76 writ.74 Second. He may issue an order to [b] Federal question.-The rule, that a writ of error to the highest court of a state upon the ground that a federal question is involved will not be granted if it appears from the record that the decision of the federal question which is complained of was so clearly right as not to require argument, applies to and governs an application to the supreme court for a writ of habeas corpus. In re Boardman, 169 U. S. 39, 18 SCt 291. 42 L. ed. 653. Federal statute see supra § 159. Return and issues thereon see infra §§ 172-189. 74. Ind. Watts v. Watts, 176 Ind. 334, 95 NE 1107. Can.-In re Sproule, 12 Can. S. C. 140. Alta.-Rex v. Bloom, 7 Alta. L. 1. 15 DomLR 484, 22 CanCrCas 205, 26 WestLR 459, 5 West Wkly 897. B. C.-Re Lee Him, 15 B. C. 163, 16 CanCrCas 383 [aff 15 B. C. 390, 17 CanCrCas 191; În re Soy King, 7 B. C. 291; Ex p. Ettamass, 2 B. C. 232. Man.-Reg. v. Collins, 5 Man. 136. Ost. In re Ross, 3 Ont. Pr. 301. N. W. Terr.-Reg. v. Lalonde, 2 Terr. L. 281; Reg. v. Farrar, 1 Terr. L. 306, 11 CanLTOccNotes 25 (relief denied because rule to show cause was improperly served). [a] Waiver.-(1) Presenting a petition to a judge, for a writ of habeas corpus, gives him jurisdiction of the subject, and the parties may waive all errors and dispense with all forms, in the proceedings on it. State v. Edney, 60 N. C. 463. (2) Appearance and demurrer to a complaint in the nature of habeas corpus to transfer custody of an infant waives issuance of the writ. Watts v. Watts, 176 Ind. 334, 95 NE 1107. [b] Bail.-Presentation of a petition for the writ gives the judge jurisdiction to fix bail without issuance of the writ. State v. Edney. 60 N. C. 463. 80 tion for the writ.8 Noncompliance with procedural regulations is ground for denial of the application. A prior unsuccessful application, although not technically res judicata, is sometimes sufficient to justify a denial of subsequent applications for the writ, upon the same state of facts.82 A special order of court is not necessary before the writ issues where the writ does not rest in discretion but is a matter of statutory right.83 Presence of the prisoner, at the hearing of the 15,577, 4 Cranch C. C. 518; Ex p. Val- | Brockman, 233 Mo. 135, 157, 134 SW landigham, 28 F. Cas. No. 16.816; In 977. re Winder, 30 F. Cas. No. 17,867, 2 Cliff. 89. Ala.-State v. Speake, 187 Ala. 426, Ark. Ex p. Royster, 6 Ark. 28. Iowa.-Addis 628. 129. V. Mass.-In re Sims, 7 Cush. 285. Mo.-Ex p. Roberts, 166 Mo. 207, Nebr.-In re Balcom, 12 Nebr. 316, 11 NW 312. Nev.-Ex p. Deny, 10 Nev. 212. N. Y.-Peo. v. Manley, 2 HowPr 61; Yates v. Lansing, 5 Johns. 282 [aff 9 Oh.-Ex p. Bushnell, 8 Oh. St. 599: Pa.-Com. v. Lewis, 253 Pa. 175, 98 A 31; Com. v. Wright, 126 Pa. 464, Porto Rico.-Ex p. Dessus, 9 Porto Tex.-Ex p. Ainsworth. 27 Tex. Va.-Cardoza v. Epps, 23 SE 296. Wis.-In re Semler, 41 Wis. 517; In re McCormick, 24 Wis. 492, 1 AmR 197; In re Griner. 16 Wis. 423; In re Gregg, 15 Wis. 479; Bagnall v. Ableman, 4 Wis. 163. Wyo.-Ex p. Bergman, 3 Wyo. 396, 26 P 914. Eng.-Matter of Newton, 13 Q. B. 716, 66 ECL 716, 116 Reprint 1437; Hobhouse's Case, 3 B. & Ald. 420, 5 ECL 246, 106 Reprint 717, 2 Chit. 207, 18 ECL 593. 12 ERC 483; Rex v. Suddis, 1 East 306, 102 Reprint 119; Ex p. Partington, 13 M. & W. 679, 153 Reprint 284. 75. U. S.-U. S. v. Sing Tuck, 194 U. S. 161, 24 SCt 621, 48 L. ed. 917; Storti v. Massachusetts, 183 U. S. 138, 22 SCt 72, 46 L. ed. 120; Markuson v. Boucher, 175 U. S. 184, 20 SCt 76, 44 L. ed. 124; Tinsley v Anderson, 171 U. S. 101, 18 SCt 805, 43 L. ed. 91; In re Boardman, 169 U. S. 39. 18 SCt 291, 42 L. ed. 653; Ex p. Frederich, 149 U. S. 70, 13 SCt 793, 37 L. ed. 653; Wood v. Brush, 140 U. S. 278. 11 SCt 738, 35 L. ed. 505; Ex p. Fonda, 117 U. S. 516, 6 SCt 848. 29 L. ed. 994; Ex p. Royall, 117 U. S. 241, 6 SCt 734, 29 L. ed. 868; Ex p. Milligan, 4 Wall. 2, 18 L. ed. 281; In re Kaine, 14 How. 103, 14 L. ed. 345; Ex p. Watkins, 3 Pet. 193, 7 L. ed, 650; Ex p. Kearney, 7 Wheat. 38, 5 L. ed. 391: In re Madeiros, 225 Fed. 90; In re Haskell, 52 Fed. 795; In re Jordan, 49 Fed. 238; U. S. v. Ronan. 33 Fed. 117; Ex p. Davis, 7 F. Cas. No. 3,613, 9 WestLJ 14; In re Keeler, 14 F. Cas. No. 7,637, Hempst. 306; Ex p. Robinson, 20 F. Cas. No. 11,935, 6 McLean 355; In re Taylor, 23 F. Cas. No. 13,774, 8 NYWkly Dig 554; U. S. v. Lawrence, 26 F. Cas. No. the writ will be Ont.-Reg. v. Goodman, 2 Ont. 468. Que. Ex p. Gauvreau, 1 Montr. "The first question, therefore, which presents itself upon the application for a writ of habeas corpus, is, does the petition itself show that the applicant is not entitled to the writ? And if this question should be answered in the affirmative, the application must be denied." In re Dowd, 133 Fed. 747, 749. As writ of right or of course see supra § 7. Duty to issue writ as dependent on petition see supra §§ 158, 159. 76. Form and sufficiency of petition see supra §§ 158, 159. 77. Addis v. Applegate, 171 Iowa 150, 163, 154 NW 168, AnnCas1917E 332. "It is the duty of the court or judge to whom the application is presented, before issuing the writ, to inspect the application to see if it contains sufficient averments, is in due form of law, and properly subscribed. If it does not, he should refuse to issue the writ." Addis v. Applegate, supra. 