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or made payable out of the estate devised, before resorting to the personal estate, or to any other real estate descended or devised.

Creditors $ 160. It shall be incumbent on the creditor seeking to charge any devisees, to show on the trial the facts and circumstances herein required to render them liable.

Proceedings against de

visees.

Real estate aliened not affected by

decree.

When child born after

entitled to portion of

estate.

S 161. The provisions herein contained with regard to heirs, and to proceedings by and against them, shall be applicable to suits and proceedings against devisees, who shall in like manner be sued jointly.

$ 162. Devisees shall be liable, in the same manner and to the same extent, as heirs, notwithstanding they may have aliened the real estate devised before suit brought against them; but no real estate aliened in good faith by any devisee before the commencement of a suit against him, shall be liable to execution upon or in any manner affected by a decree against such devisee.

$ 163. In cases where, by the provisions of any statute, a child making will born after the making of a will shall be entitled to succeed to a portion of the testator's real and personal estate, such child shall have the same rights and remedies to compel a distribution of the personal estate and partition of the real estate, as are provided by law for the next of kin and for heirs, and shall in all respects be liable in the same manner and to the same extent to the creditors of his ancestor, in respect to the personal property delivered to him and the real estate descended to him, as are herein prescribed in relation to next of kin and heirs.

Ib..

Ib.

Ib.

Ib. to apply to witness entitled to

$ 164. Such child shall be authorized to recover of the legatees who may have received any property or effects of the testator, the portion of such property or effects to which he may be entitled, by an action of replevin, or of trover or assumpsit, as the case may require: and shall also be entitled to recover of the devisees of any real estate, under the will of the testator, such portion of such real estate as shall belong to him.

$ 165. In cases where a distribution of such personal estate shall not have been made by the judge of probate to any such child born after the making of a will, the court shall have power to compel the same; and the said court shall have power also to compel just and equal contribution by the legatees under such will, to make up the portion of personal property to which such child shall be entitled.

$166. The court shall also have power to compel partition between the devisees of any real estate, and such child so entitled to a portion of such real estate, so as to enforce a just and proportionate contribution by each devisee.

S 167. The foregoing provisions relative to a child born after the making of a will, shall apply equally in all respects to every person share of es- who being a witness to a will, shall be entitled by the provisions of any statute to recover any portion of the personal or real estate of the testator from the legatees and devisees named in such will.

Penalty for

bringing vexatious suits, &c.

$ 168. Every person who shall, for vexation and trouble or maliciously, cause or procure any other to be arrested, attached or in any way proceeded against, by any process or proceeding at law or in equity, or in any other manner prescribed by law, to answer to the suit or prosecution of any person, without the consent of such person, or where there is no such person known, shall forfeit to the person so arrested, attached or proceeded against, treble the damages and expenses, which, by any verdict, shall be found to have been sustained and incurred by him, and shall forfeit to the person in whose name such arrest or proceeding was had, two hundred and fifty dollars, and shall be deemed guilty of a misdemeanor, punishable, on conviction, by imprisonment for a time not exceeding six months.

AN ACT concerning the writ of habeas corpus.

to

$ 1. Every person imprisoned or otherwise restrained of his liberty, Persons imexcept in the cases in the following section specified, may prosecute prisoner of a writ of habeas corpus, according to the provisions of this act, to ob- habeas cortain relief from such imprisonment or restraint, if it shall prove to be unlawful.

pus.

$2. The following persons shall not be entitled to prosecute such who not en. writ: Persons committed or detained by virtue of the final judgment titled to writ or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree; but no order of commitment for any alleged contempt, or upon proceedings as for contempt, to enforce the rights or remedies of any party, shall be deemed a judgment or decree within the meaning of this section, nor shall any attachment or other process issued upon any such order be deemed an execution within the meaning of this section.

whom and to

$ 3. Application for such writ shall be made by petition signed Application either by the party for whose relief it is intended, or by some person in w his behalf, as follows: To any judge of the supreme or district courts, whom made. or any supreme court commissioner, being 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 have refused to grant such writ, then to some officer having such authority residing in any adjoining county.

make oath,

$ 4. Whenever application for any such writ shall be made to any applicant officer not residing within the county where the prisoner shall be de- when to tained, he shall require proof by the oath of the party applying, or by &c. other sufficient evidence, that there is no officer in such county authorized to grant the writ, or if there be one, 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.

$ 5. The petition must state in substance,

What peti tion for writ

Ist. That the person in whose behalf the writ is applied for is im- must state.

prisoned or restrained in his liberty, the officer or person by whom he is so confined or restrained, and the place where, naming both parties if their names are known, or describing them if they are not.

2d. That such person is not committed or detained by virtue of any process, judgment, decree or execution specified in the second section

of this act.

3d. The cause or pretence of such confinement or restraint, according to the best of the knowledge and belief of the party.

4th. If the confinement or restraint is by virtue of any warrant, order or process, a copy thereof must be annexed, or it must be averred that by reason of such prisoner's being removed or concealed before the application, a demand of such copy could not be made, or

Writ to be granted without delay.

Form of writ.

Writ not to

that such demand was made and the legal fees therefor tendered to the officer or person having such prisoner in his custody, and that such copy was refused.

5th. If the imprisonment be alleged to be illegal, the petition must also state in what the alleged illegality consists.

6th. It must be verified by the oath of the party making the application.

