TITLE XXV. OF WRITS OF HABEAS CORPUS, SCIRE FACIAS, INFORMATIONS, TITLE XXV. CHAPTER 134. Chapter 134. Of the Writs of Habeas Corpus and Certiorari. Chapter 136. Of Informations in the nature of a Quo Warranto, and Chapter 137. Of Writs of Mandamus and Prohibition. CHAPTER 134. OF THE WRITS OF HABEAS CORPUS AND CERTIORARI. Habeas Corpus to bring up a Person to Testify. SECTION 1. Every court of record shall have power, upon the ap- Habeas corpus to plication of any party in any suit or proceedings, civil or criminal, testify. pending in such court, to issue a writ of habeas corpus for the purpose of bringing before such court any prisoner who may be detained in any jail or prison within this state, for any cause except a sentence for a felony, to be examined as a witness in such suit or proceeding, in behalf of the party making such application. SEC. 2. Every such application shall be verified by affidavit, and shall state, 1. The title and nature of the suit or proceeding, in regard to which the testimony of such prisoner is desired: and, 2. That the testimony of such prisoner is material and necessary to such party on the trial or hearing of such suit or proceeding, as he is advised by counsel, and verily believes : But if the the application be made by the attorney general or prosecuting attorney, it shall not be necessary to swear to such advice of counsel. Application, how made. SEC. 3. Such writ may also be issued by any justice of the su- Officers who preme court, or any officer authorized to perform the duties of such may allow writ. justice, upon the like application of a party to any suit or proceeding pending in a court of record, or pending before any officer or body who may be authorized to examine witnesses in any suit or proceeding. issued in SEC. 4. Such writ may also be issued by any of the officers afore- When to be said, upon the application of a party to a suit before any justice of the peace, to bring any prisoner confined in the jail of the same ces 7 Wend., 132, TITLE XXV. CHAPTER 134. Certain prisoners Liability for disobeying habeas corpus. Who may sue writ. Who not entitled to sue writ. Application for writ. county, or the county next adjoining that where such justice may reside, before such justice, to be examined as a witness. SEC. 5. Whenever any person shall be in execution on any civil process, or committed on any criminal charge, and a writ of habeas corpus shall be issued to bring the body of such prisoner before any court, officer or body to testify, or to answer for any contempt or any other matter, and it be returned upon the writ that the prisoner is charged in execution, or committed as aforesaid, he shall be remanded after having testified; and if any order of commitment be made. against such prisoner, he shall be so committed to the prison from which he was taken. SEC. 6. Whenever any writ of habeas corpus shall be issued pursuant to any of the foregoing provisions of this chapter, it shall be the duty of the officer to whom the same shall be delivered to obey and return such writ according to the command thereof, in the manner and within the time prescribed by law; and every officer who shall neglect or refuse so to do, shall be liable to the people of this state, when the writ was issued upon the application of the attorney general, or a prosecuting attorney, and in other cases to the party upon whose application the same shall have issued, in the sum of five hundred dollars. Habeas Corpus and Certiorari to inquire into cause of Detention. SEC. 7. Every person committed, detained, confined or restrained of his liberty within this state, for any criminal, or supposed criminal matter, or under any pretence whatsoever, except in the cases in the next section specified, may prosecute a writ of habeas corpus or of certiorari according to the provisions of this chapter, to inquire into the cause of such imprisonment or restraint. SEC. 8. The following persons shall not be entitled to prosecute such writ: 1. Persons committed or detained by virtue of any process issued by any court of the United States, or any judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States, or shall have acquired exclusive jurisdiction by the commencement of suits in such courts: 2. Persons committed for treason or felony, or for suspicion thereof, or as accessories before the fact to a felony, where the cause is plainly and specially expressed in the warrant of commitment: 3. Persons convicted, or in execution, upon legal process, civil or criminal: 4. Persons committed on original process in any civil action on which they were liable to be arrested and imprisoned, unless when excessive and unreasonable bail is required. SEC. 9. Application for such writ shall be made by petition, signed either by the party for whose relief it is intended, or by some person in his behalf, as follows: 1. To the supreme court, during its sitting: or, 2. During any term or vacation of the supreme court, to any one of the justices of the supreme court, or any officer who may be authorized to perform the duties of a justice of the supreme court at chambers, circuit court commissioner, or a judge of a circuit court, being or residing