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The compiled statutes of the state of New Hampshire: to which are prefixed ... online

. (page 55 of 80)
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«hall be entitled of right to a writ of habeas corpus, according to
the provisions of this chapter.

Sec 2. The foUowing persons shall not of right be entitled to
such writ :

First; persons imprisoned upon legal process, civil or criminal,
in which the cause of such imprisonment is distinctly expressed.

Second; persons committed by any court or judge of the United
States, and where no judge of any court of this State has authority
to discharge or to commit to bail.

Sec. 3. Application for such writ may be made to the superior
court of judicature, in term time, in any county, or to any justice
thereof at any time, by any person so imprisoned or restrained of
his liberty, or by some person in his behalf.

Sec. 4. The application shall be in writing signed by the ap-
plicant, and under oath. It shall state the place where the person
is supposed to be imprisoned or restrained of his liberty, and by
whom, and a copy of the warrant or precept, if any, under which
be is confined, shall be annexed to such application.

Sec. 5. If, on inspection of the copy of such precept, it shall
appear to such court or justice that such person is lawfully impris*
oned or restrained of his liberty by virtue thereof, a writ of habeas
corpus shall not be granted.

Sec 6. If, by the copy of such precept, it shall appear that such
person is imprisoned on mesne process for want of bail, or on crimi-
nal process before a magistrate for want of recognizance, and that
excessive bail or recognizance was required, such court or justice
shall decide what bail is reasonable, and he shall, on giving such
bail, be discharged.

Sec 7. If any officer having the custody of any such person
by virtue of any precept, shall refuse or delay unnecessarily to
deliver to such applicant an attested copy of such precept, on de-
mand, such court or justice, on proof of such demand and refussd
or unnecessary delay, to be proved by the affidavit of the appli-
cant or other credible witness, shall forthwith issue the writ of
habeas corpus as prayed iat.

Sec 8. The form of the writ may be substantially as follows :



R.



THE STATE OF NEW HAMPSHIBE.

ss.

To

Greeting.

We command you that the body of in our prison under-

your custody detained, (or by you imprisoned and restrained of
his liberty, as the case may be,) as is said, together with the day
33



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514 HAHEAS CORPUS. [tITLB XXIV^

and cause of tbe taking and distaimiig of tbe said by what'

ever name tbe said may be ealled or chaiged, you have

befoie our justices of on;r superior court of judicature holden at
within and for om county of immediately after the

receipt of this writ, to undergo and receive what our said justices
shall then and there consider of him in this behalf; and have you
then there this writ

Witn^s at thift dasj of in the

year of oui Laid

All necessary alterations, in the form thereof, shall be made to
adapt the same to the circumstances of the application.

Sbc 9. Said writ, when awarded by the court, shall be under
the seal of the court, tested by the chief justice or first justice who
is not a party, and signed by the clerk ; when awarded by any
justice of said court, it shall be mider his hand and seal.

Sec. 10. Said writ, when issued by the court, may be made
returnable immediately to the court or any justice thereof in any
county, or at any time and place certain, or before any justice of
said court at any time and place therein directed.

Sec. 11. If the writ is issued by any justice of said court, it
Diay be made returnable before himself or any other justice of said
court, immediately at a place therein diiected, or at a time and
place certain, or before said court as may be therein directed.

Sec. 12. In all cases such writ shall be made returnable in such
a mode as to secure to the applicant the enjoyment of the same in
the most free, easy, cheap and expeditious manner.

Sec. 13. Tbe court or justice awarding such writ, may, in his
discretion, before the same is awarded, require that the applicant
shall file a sufficient bond or give satisfactory security to the person
to whom such writ is directed, for the payment of all charges
incurred by reason of such process, and that the person imprisoned
shall not escape by the way ; and may also order that the expenses
of bringing the person imprisoned or restrained of his libeity, be-
fore such court or justice, (which sum shall be fixed by such court
or justice and endorsed on such writ,) shall be paid or tendered at
the time of the service of such writ

Sec. 14. The service of suph writ may be made by any per-
son, and shall be by delivering the original to the person to whom
it is directed, or if the person for whom application is made, id
in prison, it may be left with the jailer, or deputy keeper at such
prison, and paying or tendering the sum endorsed on said writ,
if any.

