The complaint should set forth the causes of the restraint to the best knowledge and belief of the applicant. Flora v. Sachs, 64 Ind. 155.

If the restraint is by virtue of judicial proceedings, the complaint should show that such proceedings are void. Willis v. Bayles, 105 Ind. 363.

The sufficiency of the complaint can only be tested by a motion to quash the writ. McGlennan v. Margowski, 90 Ind. 150; Milligan v. State, ex rel., 97 Ind. 355; Willis v. Bayles, 105 Ind. 363.

1123. (1109.) By whom granted.-780. Writs of habeas corpus may be granted by the circuit or superior courts of the county in which the person applying therefor may be restrained of his or her liberty, or by the judges of said courts, whether in term or vacation; or if said judges be absent from their circuits, or by reason of sickness or other cause be unable or incompetent to hear and determine the same, then by any such judge of any adjoining circuit, and upon application, the writ shall be granted without delay.

The writ must issue from a court or judge of the county where the person is detained, unless the judge is absent or incompetent. Wiley, ex parte, 36 Ind. 528.

Master commissioners can not be empowered to issue such writs. Shoultz v. McPheeters, 79 Ind. 373.

1124. (1110.) When by criminal judges.-781. The criminal court judges of this state shall have full power to issue writs of habeas corpus within their respective counties, and hear and determine the same in favor of all persons arrested and held upon any charge of violation of the criminal laws of this state, and admit to bail or discharge the prisoner, in the same manner and to the same extent, and under the same rules and regulations, as judges of the circuit courts are now authorized by law to do, and not otherwise, nor to any greater extent. 1125. (1111.) To whom directed-Its command.-782. The writ shall be directed to the officer or party having the person under restraint, commanding him to have such person before the court or judge, at such time and place as the court or judge shall direct, to do and receive what shall be ordered concerning him, and have then and there the writ.

An officer who made the arrest is a proper party in habeas corpus to test its validity. Nichols . Cornelius, 7 Ind. 611.

1126. (1112.) To sheriff, clerk shall deliver.-783. If the writ be directed to the sheriff, it shall be delivered, by the clerk, to him without delay.

1127. (1113.) To other person, sheriff shall deliver.-784. If the writ be directed to any other person, it shall be delivered to the sheriff, and shall be by him served by delivering the same to such person without delay.

1128. (1114.) Service, when by leaving it.-785. If the person to whom such writ is directed can not be found, or shall refuse admittance to the sheriff, the same may be served by leaving it at the residence of the person to whom it is directed, or by affixing the same on some conspicuous place, either of his dwelling-house or where the party is confined or under restraint.

1129. (1115.) Return-Attachment for refusal.-786. The sheriff or other person to whom the writ is directed shall make immediate return thereof; and if he refuse, after due service, to make return, the court shall enforce obedience by attachment.

1130. (1116.) Return, how made.-787. The return must be signed and verified by the person making it, who shall state:

First. The authority or cause of the restraint of the party in his custody.

Second. If the authority be in writing, he shall return a copy and produce the original on the hearing.

Third. If he has had the party in his custody or under his restraint, and has transferred him to another, he shall state to whom, the time, place, and cause of his transfer. He shall produce the party on the hearing, unless prevented by sickness or infirmity; which must be

shown in the return.

It is a good return to the writ to show that the petitioner is held by virtue of a judgment of a competent court. Lucas v. Hawkins, 102 Ind. 64; Lowery v. Howard, 103 Ind. 440; Smith v. Hess, 91 Ind. 424.

If the authority to restrain the petitioner is in writing, a copy of the writing should `be made part of the return. Shaw v. Smith, 8 Ind. 485.

If the return shows that the person restrained has been transferred to the custody of another, the cause of the transfer should be stated. Sears v. Dessar, 28 Ind. 472. The sufficiency of the return can only be tested by an exception thereto. McGlennan v. Margowski, 90 Ind. 150; Sturgeon v. Gray, 96 Ind. 166.

1131. (1117.) Proceedings-Pleadings.-788. The court or judge, if satisfied of the truth of the allegation of sickness or infirmity, may proceed to decide on the return, or the hearing may be adjourned until the party can be produced or for other good cause. The plaintiff may except to the sufficiency of, or controvert, the return or any part thereof, or allege any new matter in avoidance; the new matter shall be verified, except in cases of commitment on a criminal charge. The return and pleadings may be amended without causing any delay.

A demurrer will not lie to the writ or return. Cunningham v. Thomas, 25 Ind. 171. The sufficiency of the return can only be tested by an exception thereto. McGlennan v. Margowski, 90 Ind. 150; Sturgeon v. Gray, 96 Ind. 166.

