1. Where the jurisdiction of such court or officer has been exceeded, 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 be discharged.

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

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

5. Where the person, having the custody of the party under such process, is not the person empowered by law to detain him.

6. Where the process is not authorized by any judgment, order or decree of any court, nor by any provision of law.

Code, s. 1645; 1868-9, c. 116, s. 20.

Sec. 409 (1848). Party remanded, when.

It shall be the duty of the court or judge forthwith to remand the party, if it appear that he is detained in custody, either

1. 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.

2. 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.

3. 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.

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

Code, s. 1646; 1868-9, c. 116, s. 21.

Note. See s. 1822.

Sec. 410 (1849). Party bailed or remanded, when.

If it appear that the party has been legally committed for any criminal offense, or if it appear by the testimony offered with the return of the writ, or upon the hearing thereof, that the party is guilty of such an offense, although the commitment be irregular, the court or judge shall proceed to let such party to bail, if the case be bailable and good bail be offered; if not, the court or judge shall forthwith remand such party to the custody or place him under the restraint from which he was taken, if the person or officer, under whose custody or restraint he was, be legally entitled thereto; if not so entitled, the court or judge shall commit such party to the custody of the officer or person legally entitled thereto. Code, s. 1647; 1868-9, c. 116, s. 22.

Sec. 411 (1850). Party in execution not to be discharged on habeas corpus.

When a writ of habeas corpus cum causa shall issue, and the sheriff or other officer to whom it is directed shall return upon the same that the prisoner is condemned, by judgment given against him, and held in custody by virtue of an execution issued against him, the prisoner shall not be let to bail, but shall be presently remanded, where he shall remain until discharged in due course of law.

Code, s. 937; R. C., c. 31, s. 111; 2 Hen. V., c. 2.

Sec. 412 (1851). Determined in absence of party, when.

Whenever, from the illness or infirmity of the person directed to be produced by a writ of habeas corpus, such person can not, without danger, be brought before the court or judge, where the writ is made returnable, the party in whose custody he is may state the fact in his return to the writ; and if the court or judge be satisfied of the truth of the allegation and the return be otherwise sufficient the court or judge shall proceed to decide on such return. and to dispose of the matter in the same manner as if the body had been produced.

Code, s 1648; 1868-9, c. 116, s. 23.

Sec. 413 (1852). Penalty for committing for same cause.

No person who has been set at large upon any writ of habeas corpus shall be again imprisoned or detained for the same cause by any person whatsoever other than by the legal order or process of the court wherein he shall be bound by recognizance to appear or of any other court having jurisdiction in the case, under the penalty of two thousand five hundred dollars to the party aggrieved thereby. Code, s. 1651; 1868-9, c. 116, s. 26. Note. See also, ss. 3581, 3582, 3583.

VII. CUSTODY OF CHILDREN.

Sec. 414 (1853). Awarded by judge; modification of order.

When a contest shall arise on a writ of habeas corpus between any husband and wife, who are living in a state of separation, without being divorced, in respect to the custody of their children, the court or judge, on the return of such writ, may award the charge or custody of the child or children so brought before it either to the husband or to the wife, for such time, under such regulations and restrictions, and with such provisions and directions as will, in the opinion of such court or judge, best promote

the interest and welfare of the children.

At any time after the making of such orders the court or judge may, on good cause shown, annul, vary or modify the same.

Code, s. 1661; 1858-9, c. 53; 1868-9, c. 116, s. 36.

Note. For consequence of divorce on right to custody of children, see s. 1570. For effect of abandonment, see s. 180.

Sec. 415 (1854). Appeal to supreme court.

In all cases of habeas corpus, where a contest shall arise in respect to the custody of minor children, either party may appeal to the supreme court from the final judgment.

Code, s. 1662; 1858-9, c. 53, s. 2.

VIII. AD TESTIFICANDUM.

Sec. 416 (1855). Courts of record may issue.

Every court of record shall have power, upon the application of any party to any suit or proceeding, civil or criminal, pending in such court, to issue a writ of habeas corpus, for the purpose of bringing before the said court any prisoner who may be detained in any jail or prison within the state, for any cause, except such prisoner be under sentence for a capital felony, to be examined as a witness in such suit or proceeding, in behalf of the party making the application.

Code, s. 1663; 1868-9, c. 116, s. 37.

Sec. 417 (1856). Issued by justices and clerks, when.

