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or by his own name; or, if both names are unknown or uncertain, by an assumed appellation. Any person, upon whom the writ is served, is deemed to be the person to whom it is directed, although it is directed to him by a wrong name or description, or to another person.

2. If the person directed to be produced is designated by name, or otherwise described in any way, so as to be identified as the person intended.

Id., 29. Wattles v. Marsh, 5 Cow. 176; Hassam e. Griffin, 18 Johns. 49; 6 Dowl. P. C. 181; 3 Hill, 657, note.

2025. When writ to issue without application.— Where a justice of the supreme court, in court or out of court, has evidence, in a judicial proceeding taken before him, that any person is illegally imprisoned or restrained in his liberty, within the State; or where any other judge, authorized by this article to grant the writs, has evidence, in like manner, that any person is thus imprisoned or restrained, within the county where the judge resides; he must issue a writ of habeas corpus or a writ of certiorari, for the relief of that person, although no application there for has been

made.

Id., 30.

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2026. Return; its contents. The person upon whom either writ has been duly served, must state, plainly and unequivocally, in his return:

1. Whether or not, at the time when the writ was served, or at any time theretofore or thereafter, he had in his custody, or under his power or restraint, the person for whose relief the writ was issued.

2. If he so had that person, when the writ was served, and still has him, the authority and true cause of the imprisonment or restraint, setting it forth at length. If the prisoner is detained by virtue of a mandate, or other written authority, a copy thereof must be annexed to the return, and, upon the return of the writ, the original must be produced, and exhibited to the court or judge.

3. If he so had the prisoner at any time, but has transferred the custody or restraint of him to another, the return must conform to the return required by the second subdivision of this section, except that the sub

stance of the mandate or other written authority may be given, if the original is no longer in his hands; and that the return must state particularly to whom, at what time, for what cause, and by what authority, the transfer was made.

The return must be signed by the person making it, and, unless he is a sworn public officer, and makes his return in his official capacity, it must be verified by his oath.

Id.. 32. Matter of Stacy, 10 Johns. 228; People v. Nevins, 1 Hill, 154; 3 id. 657, note: Matter of Belt, 1 Park. 169; s. c., N. Y. Leg. Obs. 80; People v. Mercein, 8 Paige, 47.

§ 2027. Habeas corpus; body of prisoner to be produced, unless, etc. The person, upon whom a writ of habeas corpus has been duly served, must also bring up the body of the prisoner in his custody, according to the command of the writ; unless he states, in his return, that the prisoner is so sick or infirm, that the production of him would endanger his life or his health.

Id., 33 and part of 249.

2028. Proceedings on disobedience of writ.— Where a person, who has been duly served with either writ, refuses or neglects, without sufficient cause shown by him, fully to obey it, as prescribed in the last two sections, the court or judge, before which or whom it is made returnable, upon proof of the due service thereof, must forthwith issue a warrant of attachment, directed generally to the sheriff of any county where the delinquent may be found, or, if the delinquent is a sheriff, to any coroner of his county, or to a particular person specially appointed to execute the warrant, and desig nated therein; commanding such officer or other person forthwith to apprehend the delinquent, and bring him before the court or judge. Upon the delinquent being so brought up, an order must be made, committing him to close custody in the jail of the county in which the court or judge is; or, if he is a sheriff, in the jail of a county, other than his own, designated in the order; and, in either case, without being allowed the liberties of the jail. The order must direct that he stand committed, until he makes return to the writ, and complies with any order, which may be made by the court or

judge, in relation to the person for whose relief the writ was issued.

Id., 34 and 35.

2029. Id.; precept to bring up prisoner.— The court or judge may also, in its or his discretion, at the time when the warrant or attachment is issued, or afterwards, issue a precept to the sheriff, coroner, or other person, to whom the warrant is directed, commanding him forthwith to bring before the court or judge the person for whose benefit the writ was granted, who must thereafter remain in the custody of the officer or person executing the precept, until discharged, bailed, or remanded, as the court or judge directs.

Id., 36.

§ 2030. Id.; power of county may be called.— The sheriff, coroner, or other person, to whom a warrant of attachment or precept is directed, as prescribed in either of the last two sections, may, in the execution thereof, call to his aid the power of the county, as the sheriff may do, in the execution of a mandate issued from a court of record.

Id., 37.

2031. Proceedings on return of habeas corpus. The court or judge, before which or whom the prisoner is brought by virtue of a writ of habeas corpus, issued as prescribed in this article, must, immediately after the return of the writ, examine into the facts alleged in the return, and into the cause of the imprisonment or restraint of the prisoner; and must make a final order to discharge him therefrom, if no lawful cause for the imprisonment or restraint or for the continuance thereof, is shown; whether the same was upon a commitment for an actual or supposed criminal matter, or for some other cause.