78. Perry v. McLendon, 62 Ga. 598; Addis v. Applegate, 171 Iowa 150, 145 NW 168, AnnCas1917E 32; Electoral College Case, 8 F. Cas. No. 4,336, 1 Hughes 571; Ex p. Dessus, 9 Porto Rico 128. "Doubtless there is an obligation to issue the writ of habeas corpus whenever, and as often as, it may be applied for, provided the petition conform, duly authenticated, duly pretains the requisite matter, is in due Sented, and does not show on its face that the imprisonment, though complained of as illegal, is in fact legal." Perry v. McLendon, 62 Ga. 598, 604 (per Bleckley, J.). "It is the duty of the court or judge to whom the application is presented, before issuing the writ, to inSpect the application to see if it contains sufficient averments, is in due form of law, and properly subscribed. If it does not, he should refuse to issue the writ. If it does, it is his Addis v. Appleduty to grant it." gate, 171 Iowa 150, 163, 154 NW 168, AnnCas1917E 332. [a] The writ should be promptly issued in behalf of the injured party when a proper case is presented. In re Keeler, 14 F. Cas. No. 7,637, Hempst. 306. Discretion of court see supra § 7. infra § 194. 79. Hearing and determination see 80. Electoral College Case, 8 F. Cas. No. 4,336, 1 Hughes 571. [a] In Ohio, under Rev. St. § 713, when a petition for habeas corpus for an inmate of an asylum alleges that such inmate is sane, the question be heard on the application for the of sanity or insanity cannot properly writ, but the writ must issue, and this question be tried on its return. In re Gunning, 14 Oh. Cir. Ct. 507, 7 Oh. Cir. Dec. 443. 81. Addis v. Applegate, 171 Iowa 150, 154 NW 168, AnnCas1917E 332; See also supra § 7. Re Hayes, (N. S.) 21 CanLTOccNotes "The writ does not issue as a mat-87 (affidavits not in compliance with ter of right, but only when the application therefor contains allegations which if true would authorize the discharge of the person held in custody." Jones v. Hill, 17 Ga. A. 151, 157, 87 SE 755. "If he state no ground for relief, court rules); Reg. v. Farrar, 1 Terr. L. 306, 11 CanLJOccNotes 25 (insufficient service of rule). 82. See infra § 203. 83. Peo. v. Kuhne, 57 Misc. 30, 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. 84. Murdock v. Pollock, 229 Fed. | 392, 143 CCA 512. 85. Murdock v. Pollock, 229 Fed. 392, 143 CCA 512. [a] "It is the practice in the district of Kansas to make a preliminary determination as to the propriety of issuing the writ as above indicated, and at such preliminary determination the prisoner does not appear in person. This practice is conceived to be of greater convenience in the administration of justice than if the prisoners were present, under the writ, in the custody of the warden, particularly in that district in which a federal penitentiary is located, and where applications for writs of habeas corpus are very numerous." Murdock v. Pollock, 229 Fed. 392, 393, 143 CCA 512. 86. See infra § 203. 89. 90. See Mandamus [26 Cyc 223]. See statutory provisions; and: U. S -Ex p. Wood, 155 Fed. 190 [aff 209 U. S. 205, 28 SCt 472, 52 L. ed. 747]. Cal. Ex p. Ellis, 11 Cal. 222. Iowa.-Shaw v. McHenry, 52 Iowa 182. 2 NW 1096. Ky. Rallihan v. Gordon, 176 Ky. 471, 195 SW 783; Corneilson v. Toney, 12 KyL 746. Mo-State v. Dobson, 135 Mo. 1, 36 SW 238. N. Y.-Peo. v. Nash, 16 AbbPr 284. 25 HowPr 307, 5 Park. Cr. 473 [aff 36 N. Y. 607, 33 How Pr 384]; In re Ferguson, 9 Johns. 239; Yates V. Lansing, 5 Johns. 282 [aff 9 Johns. 395, 6 AmD 290]. N. C. In re Croom, 175 N. C. 455, 95 SE 903. Pa.-Williamson v. Lewis, 39 Pa. 9; Com. v. Friends' Home for Children, 7 Pa. Dist. 653, 22 Pa. Co. 61. S. C.-Ashe v. O'Driscoll, 7 S. C. L. 698, 5 S. C. L. 517. [a] Term time or vacation.—(1) In some jurisdictions it is held that the penalty does not attach when the application is made in term (Ex p. Ellis, 11 Cal. 222; In re Ferguson, 9 Johns. (N. Y.) 239; Yates v. Lansing, 5 Johns. (N. Y.) 282 [aff 9 Johns. 395, 6 AmD 290]; Hobhouse's Case, 3 B. & Ald. 420, 5 ECL 246, 106 Reprint 717, 2 Chit. 207, 18 ECL 593, 12 ERC 483), (2) while in others it is held that a refusal either in term time or in vacation renders the judge liable (Williamson v. Lewis, 39 Pa. 9). 91. Jones v. Hill, 17 Ga. A. 151, 87 SE 755. [a] It is only when the writ may lawfully issue that the Missouri statute makes the judge liable for a penalty for refusing to issue it. State v. Dobson, 135 Mo. 1, 36 SW 238. make it the mandatory duty of the judge to grant the writ.93 It is only where a judge as a matter of arbitrary caprice or as the result of improper motives refuses a writ that he is liable for the penalty.9 94 [§ 164] D. Form and Requisites of Writ-1. In General. The form and contents of a writ of habeas corpus are now generally prescribed by statute,95 which must be complied with so far as mandatory.96 In general the writ is directed to the person detaining another, and commands the person to whom it is directed to produce the body of the prisoner, or person detained, together with the day and cause of his capture and detention, to submit to and receive whatsoever the court or judge awarding the writ may determine in that behalf.97 The writ is process and the general rules governing any other writ or process are in the main fully applicable.98 Where so required by the local practice, the writ must be signed by the judge,' or tested in his name. The writ must be issued under the seal of the court, if the writ issues from a court as dis 92. Jones v. Hill, 17 Ga. A. 151, 87 SE 755; Corneilson v. Toney, 12 KyL 746. 