will not escape by the way, either in going to, remaining at, or returning from the place to which he is to be taken. The sum so specified must be, at least, twice the sum for which the prisoner is detained, if he is detained for a specific sum of money; if not, it must be one thousand dollars. Section 78, R. S., amended; 3007, sub 1. 16. Utica Bank v. Kibbe, 7 Cow. 424; Clapp v. Van Epps, 3 Wend. 430. 2001. Fees to persons not officers. A court or a judge, allowing a writ of habeas corpus, directed to any person other than a sheriff, coroner, constable, or marshal, may, in its or his discretion, require the applicant, in order to render the service thereof complete, to pay the charges of bringing up the prisoner. In that case, the amount of the charges, not to exceed the fees allowed by law to a sheriff for a similar service, must be specified in the certificate allowing the writ. Id., 384; 3007, subt. 16. Utica Bank e. Kibbe, 7 Cow. 424; Clapp r. Van Epps, 3 Wend. 4.0. 2002. Last two sections qualified. The last two sections are not applicable to a case, where the writ is allowed upon the application of the attorney-general or a district-attorney. Id., 79, amended. 2003. Mode of serving writ, when person conceals himself, etc. A writ of habeas corpus or of certiorari, issued as prescribed in article second or article third of this title, may be served by delivering it to the person to whom it is directed. If he cannot be found, with due diligence, it may be served by leaving it at the jail or other place in which the prisoner is confined, with any under officer, or other person of proper age, having charge, for the time, of the prisoner, and paying or tendering to him the fees or charges for bringing up the prisoner. If the person, upon whom the writ ought to be served, keeps himself concealed, or refuses admittance to the person attempting to serve it, it may be served by affixing it in a conspicuous place, on the outside, either of his dwelling-house, or of the place where the prisoner is confined. In that case, the service is complete, without tendering the fees or charges for bringing up the prisoner. Id., 22 80 and 81, amended, 2004. Person served to obey habeas corpus. A sheriff, coroner, constable, or marshal, upon whom complete service of a writ of habeas corpus is made, as prescribed in this article, must obey and make return to the writ, according to the exigency thereof, whether it is directed to him or not. Any other person, upon whom such a writ is served, having the custody of the individual for whose benefit it was issued, must obey and execute it, according to the command thereof, without requiring any bond, or the payment of any charges, except such as are specified in the certificate allowing the writ. Id., 382. Martin v. Wood, 7 Wend. 132; People v. Stone, 10 Paige, 606. 2005. Id.; as to certiorari.-A person, upon whom a writ of certiorari, issued as prescribed in this title, is served, must, in like manner, upon payment or tender of the fees allowed by law for making a return to the writ, and for copying the warrant, or other process or proceeding, to be annexed thereto, obey and return the writ, according to the exigency thereof. Id., 83. Rathbun . Sawyer, 15 Wend. 451; Starr v. Trustees of Rochester, 6 id. 561; People v. Goodwin, 5 N.Y. 568; People v. Board of Police, 16 Abb. 337; People v. Mayor of N. Y., 2 H, 9; People v. Knowles, 47 N. Y. 415; Mayer r. Cutler, 43 Barb. 239; Stone v. Mayor, etc., of N. Y., 25 Wend. 157, 168. § 2006. Time of returning habeas corpus. Where a writ of habeas corpus is returnable on a day certain, the return must be made at the time and place specified therein. Where such a writ is returnable forthwith, at a place within twenty miles of the place of service, the return must be made, and the prisoner must be produced, within twenty-four hours after service; and the like time must be allowed, for each additional twenty miles. Id.. 185. § 2007. Punishment for non-payment of costs.For non-payment, upon demand of the costs awarded by a final order, made in a special proceeding instituted by State writ, except where a peremptory writ of mandamus is awarded, after the issuing of an alternative mandamus, the person required to pay the same may be published for a contempt of the court awarding them, or of which the judge awarding them is a member, as if the final order was a final judgment of the court. New. ARTICLE SECOND. THE WRIT OF HABEAS CORPUS, TO BRING UP A PERSON TO TESTIFY. SEC. 2008. Habeas corpus to testify; when allowed by court or judge. 2009. Id.; when allowed by judge. 2010. Id.; in suit before justice of the peace, etc. 2013. Certain prisoners to be remanded. § 2008. Habeas corpus to testify; when allowed by court or judge. A court of record, other than a justices' court of a city, or a judge of such a court, or a justice of the supreme court, has power, upon the application of a party to an action or special proceeding, civil or criminal, pending therein, to issue a writ of habeas corpus, for the purpose of bringing before the court, a prisoner, detained in a jail or prison within the State, to testify as a witness in the action or special proceeding, in behalf of the applicant. 