any colorable pretense or variation in the warrant or commitment notwithstanding. SEC. 362. [Prisoners removed from custody of one officer. If any person of this state shall be committed to prison, or be in custody of any officer for any criminal matter, such prisoner shall not be removed therefrom into the custody of any other officer, unless by legal process, or when the prisoner shall be delivered to some inferior officer to carry to jail, or shall, by order of the proper court, be removed from one place to another within the state, for trial, or in case of fire, infection, or other necessity; and if any person, after such commitment, shall make out or sign, or countersign, any warrant for such removal, contrary to this chapter, he or she shall, for every such offense, forfeit to the party aggrieved five hundred dollars. SEC. 363. [Accessories to capital felonies.]-When any person shall appear to be committed by any judge or magistrate, and charged as accessory before the fact to any felony, the punishment whereof is capital, which felony shall be plainly and specially charged in the warrant of commitment, such person shall not be removed or bailed by virtue of this chapter, or in any other manner than as if this chapter had not been enacted. SEC. 364. [Expatriation.]-No citizen of this state, being an inhabitant or resident of the same, shall be sent a prisoner to any place whatever out of the state, for any crime or offense committed within this state, except in cases specially authorized by law, and every such imprisonment is hereby declared to be illegal. And if any such citizen shall be so imprisoned, he may for every such imprisonment maintain an action of false imprisonment in any court having cognizance thereof, against the person or persons by whom he shall be so imprisoned or transported contrary to law, and against any person who shall contrive, write, seal, sign, or countersign any writing for such imprisonment or transportation, or shall be aiding and assisting in the same, or any of them, and shall recover triple costs besides damages, which damages, so to be given, shall not be less than five hundred dollars; and every person knowingly concerned in any manner as aforesaid, in such illegal imprisonment or transportation, contrary to this chapter, and being thereof lawfully convicted, shall be disabled from thenceforth to bear any office of trust or profit within this state; Provided, That if any citizen of this state, or any person or persons at any time resident in the same, shall have committed, or shall be charged with having committed, any treason, felony, or misdemeanor, in any other part of the United States or territories where he or she ought to be tried for such offense, he, she, or they may be sent to the state or territory having jurisdiction of the offense. SEC. 365. [Penalties recovered by civil action.]-The penalties in this chapter made recoverable, shall be recovered by the party aggrieved, his or her executors or administrators, by civil action in any court having cognizance of the same; Provided, That no person shall be sued or molested for any offense against this chapter, unless within two years after the time when such offense shall have been committed; but if the party aggrieved shall then be in prison, then within two years after the decease of the person imprisoned, or his or her delivery out of prison. And in every such action it shall be lawful for the defendant to plead the general issue, and give the special matter in evidence. SEC. 366. [Informalities no ground for discharge.)-If any person shall be committed to prison, or be in custody of any officer for any criminal matter, by virtue of any warrant or commitment of any magistrate of this state having jurisdiction of such criminal matter, such person shall not be discharged from such imprisonment or custody by reason of any informality or defect of such warrant or commitment; Provided, Such warrant or commitment shall show substantially a criminal matter for which such magistrate had jurisdiction so to arrest or commit. SEC. 367. [Form of writ-Prisoner not in custody of officer. — In case of confinement, imprisonment, or detention by any person not a sheriff, deputy sheriff, coroner, jailer, constable, or marshal of this state, nor a marshal or other like officer of the courts of the United States, the writ of habeas corpus shall be in the form following: The State of Nebraska to the Sheriff of said County, greeting: We command you, that the body of-, of. by -of- -imprisoned and restrained of his liberty, as it is said, you take and have before a judge of our- -court. or, in case of his absence or disability, before some other judge of the same court at- forthwith to do and receive what our said judge shall ther and there consider- -concerning him in his behalf, and summon the said ther and there to appear before our said judge to show the cause of the taking and detaining the said- ; and have you there this writ, with your doings thereon.. at- this- -day ofin the year Witness- SEC. 368. [Writ-Service and return.]