Sec. 15. The person making such service, shall keep a copy of
such writ, and shsdl make his return or affidavit of service and of
such payment or tender of fees thereon, as in other cases, and
deliver the same to the court or justice before whom the same is
xeturnable, on or before the time of hearing therein designa,ted.

Sec. 16. The person to whom such writ is directed, shall re-



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CHAP. 215.] HABEAS CORPUS, 515

ceive tiie same wben offered, and npoD payment or tender of ike
anm endorsed on said writ, if any, shall yield due obedience to the
command thereof; and shall make dne return thereof to the conrt
or justice, and at the time and place therein mentioned; and shall
state every cause of taking and detaining the person imprisoned or
restrained, all which shall be made under oath ; and shall also have
present the body of such person, unless imprisoned or restrained
for some one or more of the causes specified in the second section
of this chapter.

Sec 17. K no time is specified for such return, the same writ
being returnable immediately, the return shall be made witiiin
three days after such service, unless the prisoner is to be brought
more than twenty miles, in which case the return shall be made
within so many days more as will be equal to one day for every
ten miles of such further distance.

8ec. 18. Any justice of said court, when any such writ is re-
turned to bim, may certify and return the same, with all things
pertaining^ thereto, to said court, if then sitting; and at any time
before the prisoner shall have been discharged, bailed or remanded,
any such justice may adjourn further proceedings on such writ to
said court, if then in session, or to the next term thereof, if to <^m-
mence within three months next afterwards.* The said court, in
any such case, shall proceed thereon as if such writ had been, by
the tenor thereof, returnable thereto.

Sec 19. If said court shall not be in session when any such
writ is made returnable, the same shall be returned to any justice
of said court as if the same was issued by and returnable to him.

Sec. 20. Such court or justice may require and take security by
recognizance, with sufficient sureties if necessary, for the appear-
ance of any party at the time and place of hearing on any such
writ, and to abide the order of court thereon ; and may make all
decrees necessary to insure the attainment of the object of such
writ, and enforce the same upon the principles of equity.

Sec. 21. When* any person shall be brought before any court or
justice thereof as aforesaid, such court or justice shall, within three
days after, proceed and examine the causes of detention.

Sec. 22. If the person imprisoned or restrained, shall be so
imprisoned or restrained without sufficient cause or due order of
law, he shall be discharged ; but if otherwise, he shall be remanded.

Sec. 23. If such person is committed for any bailable offence,
such court or justice may bail him by ordering him to recognize,
with sufficient surety or sureties, in a reasonable sum, for his ap-
pearance at the court having cognizance of such offence, and shall
certify their recognizance into such court

Sec. 24. If such person is committed on mesne process in any
civil action for want of bail, and it shall appear that the bail re-
quired was excessive, such court or justice may discharge him on
reasonable bail being given.



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\

516 HABEAS CORPXJB. [tITLE XXIT*

Sec. 25. If any officer having the custody of any prisoner, on
payment or tender of his fees therefor, shall not, within six bofus
after demand made, deliver to such prisoner a true copy of the
warrant or process by which he is held in custody, he shall forfeit
to the party aggrieved the sum of two hundred dollars.

Sec 26. If any person to whom any writ of habeas corpus is
directed, shall refuse to receive the same, or shall conceal himself
or avoid so that such writ cannot be delivered to him, or after the
receipt thereof shaU refuse or neglect, after the payment ot tender
of expenses when required as aforesaid, to yield obedience thereto,
unless prevented by the sickness of the person detained or other
necessity, he shall forfeit for every such offence to the person ag*
grieved, the sum of five hundred dollars.

Sec. 27. If any person shall make any false return to any such
writ, he shall be also liable to the action of the party aggrieved, and
also to any action at common law for false imprisonment or un-
lawful restraint

Sec 28. The court or justice thereof awarding any nch writ,
or to whom it is returned, may punish every disobedience to the
order thereof as for a contempt, and may compel obedience thereto
by process of attachment.

Sec 29. No person enlarged by habeas corpus, shall again be
imprisoned or restrained of his liberty for the same cause, unless
he shall be indicted therefor or convicted thereof, or shall neglect to
appear according to his recognizance, or to find bail when required
thereto; and if any officer or other person shall wilfully again
imprison or restrain the person so discharged, except as aforesaid,
he shsdl forfeit to the party aggrieved eight hundred dollars.