Such writ of habeas corpus may be issued by any justice of the peace or clerk of the superior court upon application as provided in the preceding section, to bring any person confined in the jail or prison of the same county where such justice or clerk may reside, to be examined as a witness before such justice or clerk. And in cases where the testimony of any prisoner is needed in a proceeding before a justice of the peace, or a clerk, and such person be confined in a county in which such justice or clerk does not reside, application for habeas corpus to testify may be made to any judge of the supreme or superior court.

Code, s. 1664; 1868-9, c. 116, s. 38.

Sec. 418 (1857). Application, what to contain.

The application for the writ shall be made by the party to the suit or proceeding in which the writ is required, or by his agent or attorney. It must be verified by the applicant, and shall state1. The title and nature of the suit or proceeding in regard to which the testimony of such prisoner is desired.

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.

Code, s. 1665; 1868-9, c. 116, s 39.

Sec. 419 (1858). How and by whom served.

The writ of habeas corpus to testify shall be served by the same person, and in like manner in all respects, and enforced by the court or officer issuing the same as prescribed in this chapter for the service and enforcement of the writ of habeas corpus cum causa. Code, s. 1666; 1868-9, c. 116, s. 40.

Sec. 420 (1859). Applicant to pay expenses and give bond.

The service of the writ shall not be complete, however, unless the applicant for the same shall tender to the person in whose custody the prisoner may be, if such person be a sheriff, coroner, constable or marshal, the fees and expenses allowed by law for bringing such prisoner, nor unless he shall also give bond, with sufficient security, to such sheriff, coroner, constable or marshal, as the case may be, conditioned that such applicant will pay the charges of carrying back such prisoner.

Code, s. 1667; 1868-9, c. 116, s. 41.

Sec. 421 (1860). Duty of officer; penalty.

It shall be the duty of the officer to whom the writ is delivered or upon whom it is served, whether such writ be directed to him or not, upon payment or tender of the charges allowed by law, and the delivery or tender of the bond herein prescribed, to obey and return such writ according to the exigency thereof upon pain, on refusal or neglect, to forfeit to the party on whose application the same shall have been issued the sum of five hundred dollars.

Code, s. 1668; 1868-9, c. 116, s. 42.

Sec. 422 (1861). Prisoner remanded.

After having testified the prisoner shall be remanded to the prison from which he was taken.

Code, s. 1669; 1868-9, c. 116, s. 43.

Note. For costs of habeas corpus, see s. 1268.

Sec. 423 (3581). Habeas corpus; recommitting one discharged thereon. If any person shall knowingly again imprison or detain one who has been set at large upon any writ of habeas corpus, for the same cause, other than by the legal process or order of the court wherein he shall be bound by recognizance to appear, or of any other court having jurisdiction in the case, he shall be guilty of a misdemeanor.

Code, s. 1651; 1868-9, c. 116, s. 26.

Sec. 424 (3582). Habeas corpus; false return to writ.

If any person shall make a false return to a writ of habeas corpus, he shall be guilty of a misdemeanor.

Code, s. 1653; 1868-9, c. 116, s. 28.

Sec. 425 (3583). Habeas corpus; concealing party entitled to writ.

If any one having in his custody, or under his power, any party, who, by law, would be entitled to a writ of habeas corpus, or for whose relief such writ shall have been issued, shall, with intent to elude the service of such writ, or to avoid the effect thereof, transfer the party to the custody, or put him under the power of control, of another, or shall conceal or change the place of his confinement, or shall knowingly aid or abet another in so doing, he shall be guilty of a misdemeanor.

Code, s. 1654, 1655; 1868-9, c. 116, ss. 29, 30

HIRING ANOTHER'S SERVANT.

Sec. 426 (3374). Servant, hiring another's.

If any person shall knowingly hire, employ, harbor or detain in his own service any servant, employee, or wage hand of any other person, who shall have contracted in writing, or orally, for a fixed period of time to serve his employer, and who shall have left the service of his employer, in violation of his contract, he shall be guilty of a misdemeanor, and shall be civilly liable in damages to the party so aggrieved. This section shall apply to the following counties: Beaufort, Edgecombe, Person, Pitt, Washington, Warren, Vance, Pender, Halifax, Guilford, Granville, Hertford, Richmond, Wayne, Wake and Caswell.

1901, c. 682; 1903, c. 365; 1907, cc. 238, 402.

HOGS.

Sec. 427 (3297). Contagious diseases; hogs not to run at large.

If any person having swine affected with the disease known as hog cholera, or any other infectious or contagious disease, and discovering the same, or to whom notice of the fact shall be given, shall fail or neglect for five days to secure the diseased swine from the approach or contact with other hogs not so affected, by penning or otherwise securing and effectually isolating them, so that they shall not have access to any ditch, canal, branch, creek, river or