ered to him,) and it shall thereupon be the duty of such magistrate or clerk, to attend at the hour and place of the return, and exhibit to the judge or court, to which the same is made, all the proofs and documents relative to the said commitment; and if such magistrate or clerk neglect to attend, the judge or court is authorized, on proof of his having had the notice required by this article, to enforce his attendance by warrant of arrest, and the party when arrested, shall be kept in custody until he perform the duty required by this article.

Art. 97. When it appears by the return that the person soliciting his discharge, is in custody, on any civil process, or that any other person has an interest in continuing his imprisonment or restraint, no order shall be given for his discharge, until it appear that the plaintiff, in such civil suit, or the person so interested, or their attorneys or agents, if either are within twenty miles, have had reasonable notice of the issuing of such writ of habeas corpus.

Art. 98. The party brought before the judge on the return of the habeas corpus, may deny any of the material facts set forth in the return, or allege any fact, to show either that the imprisonment or detention is unlawful, or that he is entitled to his discharge, which allegations or denials must be on oath; and thereupon the judge shall proceed in a summary way, to hear testimony, and the arguments, as well of the party interested, civilly, if any there be, as of the prisoner, and the person who holds him in custody, and shall dispose of the prisoner as the case may require.

Art. 99. If it appear on the return, that the prisoner is in custody by virtue of process from any court legally constituted, he can be discharged only in one of the following cases:

1. Where the court has exceeded the limits of its jurisdiction, either as to matter, place, sum or person.

2. Where, though the original imprisonment was lawful, yet by some act, omission or event, which has taken place afterwards, the party has become entitled to his liberty.

3. Where the process is defective in some substantial form required by law.

4. Where the process, though in proper form, has been issued in a case, or under circumstances where the law does not allow process or orders for imprisonment, or arrest to issue.

5. Where, although in proper form, the process has been issued or executed by a person either unauthorised, or improperly authorised to issue or execute the same, or where the person having the custody of the prisoner under such process, is not the person empowered by law to detain him.

6. Where the process appears to have been obtained by false pretences or bribery.

7. Where there is no general law, nor any judgment, order or decree of a court, to authorise the process, if in a civil suit, nor any conviction, if in a criminal proceeding.

But no judge or court, on the return of a habeas corpus, shall in any matter inquire into the legality or justice of a judgment or decree of a court legally constituted, and in all cases where it appears that there is a sufficient legal cause for the commitment of the prisoner for an offence, although it may have been informally made, or without due authority, or the process may have been executed by a per

son not duly authorised, the judge shall make a new commitment, in proper form, and directed to the proper officer, or admit the party to bail if the case be bailable.

Art. 100. The order of discharge made by a court or judge, on the return of a habeas corpus, has no other effect than that of restoring the party to liberty, and securing him from any future imprisonment or restraint for the same; it is not conclusive, as to any other civil right, except with respect to persons claimed as slaves, which is herein. specially provided for.

Art. 101. No person who has been discharged by order of a court or judge, on a habeas corpus, shall be again imprisoned, restrained or kept in custody for the same cause, unless he be afterwards indicted for the same offence. But it shall not be deemed to be the same cause.

1. If after a discharge for defect of proof, or for any material defect in the commitment, in a criminal case, the prisoner should be again arrested on sufficient proof, and committed by legal process for the same offence.

2. If in a civil suit, the party has been discharged for any illegality in the judgment or process, and is afterwards imprisoned by legal process, for the same cause of action.

3. Generally, whenever the discharge has been ordered on account of the non-observance of any of the forms required by law, the party may be a second time imprisoned, if the cause be legal, and the forms required by law observed.

