either of his dwelling-house or of the place where § 2001. Writ to be obeyed. The writ shall not be cumstances. (§§ 2004, 2006, 2024.) § 2003. Proceedings in disobedience of writ. - Where a person who has been duly served with the writ refuses or neglects, without sufficient cause shown by him, fully to obey it, the court or judge before which or whom it is made returnable, upon proof of the due service thereof, must forthwith issue a warrant, 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. (§ 2028.) § 2004. Precept to bring up prisoner, and how executed.-The court or judge may, also, in its or his discretion, at the time when the warrant 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 prisoner for whose benefit the writ was granted, who must thereafter remain in the custody of the officer or person executing the precept; until discharged, bailed or remanded as the court or judge directs. The sheriff, coroner or other person to whom a warrant or precept is directed, as prescribed in either of the last two sections, may, in the execution thereof, call to his aid the power of the county, as the sheriff may do, in the execution of a mandate issued from a court of record. § 2002. Prisoner to be produced and return to writ. -The person upon whom a writ of habeas corpus has been duly served must bring up the body of the prisoner in his custody, according to the command in 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, in which case the matter may be disposed of without his attendance. He must also state plainly and unequivocally, by way of return, the following facts: (1) Whether or not, at the time 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 sub-person is held in unlawful confinement or custody, stance 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. (§§ 2026, 2027, 2040.) (§§ 2029, 2030.) § 2005. Warrant to bring up prisoner about being removed.-Where it appears by proof satisfactory to a court or judge, authorized to grant the writ, that a and that there is a good reason to believe that he will be carried out of the State, or suffer irreparable injury, before he can be relieved by a writ of habeas corpus, the court or judge must issue a warrant, reciting the facts, directed to a particular sheriff, or generally to any sheriff or constable, or to a person specially designated therein; and commanding him to take, and forthwith to bring before the court or judge the prisoner, to be dealt with ac cording to law. If the warrant is issued by a court, ful cause for the imprisonment, or restraint or for § 2009. When prisoner to be discharged in civil cases.-If it appears upon the return that the prisoner is in custody by virtue of a mandate in a civil case he can be discharged only in one of the follow § 2006. When offender to be arrested; execution of warrant; proceedings to relieve prisoner; to punish offender. Where the proof specified in the last section is also sufficient to justify an arrest of the person having the prisoner in his custody, as for a criminal offense committed in taking or detaining him, the warrant must also contain a direction to arrest that person for the offense. The officer or person to whom the warrant is directed and deliv-ing cases: (1) Where the jurisdiction of the court ered must execute it by bringing the prisoner therein named, and, also, if so commanded in the warrant, the person who detains him, before the court or judge issuing it; and thereupon the person detaining the prisoner must make a return in like manner, and the like proceedings must be taken, as if a writ of habeas corpus had been issued in the first instance. If the person having the prisoner in his custody is brought before the court or judge, as for a criminal offense, he is entitled to be examined, and must be committed, bailed or discharged by the court or judge, as in any criminal case of the same nature. (§§ 2055, 2056, 2057.) which, or of the officer who, issued the mandate has been exceeded, either as to matter, place, sum or person. (2) Where, although the original imprisonment was lawful, yet by some act, omission or event which has taken place afterwards, the prisoner has become entitled to be discharged. (3) Where the mandate is defective in a matter of substance required by law, rendering it void. (4) Where the mandate, although in proper form, was issued in a case not allowed by law. (5) Where the person having the custody of the prisoner under the mandate is not the person empowered by law to detain him. (6) Where the mandate is not authorized by a judgment, decree or order of a court or by a pro (§ 2033.) $ 2007. Notice to person interested in detention.-vision of law. Where it appears from the return to the writ that the prisoner is in custody by virtue of a mandate, an order for his discharge shall not be made until notice of time when, and the place where, the writ is returnable, or to which the hearing has been ad or detention is unlawful, or that he is entitled to § 2010.--Prisoner may controvert return; proofs thereupon.