99 gether with the time and cause of such imprisonment and detention by whatsoever name the said John G. Jenkins, Jr., is called or charged, be"The penalty provision has its or- fore me a Justice of the Supreme iginal in the statute of 31 Car. II. Court forthwith, and immediately upPossibly parliament had the power on the receipt of this writ at my to provide and enforce a penalty in Chambers in the Court house, in the the circumstances mentioned; but as Borough of Brooklyn, City of New under the express provisions of ar- York, to do and receive what shall ticle 3 of our state constitution which then and there be considered condivides the powers of government cerning the said John G. Jenkins, Jr., into three distinct departments, the and have you then and there this legislative, executive and judicial, | writ. Witness, Hon. Joseph A. Burr, and forbids either of those depart- one of the Justices of this court, the ments to exercise any power pro- 26th day of November, 1907. Allowed. perly belonging to either of the oth- Jos. A. Burr, J. S. C." Peo. v. Burr, ers, except in the instances in this 127 App. Div. 907 mem, 111 NYS constitution expressly directed or 1136 mem [aff 196 N. Y. 610 mem, permitted,' the legislature of this 89 NE 1109 mem]. state has in our opinion no power to provide a penalty for a judge or court simply because a writ of habeas corpus is denied, which denial is based upon an honest endeavor to discharge what is believed to be the demands of recognized and imperative judicial duty. If the legislature may go further than this, then it can destroy the independence of the judiciary, and punish a judge because he, after due deliberation, denies any other writ, or honestly enters or renders any merely erroneous order or judgment." State v. Dobson, Mo. 1, 18, 36 SW 238. 98. Ex p. Thompson, 85 N. J. Eq. 221, 96 A 102. See also Process [32 Cyc 428]. [a] In New Jersey, the proper practice is for the chancellor or vicechancellor to sign an indorsement that the writ be allowed and the writ itself should then be signed by the solicitor and by the clerk in chancery who should also seal it, this being according to the practice in the case of all writs in chancery. Ex p. Thompson, 85 N. J. Eq. 221, 96 A 102. [b] Recital of authority to issue. 135-Where an official issuing the writ has only limited power to do so, it should appear on the face of the writ that circumstances exist warranting its issue, although not essential to validity. Com. v. Moore, 19 Pick. (Mass.) 339. 93. Corneilson v. Toney, 12 KyL 746. Discretion in issuance of writ see supra § 7. 94. Jones v. Hill, 17 Ga. A. 151, 87 SE 755; Blodgett v. Ladd, (Iowa) 162 NW 233. [a] The burden of proof is on 95. See statutory provisions. [a] Forms of writ.-(1) Ex p. 99. State v. Grimm. 239 Mo. 340, 143 SW 450, AnnCas1913B 1188 (by statute); Rex v. Roddam, Cowp. 672, 98 Reprint 1300. [a] Signature by clerk instead of judge.-Under a statute imposing the duty of signing writ on the judge, a writ of habeas corpus issued in vacation by a judge out of court, and signed by the clerk of the court, instead of the judge, is void. State v. Grimm, 239 Mo. 340, 143 SW 450, AnnCas1913B 1188. [b] In Ontario a writ of habeas corpus issued in a criminal matter should be signed by the judge who awarded it, as well as by the officer who issues it. Reg. v. St. Clair, 27 Ont. A. 308, 3 CanCrCas 551. 1. State V. Haugen, 124 Minn. 456, 145 NW 167 (tested in name of presiding judge); Ex p. Thompson, 85 N. J. Eq. 221, 96 A 102 (writ tested in name of chancellor). 2. State v. Barnes, 17 Minn. 340 (holding that a writ issued under the seal of a court commissioner is void); Ex p. Thompson, 85 N. J. Eq. 221, 96 A 102; Peo. v. Kuhne, 57 Misc. 30, 107 NYS 1020 [aff 127 App. Div. 3 8 tinguished from a judge. In some jurisdictions, mitted the petitioner to prison. Frequently the statutes provide that the writ shall not be invalidat- particular place, or court or judge before whom ed for mere defects in form.* the writ may or must be made returnable is specified by statute, which is, of course, controlling." 6 [165] 2. Where Returnable. The writ should designate the court or judge before whom it is returnable. Usually the writ is made returnable before the court or judge by whom it was issued, but it may be, and often is, made returnable before some other court or judge." Where application is presented to another court or judge, the writ should not be made returnable before the judge who com907 mem, 111 NYS 1136 mem (aff court. 195 N. Y. 610 mem, 89 NE 1109 mem)]. [a] In Minnesota by statute it was provided that every writ of habeas corpus should be under the seal of the court. State v. Barnes, 17 Minn. 340 [overr State v. Hill, 10 Minn, 63]. 