whether the same issue from the office of the clerk of the district or circuit court, or of a justice. pear for bont. SEC. 3437. Any person interested in the boat may appear for Who may apthe defendant by himself, his agent or attorney, and conduct the R05. defense of the suit, and no continuance shall be granted to the C. '51, § 2123. plaintiff while the boat is held in custody. SEC. 3438. The boat may be discharged at any time before Discharge by giving bond. final judgment, by the giving a bond with sureties, to be approved R. 3706 by the officer serving the warrant, or by the clerk or justice who C. 51, ¿ 2124. issued it, in a penalty double the plaintiff's demand, conditioned. that the obligors therein will pay the amount which may be found due to the plaintiff, together with the costs. A formal entry of discharge under formally approved, if it is accepted the boad is not necessary to render by the officer and the boat released: the principal and sureties liable White v. Tisdale, 12-75. thereon. Nor need the bond bel tion. SEC. 3439. If judgment be rendered for the plaintiff before Special executhe boat is thus discharged, a special execution shall be issued R. 3707. against it. If it have been previously discharged, the execution C. '51, & 2125. shall issue against the principal and sureties in the bond without further proceedings. A judgment may be rendered against a boat and at the same time against the sureties on a bond on which the boat has been discharged: R. 3708. SEC. 3440. The officer may sell any of the furniture or append- What first to ages of the boat, if by so doing he can satisfy the demand. If he be sold. sell the boat itself, he must sell it to the bidder who will advance C. 51, 2126. the amount required to satisfy the execution, for the lowest fractional share of the boat, unless the person appearing for the boat desire a different and equally convenient mode of sale. SEC. 3441. If a fractional share of the boat be thus sold the Fractional purchaser shall hold such share or interest jointly with the other R. 23709. owners. share sold. C. '51, 2127. R. 3710. SEC. 3442. If an appeal be taken by the defendant before the Appeal. boat is discharged as above provided, the appeal bond, if one be C. 51, 2128. filed, will have the same effect in discharging the boat as the bond above contemplated, and execution shall issue against the obligors therein after judgment in the same manner. R. 3711. SEC. 3443. Nothing herein contained is intended to affect the Saving clause. rights of a plaintiff to sue in the same manner as though the pro- c. 31, 2129. visions of this chapter had not been enacted. pro Petition: allegation of. SEC. 3444. In actions commenced in accordance with the visions of this chapter, it is sufficient to allege the contract to R. 3712. have been made with the boat itself. C. '51, 2130. RAFTS. of. SEC. 3445. Any raft found in the waters of this state, shall be Rafts: liability liable for all debts contracted by the owner, agent, clerk, or pilot R. 2 5698. thereof, on account of work done or services rendered for such raft. The lien will attach under a con- | agreement that the former shall bear tract with the pilot, although between all the expenses for men, etc.: Hanson the pilot and the owner there is an v. Hiles, 34-350. Lien. R. ¿ 3699. SEC. 3446. Claims growing out of either of the above causes shall be liens upon the raft, its tackle, and appendages, for the term of twenty days from the time the right of action therefor accrued. SEC. 3447. The action may be brought directly against the Action against raft, and the same rules shall govern, and the same process shail be had in such action, as are in this chapter prescribed for actions against owners of boats. raft. R. & 3700. Appearance: what deemed. R. 4130. SEC. 3448. The execution by or for the owner of such boat or raft, of a bond, whereby possession of the same is obtained or retained by him, shall be an appearance of such owner as defendant to the action. CHAPTER 13. OF HABEAS CORPUS. SECTION 3449. The petition for the writ of habeas corpus mus. Petition sworn be sworn to, and must state: to: statements 1. That the person in whose behalf it is sought is restrained of his liberty, and the person by whom, and the place where he is so restrained, mentioning the names of the parties, if known, and if unknown, describing them with as much particularity as practicable; 2. The cause or pretense of such restraint, according to the best information of the applicant; and if it be by virtue of any legal process, a copy thereof must be annexed, or a satisfactory reason given for its absence; 3. It must state that the restraint is illegal, and wherein; 4. That the legality of the imprisonment has not already been adjudged upon a prior proceeding of the same character, to the best knowledge and belief of the applicant; 5. It must also state whether application for the writ has been before made to, and refused by, any court or judge, and if such application has been made, a copy of the petition in that case, with the reasons for the refusal thereto appended, must be produced, or satisfactory reasons given for the