Art. 102. When a judge, authorized to grant writs of habeas corpus, shall be satisfied that any person in legal custody, on a charge for any offence, is afflicted with a disease, which will render a removal necessary for the preservation of his life, such judge may order his removal, on his giving bail with two securities, in such sum as shall be ordered by the judge, that he will surrender himself to the same custody, whenever he shall be thereunto required, or the judge may in such case, where the prisoner is manifestly unable to procure bail, put him in the custody of an executive officer of justice, whose duty it shall be to watch over the said prisoner in the place to which he may be removed, to prevent his escape. Provided, that the fact of such disease, and the necessity of removal, shall appear by the oaths of two physicians or surgeons duly admitted to practice, and that the physican who shall attend on such prisoner after his removal, shall also take an oath that he will give notice to a magistrate as soon as in his opinion the said. prisoner may safely be returned to his imprisonment, which magistrate shall, on receiving such notice, issue a warrant for his removal to the place in which he was formerly confined.

SECTION VI.

General provisions.

Art. 103. No person shall be discharged under the provisions of this chapter, who is in custody on a commitment for any offence exclusively cognizable by the courts of the United States, or by order, execution or process, issuing out of such courts, in cases where they have jurisdiction, or who is held by virtue of any legal engagement, or enlistment in

the army, or who, being subject to the rules and articles of war, is confined by any one legally acting under the authority thereof, or who is held as prisoner of war, under the authority of the United States.

Art. 104. There is no other writ of habeas corpus known in the law of this state, but that described and provided for in this chapter. Courts having occasion to direct the production of prisoners before them, either to prosecute, to give testimony, or for any other purpose than that of examining into the cause of their imprisonment, may command the production of such prisoners by an order of court, entered on their minutes, and certified to the officer having charge of such prisoner.

SECTION VII.

Penalties for the breaches of the duties enjoined by this chapter.

Art. 105. Any judge empowered by this chapter, to issue writs of habeas corpus, who shall refuse to issue such writ, when legally applied to, in a case where such writ may lawfully issue, or who shall unreasonably delay the issuing of such writ, or who, in cases where such writ is allowed to issue without any proof, shall WILFULLY omit to issue, or wilfully and unreasonably delay the issuing such writ, shall for every offence be fined in the sum of two thousand dollars.

Art. 106. Any judge so authorized, who shall refuse, or wilfully omit to perform, any other of the duties imposed on him by this chapter, or shall unreasonably delay the performance thereof, by which refusal, omission or negligence, any illegal imprisonment is caused or prolonged, shall be fined in the sum of one thousand dollars.

Art. 107. Any executive officer of justice to whom a writ of habeas corpus, or any other warrant, writ or order, authorized by this chapter, shall be directed, delivered or tendered, who shall refuse, or neglect to serve or execute the same, as by this chapter is directed, or who shall unreasonably delay the service or execution thereof, shall be fined in the sum of one thousand dollars.

Art. 108. Any one having the person in his custody, or under his restraint, power or control, for whose relief a writ of habeas corpus is issued, who, with the intent to avoid the effect of such writ, shall transfer such person to the custody, or place him under the power or control of another, or shall conceal him, or change the place of his confinement, with intent to avoid the operation of such writ, or with intent to remove him out of the state, shall be fined in the sum of two thousand dollars, and may be imprisoned at hard labour, not less than one nor more than five years.

Art. 109. In a prosecution for any penalty incurred, under the last preceding article, it shall not be necessary to show that the writ of habeas corpus had issued at the time of the removal, transfer or concealment therein mentioned, if it be proved that the acts therein forbidden, were done with the intent to avoid the operation of such writ. Art. 110. Any one having the person for whose relief a writ of habeas corpus is issued, in his custody, or under his power or control, who, (without being guilty of any of the acts made punishable by the last

preceding article) shall, after being legally served with such writ, neglect or refuse to produce such person, in cases where, by the provisions of this chapter, he is bound to produce him, shall be fined in the sum of one thousand dollars.

Art. 111. Any person to whom a writ of habeas corpus is directed, and on whom it is duly served, who shall neglect or refuse to make a return thereto, in the manner directed by the third section of this chapter, shall be fined in the sum of five hundred dollars, even if he have not the party whom it is intended to relieve in his custody, or under his power or control.

