he shall be deemed guilty of a misdemeanor in office, and be proceeded against accordingly.
Sec. 5. Where any prisoner, brought up on a habeas corpus, shall be remanded to prison, it shall be the duty of the court or judge remanding him, to make out and deliver to the sheriff, or other person, to whose custody he shall be remanded, an order in writing, stating the cause or causes of remanding him. If such prisoner shall obtain a second writ of habeas corpus, it shall be the duty of such sheriff or other person to whom the same shall be directed, to return therewith the order aforesaid ; and if it shall appear that the said prisoner was remanded for an offence adjudged not bailable, it shall be taken and received as conclusive, and the prisoner shall be remanded without further proceedings.
Sec. 6. It shall not be lawful for any court or judge, on a second writ of habeas corpus, obtained by such prisoner, to discharge the said prisoner, if he is clear. ly and specifically charged in the warrant of commitment with a criminal offence; but the said court or judge shall, on the return of such second writ, have power only to admit such prisoner to bail, where the offence is bailable by law, or remand him to prison where the offence is not bailable; or being bailable, where such prisoner shall fail to give the bail required.
Sec. 7. No person who has been discharged by order of a court or judge, on a habeas corpus, shall be again imprisoned, restrained or kept in custody for the same cause, unless he be afterwards indicted for the same offence, nor unless by the legal
order or process of the court wherein he is bound by recognizance to appear. The following shall not be deemed to be the same cause : First, if after a discharge for a defect of proof, or any material defect in the commitment in a criminal case, the prisoner should be again arrested on sufficient proof, and committed by legal process for the same offence : Second, If in a civil suit the party has been discharged for any illegality in the judgment or process, and is afterwards imprisoned by legal process for the same cause of action : Third, Generally, whenever the discharge has been ordered on account of the non-observance of any of the forms required by law, the party may be a second time imprisoned, if the cause be legal and the forms required by law, observed.
Sec. 8. No person shall be discharged under the provisions of this chapter, who is in custody under a commitment, for any offence exclusively cognizable by the courts of the United States, or by order, execution or process issuing out of such courts, in cases where they have jurisdiction; or who is held by virtue of any legal engagement or enlistment in the army; or who being subject to the rules and articles of war, is confined by any one legally acting under the authority thereof; or who is held as prisoner of war under the authority of the United States; or who is in custody for any treason, selony or other high misdemeanor, committed in any other State or territory of the United States, and who, by the constitution and laws of the United States, ought to be delivered up to the executive power of such State or territory; nor shall any negro or mulatto, held as a slave within this State, try his right to freedom, or be discharged from slavery under the provisions of this chapter, but for that purpose shall be put to his suit for freedom.
Sec. 9. If any person shall be committed for a criminal, or supposed criminal matter, and not admitted to bail, and shall not be tried on or before the second term of the court having jurisdiction of the offence, the prisoner shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court at the second term, shall be satisfied that due exertions have been made to procure the evidence for, and on behalf of the people, and that there are reasonable grounds to believe that such evidence may be procured at the third term, they shall have power to continue such case till the third term. If any such prisoner shall have been admitted to bail for a crime other than a capital offence, the court may continue the trial of said cause to a third term, if it shall appear by oath or affirmation that the witnesses for the people of the State are absent, such witnesses being mentioned by name, and the court shown wherein their testimony is material.
Sec. 10. To prevent any person from avoiding or delaying his trial, it shall not be lawful to remove any prisoner on habeas corpus under this chapter, out of the county in which he or she is confined, within fifteen days next preceding the term of the court at which such person ought to be tried, except it be to convey him or her into the county where the offence with which he or she stands charged, is properly cognizable.