Id., 22 38 and 39. Squires' Case, 12 Abb. 38; People v. Cooper, 1 Duer, 709; s. c., 11 N. Y. Leg. Obs. 223; 3 Hill, 658, note: Bennac v. People, Barb. 31 Matter of Da Costa, 1 Park, 129; s. c., 5 N. Y. Leg. Obs. 294; Matter of Lagrave, 45 How. 301; Ex parte Badgley, 7 Cow. 472; People v. Potter, I Park. 47; s. c., 4 N. Y. Leg. Obs. 177: Matter of Baker, 11 How. 418; People v. Cavanaugh, 2 Abb. 84; s. c., 2 Park. 650; People v. Nevins, Hill, 154; People v. Cassels, 5id. 164; Matter of Bruni, 1 Barb. 187 Matter of Hayward, 1 Sandf. 701; s. c., Code R. 45; Ex parte Haller, 3 Abb. N. C. 65; People v. Brennan, 61 Barb. 540; People v. Hicks, 15 id. 153, 163; People v. Cassels, 5 Hill, 164.

§ 2032. When prisoner to be remanded. — The court or judge must forthwith make a final order to remand the prisoner, if it appears that he is detained in custody for either of the following causes, and that the time for which he may legally be so detained has not expired:

1. By virtue of a mandate issued by a court or a judge of the United States, in a case where such courts or judges have exclusive jurisdiction.

2. By virtue of the final judgment or decree of a competent tribunal, of civil or criminal jurisdiction; or the final order of such a tribunal, made in a special proceeding, instituted for any cause, except to punish him for a contempt; or by virtue of an execution or other process, issued upon such a judgment, decree, or final order.

3. For a criminal contempt, defined in section 8 of this act, and specially and plainly charged in a commitment, made by a court, officer, or body, having authority to commit for the contempt so charged.

Id., 40. Gorsline's Case, 21 How. 85; s. c., 10 Abb. 282; People v. Richardson, 18 How. 92; 8. c., 4 Park. 656; 9 Abb. 393, note; People v. Hicks, 15 Barb. 153, 163; People v. Cassels, 5 Hill, 164; Matter of Baker, 11 How. 418.

§ 2033. When to be discharged in civil cases.- If it appears upon the return, that the prisoner is in cus tody, by virtue of a mandate in a civil cause, he can be discharged, only in one of the following cases :

1. Where the jurisdiction of the court which, or of the officer who, issued the mandate, has been exceeded, either as to matter, place, sum, or person.

2. Where, although the original imprisonment was lawful, yet by some act, omission, or event, which has taken place afterwards, the prisoner has become entitled to be discharged.

3. Where the mandate is defective in a matter of substance required by law, rendering it void.

4. Where the mandate, although in proper form, was issued in a case not allowed by law.

5. Where the person, having the custody of the pris oner under the mandate, is not the person empowered by law to detain him.

6. Where the mandate is not authorized by a judg

ment, decree, or order of a court, or by a provision of law.

Id., 241. People v. Cooper, 1 Duer, 709; see 3 Hill, 666, note 29; Ex parte Badgley, 7 Cow. 472; People v. Potter, 1 Park. 47; s. c., 4 N. Y. Leg. Obs. 177; Matter of Baker, 11 How. 418; People v. Cavanaugh, 2 Abb. 81; s. c.,2 Park, 650; People v. Nevins, 1 Hill, 154; People v. Cassels, 5 id. 164; Matter of Bruni, 1 Barb. 187: Matter of Hayward, 1 Sandf. 701; Matter of Rutter, 7 Abb. N. S. 67; People v. Spalding, 10 Paige, 24; 8. C., 7 Hill, 301; Case of Yates, 4 Johns. 317; Yates v. Lansing, 1, 282; 8. C., 9 id. 395; Cable v. Cooper 15 id. 152; People v. Jacob, 5 Hun, 428: 8. C., 66 N. Y. 8.

$2034. The last section qualified. But a court or judge, upon the return of a writ issued as prescribed in this article, shall not inquire into the legality or justice of any mandate, judgment, decree, or final order, specified in the last section but one, except as therein stated.

Id., 8 42.

§ 2035. Proceedings on irregular commitment. — If it appears that the prisoner has been legally committed for a criminal offence, or if he appears by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offence, although the commitment is irregular, the court or judge, before which or whom he is brought, must forthwith make a final order, to discharge him upon his giving bail, if the case is bailable; or, if it is not bailable, to remand him. Where bail is given pursuant to an order, made as prescribed in this section, the proceedings are the same as upon the return to a writ of certiorari, where it appears that the prisoner is entitled to be bailed.

Id., 43. Matter of Gorsline, 21 How. 85; 8. c., 10 Abb. 282; People v. Chapman, 30 How. 202; Ex parte Tayloe, 5 Cow. 39; People v. Bulge, 5 Park. 519; People v. Van Horne, 8 Barb. 155; People v. Baker, 10 How. 567; People v. Bigler, 3 Park. 316; People . Perry, 8 Abb. N. S. 28; People v. Goodwin, 5 City Hall Recorder, 11; People v. Donahue, 14 Hun, 133.

§ 2036, Id.; when prisoner may be committed to another officer. - Where a prisoner is not entitled to his discharge, and is not bailed, he must be remanded to the custody, or placed under the restraint, from which he was taken, nnless the person, in whose custody, or under whose restraint he was, is not lawfully entitled thereto; in which case, the order remanding him must commit him to the custody of the officer or person so entitled.

Id.. 44.

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