how obtained

etc.

which the term expired, and if the same pertain to such office, he shall cause them to be delivered to the complainant. (5203.) SEC. 9. If any person appointed or elected to any Books and papers, office shall die, or his office shall in any way become vacant, when officer dies, and any books or papers belonging or appertaining to such office shall come to the hands of any person, the successor in any such office may, in like manner as hereinbefore prescribed, demand such books or papers from the person having the same in his possession; and if withheld, an order may be obtained, and the person charged may in like manner make affidavit of the delivery of all such books and papers that ever came to his possession; and in case of omission to make such affidavit, and to deliver up the books and papers so demanded, such person may be committed to jail, and a search warrant may be issued, and the property seized may be delivered to the complainant, as hereinbefore prescribed.

71

TITLE XXX II.

OF WRITS OF HABEAS CORPUS, SCIRE FACIAS, INFORMATIONS, WRITS OF MANDAMUS, PROHIBITION,

CHAPTER CLXI. Of Informations in the nature of a Quo Warranto, and in certain other cases. CHAPTER CLXII. Of Writs of Mandamus and Prohibition.

CHAPTER CLXIII. Of Writs of Error and Certiorari.

HABEAS CORPUS TO BRING UP A PERSON TO TESTIFY.

R. S. of N. Y.,
Title 1, Chap. 9,
Part 3.

to testify.

(5204.) SECTION 1. Every Court of Record shall have power, Habeas Corpus upon the application of any party in any suit or proceedings, civil or criminal, pending in such Court, to issue a writ of habeas corpus, for the purpose of bringing before such Court any prisoner who may be detained in any jail or prison within this State, for any cause except a sentence for a felony, to be examined as a witness in such suit or proceeding, in behalf of the party making such application.

(5205.) SEC. 2. Every such application shall be verified by Application for, affidavit, and shall state:

1. The title and nature of the suit or proceeding, in regard to which the testimony of such prisoner is desired; and:

2. That the testimony of such prisoner is material and necessary to such party on the trial or hearing of such suit or proceeding, as he is advised by counsel, and verily believes; But if the application be made by the Attorney General or Prosecuting Attorney, it shall not be necessary to swear to such advice of counsel.

how made.

allow Writ

(5206.) SEC. 3. Such writ may also be issued by any Justice omoers who may of the Supreme Court, or any officer authorized to perform the

When to be ir sued in suits before Justices.

7 Wend., 132.

to be remanded.

Z Paige, 104.

duties of such Justice, upon the like application of a party to any suit or proceeding pending in a Court of Record, or pending before any officer or body who may be authorized to éxamine witnesses in any suit or proceeding.

(5207.) SEC. 4. Such writ may also be issued by any of the officers aforesaid, upon the application of a party to a suit before any Justice of the Peace, to bring any prisoner confined in the jail of the same county, or the county next adjoining that where such Justice may reside, before such Justice, to be examined as a witness.

Certain prisoners (5208.) SEC. 5. Whenever any person shall be in execution on any civil process, or committed on any criminal charge, and a writ of habeas corpus shall be issued to bring the body of such prisoner before any Court, officer or body to testify, or to answer for any contempt or any other matter, and it be returned upon the writ that the prisoner is charged in execution, or committed as aforesaid, he shall be remanded after having testified; and if any order of commitment be made against such prisoner, he shall be so committed to the prison from which he was taken.

Liability for disobeying Habeas Corpus.

(5209.) SEC. 6. Whenever any writ of habeas corpus shall be issued pursuant to any of the foregoing provisions of this chapter, it shall be the duty of the officer to whom the same shall be delivered to obey and return such writ according to the command thereof, in the manner and within the time prescribed by law; and every officer who shall neglect or refuse so to do, shall be liable to the People of this State, when the writ was issued upon the application of the Attorney General, or a Prosecuting Attorney, and in other cases to the party upon whose application the same shall have issued, in the sum of five hundred dollars.

R. S. of N. Y., HABEAS CORPUS AND CERTIORARI TO INQUIRE IN70 CAUSE
Art. 2, Title 1,
OF DETENTION. (a)
Part 3.

Chap.

Who may sue out
Writ

(5210.) SEC. 7. Every person committed, detained, confined or restrained of his liberty within this State, for any criminal or supposed criminal matter, or under any pretence whatsoever, except in the cases in the next section specified, may prosecute a writ of habeas corpus or of certiorari according to the pro

(a) See Chapter 177 for provisions in cases of persons claimed as Fugitive Slaves.

visions of this chapter, to inquire into the cause of such imprisonment or restraint.

to Writ

(5211.) SEc. 8. The following persons shall not be entitled Who not entitled to prosecute such writ:

1. Persons committed or detained by virtue of any process issued by any Court of the United States, or any Judge thereof, in cases where such Courts or Judges have exclusive jurisdiction under the laws of the United States, or shall have acquired exclusive jurisdiction by the commencement of suits in such Courts;

2. Persons committed for treason or felony, or for suspicion thereof, or as accessories before the fact to a felony, where the cause is plainly and specially expressed in the warrant of commitment;

3. Persons convicted, or in execution, upon legal process, civil or criminal;

4. Persons committed on original process in any civil action on which they were liable to be arrested and imprisoned, unless when excessive and unreasonable bail is required.

Writ.

(5212.) SEC. 9. Application for such writ shall be made by Application for petition, 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, during its sitting; or:

2. During any term or vacation of the Supreme Court, to any one of the Justices of the Supreme Court, or any officer who may be authorized to perform the duties of a Justice of the Supreme Court at Chambers, Circuit Court Commissioner, or a Judge of a Circuit Court, being or residing within the county where the prisoner is detained; or if there be no such officer within such county, or if he be absent, or for any cause be incapable of acting, or having refused to grant such writ, then to some officer having such authority residing in any adjoining county.

on application in

(5213.) SEC. 10. Whenever application for any such writ Proof required shall be made to any officer not residing within the county another County. where the prisoner shall be detained, he shall require proof by the oath of the party applying, or by other sufficient evidence, that there is no such officer in such county authorized to grant such writ, or if one reside there, that he is absent, or has refused to grant such writ, or for some cause to be specially set forth, is incapable of acting; and if such proof be not produced, the application shall be denied.