within the county where the prisoner is detained; or if there be no such officer within such county, or if he be absent, or for any cause be incapable of acting, or having refused to grant such writ, then to some officer having such authority residing in any adjoining county. TITLE XXV. CHAPTER 134. another county. SEC. 10. Whenever application for any such writ shall be made to Proof required any officer not residing within the county where the prisoner shall be on application in detained, he shall require proof by the oath of the party applying, or by other sufficient evidence, that there is no such officer in such county authorized to grant such writ, or if one reside there, that he is absent, or has refused to grant such writ, or for some cause to be specially set forth, is incapable of acting; and if such proof be not produced the application shall be denied. Contents of peti verified. SEC. 11. The petition must state in substance, 1. That the person in whose behalf the writ is applied for, is im- tion and how prisoned or restrained of his liberty; the officer or person by whom he is so confined or restrained, and the place where; naming both parties if their names be known, or describing them if their names be not known: 2. That such person is not committed or detained by virtue of any process, judgment, decree or execution specified in the preceding eighth section: 3. The cause or pretence of such confinement or restraint, according to the best of the knowledge and belief of the party : 4. If the confinement be by virtue of any warrant, order or process, a copy thereof must be annexed; or it must be averred, that for some sufficient reason, a demand of such copy could not be made; or that such demand was made, and that such copy was refused: 5. If the imprisonment be alleged to be illegal, the petition must also state in what the alleged illegality consists: 6. It must specify whether the party applies for the writ of habeas corpus, or for the writ of certiorari: and, 7. It must be verified by the oath of the party making the applica tion. SEC. 12. Any court or officer empowered to grant any writ applied when writ to be for under this chapter, to whom such petition shall be presented, shall granted. grant such writ without delay, unless it shall appear from the petition itself, or from the documents annexed, that the party applying therefor, is, by the provisions of this chapter, prohibited from prosecuting such writ. SEC. 13. Every writ of habeas corpus, issued under the provisions Form of habeas of this chapter, for the purpose of inquiring into the cause of any im- corpus. prisonment or restraint, shall be substantially in the following form: "In the name of the people of the State of Michigan: To the sheriff of the county of (or 'to A. B.') We command you, that you have the body of C. D. by you imprisoned and detained as it is said, together with the time and cause of such imprisonment and detention, by whatsoever name the said C. D. shall be called or charged, before our justices of our supreme court, (or 'before E. F., one of the justices of our supreme court,' or as the case may be,) at, &c., on &c., (or 'immediately after the receipt of this writ') to do and receive what shall then and there be considered concerning the said C. D. And have you then there this writ. Witness, &c." Form of certio SEC. 14. Every writ of certiorari, issued pursuant to this chapter, rari. shall be subtantially in the following form: TITLE XXV. CHAPTER 134. When writs sufficient. Duty of judges certain cases. "In the name of the people of the state of Michigan : To the sheriff of &c., (or 'to A. B.') We command you that you certify fully and at large to our justices of our supreme court, (or to E. F., one of the justices of our supreme court,' or as the case may be,) at &c., on &c., (or 'immediately after the receipt of this writ,') the day and cause of the imprisonment of C. D. by you detained, as is said, by whatsoever name the said C. D. shall be called or charged. And have you then there this writ. Witness, &c." SEC. 15. Such writs of habeas corpus or certiorari shall not be disobeyed for any defect of form; but they shall be sufficient, 1. If the person having the custody of the prisoner be designated either by his name of office, if he have any, or by his own name; or if both such names be unknown or uncertain, he may be described by an assumed appellation; and any one who may be served with the writ shall be deemed the person to whom it is directed, although it may be directed to him by a wrong name or description, or to another person: 2. If the person imprisoned or restrained, or who is directed to be produced, be designated by name; or if his name be uncertain or unknown, if he be described in any other way, so as to designate the person intended. SEC. 16. When the supreme court, or any justice thereof, or judge to issue writs in of a circuit court shall have evidence from any judicial proceeding had before them, that any person within the county where such court or officer shall be, is illegally confined and restrained of his liberty, it shall be the duty of such court or officer to issue a writ of habeas corpus or certiorari