11 [§ 166] 3. When Returnable. The writ should designate the time for the return thereto,10 which may be forthwith or immediately, although ordinarily a reasonable time will be allowed.12 Statutes sometimes prescribe the time when return shall be made.13 [§ 167] 4. Amendment of Writ. The writ of an examination of witnesses had as to the legality of the relator's detention"). If it is taken to the court of queen's bench it should be taken to the place where the appeals of the district are carried. If it is taken to the superior court the provisions of the code of civil procedure that defendant must be brought before the proper tribunal of his domicile, or that of the place where the com[b] In New York.-"While the mitment has been personally signistatute provides that such a writ fied to him, or that, where the right must be issued under the seal of the of action arose will prevail. MorSupreme Court (Code Civ. Pro. ency v. Fortier, 12 Que. Super. 68. 1992), the same statute also provides that the omission of the seal does not make the writ either void or voidable (Id., § 24)." Peo. v. Kuhne. 57 Misc. 30, 31, 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. 3. In re Blair, 4 Wis. 522 (the writ may be issued by an officer under his own sign manual). 4. See statutory provisions. [a] Attestation otherwise than required. Under the Minnesota statute requiring that writs of habeas corpus be tested in the name of the presiding judge, attestation in the name of the court commissioner is a mere defect in form, rendered unavailing by the statute. State V. Haugen, 124 Minn. 456, 145 NW 167. 5. See cases passim. 6. Elliott v. U. S., 23 App. (D. C.) 456; Ex p. Angus, 28 Tex. A. 293, 12 SW 1099. [a] Quashing writ.-For error in failing to conform to a requirement of statute that the writ shall be made returnable before the court or justice by whose order it was issued, the writ and a return thereto will be quashed. Elliott v. U. S., 23 App. (D. C.) 456. 7. U. S.-In re Kaine, 14 F. Cas. No. 7,598, 10 NYLegObs 257. Cal-Peo. v. Booker, 51 Cal. 317. Miss.-Patterson v. State, 71 Miss. 675, 15 S 794. N. Y.-Matter of Taylor, 8 Misc. 159, 28 NYS 500; Shanks' Case, 15 AbbPrNS 38 [rev on other grounds 2 Hun 226]; In re Powers of County Judges, 3 HowPr 32. Oh-Morganfield v. Archibald, 10 Oh. Cir. Ct. 40, 6 Oh. Cir. Dec. 391. Pa. Com. v. Sheriff, 7 Watts & S. 108; Com. v. Hoey, 3 Brewst. 514. See Ex p. Angus, 28 Tex. A. 293, 12 SW 1099 (a writ issued from one district court of a county which is divided into two districts may be returned to the judge of the other district, when the judge of the former has requested the latter to hear the case for him and has absented himself from the district). [a] Illustration.-Á writ issued by a clerk of the circuit court pursuant to an order of a master in chancery should not be made returnable before the master, but should be returned into the circuit or supreme court if in session, and in vacation before some judge thereof. Peo. v. Town, 4 Ill. 19. [b] A justice of the supreme court of the United States may make the writ returnable to the whole court, if there are important or difficult questions involved, instead of making it returnable before himself. Ex p. Clarke, 100 U. S. 399, 25 L. ed. [d] Convenience of witness. Where the writ was made returnable before a district court for a district other than that in which the children involved were residing, but where a hearing could be had with the greatest degree of convenience to the witnesses it was held proper. Jain v. Priest, 30 Ida. 273, 164 P 364. [e] Authority limited to vacation. Where authority to issue and hear a writ is given to judges only in vacation, upon the meeting of the court, the writ should be returned into the court. Ex p. Webers, 275 Mo. 677, 205 SW 620. [f] In New York (1) the writ issued by a justice of the appellate division in vacation may be made returnable before the court. Peo. v. Frost, 133 App. Div. 179, 117 NYS 524. (2) Under Civil Practice Act § 1232, providing that the application for a writ of habeas corpus may be made to a justice of the supreme court in any part of the state, and may be made returnable in the discretion of the court or judge before any judge authorized to grant it in the county of the imprisonment or confinement, it is not defective because made returnable in a county other than that in which the prisoner is detained. Peo. v. New York State Reformatory for Women at Bedford, 192 NYS 511. [g] In Pennsylvania, under the act of Febr. 8, 1785 § 6, where a relator had been bound over by the court of quarter sessions during its session to answer a charge of misdemeanor, the writ, if returnable at all, [f] The court of common pleas of must be to the judges of the court Pennsylvania had no authority to is- of quarter sessions, who alone have sue a writ of habeas corpus return-jurisdiction until after the end of able to the quarter sessions. Com. the term or session. Com. v. Sheriff, v. Lewis, 15 Pa. Dist. 404. 3 PaLJ 375. 8. Elliott v. U. S., 23 App. (D. C.) 456. 