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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.

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.

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.

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.

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VII. CUSTODY OF CHILDREN.

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.

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 judg

ment.

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

VIII. AD TESTIFICANDUM.

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.

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.

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 state

1. 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.

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.

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.

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.

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.

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1862. Incorporated. J. Y. Joyner, T. Gilbert Pearson, R. H. Lewis, A. H. Boyden, H. H. Brimley, P. D. Gold, Jr., J. F. Jordan and R. N. Wilson are hereby created a body politic and corporate under the name and style of the Audubon Society of North Carolina, and by that name and style they and their associates and successors shall have perpetual succession, with power to take and hold, either by gift, grant, purchase, devise, bequest or otherwise, any real or personal estate, not exceeding fifty thousand dollars in value, for the general use and advancement of the purposes of the said corporation, or for any special purpose, consistent with the charter; and such property shall be exempt from taxation; to make rules and by-laws; to have and to use a common seal, and to change the same at pleasure; and to do and perform all such acts and things as are or may become necessary for the advancement and furtherance of the corporation.

1903 (Pr.), c. 337.

1863. Officers of. The officers of said corporation shall be a president, vice-president, secretary and treasurer, and such other officers as may be fixed by the by-laws.

1903 (Pr.), c. 337, s. 2.

1864. Objects for which created. The objects for which the corporation is formed are to promote among the citizens of North Carolina a better appreciation of the value of song and insectivorous birds to man and the state; to encourage parents and teachers to give instruction to children on the subject; to stimulate public sentiment against the destruction of wild birds and their eggs; to secure the enactment and enforcement of proper and necessary laws for the protection and preservation of birds and game of the state; to pro

vide for the naming of special officers and investing them with necessary power, who shall work under the direction and control of the Audubon Society of North Carolina, looking to the rigid enforcement of the game and bird protective laws of the state; to distribute literature bearing on these topics among the members of the society and other persons, and to raise and provide funds for defraying the necessary expenses of the society in the accomplishment of the purposes herein named.

1903 (Pr.), c. 337, s. 3.

1865. Hunters' license; form of, prescribed by. The Audubon Society of North Carolina shall prescribe the form of license for nonresident hunters, and shall furnish to the clerks of the superior courts all licenses and other blanks required under the game laws, and shall also furnish to the clerks of the superior courts a bound book, for the purpose of keeping a record of all hunters' licenses that may be issued.

1903 (Pr.), c. 337, s. 10.

1866. Grants certificates to take birds or eggs. The Audubon Society of North Carolina may issue a certificate to any properly accredited persons of the age of twelve years and upward, permitting the holder thereof to collect birds, their nests or eggs for strictly scientific purposes; said certificate shall be in force only during the calendar year in which issued, and shall not be transferable. In order to obtain such certificates the applicant for same must present to the persons having authority to grant such certificates written testimonials from two well-known scientific men, certifying to the good character and fitness of said applicant to be intrusted with such privilege, and must pay the said society one dollar to defray the necessary expenses attending the granting of such certificate. On satisfactory proof that the holder of such certificate has killed any bird or taken the nests or eggs of any birds other than for scientific purposes, his certificate shall become void, and he shall be further subject for each offense to the penalty provided for such violation of the law.

1903, (Pr.), c. 337, s. 5.

1867. Governor appoints treasurer of society and game wardens. The governor, upon the recommendation of the Audubon Society of North Carolina, shall, from time to time appoint bird and game wardens, and the treasurer of the society, whose terms of office, unless otherwise provided for, shall be during good behavior or until their successors are appointed. The governor shall issue to the treasurer of the Audubon Society, and to each person appointed as warden, a commission, and shall transmit such commission to the

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