SECTION CHAPTER 40. WRITS OF ERROR AND AUDITA QUERELA. COMPILED FROM Chap. 37 of the Revised Statutes, pp. 221-222. No. 38 1. Judgment of county court may be examined on writ of error. 2. Writ to be signed by judge of supreme court, and security given. 3. In what cases it shall operate as a super- 4. Proceedings where judgment reversed. 6. Writ of audita querela, how issued. SECTION entered in court. 27. 7. Security to be given to the adverse party- 14. Writ of error to be commenced within one condition of recognizance. 8. Judge allowing audita to take copy, &c. year. 15. If person entitled to bring such writ be a minor, &c. further time. SECTION 1. Any judgment, rendered by a county court in any civil action, may be examined and reversed or affirmed by the supreme court, upon a writ of error. (Sec. 1 of R. S.) SECT. 2. Every writ of error shall be allowed and signed by a judge of the supreme court, who, on signing the same, shall take good and sufficient security by way of recognizance to the defendant in error; conditioned that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs in case of failure. (Sec. 2 of R. S.) SECT. 3. If the judge, signing a writ of error, shall certify thereon, that the plaintiff in error, or his agent or attorney, has filed with him an affidavit, certified by a judge of the county court, stating that such writ was not procured for the purpose of delaying the defendant in error, in the collection of his debt, or has personally made oath to the same facts before him, such writ shall operate as a supersedeas to any execution on the judgment, from the time such writ of error is regularly served on the creditor in such execution, his agent or attorney and not otherwise. (Sec. 3 of R. S.) SECT. 4. When a judgment shall be reversed by the supreme court, on a writ of error, said court shall proceed to render such judgment in the original action, as the county court should or of right ought to have rendered, and award execution accordingly. (Sec. 4 of R. S.) SECT. 5. If any person shall pray out a writ of error in due form of law, and neglect to enter the same in the supreme court, the defendant in error, may enter his complaint in said court, praying for his just damages, and legal costs, and such court shall award to such complainant his legal costs; and, if such writ of error operated as a supersedeas to an execution, twelve per cent. per annum, on the original judgment as damages, and issue execution accordingly. (Sec. 5 of R. S.) SECT. 6. In cases proper for issuing a writ of audita querela, the same shall be allowed and signed by a judge of the court to which it is made returnable. (Sec. 6 of R. S.) SECT. 7. The judge, allowing a writ of audita querela, shall take sufficient security by way of recognizance for the re-delivery of the body or estate, as the case may be, to the custody of the officer having the same in possession, if the same shall be awarded, and for the payment of all intervening damages, and, in default thereof, the payment of the debt, damages and cost, or when neither body or estate shall be taken in execution, the recognizance shall be conditioned for the payment of intervening damages and costs, if the complainant shall fail to prosecute such writ to effect. (Sec. 7 of R. S.) SECT. 8. The judge, allowing a writ of audita querela, shall take a copy thereof, together with the recognizance, as provided in section seven of chapter thirty-seven of the Revised Statutes, ($ 7 of this chap.) and file the same in the office of the county clerk, in the county in which such writ is allowed. (Sec. 1 of No. 38 of 1847.) SECT. 9. If the original writ shall not be entered in court by the complainant, on the first day of the term, to which the same is made returnable, the defendant in such case may thereafter, at such term, enter such copy, and thereupon the court shall render judgment for the defendant for his costs; and if they shall be of opinion, that the same was brought for the purpose of delaying the collection of an execution, they shall award to the original creditor, twelve per cent. interest on the original debt, together with double costs. (Sec. 2 of No. 38 of 1847.) SECT. 10. On any judgment rendered by a justice, either by confession or otherwise, the writ of audita querela shall be allowed, under the aforesaid regulations, by a judge of the county court of the county in which the judgment was rendered; and the county courts, respectively, shall have jurisdiction thereof, as in cases brought before them by original writ. (Sec. 8 of R. S.) SECT. 11. No writ of audita querela shall hereafter be allowed and signed, without affidavit first made by the complainant, or his agent or attorney, that the facts set forth in such writ are true, and that he believes the same will be made to appear by evidence on trial. (Sec. 9 of R. S.) SECT. 12. No writ of audita querela shall operate as a supersedeas to any execution, unless the judge allowing the same shall, from a consideration of the facts therein set forth and sworn to as aforesaid, be of opinion that the said writ ought so to operate, and shall so certify upon such writ, nor until the same is regularly served upon the creditor, in such execution named, or his agent or attorney. (Sec. 10 of R. S.) SECT. 13. When any writ of error or writ of audita querela shall be determined, if the court, by which the same is decided, shall be of opinion that the same was brought for the purpose of delaying the collection of an execution, they shall award to the original creditor twelve per cent. interest on the original debt, together with double costs. (Sec. 11 of R. S.) SECT. 14. A writ of error shall be commenced, and duly served. on the defendant in error, within one year next after the rendition of the judgment, to reverse which such writ is commenced, and not after, provided, that, (Sec. 12 of R. S.) SECT. 15. If any person, entitled to bring a writ of error, shall, at the time such judgment is rendered, be a minor or a married woman, insane or imprisoned, such person may bring a writ of error within one year next after the disability shall be removed. (Sec. 13 of R. S.) CHAPTER 41. SECTION HABEAS CORPUS. COMPILED FROM Chap. 38 of the Revised Statutes, pp. 223-227. Laws of 1850, 1. Person imprisoned entitled to habeas corpus. 2. By what authority, and on what occasion, the writ granted. 3. Writ to be granted without delay. SECTION be notified. 18. Prisoner may deny the return, and the court or judge to examine. 19. Imprisonment illegal, prisoner to be discharged. 4. Prisoner detained by a person not an offi- 20. If prisoner be entitled to be discharged on cer, writ to be directed to sheriff. 5. Writ to be signed by clerk or judge. 21. bail, bail may be taken. Prisoner legally confined, to be remanded. 6. May be returned to the court or a judge of 22. Prisoner may be remanded or bailed until the supreme court. judgment be given on the habeas corpus. 