9. See statutory provisions; and cases passim. [a] In Alabama where the writ was granted ten days before the time fixed by the court for the holding of the next term of the circuit court, the writ may be issued by the chancellor of the division and made returnable before him. State v. Fuller, 147 Ala. 164, 41 S 990. [b] In California, (1) under the penal code as amended in 1905, the supreme court had power to make the writ returnable before any superior judge. In re Clary, 149 Cal. 732, 87 P 580. (2) Under Penal Code 1475, as amended by the act of March 19. 1907, where a prisoner has been remanded by the district court of appeals, as distinguished from a single judge of such court, upon habeas corpus, a subsequent writ issued by a single justice of the supreme court must be made before the supreme court in banc and cannot be made returnable before himself. Ex p. Mogenson, 151 Cal. 517, 91 P 334. [c] In District of Columbia, under Code § 1143 when an application is made for the writ either to the supreme court or to a justice thereof, and the writ is issued, the return must be made, not simply to the court, but before the court or justice by whose order the writ was issued. Elliott v. U. S., 23 App. 456. [d] In Idaho, the supreme court has authority to make the writ returnable before any district court. Jain v. Priest. 30 Ida. 273. 164 P 364. [h] In Porto Rico, a writ issued by the supreme court may be made returnable before any other judge who under the law is vested with general jurisdiction in habeas corpus, and a writ was properly made returnable by the supreme court before the judge of the district court. Ex p. Aybar, 14 Porto Rico 549. [i] In Texas (1) the writ must be made returnable in the county where the alleged offense was committed. Ex p. Mitchell, 81 Tex. Cr. 517, 196 SW 540 (provision mandatory); Ex p. Andrus, 69 Tex. Cr. 183, 153 SW 621; Ex p. Overcash, 61 Tex. Cr. 67, 134 SW 700; Ex p. Magee, (Cr.) 71 SW 286 (where an original application for habeas corpus to fix bail is made to the court of criminal appeals, the writ when ordered will be made returnable before a trial judge in the county where the cause is pending); Ex p. Fulton, (Cr.) 65 SW 1059 (holding that, where a person is arrested in one county under a capias issued in another county in which two indictments have been found against him, a writ of habeas corpus issued in the county in which the arrest was made should not be made returnable in that county, the proper place being to the district court of the county in which the indictments are pending); Ex p. Trader, 24 Tex. A 393, 6 SW 533. (2) A writ granted after change of venue should be made returnable before the district judge or district court of the county where the offense was committed. Ex P. Graham, (Cr.) 64 SW 932; Ex p. Springfield, 28 Tex. A. 27, 11 SW 677; Ex p. Trader, 24 Tex. A. 393. 6 SW 533. 10. State v. Ferry, 61 Vt. 624, 18 A 451. 11. State v. Ferry, 61 Vt. 624, 18 A 451 (under statute); Stockdale v. Hausard, 8 Dowl. P. C. 474. 12. See cases passim. 13. See statutory provisions. also infra § 174. [e] In Mississippi.-Code (1892) §3237 requires that in criminal cases the judge granting the writ shall make it returnable in the county in which the offense is alleged to have been committed, unless so doing will interfere with his holding of a term of court. Patterson V. State, 71 Miss. 675, 678, 15 S 794 ("This sec715. tion is directory merely, and not jur[c] In Quebec any judge may is- isdictional. It seems clear to us [a] In Vermont.-(1) Rev. L. 8 sue a writ of habeas corpus, but it that its application is to be confined 1348 requires a writ of habeas corshould be taken to the court of to cases on habeas corpus in which pus to be made returnable forthqueen's bench or to the superior the merits are to be gone into and with. State v. Ferry, 61 Vt. 624, See habeas corpus, like any other judicial process, is liable to amendment.14 15 [§ 168] 5. Alteration of Writ. Material changes may invalidate a writ.1 But changes which are immaterial will not invalidate the writ,1 16 where the legal import remains the same17 or the change is made by a stranger.18 19 [169] E. Service of Writ.1 The service of the writ of habeas corpus is generally regulated by statute, ,20 and in other respects, the general rules governing service of process21 should be observed in order to make the service sufficient and effective.22 At common law, and unless otherwise prescribed by statute, the writ need not be served by an officer; , any private individual may serve it.23 Service of a writ from a federal court cannot be prevented by state process. A state officer is under no obligation to serve the writ upon a federal officer having custody of the prisoner. Statutory provisions for the benefit of the person upon whom the writ is served be waived,2 may as by obeying the writ 24 25 26 627, 18 A 451. (2) A writ returnable the first secular day after its issuance is one returnable forthwith within the meaning of the statute. State v. Ferry, supra. (3) "The statute does not forbid a judge from naming the day when the person detained shall be brought before him, and it certainly does not require him to name the hour." State v. Ferry, supra. 14. Ex p. Davis, 4 Bing. N. Cas. 17, 33 ECL 574, 132 Reprint 694; Pawlet v. Christmas, Cro. Eliz. 586, 78 Reprint 829; Durming v. Ketle, Cro. Eliz. 543, 78 Reprint 789. 