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person in whose custody or power he or she is, may state that fact in his return to the writ, verifying the same by affidavit.

SEC. 13. If the judge be satisfied of the truth of such allegation of sickness or infirmity, and the return to the writ is otherwise sufficient, such judge may proceed to decide on such return, and to dispose of the master as if such party had been produced on the writ, or the hearing thereof may be adjourned until such party can be produced.

SEC. 14. The judge before whom a writ of habeas corpus shall be returned, shall immediately thereafter proceed to hear and examine the return, and such other matter as may be properly submitted to his hearing and consideration.

SEC. 15. The party brought before the judge on the return of the writ may deny or controvert any material facts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that his or her imprisonment or detention is unlawful, or that he or she is entitled to his or her discharge.

SEC. 16. Such judge shall thereupon proceed in a summary manner to hear such allegation and proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the law and the justice of the case may require.

SEC. 17. Such judge shall have full power and authority to require and compel the attendance of witnesses by process or subpoena and attachment, and do and perform all other acts and things necessary to a full and fair hearing and determination of the cause.

SEC. 18. If no legal cause be shown for such imprisonment or restraint, or for the continuation thereof, such judge shall discharge such party from the custody or restraint, under which he or she is held.

SEC. 19. It shall be the duty of such judge, if the time during which such party may be legally detained in custody has not expired, to remand such party, if it shall appear that he is detained in custody by virtue of the final judgment or decree of any competent court of criminal jurisdiction, or upon any process issued upon such judgment or decree, or in cases of contempt of court.

SEC. 20. If it appear upon the return of the writ of habeas corpus, that the prisoner is in custody by virtue of the process

from any court in the Territory, or judge or officer thereof, such prisoner may be discharged in any of the following cases, subject to the restrictions of the last preceding section: First, When the jurisdiction of such court or officer has been exceeded; Second, When the imprisonment was at first lawful, yet by some act, omission, or event, which has taken place afterwards, the party has become entitled to be discharged; Third, When the process is defective in some matter of substance required by law, rendering such process void; Fourth, When the process, though proper in form, has been in a case not allowed by law; Fifth, When the person having the custody of the prisoner is not the person allowed by law to detain him; Sixth, Where the imprisonment is not authorized by any judgment, order, or decree of any court, nor by any provision of law; Seventh, Where a party is committed on a criminal charge, without reasonable or probable cause.

SEC. 21. If any person be committed to prison, or he be in custody of any officer, on any criminal charge, by virtue of any warrant or commitment of a justice of the peace, such person shall not be discharged from such imprisonment or custody on the grounds of any defect of form in such warrant or commitment.

SEC. 22. If it shall appear to the judge by affidavit, or upon the hearing of the matter, or otherwise upon the implication of the process or warrant of commitment, and such other papers in the proceedings as may be shown to such judge, that the party is guilty of criminal offence, or ought to be discharged, such judge, although the charge be defectively or insubstantially set forth in such process or warrant of commitment, shall cause the complainant or other necessary witnesses to be subpoenaed to attend at such time as shall be ordered, to testify before such judge; and upon the examination he shall discharge such prisoner, or let him or her to bail (if the offence be bailable), or recommit him or her to custody, as may be just and legal.

SEC 23. Whenever any person may be imprisoned or detained in custody on any criminal charge for want of bail, such person shall be entitled to a writ of habeas corpus, for the purpose of giving bail, upon avering that fact in his petition, without alleging that he or she is illegally confined.

SEC. 24. Any judge before whom any person who has been committed on a criminal charge shall be brought on a writ of habeas

corpus, if the same be bailable, may take a recognizance from such person, as in other cases, and shall file the same in the proper court without delay.

SEC. 25. If any person brought before the judge on return of the writ be not entitled to his or her discharge, and be not bailed, where such bail is allowable, such judge shall remand him or her to custody, or place him or her under the restraint from which he or she was taken, if the person under whose custody or restraint he or she was be legally entitled thereto.

SEC. 26. In cases where any party is held under illegal restraint or custody, or any other person is entitled to the restraint or custody of such party, such judge may order such party to be committed to the restraint or custody of such person as is by law entitled thereto.

SEC. 27. Until judgment be given on the return, the judge before whom any party may be brought on such writ may commit him or her to the custody of the sheriff of the county, or place him or her in such care or under such custody as his or her age or circumstances may require.

