PROCEEDINGS IN SPECIAL CASES
A person imprisoned or otherwise restrained of his personal liberty, by an officer or other person, except in the cases mentioned in the following section, is entitled of right to a writ of habeas corpus according to the provisions of this chapter.
Source. RS 202:1. CS 215:1. GS 224:1. GL 243:1. PS 239:1. PL 350:1. RL 406:1.
534:2 Limitation on.
Persons imprisoned upon legal process, civil or criminal, in which the cause of the imprisonment is distinctly expressed, and persons committed by a court or judge of the United States, and where no judge of a court of this state has authority to discharge or to commit to bail, are not entitled of right to such writ.
Source. RS 202:2. CS 215:2. GS 224:2. GL 243:2. PS 239:2. PL 350:2. RL 406:2.
Application for the writ shall be made to the superior court in the county in which the person is imprisoned, by a person so imprisoned or restrained, or by some person in his behalf.
Source. RS 202:3. CS 215:3. GS 224:3. GL 243:3. PS 239:3. PL 350:3. RL 406:3. RSA 534:3. 1994, 56:1, eff. Jan. 1, 1995.
The application shall be in writing, signed by the applicant, and under oath, and 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 he is confined shall be annexed to the application.
Source. RS 202:4. CS 215:4. GS 224:4. GL 243:4. PS 239:4. PL 350:4. RL 406:4.
If by such copy it appears that the person is lawfully imprisoned or restrained of his liberty by virtue thereof, a writ of habeas corpus shall not be granted.
Source. RS 202:5. CS 215:5. GS 224:5. GL 243:5. PS 239:5. PL 350:5. RL 406:5.
534:6 Excessive Bail.
If by such copy it appears that the person is imprisoned on criminal process before a magistrate for want of recognizance, and that excessive bail or recognizance is required, the court or justice shall decide what bail is reasonable, and he shall, on giving such bail, be discharged.
Source. RS 202:6. CS 215:6. GS 224:6. GL 243:6. PS 239:6. PL 350:6. RL 406:6. RSA 534:6. 1971, 227:17, eff. Aug. 17, 1971.
534:7 Copy of Precept.
If an officer having the custody of any such person by virtue of a precept refuses or delays unnecessarily to deliver to the applicant an attested copy of the precept, on demand, the court or justice, on proof by affidavit of the applicant or other credible witness of the demand and refusal or of unnecessary delay, shall forthwith issue the writ of habeas corpus as prayed for.
Source. RS 202:7. CS 215:7. GS 224:7. GL 243:7. PS 239:7. PL 350:7. RL 406:7.
The form of writ may be substantially as follows:
THE STATE OF NEW HAMPSHIRE
.......... ss. To: ..........
[L. S.] 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 and cause of the taking and detaining of the said .......... by whatever name the said .......... may be called, or charged, you have before our justices of our superior court, holden at .........., within and for our 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 and there this writ.
Witness .......... at .........., this .......... day of .........., in the year ..........
All necessary alterations in the form shall be made to adapt the writ to the circumstances of the application.
Source. RS 202:8. CS 215:8. GS 224:8. GL 243:8. PS 239:8. PL 350:8. RL 406:8.
The writ, when awarded by the court, shall be under the seal of the court, shall bear teste of the chief or senior justice who is not a party, and shall be signed by the clerk; when awarded by a justice of the court it shall be under his hand and seal.
Source. RS 202:9. CS 215:9. GS 224:9. GL 243:9. PS 239:9. PL 350:9. RL 406:9.
534:10 How Returnable.
The writ, when issued by the court, may be made returnable to the court or a justice thereof in any county immediately, or at a time and place therein directed.
Source. RS 202:10. CS 215:10. GS 224:10. GL 243:10. PS 239:10. PL 350:10. RL 406:10.
534:11 When Issued by Justice.
If the writ is issued by a justice of the court it may be made returnable before himself, the court or any justice thereof at a place certain, immediately or at other time therein directed.
Source. RS 202:11. CS 215:11. GS 224:11. GL 243:11. PS 239:11. PL 350:11. RL 406:11.
534:12 Mode of Return.
In all cases the writ shall be made returnable in such mode as to secure to the applicant the enjoyment of it in the most free, easy, cheap and expeditious manner.