-A prisoner produced upon the return of a writ of habeas corpus may, under oath, deny any material allegation of the return, or make any allejourned, as the case may be, has been either per-gation of fact, showing either that his imprisonment sonally served, eight days previously, or given in such other manner, and for such previous length of time as the court or judge prescribes, as follows: (1) Where the mandate was issued or made in a civil action or special proceeding to the person who has an interest in continuing the imprisonment or restraint, or his attorney. (2) In every other case to the district-attorney of the county within which the prisoner was detained at the time when the writ was served. (§ 2038.) his discharge. Thereupon the court or judge must § 2011. Custody of prisoner pending the proceedings. § 2008. Proceedings on return of habeas corpus.The court or judge before which or whom the prisoner is brought by a writ of habeas corpus, must, im mediately after the return of the writ, examine into the facts alleged in that return, and into the cause of the imprisonment or restraint of the prisoner. In case a more full and complete return of the pro- § 2012. Proceedings upon irregular commitment. — ceedings had under which the person is imprisoned | If it appears to the court or judge at any time duris necessary, the court or judge may make an order to that effect, which must be obeyed by the person or tribunal to whom it was directed, and must make a final order to discharge him therefrom, if no law ing the proceeding that the prisoner has been legally committed for a criminal offense, or that he is guilty of such an offense, he must be remanded if the case is not bailable. If bailable, he shall be dis charged upon giving bail in a sum and at a term of court to be fixed by such court or judge. Bail may be given at the time or thereafter, on the production of the order before any officer authorized to take bail for the offense with which the prisoner is charged. (§§ 2035, 2045, 2046.) § 2013. Order substituted for writ of discharge; service and effect thereof. The writ of discharge is abolished. A final order to discharge a prisoner may be served in like manner as an injunction order, and when so served it may be enforced in the same manner as a final judgment in a civil action or by proceedings as for contempt of court. Where such an order directs a discharge upon giving bail, the service thereof is not complete until the service of the certificate, or other proof prescribed by law, showing that bail has been given as required thereby. (§§ 2048, 2049.) § 2014. When prisoner discharged not to be reimprisoned; when he may be.-A prisoner who has been discharged by a final order, made upon a writ of habeas corpus or certiorari, issued as prescribed in this article, shall not be again imprisoned, restrained or kept in custody for the same cause. But it is not deemed to be the same cause in either of the following cases: (1) Where he has been discharged from a commitment on a criminal charge, and is afterwards committed for the same offense, by the lawful order or other mandate of the court, wherein he was bound by recognizance to appear, or in which he has been indicted or convicted for the same offense. (2) Where he has been discharged, in a criminal cause, for defect of proof, or for a material defect in the commitment, and is afterwards arrested on sufficient proof and committed by a lawful mandate for the same offense. (3) Where he has been discharged, in a civil action or special proceeding, for an illegality in the judgment, final order or other mandate, as prescribed in this article, and is afterwards imprisoned by virtue of a lawful judgment, final order or other mandate for the same cause of action. (4) Where he has been discharged, in a civil action or special proceeding, from imprisonment by virtue of an order of arrest, and is afterwards taken in execution or other final process, in the same action or special proceeding, from imprisonment by virtue of an order of arrest, and is afterward taken in execution or other final process in the same action or special proceeding, or arrested in another action or special proceeding, after the first was discontinued. (§ 2050.) § 2015. When appeal may be taken under this article.--An appeal may be taken from an order refusing to grant a writ of habeas corpus, or from a final order, made upon the return of such a writ, discharging or remanding a prisoner, or dismissing the proceeding. Where a final order is made to discharge a prisoner, upon his giving bail, an appeal therefrom may be taken before bail is given; but where the appeal is taken by the people, the discharge of the prisoner upon bail shall not be stayed thereby. An appeal does not lie from an order of the court or judge before which or whom the writ is made returnable, except as prescribed in this secAn appeal from a final order discharging a prisoner committed upon a criminal accusation, or from the affirmance of such an order, may be taken, in the name of the people, by the attorney-general or the district-attorney. For the purpose of an appeal the person to whom notice of detention is required to be given becomes a party to the proceeding. tion. (§§ 2058, 2059, 2038.) § 2016. Prisoner who appeals may be admitted to bail. -Where a prisoner who stands charged upon a criminal accusation with a bailable offense has perfected or intends to take an appeal from a final order, the court or judge, upon his application, must, upon such notice to the district-attorney as such court or judge directs, make an order fixing the sum in which the applicant shall be admitted to bail accordingly. (§ 2060.) § 2017. Recognizance of prisoner.