7. Person, having custody of prisoner, how 23. Officer to give copy of process, penalty for designated. 8. Prisoner, how designated. 9. Prisoner confined in common jail, &c. expenses to be paid, &c. 10. Person to whom writ is directed, bound to execute it, and within what time. refusal. 24. If the person, to whom the writ is directed, refuses to receive it, &c. attachment may issue. 25. Process, in such case, may issue to any officer to bring the prisoner. 11. Return, to state if the person is in custody, 26. Penalty for refusing to receive and execute HABEAS CORPUS IN CASE OF A PERSON CLAIMED AS A FUGITIVE SLAVE. SEE CHAP. 101. SECTION 1. Every person, imprisoned in any common jail or the liberties thereof, or otherwise restrained of his liberty by any officer or other person, may prosecute a writ of habeas corpus, according to the provisions of this chapter, to inquire into the cause of such imprisonment or restraint, and obtain relief therefrom, if it shall prove to be unlawful.* SECT. 2. Such writ may be granted by the supreme court during its sitting, or by any judge thereof during vacation, or by any county court in the same county where such person is imprisoned, during its sitting, on application by complaint, in writing, signed by the party for whose relief it is intended, or by some person in his behalf setting forth: First. The person, by whom, and the place where the party is imprisoned or restrained, naming the prisoner, and the person detaining him, if their names are known, and describing them, if they are not known: Second. The cause or pretence of such imprisonment or restraint according to the knowledge and belief of the person applying: Third. If the imprisonment or restraint is by virtue of any warrant or other process, a copy thereof shall be annexed, or it shall be made to appear that a copy thereof has been demanded and refused, or that, for some sufficient reason, a demand of such copy could not be made: Fourth. The facts set forth in the complaint shall be verified by the oath of the person making the application or by that of some other credible witness, which oath may be administered by the court or judge to whom the application is made or by any justice. SECT. 3. The court or judge, to whom such complaint shall be made, shall, without delay, award and issue a writ of habeas corpus, which shall be substantially in the form prescribed by law, and shall in all cases be made returnable forthwith. SECT. 4. In cases of imprisonment, by any person not an officer of this state, or of the courts of the United States, the writ shall be directed to any sheriff in this state or his deputy, commanding him to take and have the body of the person imprisoned before the court or judge granting said writ, immediately after the receipt of said writ, and summon the person, by whom such prisoner is restrained, to appear before said court or judge, and show the cause of the taking and detaining such person. SECT. 5. When the writ is issued by the supreme or county court, it shall be signed by the clerk; otherwise, by the judge issuing the same. SECT. 6. If the court, to which the writ is returnable, shall be adjourned before it is returned, the return shall be made before any one of the judges of the supreme court; and if the writ is in any case returned before one judge at the time when the court is in session, he may adjourn the case into the court, to be there heard and determined in like manner as if the writ had been returned into the same court. SECT. 7. The person, having the custody of the prisoner, may be designated by his name of office, if he have any, or by his own *Secs. 1 to 30 being identical with the corresponding sections of chap. 38 of the Rev. Stat. the designation at the end of each is omitted. name; or, if both such names are unknown or uncertain, he may be described by an assumed appellation; and any one, who is served with the writ, shall be deemed the person intended thereby. SECT. 8. The person, to be produced, shall be designated by his name, if known; and, if that is unknown or uncertain, he may be described in any other way, so as to make known who is intended. SECT. 9. If the party is confined in a common jail, or in the custody of any civil officer, the court or judge, who grants the writ, shall certify thereon the sum to be paid for the expense of bringing him from the place of imprisonment; and the officer, to whom the writ is directed, shall not be bound to obey it, unless that sum be paid or tendered to him. SECT. 10. Any person, to whom the writ is directed, shall receive it; and, upon payment or tender of the charges, if any, demandable for the execution of it, he shall make return thereof within three days after receiving it, if the place of return be within twenty miles of the place of imprisonment; and, if more than twenty, and within one hundred miles, he shall return the writ within seven days; and, if it is more than one hundred miles, he shall return it within twelve days. SECT. 11. In cases other than those provided for in the fourth section, the person who makes the return shall state therein, and in the cases provided for in the fourth section, the person, in whose custody the prisoner shall be found, shall state, in writing, to the court or judge, before whom the writ is returnable, plainly and unequivocally, First, whether he has, or has not, the party in his custody or power, or under restraint: Second. If he has the party in his custody, or power, or under restraint, he shall set forth at large the authority and the true and whole cause of such imprisonment or restraint, with a copy of the writ, warrant or other process, if any, upon which the party is detained; and, Third. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, he shall state particularly to whom, at what time, for what cause, and by what authority such transfer was made. SECT. 12. The return or statement, shall be signed by the person making it, and it shall also be sworn to by him, unless he is a sworn public officer, and shall make the return in his official capacity. SECT. 13. The person, who makes the return, or statement, shall, at the same time, bring the body of the party, if in his custody or power, or under his restraint, according to the command of the writ, unless prevented by the sickness or infirmity of the party. SECT. 14. When, from the sickness or infirmity of the party, he cannot, without danger, be brought to the place appointed for the return of the writ, that fact shall be stated in the return; and, if it is proved to the satisfaction of the court or judge, he may proceed to the jail, or other place, where the party is confined, and there make his examination, or may adjourn the same to another time, or may make such order in the case, as law and justice shall require. |