-Such writ may be served in any county by any sheriff of the same or of any other county. When such writ shall be issued by a court in session, if such court shall have adjourned when the same is returned, it shall be returned before any judge of the same court, and if such writ is returned before one judge at a time when the court is in session, he may adjourn the case into the court, there to be heard and determined. SEC. 369. [Person having prisoner, how designated.]-The persor having the custody of the prisoner, may, in all writs of habeas corpus issued under this chapter, be designated by his name of office, if he have any, or by his own name; or, if both such names are unknown or uncertain, he may be described by an assumed appellation, and any person who is served with the writ, shall be deemed the person intended thereby. SEC. 370. [Prisoner, how designated.]-The person to be produced shal. be designated by his name, if known, and if that is unknown or uncertain, he may be described in any other way so as to make known who is intended. SEC. 371. [Return of writ-Contents.]-In cases other than those provided for by the first section of this chapter, the person who makes the return shall state therein, and in the cases provided for in this chapter, the person in whose custody the prisoner shall be found, shall state in writing to the court or judge before whom the writ is returned, plainly and unequivocally-First. Whether L has or has not the party in his custody or power, or under restraint. Second. I he has the party in his custody or power, or under restraint, he shall set forth a: large the authority and the true and whole cause of such imprisonment and restraint, with a copy of the writ, warrant, or other process, if any, upon which the party is detained. Third. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, he shall state particularly to whom, at what time, for what cause and by what authority such trasfer was made. SEC. 372. [Return, signed and sworn to.]-The return or statement shall be signed by the person making it, and it shall be sworn to by him, unless he is a public officer, and shall make the return in his official capacity. SEC. 373. [Return as evidence-Costs.]-Upon the return of any wri of habeas corpus, issued as aforesaid, if it shall appear that the person detaine or imprisoned is in custody, under any warrant or commitment in pursuance e the law, the return shall be considered as prima facie evidence of the cause of detention; but if the person so imprisoned or detained is restrained of liberty by any alleged private authority, the return of said writ shall be considered only as a plea of the facts therein set forth, and the party claiming the custody shall be held to make proof of such facts; and upon the final disposition of any case arising upon a writ of habeas corpus, the court or judge determining the same, shall make such order as to costs as the case may require. SEC. 374. [Adjournment of cause.]-When any writ of habeas corpus shall have been allowed, the court or judge to which the same shall be returned. *[Sec. 24, Art. VI., Const.] or into which it shall be adjourned, shall, for good cause shown, continue the said cause, and shall make order for the safe keeping of the person imprisoned, or detain him, as the nature of the case may require. SEC. 375. [Record-Error.]-The proceedings upon any writ of habeas corpus shall be recorded by the clerks and judges respectively, and may be reviewed, and writs of error and certiorari may issue as in other cases now provided by law. SEC. 376. [Fees, payment, etc.]-The probate judges of the several counties of this state shall be allowed the sum of two dollars for every allowance of the writ of habeas corpus, and the hearing and determining of the case upon the return of such writ, which sum, together with the fees of the clerk, sheriff, and witnesses in the case, shall be taxed by such probate judge on his return of his proceedings on such writ, and the same, when the person brought before such judge on such writ was in custody by virtue of the proceedings in any case in which such person is charged or attempted to be charged with the commission of any criminal offense, and when such person shall either be held to bail, or shall be remanded to custody by such judge, shall be taxed and collected as part of the original cost in such case; but when such person shall be wholly discharged by such judge, such costs shall be taxed to the state, and paid out of the county treasury of the proper county, upon the order of the county commissioners; Provided, That no person or officer shall have the right to demand the payment in advance of any fees which such person or officer may be entitled to by virtue of such proceedings on habeas corpus, when such writ shall have been issued or demanded for the discharge from custody of any person confined under color of proceedings in any criminal case. CHAPTER XXXV.