$6. Any officer empowered to grant any writ applied for under this act, to whom such petition shall be presented, shall 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 act prohibited from prosecuting such writ.

$7. Every writ of habeas corpus issued under the provisions of this act, shall be substantially in the following form :

"The United States to the sheriff of, &c. (or to A. B.)

"You are hereby commanded to 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 E. F. judge of the district court (or supreme court commissioner 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."

$ 8. Such writ of habeas corpus shall not be disobeyed for any be disobey defect of form. It shall be sufficient,

ed for any

defect of

form.

Penalty for refusing

writ.

What person

on whom

writ is serv

ed to state

in return.

1st. 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.

2d. If the person who is directed to be produced be designated by name, or if his name be uncertain or unknown, he may be described in any other way so as to designate the person intended.

$ 9. If any officer authorized by the provisions of this act to grant writs of habeas corpus shall wilfully refuse to grant such writ when legally applied for, he shall forfeit for every such offence, to the party aggrieved, one thousand dollars.

$ 10. The person upon whom any such writ shall have been duly served, shall state in his return, plainly and unequivocally,

1st. Whether he have or have not the party in his custody, or under his power or restraint.

2d. 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.

3d. 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 officer before whom the same is returnable.

4th. 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.

The return must be signed by the person making the same and except where such person shall be a sworn public officer, and shall make his return in his official capacity, it shall be verified by his oath.

bring body

$ 11. The person or officer on whom the habeas corpus shall have officer to been served, shall also bring the body of the person in his custody, in certain according to the command of such writ, except in the case of the cases. sickness of such person, as hereinafter provided.

sing to obey imprisoned.

$ 12. If the person upon whom such writ shall have been duly Person refuserved, shall refuse or neglect to obey the same by producing the writ, to be party named in such writ, and making a full and explicit return to every such writ within the time required by the provisions of this act, and no sufficient excuse shall be shown for such refusal or neglect, it shall be the duty of the 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, directed to the sheriff of any county in this territory, and commanding him forthwith to apprehend such person, and to bring him immediately before such officer; and on such person being so brought, he shall be committed to close custody in the jail of the county in which such officer shall be, without being allowed the liberties thereof, until he shall make return to such writ, and comply with any order that may be made by such officer in relation to the person for whose relief such writ shall have been issued.

when direct

ner.

$ 13. If a sheriff of any county shall have neglected to return Attachment, such writ, the attachment may be directed to any coroner or other ed to coro. 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.

Officer to

before him.

$ 14. The officer by whom any such attachment may be issued, eerson may also at the same time or afterwards, issue a precept to the same brought sheriff or other person to whom such attachment shall have been directed, commanding him to bring forthwith before such officer, the party for whose benefit such writ 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 officer shall direct.

have power

$ 15. In the execution of such attachment or precept, or of either Sheriff to of them, the sheriff or other person to whom they shall be directed, of county. may call to his aid the power of the county, as in other cases.

confinement

$ 16. The officer before whom the party shall be brought on such Cause of writ, shall immediately after the return thereof, proceed to examine inquired into 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 upon commitment for any criminal or supposed criminal matter

or not.

set at liberty.

$ 17. If no legal cause be shown for such imprisonment or restraint, When party or for the continuation thereof, such officer shall discharge such party from the custody or restraint under which he is held.

S 18. It shall be the duty of the officer forthwith to remand such in what party, if it shall appear that he is detained in custody, either,

cases party remanded.

In what cases prisoner discharged.

Ne inquiry as to legality

of decree.

Party when to be bailed.

When party placed in custody.

In custody

of sheriff

1st. By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction; or

2d. By virtue of the final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree; or

3d. For any contempt specially and plainly charged in the commitment, by some court, officer or body having authority to commit for the contempt so charged; and

4th. That the time during which such party may be legally detained has not expired.

$ 19. If it appear on the return that the prisoner is in custody by virtue of civil process of any court legally constituted, or issued by any officer in the course of judicial proceedings before him authorized by law, such prisoner can only be discharged in one of the following

cases:

1st. Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person.

2d. 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 be discharged.

3d. Where the process is defective in some matter of substance required by law, rendering such process void.

4th. Where the process, though in proper form, has been issued in a case not allowed by law.

5th. Where the person having the custody of the prisoner under such process, is not the person empowered by law to detain him; or 6th. Where the process is not authorized by any judgment, crder or decree of any court, nor by any provision of law.

$ 20. But no officer on the return of any habeas corpus issued under this act, shall have power to inquire into the legality or justice of any judgment, decree or execution specified in the preceding second section.

$ 21. If it appear that the party has been legally committed for any criminal offence, or if he appear by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offence, although the commitment be irregular, the officer before whom such party shall be brought, shall proceed to let such party to bail, if the case be bailable and good bail be offered, or if not, shall forthwith remand such party.

$ 22. If the party be not entitled to his discharge and be not bailed, the officer shall remand him to the custody or place him under the restraint from which he was taken, if the person under whose custody or restraint he was, be legally entitled thereto; if not so entitled he shall be committed by such officer to the custody of such officer or person as by law is entitled thereto.

§ 23. Until judgment be given upon the return, the officer before till judgment whom such party shall be brought, may either commit such party to

given.

rested to

the custody of the sheriff of the county in which such officer shall be, or place him in such care or under such custody as his age and other circumstances may require.

Person inte- $ 24. When it appears from the return to any such writ, that the have notice. party named therein is in custody on any process under which any

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