15. Com. v. Thomas, 69 Pa. Super. 424. [a] Thus, where the return day was extended by the clerk, where such action could only be taken by the court, the writ was quashed. Com. v. Thomas, 69 Pa. Super. 424. 16. Peo. v. Kuhne, 57 Misc. 30, 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. Where without insisting on compliance with such pro- 29 Proof of service. An authorized officer's certified return is sufficient evidence of the service of the writ,30 and if served by any other person it may be proved by his oath,3 31 in accordance with the usual rule as to proof of service generally.32 [170] F. Quashing or Dismissing Writ. A writ of habeas corpus may be quashed, recalled, or dismissed where it was improvidently granted, 33 as where it was issued without jurisdiction,34 or without authority of the person detained, he being sui juris. 35 Writs of habeas corpus have been quashed or dismissed: Where it appeared that no ground existed for discharging the prisoner, the restraint complained of being legal; 36 where there was no re [b] Service on Sunday in violation of the laws of the state renders the proceedings void, and appearance does not waive the irregularity. Peo. v. Dewey, 23 Misc. 267, 50 NYS 1013 (construing Texas statute). [c] Leaving with brother and agent held sufficient.-Matter of Hakewill, 12 C. B. 223, 74 ECL 223, 138 Reprint 888. [d] Under officers.-The writ may be directed to the sheriff and the keeper of the jail where the prisoner is confined, but service on the jailer alone is not sufficient, unless the sheriff cannot be found, because the sheriff has the legal custody of the prisoner. Peo. v. Walsh, 15 NYCiv Proc 19. [e] Issue in court in presence of respondent.-Where a writ of habeas corpus was applied for and issued in open court, in the presence of the person to whom it was directed, he having custody of the prisoner, and the fact was known to him, and the writ could have been handed to him [a] Change to correct error. had he desired it, that he might Where, after the issuance of a writ of make his return, it was held that habeas corpus, relator's counsel this amounted to an acceptance of changed the name intended for rela- the service and a waiver of a delivtor in two places in the writ to cor-ery of the writ to him. Peo. v. Bradrect a mistake, and make the writ ley, 60 Ill. 390. consistent throughout, such change did not invalidate the writ; since it was either within the implied authority of counsel to make the writ conform to the intent of the justice issuing it, or, if it was a material alteration made without authority, it was the act of a stranger to the writ, and therefore did not affect the writ as originally issued. Peo. v. Kuhne, 57 Misc. 30, 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. 17. Peo. v. Kuhne, 57 Misc. 30. 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. 18. Peo. v. Kuhne, 57 Misc. 30. 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. Changes made by a stranger to instruments generally see Alteration of Instruments §§ 104-107. 19. Notice of application see supra § 155. 20. See statutory provisions; and cases passim. 21. Service of process generally see Process [32 Cyc 447]. [f] Jurisdiction acquired by service. The court to which the writ is returnable acquires jurisdiction to make a final order in the cause by the service of the writ upon defendant while the prisoner is still in his custody; and such jurisdiction cannot be ousted by an act of defendant without the consent of the court. Pomeroy v. Lappeus, 9 Or. 363. 25. Ex p. Sifford, 5 AmLReg 659. 26. Peo. v. Kuhne, 57 Misc. 30, 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. [a] Respondent may waive: (1) Provisions for the payment of fees. Peo. v. Kuhne, 57 Misc. 30, 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. (2) Provisions for an undertaking. Peo. v. Kuhne, supra. 27. Peo. v. Kuhne, 57 Misc. 30, 107 NYS 1020 [aff 127 App. Div. 907 mem, 111 NYS 1136 mem (aff 195 N. Y. 610 mem, 89 NE 1109 mem)]. 28. See statutory provisions. [a] A verbal refusal to accept service is not penalized by such an act where the officer might make service notwithstanding such refusal. Buttrick v. Emery, 71 N. H. 463, 52 A 849. 29. In re Winder, 30 F. Cas. No. 17,867, 2 Cliff. 89. 30. Hurd Habeas Corpus (2d ed) pp 233, 234. 31. Hurd Habeas Corpus (2d ed) pp 233, 234. 32. See Process [32 Cyc 496]. 33. In re McMaster, 2 Okl. 435, 37 P 598; Rex v. Keenan, 28 Ont. L. 441. 13 DomLR 125, 21 CanCrCas 467; In re Ross, 3 Ont. Pr. 301. [a] The Supreme and Exchequer Court Act, section 51, does not interfere with the inherent right which the supreme court of Canada, in common with every superior court, has incident to its jurisdiction to inquire into and judge of the regularity or abuse of its process, and to quash [g] In Vermont.-An officer after a writ of habeas corpus and subsereceiving a writ of habeas corpus quent proceedings thereon when, in has from three to twelve days to the opinion of the court, such writ serve and return it depending upon has been improvidently issued by a the distance of the place of imprison- | judge of such court. In re Sproule, ment from the place of return. State 12 Can. S. C. 140. v. Ferry, 61 Vt. 624, 18 A 451 (under Rev. L. § 1355). 