The facts set forth in the return may be denied and the issue tried. Speer v. Davis, 38 Ind. 271.

If the return is held insufficient the person restrained may be released. Joab v. Sheets, 99 Ind. 328.

1132. (1118.) Hearing-Party, when discharged.-789. The court or judge shall thereupon proceed, in a summary way, to hear and determine the cause; and if no legal cause be shown for the restraint or for the continuation thereof shall discharge the party.

If the detention be illegal, the judge should discharge the petitioner therefrom. State v. Best, 7 Blkf. 611; Miller v. Snyder, 6 Ind. 1; State v. Banks, 25 Ind. 495. Trials by jury nor changes of venue are not allowed. Baker v. Gordon, 23 Ind. 204; Garner v. Gordon, 41 Ind. 92.

The court can not be required to make a special finding of facts and state conclusions of law. McGlennen v. Margowski, 90 Ind. 150.

The refusal to discharge the person restrained is a sufficient judgment to authorize an appeal. Ex parte Richards, 102 Ind. 260.

If the case is consolidated with an action triable by jury, a jury may be demanded. Orr v. Miller, 98 Ind. 436.

Appeal will lie from an interlocutory or final judgment in habeas corpus. Henson v. Walts, 40 Ind. 170; Speer v. Davis, 38 Ind. 271; Nichols v. Cornelius, 7 Ind. 611; State, ex rel., v. Banks, 25 Ind. 495.

When the evidence is before the Supreme Court its sufficiency will be considered. Jones v. Darnall, 103 Ind. 569.

1133. (1119.) Judgment, etc., when not questioned.-790. No court or judge shall inquire into the legality of any judgment or process whereby the party is in his custody, or discharge him when the term of commitment has not expired, in either of the cases following: First. Upon process issued by any court or judge of the United States, where the court or judge has exclusive jurisdiction.

Second. Upon any process issued on any final judgment of a court of competent jurisdiction.

Third. For any contempt of any court, officer, or body having authority to commit; but an order of commitment, as for contempt, upon proceedings to enforce the remedy of a party, is not included in any of the foregoing specifications.

Fourth. Upon a warrant issued from the circuit court upon an indictment or information.

When persons are held by warrants issued by courts of competent jurisdiction upon criminal charges duly presented, the legality of the restraint can not be investigated. Wentworth v. Alexander, 66 Ind. 39; Kinningham v. Dickey, 125 Ind. 180.

The guilt or innocence of a person held under indictment can not be inquired into. Farmer v. Lewis, 92 Ind. 444.

When a court has jurisdiction of the subject-matter and person, errors in the proceedings will be no cause for discharging a person restrained. Willis v. Bayles, 105 Ind. 363; McLaughlin v. Etchison, 127 Ind. 474.

If a judgment or order of a court is illegal on its face, it will be no cause for holding a person in custody. Privett v. Pressley, 62 Ind. 491; Miller v. Snider, 6 Ind. 1.

If a person is sentenced to the state prison for life on a plea of guilty of murder, he can not be discharged on a writ of habeas corpus. Lowery v. Howard, 103 Ind. 440. The validity of a judgment in bastardy proceedings can not be inquired into. Holderman v. Thompson, 105 Ind. 112.

The legality of proceedings before a justice of the peace for surety of the peace may be investigated. Smelzer v. Lockhart, 97 Ind. 315.

An order of court refusing to discharge a prisoner on account of delay in his trial can not be reviewed in a habeas corpus proceeding. McGuire v. Wallace, 109 Ind. 284.

1134. (1120.) When no discharge-Proceedings.-791. No person shall be discharged from an order of commitment issued by any judicial or peace officer, for want of bail or in cases not bailable, on account of any defect in the charge or process, or for alleged want of probable cause; but in all such cases the court or judge shall summon the prosecuting witnesses, investigate the criminal charge, discharge, let to bail, or recommit the prisoner, as may be just and legal, and recognize witnesses when proper.

Misnomer in a mittimus is no cause for discharging a prisoner. Sturgeon v. Gray, 96 Ind. 166.

1135. (1121.) Writ, to let to bail.-792. The writ may be had for the purpose of letting a prisoner to bail in civil and criminal actions.

In an application to be let to bail the prisoner must show that the proof of his guilt is not evident, and must produce the evidence that the state relies upon, but may crossexamine or impeach the witnesses. Ex parte Heffren, 27 Ind. 87; Ex parte Jones, 55 Ind. 176; Ex parte Kendall, 100 Ind. 599; Ex parte Richards, 102 Ind. 260.

When the presumption is not great, and the proof not strong and evident, the defendant in murder should be admitted to bail. Hock, ex parte, 68 Ind. 206.