Sec. 11. Any person being committed to any prison, or in the custody of any officer, sheriff, jailer, keeper or other person, or his under officer or deputy, for any criminal, or supposed criminal matter, shall not be removed from the said prison or custody into any other prison or custody, unless it be by habeas corpus, or some other legal writ, or where the prisoner shall be delivered to the constable or other inferior officer, to be carried to some common jail, or shall be removed from one place to another, within the county, in order to his discharge or trial in due course
of law, or in case of sudden fire, infection or other necessity, or where the sheriff shall commit such prisoner to the jail of an adjoining county, for the want of a sufficient jail in his own county, as is provided in the chapter concerning jails and jailers, or where the prisoner, in pursuance of a law of the United States, may be claimed or demanded by the executive of any of the United States or territories. If any person or persons shall, after such commitment as aforesaid, make out, sign or countersign, any warrant or warrants for such removal, except as before excepted, then he or they shall forfeit to the prisoner or party aggrieved, a sum not exceeding three hundred dollars, to be recovered by the prisoner or party aggrieved, in the manner hereinafter mentioned.
Sec. 12. Any judge empowered by this chapter, to issue writs of habeas corpus, who shall corruptly refuse to issue such writ, when legally applied to, in a case where such writ may lawfully issue, or who shall, for the purposes of oppression, unreasonably delay the issuing of such writ, shall, for every such offence, forfeit to the prisoner or party aggrieved, a sum not exceeding five hundred dollars.
Sec. 13. If any officer, sheriff, jailer, keeper or other person, to whom any such writ shall be directed, shall neglect or refuse to make the returns as aforesaid, or to bring the body of the prisoner according to the command of the said writ, within the time required by this chapter, all, and every such officer, sheriff, jailer, keeper or other person, shall be deemed guilty of a contempt of the court or judge who issued said writ: whereupon, the said court or judge may, and shall issue an attachment against such officer, sheriff, jailer, keeper or other person, and cause him or them to be committed to the jail of the county, there to remain without bail or mainprize, until he or they shall obey the said writ; such officer, sheriff, jailer, keeper or other person, shall also forfeit to the prisoner or party aggrieved, a sum, not exceeding five hundred dollars, and shall be incapable of holding or executing his said office.
Sec. 14. Any one having a person in his custody, or under his restraint, power or control, for whose relief a writ of habeas corpus is issued, who, with intent to avoid the effect of such writ, shall transfer such person to the custody, or place him or her under the control of another, or shall conceal him or her, or change the place of his or her confinement, with intent to avoid the operation of such writ, or with intent to remove him or her out of the State, shall forfeit for every such offence, one thousand dollars, and may be imprisoned, not less than one year, nor more than five years. In any prosecution for the penalty incurred under this section, it shall not be necessary to show that the writ of habeas corpus had issued at the time of the removal, transfer or concealment therein mentioned, if it be proven that the acts therein forbidden were done with the intent to avoid the operation of such writ.
Sec. 15. Any sheriff or his deputy, any jailer or coroner, having custody of any prisoner, committed on any civil or criminal process of any court or magistrate, who shall neglect to give such prisoner a copy of the process, order or commitment, by virtue of which he is imprisoned, within six hours after demand made by said prisoner, or any one on his behalf, shall forfeit five hundred dollars.
Sec. 16. Any person who, knowing that another has been discharged by order of a competent judge or tribunal, on a habeas corpus, shall, contrary to the provisions of this chapter, arrest or detain him again for the same cause, which was shown on the return of such writ, shall forfeit five hundred dollars for the first offence, and one thousand dollars for every subsequent offence.
Sec. 17. All the pecuniary forseitures incurred under this chapter, shall enure to the use of the party for whose benefit the writ of habeas corpus issued, and shall be sued for and recovered, with costs by the attorney general or circuit attorney, in the name of the State, by information ; and the amount, when recovered, shall, without any deduction, be paid to the party entitled thereto.
Sec. 18. In any action or suit for any offence against the provisions of this chapter, the defendant or defendants may plead the general issue, and give the special matter in evidence.
Sec. 19. The recovery of the said penalties shall be no bar to a civil suit for damages.