23. Hurd Habeas Corpus (2d ed) p 233. "The writ at common law and under the statute of 31 Car. II. was not required to be served by an officer. The solicitor of the prisoner, or any person in his behalf, might deliver it to the person to whom it was directed." Church Habeas Corpus § 111. [a] In North Carolina.-By the Habeas Corpus Act § 32, it was provided that "the writ of habeas corpus may be served by any qualified voter of the State thereto authorized by the Court or Judge ordering the same;" but there must be this authorization, else the parties served will not be bound to return the writ. Ex p. Kerr, 64 N. C. 816, 817. 24. U. S. v. Morris, 2 AmLReg 348. [b] Authority of attorney.-Failure to show specifically that the party moving to quash the writ is acting as attorney for the respondent does not affect the validity of the proceeding where the court takes notice of the fact that he is acting as attorney, Com. v. Thomas, 69 Pa. Super. 424 (objection refused consideration on appeal). 34. In re Sproule, 12 Can. S. C. 140. Jurisdiction of writ see supra §§ 111-146. 35. In re Poole, 9 D. C. 583, 29 AmD 628; Com. v. Robinson, 1 Serg. & R. (Pa.) 353; Com. v. Killacky, 3 Brewst. (Pa.) 565; Com. v. Hoffman, 4 Kulp (Pa.) 428. See also supra § 151 text and note 43. 36. U. S.-In re Taylor, 23 F. Cas. No. 13.774. Ga.-Brown v. Harden, 150 Ga., 99, 102 SE 864; Smith v. Milton, 149 Ga. straints sufficient to support a grant of the writ;38 where the unlawful restraint had terminated prior to the service of the writ;39 where the detention terminated after the service of the writ,40 although the release of the party after service of the writ does not deprive the court of jurisdiction;41 where the respondent did not have the custody or control of the party whose release was sought;42 where the proceedings were not brought in the proper court;43 where facts sufficient to enable the court to act were not presented; where the case was one where the granting of the writ was prohibited by statute;15 where the proceedings had been abandoned,40 withdrawn;47 where lack of prosecution was shown; 48 where the writ was improperly served;49 and where the party had taken some action incon 44 45 or sistent with the claim advanced as a ground for release. 50 The sufficiency of the petition upon which it was granted to support the writ may generally be questioned before making a return or answer thereto,51 by motion to quash the writ,52 but not regularly by a demurrer, 53 although a demurrer in form may be allowed to serve the purpose of a motion to quash or to dismiss.54 In some jurisdictions, neither a demurrer nor a motion to quash because of defects in the petition will lie,55 the petition having become functus officio upon the issuance of the writ.56 Where the writ has been issued, although improvidently, and the prisoner is in court awaiting judgment, it has been said to be the better practice to inquire into the cause of detention and to dispose of the case on the merits.57 On a motion to quash 28. 98 SE 607; Simmons v. Georgia) S 761; Gillard v. Clark, 105 Nebr. Ind.-McLaughlin v. Etchison, 127 Ind. 474, 27 NE 152, 22 AmSR 658; Willis v. Bayles, 105 Ind. 363, 5 NE 8. Mo-State v. Grimm, 239 Mo. 340, 143 SW 450, AnnCas1913B 1183. N. Y.-Peo. v. Crane, 94 App. Div. 397. 88 NYS 343. Okl.-Ex p. Hodges, 16 Okl. Cr. 113. 180 P 717. Wis.-Arnold v. Schmidt, 155 Wis. 55, 143 NW 1055. See also supra § 158 text and note 14; 159 text and note 49; § 162 text and note 73. megality of restraint see supra §§ 18-55. 37. Com. v. Doran, 15 Pa. Co. 385. [a] Rule applied.-Where habeas corpus was granted on petition of defendant, who represented that he was in the custody of a constable under a commitment, and it appeared at the hearing that the constable, instead of serving the commitment, allowed the relator to go about his business, the writ was dismissed. Com. v. Doran, 15 Pa. Co. 385. 38. Nature and sufficiency of restraint see supra §§ 13-15. 57 39. Hamilton V. Flowers, Miss. 14; Ex p. Kirk, 16 Okl. Cr. 722, 185 P 706; Com. v. Connell, 2 Pa. Dist. 319, 13 Pa. Co. 103; Ex p. Coupland, 26 Tex. 386. See Ex p. Adams, 13 Okl. Cr. 87, 162 A 231 (where second application was dismissed as prisoner had been discharged on prior application). 40. Com. v. Kirkbride, 7 Phila. (Pa.) 1 (where party not held for crime). [a] Commitment order vacated. A writ of habeas corpus, issued to determine the legality of the custody of an alleged delinquent minor on probation, will be discharged on the vacation of the order committing the minor to custody. In re Peo., ex rel McKeon, (Cal.) 142 P 1081. [b] Right to dismissal waived by laches. Where petitioner who was in the custody of the sheriff obtained a writ of habeas corpus with direction to admit him to bail, and the return recited that, upon the service of the writ, petitioner was admitted to bail, and a commissioner was thereafter appointed without objection to take testimony, and the case was continued, during which time such testimony was taken, respondent could not contradict his return by objecting, for the first time on final hearing, that the case was moot because of the release on bail. In re McCoy, 10 Cal. A. 116, 101 P 419. 