SEC. 28. No writ of habeas corpus shall be disobeyed for defect of form if it sufficiently appear therefrom in whose custody or under whose restraint the party imprisoned or restrained is, the officer or person detaining him or her, and the judge before whom he or she is brought.

SEC. 29. No person who has been discharged by the order of the judge upon a writ of habeas corpus, issued pursuant to the provisions of this act, shall be again imprisoned, restrained, or kept in custody, for the same cause, except in the following cases: First, If he or she shall have been discharged from custody, on a criminal charge, and be afterwards committed for the same offence by legal order or process. Second, If after a discharge for defect of proof, or for any defect of the process, warrant, or commitment in a criminal case, the prisoner may be again arrested, on sufficient proof, and committed by legal process for the same offence.

SEC. 30. Whenever it shall appear by satisfactory proof, by affidavit, to any judge authorized by law to grant a writ of habeas corpus, that any one is illegally held in custody, confinement, or restraint, and that there is good reason to believe that such person will be carried out of the jurisdiction of the judge before whom

the application is made, or will suffer some irreparable injury before compliance with the writ of habeas corpus can be enforced, said judge may cause a warrant to be issued, reciting the facts, and directed to the sheriff, or any constable of the county, commanding such officer to take such person thus held in custody, confinement, or restraint, and bring him or them forthwith before such judge to be dealt with according to law.

SEC. 31. Such judge may also, if the same be deemed necessary, insert in such warrant a command for the apprehension of the person charged with such illegal detention and restraint.

SEC. 32. The officer to whom such warrant is delivered shall execute the same by bringing the person or persons therein named before the judge who may have directed the issuing of such war

rant.

SEC. 33. The person alleged to have such party under illegal confinement or restraint may make return to such warrant as in case of a writ of habeas corpus, and the same may be denied, and like allegations, proofs, and trial be had thereon as upon the return to a writ of habeas corpus.

SEC. 34. If such party be held under illegal restraint or custody he or she shall be discharged, and if not, he or she shall be restored to the custody of the person entitled thereto, or left at liberty, as the case may require.

SEC. 35. All writs, warrants, processes, and subpoenas, authorized by the provisions of this act, shall be issued by the clerk of the court, and (except subpoenas) sealed with the seal of the court, and shall be served and returned forthwith, unless the judge shall specify a particular time for any such return.

SEC 36. If any judge, after a proper application is made, shall refuse to grant an order for a writ of habeas corpus, or if the officer or person to whom such writ is directed shall refuse obedience to the command thereof, he or they shall forfeit and pay to the person agrieved a sum not exceeding five thousand dollars, to be recovered by an action of debt in any court having cognizance thereof.

SEC. 37. Any person having in his custody, or under his restraint or power, any person for whose relief a writ of habeas corpus shall have been duly issued, pursuant to the provisions of this act, who with the intent to elude the service of such writ, or to

avoid the effect thereof, shall transfer such person to the custody of another, or shall place him or her under the power or control of another, or shall conceal or exchange the place of his or her confinement or restraint, or shall remove him or her without the jurisdiction of such judge, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not exceeding five thousand dollars nor less than one thousand dollars.

SEC. 38. Every person who shall knowingly aid or assist in the commission of any offence specified in the last preceding section, shall be deemed guilty of a misdemeanor, and punished as in the last preceding section.

SEC. 39. Every person convicted of any offence under the provisions of the last preceding section, in addition to the punishment therein mentioned, may also be imprisoned in the county jail for a term not exceeding one year.

SEC. 40. This act to take effect and be in force from and after

its passage.

[Approved January 11, 1865.]

AN ACT to protect and regulate the irrigation of land in Montana Territory.

Be it enacted by the Legislative Assembly of the Territory of Montana :

SEC. 1. That all persons who claim, own, or hold a possessory right or title to any land, or parcel of land, within the boundary of Montana Territory, as defined in the organic act of this Territory, when those claims are on the bank, margin, or neighborhood of any stream of water, creek, or river, shall be entitled to the use of the water of said stream, creek, or river for the purpose of irrigation, and making said claim available to the full extent of the soil for agricultural purposes.

SEC. 2. That when any person owning claims in such locality has not sufficient length of area exposed to said stream in order to obtain a sufficient fall of water necessary to irrigate his land, or that his farm or land used by him for agricultural purposes is too far removed from said stream, and that he has no water facilities on

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