2 R. S. 559, 1 (2 Edm. 580), amended: see 2011. Wattles v. Marsh, 5 Cow. 176; Hassam v. Griffin, 18 Johns.49; People v. Fancher, 2 Hun, 226. § 2009. Id.; when allowed by judge. Such a writ may also be issued by a justice of the supreme court, upon the application of a party to a special proceeding, civil or criminal, pending before any officer or body, authorized to examine a witness therein. In a case specified in this section, the writ may also be issued by a judge of a superior city court, a county judge or a special county judge, residing within the county where the officer resides, before whom, or the court or other body sits, in or before which, the special proceeding is pending. Id., 3. People v. Cooper, 8 How. Pr. 288; People v. Hanna, 3 How. 39; Yates v. People, 6 Johns. 337. 2010. Id.; in suit before justice of the peace, etc. Such a writ may also be issued by a justice of the su preme court, upon the application of a party to an action, pending before a justice of the peace, or in a justices' court of a city, or a district court of the city of New-York, to bring before the justice or court, to be examined as a witness, a prisoner confined in the jail of the county where the action is to be tried, or an adjoining county. In a case specified in this section, the writ may also be issued by a judge of a superior city court, a county judge, or a special county judge, residing within the county where the justice resides, or the court is located, or the prisoner is confined, as the case may be. Id..4, amended, Marsh, 5 Cow. 176. See Woodruff r. People, 3 How. Pr. 32; Wattles v. § 2011. [Amended, L. 1880, ch. 301.] The last three sections qualified.-A writ shall not be issued, by virtue of either of the last three sections, to bring up a prisoner, sentenced to death. Nor shall it be issued to bring up a prisoner confined under any other sentence for a felony; except where the application is made in behalf of the people to bring him up as a witness on the trial of an indictment, and then only by and in the discretion of a justice of the supreme court or a judge of a superior city court, upon such notice to the districtattorney of the county wherein the prisoner was convicted, and upon such terms and conditions, and under such regulations, as the judge prescribes. Substituted for id., part of 1. §2012. Application; how made. An application for a writ, made as prescribed in either of the foregoing sections of this article, must be verified by affidavit, and must state: 1. The title and nature of the action or special proceeding, in regard to which the testimony of the prisoner is desired; and the court, or body in or before which, or the officer before whom, it is pending. 2. That the testimony of the prisoner is material and necessary to the applicant, on the trial of the action, or the hearing of the special proceeding, as he is advised by counsel and verily believes. 3. The place of confinement of the prisoner. 4. Whether the prisoner is or is not confined under a sentence for a felony. But where the attorney-general or district-attorney makes the application, he need not swear to the advice of counsel. Id., 2. § 2013. Certain prisoners to be remanded. The return to a writ, issued as prescribed in this article, must state for what cause the prisoner is held; and if it appears there from, that he is held by virtue of a mandate in a civil action or special proceeding, or by virtue of a commitment upon a criminal charge, he must, after having testified, be remanded, and again committed to the prison, from which he was taken. Substituted for id., 5; see Shank's Case, 15 Abb. N. S. 38; People v. Stone, 10 Paige, 606; People v. Rogers, 2 id. 103. 2014. Officer to obey and return writ. — Any offi cer to whom a writ, issued as prescribed in this article, is delivered, must obey the same, according to the exigency thereof, and make a return thereto accordingly. If he refuses or neglects so to do, he forfeits, to the people, if the writ was issued upon the application of the attorney-general or a district-attorney, or, in any other case, to the party on whose application the writ was issued, the sum of five hundred dollars. But where the prisoner is confined under a sentence to death, a return to that effect is a sufficient obedience to the writ, without producing him. Id., 20, amended. See McIntire e. Woods, 5 Johns. 357; Wattles v. Marsh, 5 Cow. 176; Hassam e. Griffin, 18 Johns. 49. ARTICLE THIRD. THE WRIT OF HABEAS CORPUS, AND THE WRIT OF CERTIORARI, TO INQUIRE INTO THE CAUSE OF DETENTION. SEC. 2015. Who entitled to prosecute the writs. 2016. When neither writ shall be allowed. 2017. Application; how and to whom made. 2018. Application in another county; proof required. 2019. Contents of petition. 2020. When writ must be granted; penalty for refusing. 2021. Form of writ of habeas corpus. 2022. Form of writ of certiorari, 2023. When writ returnable before another judge. 2024. When writ sufficient. 2025. When writ to issue without application. |