Sec 30. All actions and prosecutions for any ofience against
the provisions of this chapter, shall be commenced within two years
next after the commission of such offence ; saving to all persons in
prison the right to sue or prosecute at any time within two years
after such impediment is removed.

Sec 31. The right of action in any euch case, excepting actions
of trespass for false imprisonment, shall not cease by the death of
either party, but shall survive for and against the personal repre-
sentatives of the deceased.



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csAP. 216.]



GRANTS.



517



CHAPTER 216.

OF THB FORFErrUBB 07 GRANTS.
IDENTICAL WITH

Chapter 203 of the Revised Statutes.



8aoTioir


Sbc


1.


" GrwU,'' 4!on8tractio]i of word.


12.


s.


" Gnmiee^^ " " "


13.


3.


Granto, bow forfeited.


14.


4.


Effect of forfeiture.




5.


Information or complaint, bow filed.


.15.


6.


Proceedings, where to be had.


16.


7.


Service in case of lands, bow made.


17.


S.


" in other cases, bow made.


18.


9.


Several persons may join.


19.


10.


Grantee, when defanlted.


20.


11.


» heard in cbancery.





JadgmeBt may be conditional.

*' bow rendered.
Copy of lease to be returned to Mct6-

tary's office.
Improvements, wbea allowed for.
Yalne thereof, bow determined.
When lands re-granted, conditions.
If conditions not fulfilled, remedy.
Possession, bow recovered.
Complainant liable for costs.



Section 1. The word " grant^^ as used in this chapter, shall
be construed to inean all grants or charters of lands in this State,
made by the supreme executive or legislative power thereof, and
all acts of incorporation and laws giving to individuals powers or
rights not common to all citizens.

Sec 2. The word " grantee " shall be construed to mean the
person, persons or corporation to whom such grant is made, their
representatives, successors and assigns, and all persons interested
therein.

Sec 3. Any grant may be adjudged forfeited for the non-per-
formance of any condition annexed to or contained in such grant,
whether such condition be expressed or from the nature of the
case clearly implied, in the manner hereinafter provided.

Sec 4. Whenever any grant shall be adjudged forfeited, the
grantee shall be immediately divested of all rights, powers and
privileges derived by virtue of such grant; and the grant shall be
thenceforth deemed to be vacated, and shsdl revert to the State.

Sec. 5. The ordinary mode of process shall be by information
filed by the attorney general, or other person duly authorized in
behalf of the State, setting forl^ that such grant is forfeited, or if
the claim is by an individual for the forfeiture of a grant of land,
by a complaint by such individual, setting forth sudi forfeiture
and his claim thereto. In the latter case, before any order is issued,
the complainant shall file with the clerk a bond running to the
State, in a reasonable sum and with sufficient sureties, conditioned
to pay all costs which may be recovered against him on such com-
plaint



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518 ORAIiTS. [tITLB XXIV.

Sec. 6. Such information or complaint shall be directed to the
justices of the superior court of judicature for the county in which
such land or corporation or any part thereof lies, and may be filed
in vacation ; and the clerk shall make an order thereon, directing
such grantee to appear at the next term of said court in said
county, then and there to show cause why such forfeiture should
not be decreed.

Sec. 7. Such process shall be served upon the grantee, in the
case of forfeiture of lands, by posting up a copy of such complaint
or information and order of court thereon, in some public place in
the shire town of the county in which such land lies, for the space
of thirty days prior to the term of the court at which the same is
to be heard and tried, and also by publishing the same in some
newspaper printed in such county, if any there be, otherwise in
some adjacent county, and also in the New Hampshire Patriot
and State Grazette, three weeks successively, the last publication
to be at least thirty days prior to said term.

Sec. 8. In all other cases service shall be made by giving an
attested copy of such information and order of court thereon, to
such grantee or the clerk of such corporation, or one of the princi-
pal proprietors thereof, or by leaving the same at his usual place
of abode, thirty days at least prior to said term, or by such other
notice as the court, on consideration, shall order.

Sec. 9. If several persons in any case claim under the same
grant, they may appear and plead severally.

Sec 10. If the grantee shall not appear, after service duly
made, the court shall hear the evidence and try the trnth of the
matters alleged in the information or complaint, and may, for good
cause shown, adjudge the grant to be forfeited.