failure to do so. It the officer issing the writ under | which the prisoner is restrained acted under color of office, the question whether he is such officer de jure cannot be raised in a habeas corpus p:o. ceeding, but aliter, if he is a mere usurper without color of office. The right to an office cannot be contested in this proceeding: Ex parte Strahl, 16-369. Where the allegations of the petition are sufficient to authorize a wait, the judge acquires jurisdiction of the parties and the subject matter, and an order made by him is not vo d. It is but voidable, at most, and can only be attacked or changed in a direct proceeding, by appeal or otherwise: Shaw v. McHenry, 52-182. SEC. 3450. The petition must be sworn to by the person confined, or by some one in his behalf, and presented to some court or officer authorized to allow the writ. allowed. C. '51, 22215. to whom SEC. 3451. The writ of habeas corpus may be allowed by the Writ: by whom supreme, district, or circuit court, or by any judge of either of R. 3803. those courts, and may be served in any part of the state. SEC. 3452. Application for the writ must be made to the court Application: or judge most convenient in point of distance to the applicant, ode and the more remote court or judge, if applied to for the writ, R.3805. may refuse the same unless a sufficient reason be stated in the C. 51, ¿ 2217. petition for not making the application to the more convenient court, or a judge thereof. The applicant, as here contemplated in determining before what judge the application should be brought, is the person whose liberty is restrained, and not the one by whom the petition made. SEC. 3453. If, from the showing of the petitioner, the plaintiff May refuse would not be entitled to any relief, the court or judge may refuse to allow the writ. Wr.t. shall Reasons for endorsed on. SEC. 3454. If the writ is disallowed, the court or judge cause the reasons of said disallowance to be appended to the R. 80. petition and returned to the person applying for the writ. WRIT ALLOWED, C. '51, 2221. SEC. 3455. But if the petition show a sufficient ground for Form of writ. relief, and is in accordance with the foregoing requirements, the C. 51, 2219. writ shall be allowed, and may be substantially as follows: THE STATE OF Iowa, To the sheriff of, etc., [or to A.... B...., as the case may be.] You are hereby commanded to have the body of C.... D........, by you unlawfully detained, as is alleged, before the court [or before me, or before E.... F...., judge, etc., as the case may be] [or immediately after being served with this writ,] to be dealt with according to law, and have you then and there this writ, with a return thereon of your doings in the premises. at on R. 3868. SEC. 3456. When the writ is allowed by a court it is to be By court: issued by the clerk, but when allowed by a judge he must issue by judge. the writ himself, subscribing his name thereto without any seal. C. '51. 2220. SEC. 3457. Any judge, whether acting individually or as a Penalty for remember of the court, who wrongfully and wilfully refuses such allowance of the writ when properly applied for, shall forfeit to C. '51, 22:22. the party aggrieved the sum of one thousand dollars. fusing. motion. SEC. 3458. Whenever any court or judge authorized to grant Judge to issue this writ, has evidence, from a judicial proceeding before them, on his own that any person within the jurisdiction of such court or officer is R. 3811. illegally imprisoned or restrained of his liberty, such court or C. '51, 2223. judge shall issue or cause to be issued, the writ as aforesaid, though no application be made therefor. SEC. 3459. The court or officer allowing the writ, must cause District attor the district attorney of the proper county to be informed of the ney notified. issuing of the writ, and of the time and place, where and when it C. 51, 22240. is made returnable. R. 238.8. By whom. C. '51, 2224. How. R. 3813. C. '51, 2225. SERVICE. SEC. 3460. The writ may be served by the sheriff, or by any other person appointed for that purpose, in writing, by the court or judge by whom it is issued or allowed. If served by any other than the sheriff, he possesses the same power, and is liable to the same penalty for a non-performance of his duty, as though he were the sheriff. SEC. 3461. The proper mode of service is by leaving the original writ with the defendant, and preserving a copy thereof on which to make the return of service. SEC. 3462. If the defendant cannot be found, or if he have not When defend the plaintiff in custody, the service may be made upon any person having the plaintiff in his custody, in the same manner and with the same effect as though he had been made defendant therein. ant not found. R. 3814. when defend ant is con cealed. SEC. 3463. If the defendant conceal himself, or refuse admitPower of officer tance to the person attempting to serve the writ, or if he attempt wrongfully to carry the plaintiff out of the county or the state, after the service of the writ as aforesaid, the sheriff, or the person who is attempting to serve, or who has served the writ as above contemplated, is authorized