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under the restraint from which he was taken, if such custody or restraint be legal, or otherwise place him in the custody or power of such person, as by the law of the state, is entitled thereto.

ART. 37. If the judge cannot immediately determine the case, he may, until judgment be given on the return, either place him in the custody of the sheriff of the parish where the return is made, or place him under such care, and in such custody, as his age or other circumstances may require.

Art. 38. If it be shewn by the return that the person is detained by virtue of an informal or void commitment, yet if from the documents on which it was made, or from other proof, it appear that there is good cause for commitment, the prisoner shall not be discharged-but the judge or court before whom he is brought, shall either commit him for trial, or admit him to bail, in cases where, by law, he may be bailed.

Art. 39. In order to enable the judge before whom a return to a writ of habeas corpus is made, to perform the duty required by the last preceding section, the officer having the custody of any person committed for any offence, for whose relief such writ is granted, must shew the same to the magistrate who made the commitment, or to the clerk of the court (if the papers relative to the commitment have been delivered to him), and it shall thereupon be the duty of such magistrate or clerk, to attend at the hour and place of the return, and exhibit to the judge or court, to which the same is made, all


the proofs and documents relative to the said commitment; and if such magistrate or clerk neglect to attend, the judge or court is authorised, on proof of his having had the notice required by this article, to enforce his attendance by warrant of arrest, and the party when arrested, shall be kept in custody until he perform the duty required by this article.

Art. 40. When it appears by the return that the

person soliciting his discharge, is in custody, on any civil process, or that any other person has an interest in continuing his imprisonment or restraint, no order shall be given for his discharge, until it appear that the plaintiff, in such civil suit, or the person so interested, or their attornies or agents, if either are within twenty miles, have had reasonable notice of the issuing and return of such writ of habeas corpus.

ART. 41. The party brought before the judge on the return of the habeas corpus, may deny any of the material facts set forth in the return, or allege any fact, to shew either that the imprisonment or detention is unlawful, or that he is then entitled to his discharge, which allegations or denials must be on oath-and thereupon the judge shall proceed in summary way, to hear testimony, and the arguments, as well of the party interested, civilly, if ány there be, as of the prisoner, and the person who holds him in custody, and shall dispose of the prisoner as the case may require.

ART. 42. If it appear on the return, that the prisoner is in custody by virtue of process from any


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court legally constituted, he can be discharged only in one of the following cases :

1. Where the court has exceeded the limits of its jurisdiction, either as to matter, place, sum, or person.

2. 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 his liberty.

3. Where the process is defective in some substantial form required by law.

4. Where the process, though in proper form, has been issued in a case, or under circumstances where the law does not allow process or orders for imprisonment or arrest to issue.

3. Where, although in proper form, the process has been issued or executed by a person either unauthorised, or improperly authorised to issue or execute the same, or where the person having the custody of the prisoner under such process, is not the person empowered by law to detain him.

6. Where the process appears to have been obtained by false pretences or bribery.

7. Where there is no general law, nor any judgment, order, or decree of a court, to authorise the process, if in a civil suit, nor any conviction, if in a criminal proceeding.

But no judge or court, on the return of a habeas corpus, shall in any other matter inquire into the legality or justice of a judgment

judgment or decree of a court, legally constituted, and in all cases where it appears that there is a sufficient legal cause for the

commitment of the prisoner for an offence, although it may have been informally made, or without due authority, or the process may have been executed by a person not duly authorised, the judge shall make a new commitment, in proper form, and directed to the proper officer, or admit the party to bail, if the case be bailable.

ART. 43. The order of discharge made by a court or judge, on the return of a habeas corpus, has no other effect than that of restoring the party to liberty, and securing him from any future imprisonment or restraint for the same cause; it is not conclusive, as to any other civil right, except with respect to persons claimed as slaves, which is herein specially provided for.

ART. 44. No person who has been discharged by order of a court or judge, on a habeas corpus, shall be again imprisoned, restrained, or kept in custody for the same cause, unless he be afterwards indicted for the same offence. But it shall not be deemed to be the same cause,

1. If after a discharge for defect of proof, or for any material defect in the commitment, in a criminal case, the prisoner should be again arrested on sufficient proof, and committed by legal process for the same offence.

2. If in a civil suit, the party has been discharged for any illegality in the judgment or process, and is afterwards imprisoned by legal process, for the same cause of action.

3. Generally, whenever the discharge has been ordered on account of the non-observance of

any of

the forms required by law, the party may be a second time imprisoned, if the cause be legal, and the forms required by law observed.

ART. 45. When a judge, authorised to grant writs of habeas corpus, shall be satisfied that any person in legal custody, on a charge for any offence, is afflicted with a disease, which will render a removal necessary for the preservation of his life, such judge may order his removal, on his giving bail with two securities, in such sum as shall be ordered by the judge, that he will surrender himself to the same custody, whenever he shall be there. unto required, or the judge may in such case, where the prisoner is manifestly unable to procure bail, put him in the custody of an executive officer of justice, whose duty it shall be to watch over the said prisoner in the place to which he may be removed, to prevent his escape. Provided, that the fact of such disease, and the necessity of removal, shall appear by the oaths of two physicians or surgeons duly admitted to practice, and that the phy. sician who shall attend on such prisoner after his removal shall also take an oath that he will give notice to a magistrate as soon as in his opinion the said prisoner may safely be returned to his imprisonment, which magistrate shall, on receiving such notice, issue a warrant for his removal to the place in which he was formerly confined.

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