appear by such inquest to be guilty. And wherever the death of a prisoner is returned as a reason for not producing him in the return of a habeas corpus, the inquest proving such death, must be annexed to the return.

Section Fifth.

OF THE PROCEEDINGS ON THE RETURN.

ART. 33. The judge or court before whom a person is brought on a habeas corpus, shall examine the return and the papers, if any, referred to in it, and if no legal cause be shewn for the imprisonment or restraint; or if it appear, altho' legally committed, he has not been prosecuted, tried, or sentenced, within the periods for those purposes respectively limited by the chapter of this book, or that for any other cause the imprisonment or restraint cannot legally be continued, he shall discharge him from the custody or restraint under which he is held.

ART. 34. If it appear that the party has been legally committed for an offence, BAILABLE of right, or if he appear by the testimony offered with the return, to be guilty of such an offence, although the commitment be irregular, or there be no commitment, he shall bail the prisoner, if good bail be offered.

ART. 38. In cases which are NOT BAILABLE OF RIGHT, the judge has a discretion, the exercise of which in

volves an high responsibility. It must of necessity be left to his sagacity and prudence to distinguish between those presumptions, which leave a strong probability of guilt, and those which are too slight to justify imprisonment, previous to the trial. In the latter case only of presumptions, which are not strong, he may admit to bail. This discretion, however, cannot be exercised at all. 1st. Where the crime has been freely confessed before a magistrate. 2d. Where it is positively and directly charged by the oath of a credible witness present at the act. 3d. Where an indictment has been found, charging the prisoner with an offence NOT Bailable of right.

ART. 36. If the party be not entitled to his discharge, and cannot be bailed, the judge must remand him to the custody, or place him again 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. 10. 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 арpear that the plaintiff, in such civil suit, or the per

son 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 a summary way, to hear testimony, and the arguments, as well of the party interested, civilly, if any 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 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.

5. 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 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 per