to arrest the defendant, and bring him, together with the plaintiff, forthwith before the officer or court before whom the writ is made returnable. R. 3815. C. 51. & 2227. R. 3822. SEC. 3464. In order to make such arrest, the sheriff or other person having the writ, possesses the same power as is given to a sheriff for the arrest of a person charged with a felony. SEC. 3465. If the plaintiff can be found and if no one appear to have the charge or custody of him, the person having the writ may take him into custody, and make return accordingly. And to get possession of the plaintiff's person in such cases, he pos sesses the same power as is given by the last section for the arrest of the defendant. SEC. 3466. The writ of habeas corpus must not be disobeyed Want of form. for any defects of form or misdescription of the plaintiff or defendant, provided enough is stated to show the meaning and intent of the writ. C. '51, 2 2234. Penalty for eluding writ. R. 2 3811. C. '51, 2253. SEC. 3467. If the defendant attempt to elude the service of the writ of habeas corpus, or to avoid the effect thereof by transferring the plaintiff to another, or by concealing him, he shall, on conviction, be imprisoned in the penitentiary or county jail not more than one year, and fined not exceeding one thousand dollars. And any person knowingly aiding or abetting in any such act, shall be subject to the like punishment. SEC. 3468. An officer refusing to deliver a copy of any legal Refusal to give process by which he detains the plaintiff in custody, to any person who demands such copy, and tenders the fees therefor, shall forfeit two hundred dollars to the person so detained. copy of process. R. 3842. C. '51, 2254. PRECEPT. SEC. 3469. The court or judge to whom the application for When to issue. the writ is made, if satisfied that the plaintiff would suffer any irreparable injury before he could be relieved by the proceedings R. 3818. C. '51, 2230. as above authorized, may issue a precept to the sheriff, or any other person selected instead, commanding him to bring the plaintiff forthwith before such court or judge. SEC. 3470. When the evidence aforesaid is farther sufficient Evidence. R. 23819. to justify the arrest of the defendant for a criminal offense comC. '51, 2231. .mitted in connection with the illegal detention of the plaintiff, the precept must also contain an order for the arrest of the defendant. R. 2 3820. SEC. 3471. The officer or person to whom the precept is direct- How served. ed, must execute the same by bringing the defendant, and also C. 51, ¿ 2232. the plaintiff if required, before the court or judge issuing it, and thereupon the defendant must make return to the writ of habeas corpus in the same manner as if the ordinary course had been pursued. R. 23821. SEC. 3472. The defendant may also be examined and commit- Examination. ted, or bailed, or discharged, according to the nature of the case. C. 31, 33. PLEADINGS-TRIAL-JUDGMENT. R. 23823. SEC. 3473. Any person served with the writ is to be presumed Presumption. to be the person to whom it is directed, although it may be direct- C. 51, 82235. ed to him by a wrong name or description or to another person. R.3824. 4182 SEC. 3474. Service being made in any of the modes herein- Appearance, before provided, the defendant must appear at the proper time C. 51, ¿ 2256. and answer the said petition, but no verification shall be required to the answer. SEC. 3475. He must also bring up the body of the plaintiff, or Body of plainshow good cause for not doing so. ti R. 2 3825. wilful failure. SEC. 3476. A wilful failure to comply with the above requi- C. 31, 2237. sitions, renders the defendant liable to be attached for contempt, Penalty for and to be imprisoned till a compliance is obtained, and also sub- R. 3826. jects him to the forfeiture of one thousand dollars to the party thereby aggrieved. C. '51, ¿ 2235. how served. SEC. 3477. Such attachment may be served by the sheriff, or Attachment: any other person thereto authorized by the judge, who shall also R. 3827. be empowered to bring up the body of the plaintiff forthwith, C. 51, 2239. and has, for this purpose, the same powers as are above conferred in similar cases. R. 2 3829. SEC. 3478. The defendant in his answer must state plainly Answer. and unequivocally whether he then has, or at any time has had, C. 51, 2241. the plaintiff under his control and restraint, and if so, the cause thereof. SEC. 3479. If he has transferred him to another person, he Same. R. 3830. must state that fact, and to whom, and the time thereof, as well C. 51, 2212. as the reason or authority therefor. SEC. 3480. If he holds him by virtue of a legal process or writ- Same. ten authority, a copy thereof must be annexed. R. 3831. SEC. 3481. The plaintiff may demur or reply to the defen- Demur or dant's answer, but no verification shall be required to the reply reply, and all issues joined therein shall be tried by the judge or C. 51, 2 2211 court. The trial in this proceeding is to be | trial de novo on appeal: Ex rel. Shaw as in ordinary proceedings: Drum v. v. Nachtwey, 43-653. Keen, 47-435; and there cannot be a R. 23832. |