for his relief, although no petition be presented, or application made for such writ. Liability for refusing writ. Return to writ. Return to be signed, and when to be sworn to. SEC. 17. If any court or officer authorized by the provisions of this chapter to grant writs of habeas corpus or certiorari, to inquire into the cause of any imprisonment or detention, shall refuse to grant such writ when legally applied for, every member of such court who shall have assented to such refusal, and every such officer, shall severally be liable to the party aggrieved, in one thousand dollars damages. SEC. 18. The person upon whom any such writ shall have been duly served, shall state in his return, plainly and unequivocally, 1. Whether he have, or have not, the party in his custody, or under his power or restraint: 2. If he have the party in his custody or power, or under his restraint, the authority and true cause of such imprisonment or restraint, setting forth the same at large : 3. If the party be detained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return; and the original shall be produced and exhibited on the return of the writ to the court or officer before whom the same is returnable: 4. If the person upon whom such writ shall have been served, shall have had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, the return shall state particularly to whom, at what time, for what cause, and by what authority such transfer took place. SEC. 19. The return must be signed by the person making the same; and except when such person shall be a sworn public officer, and shall make his return in his official capacity, it shall be verified TITLE XXV. by his oath. CHAPTER 134. when to be SEC. 20. If a writ of habeas corpus be issued, the person or officer Body of prisoner, on whom it shall have been served, shall also bring the body of the brought up. person in his custody, according to the command of such writ, except in case of the sickness of such person as hereinafter provided. disobedience of SEC. 21. If the person upon whom such writ of habeas corpus or Proceedings on certiorari shall have been duly served, shall refuse or neglect to obey writ. the same by producing the party named in any such writ of habeas corpus, and making a full and explicit return to every such writ of habeas corpus or certiorari within the time required by this chapter, and no sufficient excuse shall be shown for such refusal or neglect, it shall be the duty of the court or officer before whom such writ shall have been made returnable, upon due proof of the service thereof, forthwith to issue an attachment against such person. SEC. 22. Such attachment shall be directed to the sheriff of any Ib. county within this state, and shall command him forthwith to apprehend such person, and bring him before such court or officer, and on being so brought, such person shall be committed to close custody in the jail of the county in which such court or officer shall be, without being allowed the liberties thereof, until he shall make return to such writ, and comply with any order which may be made by such court or officer, in relation to the person for whose relief such writ shall have been issued. SEC. 23. If a sheriff of any county shall have neglected to return Proceedings such writ, the attachment may be directed to any coroner or other against sheriff. person, to be designated therein, who shall have full power to execute the same; and such sheriff, upon being brought up, may be committed to the jail of any county other than his own, produced. SEC. 24. The court or officer by whom any such attachment may Prisoner to be be issued, may also, at the same time, or afterwards, issue a precept to the same sheriff, or other person to whom such attachment shall have been directed, commanding him to bring forthwith before such court or officer, the party for whose benefit such writ of habeas corpus or certiorari shall have been allowed; who shall thereafter remain in the custody of such sheriff or person, until he shall be discharged, bailed, or remanded, as such court or officer shall direct. SEC. 25. In the execution of such attachment or precept, or either Power of the of them, the sheriff or other person to whom they shall be directed, county. may call to his aid the power of the county as in other cases. SEC. 26. The court or officer before whom the party shall be Proceedings on brought on such writ of habeas corpus, shall, immediately after the return of writ. return thereof, proceed to examine into the facts contained in such return, and into the cause of the confinement or restraint of such party, whether the same shall have been for any criminal, or supposed criminal matter, or not. SEC. 27. If no legal cause be shown for such imprisonment or re- When prisoner straint, or for the continuation thereof, such court or officer shall dis- to be discharged. charge such party from the custody or restraint under which he is held. SEC. 28. It shall be the duty of such court or officer forthwith to When prisoner remand such party, if it shall appear that he is detained in custody, to be remanded. either, 1. By virtue of process issued by any court or judge of the Uni |