-On appeal, the recognizance must be conditioned, that the prisoner will appear in the appellate court, to be held at a time and place designated in the order, and abide by and perform the judgment of order of the appellate court. It must be taken and approved by a justice of the Supreme Court, or by the court or judge from whose order the appeal is taken or by the county judge of the county in which the order was made. Where a prisoner has perfected an appeal to the Court of Appeals from a final order of the Supreme Court affirming or reversing an order granting his discharge, the court from whose order the appeal is taken, or a judge thereof, must, upon his application, admit him to bail, as prescribed in the last section; except that the recognizance must be conditioned to appear at a term of the court from which the appeal is taken, to abide by and perform its judgment or order to be made after the determination of the appeal. (§§ 2061, 2062.) § 2018. Custody of prisoner until he gives bail.Where the sum in which the prisoner shall be admitted to bail has been fixed, he must remain in the custody of the sheriff of the county in which he then is until he is admitted to bail, as therein prescribed; or, if he does not give the requisite bail until the time to appeal has expired or the appeal is disposed of, and the further direction of the court made thereupon. (§ 2063.) § 2019. When recognizance to be valid for an adjournment, etc.-When no order or other direction of the court relating to the disposition of the pris oner is made at the term specified in a recognizance given as herein prescribed, the matter is deemed adjourned, without an order to that effect, to the next term of the same court to be held in the same department; and thereafter to each successive term, until such an order or direction is made. The prisoner is bound to attend at each successive term, and the recognizance is valid for his attendance accordingly, without any notice or other formal proceedings. (§.2064.) § 2020. Penalty for refusing copy of process, etc.An officer or other person who detains any one by virtue of a mandate or other written authority, must, upon reasonable demand, and tender of his fees, deliver a copy thereof to any person who applies therefor, for the purpose of procuring a writ of habeas corpus in behalf of the prisoner. If he knowingly refuses so to do, he forfeits two hundred dollars to the prisoner. (§ 2065.) § 2021. Contempt, in what cases.-If any person, in the execution of a judgment, order or other mandate or otherwise, knowingly violates, causes to be violated, or assists in the violation of the provisions of this article with reference to the discharge or reimprisonment of a prisoner; or if any one having in his custody or under his power a person entitled to a writ of habeas corpus, or for whose relief a writ of habeas corpus has been duly issued, with intent to elude the service of the writ or avoid the effect thereof, transfers the prisoner to the custody or places him under the power or control of another, or conceals him, or changes the place of his confinement, or assists therein, he may be punished as for contempt of court. (§§ 2049, 2051, 2052, 2053.) where a prisoner is confined may make an order upon the application of a party to an action or special proceeding, civil or criminal, pending in any court, or before any officer or tribunal authorized to examine witnesses, directing that a prisoner detained in a jail or prison be brought before such court, officer or tribunal to testify as a witness. The writ of habeas corpus to bring up a prisoner to testify is abolished. (§§ 2008, 2009, 2010.) § 2031. When order shall not be granted. Such order shall not issue where the prisoner is under sentence of death, nor shall it issue to bring up a prisoner confined under any other sentence for a felony, except where the application is made on behalf of the people to bring him up as a witness on the trial of an indictment, and then only in the discretion of the justice or judge to whom the application is made, and upon such notice to the district attorney of the county wherein the prisoner was convicted, and upon such terms and conditions and under such regulations as the justice or judge may prescribe. (§ 2011.) § 2032. Application for order, how made.—An application for an order to bring up a person to testify must be verified by affidavit, and must show: (1) The title and nature of the action or special proceeding in regard to which the testimony of the prisoner is desired, and the court, officer or tribunal where it is pending. (2) That the testimony of the prisoner is material and necessary to the applicant on the trial of the action or the hearing of the special proceedings, as he is advised by counsel and verily believes. (3) The place of confinement of the prisoner. (4) Whether the prisoner is or is not confined under a sentence for a felony. The attorney-general or district attorney need not swear to the advice of counsel. (§ 2012.) § 2033. Order to be obeyed and prisoner remanded. -The officer to whom an order issued under this article is delivered must obey the same according to the exigency thereof. An officer refusing or neglecting to obey the order herein provided for shall be liable to punishment as for a contempt of court The prisoner must, after having testified, be taken to the jail or prison from whence he came. (§§ 2013, 2014.) LIBEL. The charge that a woman is a "public prostitute" is not actionable per se under the statutes of Idaho; neither adultery, fornication nor prostitution being punishable as such by the statutes of Idaho. (Douglas v. Douglas [Idaho], 38 Pac. Rep. 934.) Abstracts of Recent Decisions. BANKS LIEN ON COLLECTIONS.