Sec. 20. The supreme and circuit courts within this State, or the judges thereof, in vacation, shall have power to issue writs of habeas corpus, for the purpose of bringing the body of any person confined in any jail within the same, before them, to testify or be surrendered in discharge of bail. When a writ of habeas corpus shall be issued for the purpose of bringing into court any person to testisy, or the principal to be surrendered in discharge of bail, and such principal or witness shall be confined in any jail in this State, out of the county in which such principal or witness is required to be surrendered or to testify, the writ may run into any county in this State, and there be executed and returned by any officer to whom it shall be directed; and the principal, after being surrendered, or his bail discharged, or a person testifying as aforesaid, shall, by the officer executing such writ, be returned to the jail from whence he was taken by virtue of an order of the court, for the purposes aforesaid ; an attested copy of which, lodged with the jailer, shall exonerate such jailer from being liable for an escape. The party praying out such writ of
pay to the officer executing the same, such reasonable sum for his services, as shall be adjudged by the courts respectively.
APPROVED: March 3, 1845.
brge, to be taken up; how disposed of.
disposed of. 3. If owner do not take away horse, how dispos
posed of; owner, how punished.
Section 1. It shall be lawful for any person to take up any stoned horse that may be found running at large out of the inclosure of the owner or keeper, more than one year old, and shall give notice thereof to the owner or keeper; and if such owner or keeper shall not take away or secure the same, allowing him one day for every fifteen miles he may reside from such taker up, the taker up shall take or
show the same to a justice of the peace within the county, and if it shall appear to such justice, that said horse is more than one year old, he shall issue his warrant to some person skilled in the business, to geld such stoned horse; or the same may be shown by the taker up, to any horse farrier, or other person of the county, well skilled in the age of horses; and if, upon view and examination, the horse shall be considered of the age of one year old, the person so examining, if he be skilled in the business, may geld and alter the same; if not, he shall give a certificate relative to the age thereof, and the taker up may then take said horse to some person skilled as aforesaid, and have the same gelded, and in performing the operation, reasonable care shall be taken to preserve the life of the animal; but should the owner not be known to the taker up, he shall advertise the same in three of the most public places in the county for ten days, giving a true description thereof; and if no owner or person on his behalf, shall, by that time appear and take charge of said horse, such taker up may proceed as above directed, and have the same gelded ; and the owner shall pay to the taker up the sum of two dollars, together with reasonable charges for advertising and keeping the same, if the same be advertised, and the person altering shall be paid by the person applying to have the same done.
Sec. 2. It shall not be lawsul for any person to alter any horse that is known to be kept for covering mares, which may accidentally break out of, or from the possession of the owner or keeper, and be found running at large; in that case the same shall be taken to the owner or keeper, without unnecessary delay, and the owner or keeper shall thereupon pay such person, so taking up and delivering the said horse, the sum of two dollars ; and should the trouble and expense of taking up, keeping and delivering, be extraordinary and great, a further and liberal sum shall be paid by the owner or keeper of such horse to the person so taking up and delivering ; but if the owner or keeper of any stoned horse, whether he be kept for covering mares or not, shall negligently or wilfully suffer the same to run at large, out of his inclosure, any person may take such horse up, and forth with have the same gelded by some person skilled in the business, which shall be done carefully, and the owner or keeper shall pay to such taker up, the sum of five dollars ; the taker up paying the fee or charge for gelding; and the owner or keeper shall, moreover, be liable for and pay all damages which any person may sustain, in consequence of such horse running at large; and if any horse shall die, or be injured, in consequence of such gelding, the same being carefully done by a person skilled in the business, as above contemplated, the owner or keeper thereof shall have no recourse whatever for damages upon such taker up, or person who shall have gelded the same.
Sec. 3. If the owner or keeper of any horse, or other person in his behalf, shall not appear and take charge of the same, after being altered as aforesaid, the taker up shall take care of, feed and nourish the same, until said horse shall have recovered, and shall then turn the same out, and the owner shall pay to such person a reasonable sum in money therefor.
Sec. 4. If any person shall suffer to run at large, or keep in any place where other creatures can have access to, and become infected, any horse, mare, gelding, mule or ass, that is known to the owner or the person having the same in his care and possession, to be afflicted with glanders, distempers or any other infectious disease, he shall be fined in the sum of twenty dollars, and shall be liable to pay all the damage that may result from such running at large, of such afflicted horse, mare,