-CUSTODY OF PRISONERS. SEC. 377. [Insecure jail.]--Whenever it shall be lawful and necessary to confine any prisoner in custody previous to conviction upon a criminal accusation, or in custody for contempt, or alleged contempt of court, or upon an attachment by order of a court or judge, or otherwise in lawful custody, or upon conviction for any offense, and there shall be no secure jail in the proper county, the officer or person having him in such custody, may convey him to, and confine him in the jail of any county in the state, or other secure and convenient place of confinement in the state, to be procured by such officer or person having such prisoner in custody. [Amended 1875, 17.] SEC. 378. [Maintenance of prisoner after conviction.]-The cost of keeping and maintaining any prisoner after his conviction of any offense punishable by imprisonment in the penitentiary, wherever he may be kept and confined, shall be paid by the state, according to the rate which may be established by law at the time when such services may be rendered or expenses incurred; Provided, The rate so established shall not be construed to apply to any contract which the governor may make for the confinement of convicts in the penitentiary of a state. [Amended 1875, 132.j SEC. 379. [Same-Payment.-The auditor of the state shall allow the account for the costs provided for in the last section, and draw warrants upon the treasury therefor, upon being furnished with a certified copy of the judgment or sentence of the court under which such convict is imprisoned, and an account, verified by affidavit, showing where and how long such convict has been kept, pursuant to such sentence. SEC. 380. [Costs before conviction.]-The costs of keeping and maintaining any prisoner previous to his conviction of an offense punishable by imprisonment in the penitentiary, or either before or after his conviction of an offense not so punishable, or when he shall not be convicted of any offense, shall be paid by the county in which the offense may be committed, or alleged to have been committed. SEC. 381. [County attached liable for costs.]--Every county attached for judicial purposes to another county, shall be liable for costs heretofore or hereafter incurred in the prosecution of any person accused of the commission of an offense within the county so attached, and for costs in any other judicial proceeding originating therein, to the same extent, and on the same conditions, as i such prosecution were carried on or such proceedings were had within such county so attached; Provided, That the fees of jurors shall be paid by the county from which they may be drawn. SEC. 382. [Payment.] The costs to be paid under this chapter, by any county, shall be such as may be provided by law at the time when the services may be rendered or the expenses incurred; and shall be allowed by the commis sioners of the proper county, upon the certificate of the clerk of the district cour that such costs have been taxed by him or by the court, and are chargeable upon such county. CHAPTER XXXVI.-FILING AND RECORD OF RECOGNIZANCE. SEC. 383. [Duties of clerk.]-Whenever a transcript or recognizance shall be returned to the clerk, it shall be his duty to enter the cause upon the appearance docket of the court, together with the date of the filing of the transcript and recognizance, the date and amount of the recognizance, the names of the sureties and the costs; whereupon the same shall be considered as of record in such court and proceeded on by process issuing out of said court, in the same manner as such recognizance had been entered into before such court; and when any court. having cognizance of a crime, shall take a recognizance, it shall be a sufficient record thereof on the journal of such court, to enter upon the journal the title of the cause, the crime charged, the name of the party and his sureties thereto, the amount of such recognizance, and the time therein required for the appearance of the accused, and the same shall be considered as of record in such court; b in making up the complete record in any case, when one is required to be mad.. all recognizance, whether returned to or taken in such court, shall be recorded: full, if required by the prosecuting attorney or the accused. CHAPTER XXXVII.-PROCEEDINGS UPON FORFEITURE OF RECOGNZANCE. SEC. 384. [Forfeiture.]-When any person under recognizance in a criminal prosecution, either to appear and answer, or testify in any court, sha fail to perform the conditions of such recognizance, his default shall be recorde and the recognizance forfeited in open court. SEC. 385. [Prosecution.]-Whenever such recognizance shall have bet forfeited as aforesaid, it shall be the duty of the prosecuting attorney of the cour in which the recognizance was taken, to prosecute the same by civil action f the penalty thereof; and such action shall be governed by the provisions of t Code of Civil Procedure, so far as the same may be applicable. SEC. 386. Reduction of penalty.]