Sec 11. If the verdict of the jury or the decision of the conrt^
in any such case, is that such grant is forfeited or that the con-
ditions of the grant have not been performed, the grantee may
show his reasons in writing to the court why the grant in equi^
and good conscience should not be forfeited, although a forfeiture
has been legally incnned, and the court shall judge the same ac-
cording to equity and good conscience.

Sec 12. If the court, upon due consideration, shall deem such
reasons to be sufficient, the same sBall be briefly recited in the
judgment, which shall be that the grant, in equity, ought not to be
forfeited and is not forfeited, and that the grantee pay the costs of
suit

Sec 13. If no reasons are shown, or if the reasons shown are
insufficient, the judgment shall be that the grant is forfeited, and
the reasons shown, if any, and their insufficiency shall be l»riefly
recited in said judgment.

Sec 14. When final judgment has been rendered that a grant
is forfeited, the clerk of the court in which such judgment is ren-
dered shall, within thirty days thereafter, transmit to the secretary
of state a copy of all the papers in such case, including the judg-



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<;hap. 216.] ORAtrrEL 519

ment, certified by him and under the seal of the conrt, which shall
be kept by the secretary and laid before the legislature at the next
session.

Sec. 15. At and upon the rendition of any judgment of for-
feiture of any grant of land as aforesaid, such grantee may, by
petition or motion in writing, set forth the facts respecting his per-
formance of the condition of such grant and the improvements
made by him thereon, and may pray the court to be heard thereon.

Sec 16. The court shall immediately proceed to hear the
same, either by a jury or before themselves, at the option of such
party ; and upon the value of such improvements and the value of
the land, at the time of the entry of such grantee, being found, the
court as a court of equity shall determine and decree that the
State shall pay to such grantee the value of such improvements,
or so much thereof as they shall think reasonable, before having
possession of such lands, or that the grantee shall pay to the State
the value of the lands before such improvements were made, and
upon such payment to have all the title of the State thereto, or it
may be conditional, leaving it to the option of the grantee to pay
or receive said sums as he may think expedient; which decree
shall prescribe the time and mode of such payment, which shall
be at the treasury of the State, and such notices and other require-
ments as equity may demand.

Sec. 17. Whenever any grant of land has been declared for-
feited, and the same has been re-granted, such second or other
grantee may appear at and upon the rendition of judgment of for-
feiture, in the manner provided in the preceding section, and a
hearing shall be had and a conditional judgment rendered as is
therein provided^ and such judgment returned to the secretary of
Btsite as in other cases.

Sec. 18. If such grantee shall not comply with and fulfil said
decree or judgment of court, in the mode and within the time
therein prescribed, the attorney general or other person appointed
may bring a writ of scire facias in the same court, and said court
sitting in equity, upon a hearing of said case, may decree such
grant to be forfeited.

Sec 19. Whenever any grant of lands shaH be declared for-
feited, and the grantee shall continue to hold possession thereof, an
action may be brought by the Stete to recover such possession,
unless the same has been re-granted so that the State has no pres-
ent title thereto.

Sec 20. If any person, not employed by and in behalf of the
State, shall enter any complaint or prosecute any suit as aforesaid,
and shall not support his title, costs shall be taxed against him for
the defendant.



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520



BSPLBVIN.



[title XXIY*



CHAPTER 217.

OF BEFLEYIN.
IDENTICAL WITH

Chapter 204 of the Bevised Statutes.



SSOTIOH

1. Beasts imponnded, bow repleried.
S. Property claimed bj tbiid penoo.
a. " exempt from attachment



Sbctiok

4. Salts, where to be brought

5. Plaintiff to giye bond, how.

6. Officer may setn property, how.



Section 1. Any person whose beasts are impounded, may at
any time, while they remain in the pound, maintain replevin
therefor against the impounder thereof.

Sec. 2. When any goods or chattels, attached on any writ of
mesne process, are claimed by any other person, he may maintain
replevin therefor.

Sec 3. If any ^oods or chattels, exempted by law from at-
tachment, are attached upon mesne process, and before they are
taken on execution, the owner or person out of whose possession
they were taken, may maintain replevin therefor.

Sec 4. If the value of property replevied does not exceed
thirteen dollars and thirty-three cents, the action shall be brought
before a justice ; otherwise, in the court of common pleas.