Art. 112. Any sheriff or his deputy, any jailor or coroner, having custody of any prisoner, committed on any civil or criminal process of any court or magistrate, who shall neglect to give such prisoner a copy of the process, order or commitment, by virtue of which he is imprisoned, within three hours after demand, shall be fined in the sum of five hundred dollars.

Art. 113. Any magistrate who, on receiving notice of the issuing of a habeas corpus for any person committed by him for any offence, shall neglect to attend at the return of the habeas corpus, in the manner directed in this chapter, shall be fined in the sum of three hundred dollars; unless, before receiving such notice, he shall have returned the papers relative to such commitment, to the clerk of the court having cognizance of the cause.

Art. 114. Any person who, knowing that another has been discharged by order of a competent judge, on a habeas corpus, shall, contrary to the provisions of this chapter, arrest or detain him again for the same cause, which was shown on the return of such writ, shall be fined in the sum of five hundred dollars for the first, and one thousand five hundred dollars for a second offence.

Art. 115. Any able bodied male inhabitant of this state, above the age of eighteen and under fifty years of age, who shall, when legally called on for that purpose, refuse to aid a magistrate, executive officer of justice, or other person, legally authorized to serve or execute any writ, commitment or order, issued by virtue of this chapter, in the service or execution of such writ, warrant or order, shall be fined in the sum of fifty dollars.

Art. 116. The recovery of the said fines shall be no bar to a civil suit for damages, or to a criminal prosecution, for such of the said acts or omissions as may, in the third book of this code, be declared to be an offence.

CHAPTER VIII.

Of suppressing permanent offences against property, and of the disposition of personal property, seized and supposed to be stolen.

Art. 117. Permanent offences against personal property, by a criminal taking, may be suppressed either by civil suit for its restoration, or by the means herein before directed of a search warrant, or by resistance to the unlawful taking.

Art. 118. In all cases of a conviction for a criminal taking or detention of personal property, which is taken with the offender or in his possession, or where without such conviction the property is found on a search warrant, or is detained in the hands of an officer of justice on suspicion of being stolen; on satisfactory proof of ownership, it shall be restored to the owner.

Art. 119. No property coming to the possession of a magistrate, court or officer of justice, by any of the means described in the last preceding article, shall be restored to any one claiming as owner until after notice published for fifteen days, describing the property and designating the person from whom it was taken, or the place where it was found, and requiring all persons having any claims, to make them known.

Art. 120. If no more than one claimant appear, the property shall, without prejudice to any other civil claim, be delivered to him on his making oath to the ownership. If more than one claimant appear, the property shall remain sequestered in the hands of the sheriff, until by a civil suit the rights of the parties be determined.

Art. 121. If no claimant appear, the property shall be sold at auction, and the proceeds paid to the treasurer of the state, and if no claim be made on him by any person claiming as owner within one year, it shall be carried to account of the Recompense Fund, hereinafter designated. Art. 122. If an indictment or information be presented against any one for a violent dispossession of real property, contrary to the provisions of the Code of Crimes and Punishments, it shall be tried in preference to any other, except those for offences punishable with imprisonment for life; and an information may be filed when the court is not in session by permission of the judge, who shall thereupon hold a special court for the trial of such offence.

Art. 123. If the defendant be convicted, the person aggrieved shall be restored to, and maintained by the court in, possession of the property against the person convicted, until the right shall be determined by a civil suit, if any be brought.

TITLE III.

OF THE MANNER OF CALLING FOR AND EMPLOYING THE MILITARY FORCE OF THE STATE IN AID OF THE CIVIL POWER.

Art. 124. Neither the militia nor any other military force shall be employed in the aid of the civil power, or brought to act in a military capacity against any persons in the state, unless it be called for in the manner directed by this title; and when so called for shall be subject to the regulations hereinafter prescribed.