-The court in which the action f the penalty of any forfeited recognizance is brought, may remit or reduce a part or the whole of such penalty, and may render judgment thereon accordiz. to the circumstances of the case and the situation of the party, and upon suc terms and conditions as to such court shall seem just and reasonable. SEC. 387. [Reduction of judgment.]-Whenever any judgment shall hat been rendered against the defendants for the whole or any part of the penalty of forfeited recognizance, as aforesaid, the court rendering said judgment shall ha power to remit or reduce the amount thereof, when it shall be made to appe that after the rendition thereof the accused had been arrested and surrendered: the proper court, to be tried on such charge. SEC. 388. Defects not to debar action, etc.-No action brought o any recognizance, shall be barred or defeated, nor shall judgment thereon l SEC. 34. Recognizance need not be signed. The failure to designate the denomination of the debt a official character of officer before whom taken, will render the instrument void. 10 Neb. 329. A recognizaz stated to be in sum of "three hundred" and certified by M as" J. P." held void. Id. thereon a y, and co nable. of the pea reversed by reason of any neglect or omission to note or record the default, nor by reason of any defect in the form of the recognizance if it sufficiently appear from the tenor thereof at what court the party or witness was bound to appear and that the court or officer before whom it was taken was authorized by law to require and take such recognizance. CHAPTER XXXVIII.-DISCHARGE FROM CUSTODY OR FROM RECOGNIZANCE. SEC. 389. [When not indicted. Any person held in jail charged with an indictable offense, shall be discharged if he be not indicted at the term of the court at which he is held to answer, unless such person shall have been committed to jail on such charge after the rising and final report of the regular grand jury for said term, in which case the court, in its discretion may discharge such person, or order a new grand jury, as provided in section four hundred and five, or require such person to enter into recognizance with sufficient security for his appearance before said court to answer such charge at the next term thereof; Provided, That such person so held in jail without indictment shall not be discharged, if it appears to the satisfaction of the court that the witnesses on the part of the state have been enticed or kept away, or are detained and prevented from attending court by sickness or some inevitable accident. SEC. 390. [Prisoner not brought to trial. If any person indicted for any offense and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to the offense for which he was committed, unless the delay shall happen on application of the prisoner. SEC. 391. [Same.]-If any person indicted for any offense, who has given bail for his appearance, shall not be brought to trial before the end of the third term of the court in which the cause is pending, held after such indictment is found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happen to be on his application, or be occasioned by the want of time to try such cause, at such third term. SEC. 392. [Exception.-If, when application is made for the discharge of a defendant under either of the last two sections, the court shall be satisfied there is material evidence on the part of the state, which can not then be had, that reasonable exertions have been made to procure the same, and that there is just ground to believe that such evidence can be had at the succeeding term, the cause may be continued, and the prisoner remanded or admitted to bail as the case may require. CHAPTER XXXIX.-GRAND JURY. SEC. 393. [Lists of cases for grand jury.]-Before the first day of each term of a court at which a grand jury shall be summoned to appear, the clerk of said court shall make out two lists, on which he shall enter the names of all persons who appear, by the returns of the magistrates, to have been either committed or bailed for an offense during the vacation of such court, the name of the magistrate who committed or bailed, and distinguishing whether such person was dgment committed or bailed; one of these lists shall be delivered by the judge to the dgment th made cuting attorney. nd surrend foreman of the grand jury, and the other, together with all the transcripts and other documents returned by the magistrates, shall be delivered to the prose SEC. 394. [Foreman.]-When the grand jury shall be impaneled in the manner provided by law, the court shall appoint one of the number foreman. SEC. 395. [Oath of foreman.]--When the foreman shall be appointed, an oath or affirmation shall be administered to him in the following words: "Saving yourself and fellow jurors, you, as foreman of this grand inquest, shall diligently inquire, and true presentment make, of all such matters and things as shall |