-Where, at the time of making an assignment, the insolvent was indebted to a bank which had for collection a note belonging to him, the bank is entitled to the proceeds of the note as against the assignee. (Greene v. Jackson Bank [R. I.], 20 S. E. Rep. 953.) CHATTEL MORTGAGE SALE. Under a chattel mortgage, which provides that, if the mortgagee deems himself insecure, he may take possession of the property and sell the same, as on default the mortgagee may sell the property before the debt (Cole v. Shaw [Mich.], 61 N. W. becomes due. Rep. 869.) DEED OF TRUST-BONDS. - Where deeds of trust are taken on distinct portions of the land conveyed, to secure a certain amount of the bonds given for the purchase price, the fact that the deeds fail to state which of the bonds are secured by each deed, does not render the deeds invalid, but they will all be marshaled as security for all the bonds. (Winner v. Lippincott Inv. Co. [Mo.], 28 S. W. Rep. 998.) auction. He had no representative at the sale, and was unknown to the trustee and auctioneer, and it did not appear that he was a responsible bidder. Held, that the trustees were warranted in rejecting his bid when made by the auctioneer. (Thompson v. Ritchie [Md.]. 30 Atl. Rep. 708.) MONOPOLIES The act to protect trade and commerce against unlawful restraints and monopolies " (Act Cong., July 2, 1890) confers no right upon a private individual to sue in equity for the restraint of the acts forbidden by such statute, an action at law for damages being the only remedy provided for private persons and the right to bring suits in equity being vested in the district attorneys of the United States. (Pidcock v. Harrington (U. S. C. C., N. Y.], 64 Fed. Rep. 821.) SUIT BY PRIVATE INDIVIDUAL. MORTGAGES-RELEASE OF TIMBER. Where assignees of mortgages consent to and receive the proceeds of a sale by the mortgagors of timber on the mortgaged land, they cannot afterward appropriate the timber on the mortgages. (Fredonia Nat. Bank v. Borden [Penn.], 20 S. E. Rep. 975.) MUNICIPAL CORPORATION-CONTROL BY LEGISLATURE-WATER WORKS.-A municipal corporation does not hold property acquired by it for the purpose of furnishing its inhabitants with water, as a DIVORCE-DECREE FOR CONTINUING ALIMONY.Where no appeal was taken from a decree of divorce granting the wife continuing alimony, an action to enforce the payment of the periodical sums cannot be defended on the ground that such a grant of ali-private corporation, so as to prevent the Legislature mony was authorized. (King v. Miller [Wash.], 38 Pac. Rep. 1020.) FEDERAL OFFENSE-CONSPIRACY. -The offense of conspiracy, under the laws of the United States, is sufficiently proved if the jury is satisfied that two or more of the parties charged entered into an agreement to accomplish a common and unlawful design, which was arrived at by mutual understanding, followed by some act done by any of the parties for the purpose of carrying it into execution, and the joint assent may be proven by direct testimony, or may be inferred from facts which establish, to the satisfaction of the jury, that an unlawful combination had been formed. (United States v. Barrett [U. S. C. C., So. Car.], 65 Fed. Rep. 62.) HUSBAND AND WIFE- DOWER SETTLEMENT IN LIEU. An agreement between husband and wife, made during coverture, whereby the property of the wife is settled on her to her use and under her control during her husband's life, in consideration of her relinquishment of dower, does not bar her of the right to elect to take dower in lieu of a devise. (McCaulley v. McCaulley [Dela.], 30 Atl. Rep. 735.) JUDICIAL SALE-VALIDITY.-A person authorized an auctioneer, by letter containing the cash deposit required by the notice of sale, to bid in certain trust land which was about to be sold at public from modifying the management thereof at will. (Coyle v. Gray [Dela.], 30 Atl. Rep. 728.) RAILROAD CROSSING-ACCIDENT-NEGLIGENCE. — An engineer who sees that the driver of a team rapidly approaching the crossing does not observe the approaching train, and that there will be a collision unless the team stops, is not negligent in giving signals when both are near the crossing, though the horses are frightened thereby. (Pepper v. Southern Pac. Co. [Cal.], 38 Pac. Rep. 974.) RELEASE CONSIDERATION.-Where a woman's husband and her only son were killed in the same accident, and she was in such poverty that she had to give away her remaining child, a release of damages, made by her in ignorance of her rights, in consideration of $70 and a ticket worth $3.25, is of no effect. Byers v. Nashville, C. & St. L. Ry. Co. [Tenn.], 29 S. E. Rep. 128.) WATERS-RIPARIAN RIGHTS-OWNERSHIP OF SAND BAR.—Where islands in a river are submerged during the greater part of the year, the fact that the owner of land on one side of the river, opposite the islands, hauls sand from them at intervals for over twenty years, does not constitute possession adverse to a riparian owner, whose deed includes the islands, although such possession was as complete as the character of the land would allow. (Strange v. Spaulding [Ky.], 29 S. W. Rep. 137.) |