On appeal from an application to be let to bail, the supreme court will weigh the evidence the same as a court of original jurisdiction. Ex parte Heffren, 27 Ind. 87; Er parte Sutherlin, 56 Ind. 595; Ex parte Kendall, 100 Ind. 599.

1136. (1122.) Notice.-793. When any person has an interest in the detention, the prisoner shall not be discharged until the person having such interest is notified.

1137. (1123.) Powers of court or judge.-794. The court or judge shall have power to require and compel the attendance of witnesses, and to do all other acts necessary to determine the case.

1138. (1124.) Officer not liable for obeying.-795. No sheriff or other officer shall be liable to a civil action for obeying any writ of habeas corpus or order of discharge made thereon.

1139. (1125.) Warrant to prevent removal.-796. Whenever it shall appear by affidavit that any one is illegally held in custody or restraint, and that there is good reason to believe that such person will be carried out of the jurisdiction of the court or judge before whom the application is made, or will suffer some irreparable injury before compliance with the writ can be enforced, such court or judge may cause a warrant to be issued, reciting the facts, and directed to the sheriff or any constable of the county, commanding him to take the person thus held in custody or restraint, and forthwith bring him. before the court or judge, to be dealt with according to law.

1140. (1126.) Warrant.-797. The court or judge may also, if the same be deemed necessary, insert in the warrant a command for the apprehension of the person charged with causing the illegal restraint.

1141. (1127.) Service and proceedings.-798. The officer shall execute the writ by bringing the person therein named before the court or judge, and the like return and proceedings shall be required and had as in case of writs of habeas corpus.

1142. (1128.) Temporary orders.-799. The court or judge may make any temporary orders in the cause or disposition of the party, during the progress of the proceedings, that justice may require. The custody of any party restrained may be changed from one person to another by order of the court or judge.

1143. (1129.) Issue on Sunday, when.-800. Any writ or process authorized by this article may be issued and served, in cases of emergency, on Sunday.

1144. (1130.) Writ-Amendments and commitments.-801. All writs and other process, authorized by the provisions of this article, shall be issued by the clerk of the court, and, except summonses, sealed with the seal of such court; and shall be served and returned forthwith, unless the court or judge shall specify a particular time for any such return. And no writ or other process shall be disregarded for any defect therein, if enough is shown to notify the officer or person of the purport of the process. Amendments may be allowed and temporary commitments, when necessary.

SEC.

1145. When filed.

1146. By whom filed.

1147. Of what to consist. 1148. For usurping office.

ARTICLE 41.-INFORMATIONS.

1149. Summons and proceedings.
1150. Contest for office-Judgment.
1151. Judgment for relator.
1152. Order, how enforced.

SEC.

1153. Damages.

1154. One information against several.
1155. Judgment of ouster or forfeiture.
1156. Judgment against corporation.
1157. To recover escheated property.
1158. Costs.

1159. To annul instrument.
1160. Proceedings to annul.

[1881 S., p. 240. In force September 19, 1881.]

1145. (1131.) When filed.-814. An information may be filed against any person or corporation in the following cases:

First. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office or any franchise within this state or any office in any corporation created by the authority of this state. Information, in the nature of a quo warranto, is a proper remedy to determine the right to an office, and may be filed by any person claiming an interest in the office, on his own relation. Yonkey v. State, ex rel., 27 Ind. 236; State, ex rel., v. Adams, 65 Ind. 393; State, ex rel., v. Peterson, 74 Ind. 174; State, ex rel., v. Gallagher, 81 Ind. 558. An information is the proper remedy to try the title to an office, and to oust an intruder therefrom. Griebel v. State, ex rel., 111 Ind. 369.

In a proceeding by information the defendant may set up and show that he was legally elected to the office in dispute. State, ex rel., v. Shay, 101 Ind. 36.

The pendency of contest proceedings in relation to an election does not prevent a proceeding by information. Vogel v. State, ex rel., 107 Ind. 374.

The title to the office of governor or lieutenant-governor can not be tested by an information. Robertson v. State, ex rel., 109 Ind. 79.

Information is the proper proceeding to remove officers of a corporation illegally elected. Smith v. Bank of State, 18 Ind. 327.

Information is not the proper remedy to prevent municipal officers from exercising jurisdiction outside of the corporate limits. Stultz v. State, ex rel., 65 Ind. 492.

Prior to 1881, and the enactment of section 4767, R. S. 1881, the only mode of contesting the title to a municipal office was by information. Gass v. State, ex rel., 34 Ind. 425.

Second. Whenever any public officer shall have done or suffered any act which, by the provisions of law, shall work a forfeiture of his office.