41. See infra § 171 text and note 76. 42. State v. Elifritz, 100 Nebr. 320, 160 NW 113; Com. v. Becker, 11 Pa. Dist. 182, 26 Pa. Co. 567; Ex p. Oates, (Tex. Cr.) 234_SW 675; Ex p. Ranger, 85 Tex. Cr. 651, 215 SW 301. Against whom writ runs see supra $152. 43. Ex p. Ryan, 124 La. 286, 50 Jurisdiction see supra §§ 111-146. 44. In re Sneden, 105 Mich. 61, In re McAffeay, 4 Okl. Cr. 687, [a] A habeas corpus proceeding to procure the custody of a child will not be considered as abandoned merely because, after the order has been made, petitioner agrees that the child may remain a short time with respondent. Com. v. Reed, 59 Pa. 425. 47. State v. Second Judicial Dist. Ct., 35 Nev. 30, 126 P 679; In re Mitchell, 7 Okl. Cr. 715. 122 P 1133. 43. In re Platt, 6 Okl. Cr. 656, 124 P 1133. 49. In re Thaw, 15 Que. Pr. 133, 13 DomLR 715, 22 CanCrCas 8, 49 CanLJ 672 (service of copy instead of original). has appeared in answer to it, the sufficiency of the petition can not be tested by a demurrer; but if the petition clearly shows on its face that the detention is lawful, there is nothing to investigate, and the writ should be quashed." Mathews V. Swatts, 16 Ga. A. 208, 210, 84 SE 980. 53. Simmons v. Georgia Iron, etc., Co., 117 Ga. 305, 43 SE 780, 61 LRA 739; Mathews v. Swatts, 16 Ga. A. 208, 84 SE 980; Davis v. Smith, 7 Ga. A. 192, 66 SE 401, 403 (in a technical sense there can be no demurrer to a habeas corpus proceeding); McGlennan v. Margowski, 90 Ind. 150; Rust v. Vanvacter, 9 W. Va. 600. [a] Reason for rule.-"It might well be doubted whether the sufficiency of the petition or complaint for the writ could be tested by a demurrer thereto, for the want of facts. The party to whom the writ is directed makes his return or answer, not to the petition or complaint, but to the writ itself." McGlennan v. Margowski, 90 Ind. 150, 153. 50. See cases infra this note. [b] The proper course, ordinar[a] Moving to dismiss cause.-ily, is to produce the prisoner, make The petition was dismissed where return, and then move to quash the petitioner filed a motion to dismiss writ, issued upon insufficient cause. the cause immediately after filing The petition, however, is not althe petition. Ex p. Campbell, 13 ways to be looked to exclusively Okl. Cr. 456, 164 P 1156. to ascertain if the detention is without lawful authority, for the language of the law is, "who shall apply for the same by petition, showing by affidavit, or other evidence, probable cause to believe that he is detained without lawful authority." Rust v. Vanvacter, 9 W. Va. 600. [b] Complying with an order the legality of detention under which he sought to review is ground for dismissing the writ. State v. Lilley, 76 Okl. 229. 184 P 946. [c] Voluntarily furnishing bail and thereby securing a release is ground for dismissal. Stallings v. Splain, 253 U. S. 339, 40 SCt 537, 64 L. ed. 940: Com. v. Connell, 2 Pa. Dist. 319. 13 Pa. Co. 103. See also supra § 14. 51. McGlennan v. Margowski, 90 Ind. 150, 153. "The sufficiency of the writ may be tested before making a return or answer thereto, not by a demurrer, but by a motion to quash the writ." McGlennan v. Margowski, supra. 52. Ga.-Smith v. Milton, 149 Ga. 28, 98 SE 607; Matthews v. Swatts, 16 Ga. A. 208, 84 SE 980. Ind.-McDonald v. Short, 130 NE 536; McDonald v. Short, 125 NE 451; Baker v. Krietenstein, 185 Ind. 693, 114 NE 445; Edenharter v. Connor, 185 Ind. 643, 114 NE 212; Watts v. Watts, 176 Ind. 334, 95 NE 1107 (lack of verification); Hardin V. Hardin, 168 Ind. 352, 81 NE 60; Schleuter v. Canatsy, 148 Ind. 384. 47 NE 825; Willis v. Bayles, 105 Ind. 363, 5 NE 8; Milligan v. State, 97 Ind. 355; McGlennan v. Margowski, 90 Ind. 150. N. Y.-Peo. v. Kuhne, 57 Misc. 30, Wis.-State V. Liedertafel, 166 [a] Reason for rule.-"After the writ is issued and the respondent 54. Brown v. Harden. 150 Ga. 99, 102 SE 864; Smith v. Milton, 149 Ga. 28, 98 SE 607; Hovey v. Morris, 7 Blackf. (Ind.) 559 (demurrer not good practice, but allowed). 55. See cases infra this note. [a] In Florida.-"We know of no such practice as that of moving to quash a writ of habeas corpus because of defects in the petition upon which it was issued. The inquiry in such cases is not as to the technical formality of the showing made to the court for the issuance of the writ, but as to the legality of the alleged detention of the prisoner. In such inquiry the parties are not limited to the matters specifically set forth in the petition for the writ, but may go outside of these and enquire into any matter that affects the legality of the detention." Crooms v. Schad, 51 Fla. 168, 173. 40 S 497. to [b] In California a motion quash the writ in the nature of a demurrer to a petition is not contemplated by the statutes providing for the procedure in habeas corpus proceedings. In re Gilstrap, 171 Cal. 108. 152 P 42, AnnCas1917A 1086. 56. See supra § 156. Issues formed on return see infra § 187. 57. Brown v. Harden, 150 Ga. 99, 102 SE 864; Simmons V. Georgia Iron, etc., Co., 117 Ga. 305, 43 SE 780, 61 LRA 739; In re Ross, 3 Ont. |