Sec 5. The plaintiff in the writ, before the service thereof,
shall give bond to the sheriff of the county, with sufficient sure-
ties, in a sum not less than double the value of the property
replevied, conditioned to prosecute his suit and to pay all such
damages and charges as may be awarded against him.

Sec 6. If any property, attached as aforesaid, is in the posses-
sion of any person for keeping or otherwise, the o£Bcer having the
writ of replevin may demand the same, and on neglect or refusal
to deliver such property, may enter any close or building and
replevy the same. The delivery to or taking by such officer of
any property shall exonerate the person having possession thereof
as aforesaid from all liability therefor.



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CHAP. 2ia]



DOWEB.



521



CHAPTER 218.

OF THE ACTION OF DOWER.
IDENTICAL WITH

Chapter 205 of the Bevised Statutes.



SscnoH

1. Writ of dower, when brought

2. Demand of dower to be first made.

3. Form of writ of dower.

4. Damages to be rendered, what



Sbctiom

5. Form of judgment for dower.

6. Dower, how set ont by officer.

7. Bights of widow therein.



Section 1. If dower is not assigned to any woman entitled
thereto, to her satisfaction, by the heir or tenant of the freehold or
by the jadge of probate, she may recover the same by action of
dower.

Sec. 2. She shall make demand in writing of her dower of the
person seized of the freehold, if in this State, otherwise of the ten-
ant in possession ; and if such dower is not set out within one
month, may sue for and recover the same against such person.

Sec 3. The writ in actions of dower shall be a summons.

Sec. 4. If the demandant recovers judgment for her dower,
efae shall also, in the same action, recover her reasonable damages
for the detention thereof by the tenant in such action after demand
made.

Sec 5. Judgment shall be rendered for the demandant that
Bhe recover << seizin of such part of a certain with the

appurtenances, as will produce a yearly income equal to one third
part of the yearly income thereof on the day of ."

Sec 6. The officer to whom such writ of seizin is directed,
shall cause such dower to be set off by three discreet and disinter-
ested men of the neighborhood, who shall be appointed and shall
proceed in the same manner as is provided in the case of the levy
of executions on real estate.

Sec 7. The rights of every such woman and the mode of set-
ting out her dower, shall be the same as in similar cases before a
judge of probate.



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S2Z



PARTITION OP BBAL ESTATE. [TITLE XXIY*



CHAPTER 219.

ON PABTITION OF REAL ESTATE.
IDENTICAL WITH

Chapter 206 of the Revised Statutes.



SSOTIOH

I. Partition maj be made, when.

5. Petition, if ownen known.

8. " " " unknown.

4. Notice, where owners known.

6. " " " unknown.

6. If petitionee is absent, notified.

7. « " "an infant, what.

8. If unknown, agent to be appointed.

9. Questions triable 'by jury, how.

10. Committee to be appointed, how.

1 1 . Notice to be giren by committee.

12. Proceedings, if owner unknown.
18. Partition, how to be made.

1 4. B^Knt and judgment thereon.



Sbotioh



15.
16.

17.
18.
19.
20.
21.



28.
24.
25.



Costs, how adjusted.

If petitioner preraHi in part, eQtti>

how taxed.
If petitioner fails, costs.
If petition not entered, costs.
Partition not affected by sale, &c.
Legal owner to hare share set off.
If no dispute as to tide, petition filed

in probate court
Notice, how giyen in such case.
Partition, how made in such case.
If costs not paid, how collected.
Eetafte not divisible, how set off.



Section 1. One or more persons having or holding real estate
with others may have partition thereof in the mode hereinafter
provided.

Sec. 2. Application may be made by such person to the snpe-
rior court of judicature in the county in which such real estate or
any part thereof lies, by petition in writing, particularly describing
the estate of which partition is desired, the names of all ov^ners or
persons interested, if known, and the share of the petitioner there-
in, and praying for partition thereof.

Sec 3. If the persons owning or interested in any such real
estate with the petitioner are unknown, the estate shall be described
in such petition in the same manner as is required by law in the
case of taxing unimproved lands of non-residents, specifying the
share severally held by each petitioner, and stating the same as
held with persons unknown.

Sec 4. The petitioner shall cause notice to be given to all



Online LibraryNew HampshireThe compiled statutes of the state of New Hampshire: to which are prefixed ... → online text (page 55 of 80)