Source. RS 202:12. CS 215:12. GS 224:12. GL 243:12. PS 239:12. PL 350:12. RL 406:12.
534:13 Security; Expenses.
The court or justice awarding the writ may, in his discretion, require the applicant to give satisfactory security to the person to whom the writ is directed, for the payment of all charges incurred by reason of the process, and that the person imprisoned shall not escape by the way. The court or justice may also fix and cause to be indorsed upon the writ the expense of producing the person imprisoned or restrained, according to the precept, and may require it to be paid or tendered when the writ is served.
Source. RS 202:13. CS 215:13. GS 224:13. GL 243:13. PS 239:13. PL 350:13. RL 406:13.
The service of the writ may be made by any person, by delivering the original to the person to whom it is directed, or, if the person for whom application is made is in prison, by leaving it with the jailer or deputy keeper at the prison, and paying or tendering the sum indorsed on the writ, if any.
Source. RS 202:14. CS 215:14. GS 224:14. GL 243:14. PS 239:14. PL 350:14. RL 406:14.
534:15 Return of Service.
The person making the service shall keep a copy of the writ, and shall make his return or affidavit of service and of the payment or tender of fees thereon as in other cases, and shall deliver it to the court or justice before whom the writ is returnable, on or before the time of hearing therein designated.
Source. RS 202:15. CS 215:15. GS 224:15. GL 243:15. PS 239:15. PL 350:15. RL 406:15.
534:16 Return of Writ.
The person to whom the writ is directed shall receive it when offered, and, upon payment or tender of the sum indorsed on the writ, if any, shall yield obedience to the command thereof; shall make return thereof to the court or justice, at the time and place therein mentioned; and shall state every cause of taking and detaining the person imprisoned or restrained; all of which shall be made under oath; and he shall also have present the body of such person, unless imprisoned or restrained for some one or more of the causes specified in RSA 534:2.
Source. RS 202:16. CS 215:16. GS 224:16. GL 243:16. PS 239:16. PL 350:16. RL 406:16.
If no time is specified for the return, but the writ is returnable immediately, the return shall be made within three days after the 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.
Source. RS 202:17. CS 215:17. GS 224:17. GL 243:17. PS 239:17. PL 350:17. RL 406:17.
If the court is not in session when any such writ is made returnable it shall be returned to any justice of the court as if it were issued by and returnable to him.
Source. RS 202:19. CS 215:19. GS 224:19. GL 243:19. PS 239:19. PL 350:18. RL 406:18.
534:19 Adjourning to Court.
A justice of the court to whom any such writ is returned may certify and return it, with all things pertaining thereto, to the court, if then sitting; and, at any time before the prisoner is discharged, bailed or remanded, he may adjourn further proceedings on the writ to the court, if then in session, or to the next term thereof if to begin within three months next afterward. The court, in any such case, shall proceed therein as if the writ had been, by the tenor thereof, returnable thereto.
Source. RS 202:18. CS 215:18. GS 224:18. GL 243:18. PS 239:18. PL 350:19. RL 406:19.
The court or justice may require and take security by recognizance, with sufficient sureties if necessary, for the appearance 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 the writ and enforce it upon the principles of equity.
Source. RS 202:20. CS 215:20. GS 224:20. GL 243:20. PS 239:20. PL 350:20. RL 406:20.
Whenever any person is brought before a court or any justice thereof as aforesaid the court or justice shall, within three days thereafter, examine the causes of detention.
Source. RS 202:21. CS 215:21. GS 224:21. GL 243:21. PS 239:21. PL 350:21. RL 406:21.
If the person imprisoned or restrained is so imprisoned or restrained without sufficient cause or due order of law, he shall be discharged; but if otherwise he shall be remanded.
Source. RS 202:22. CS 215:22. GS 224:22. GL 243:22. PS 239:22. PL 350:22. RL 406:22.
534:23 Bail, Crimes.
If the person is committed for a bailable offense the court or justice may bail him by ordering him to recognize, with sufficient surety or sureties, in a reasonable sum, for his appearance at the court having cognizance of the offense, and shall certify the recognizance into the court.
Source. RS 202:23. CS 215:23. GS 224:23. GL 243:23. PS 239:23. PL 350:23. RL 406:23.
534:24 Repealed by 1971, 227:18, eff. Aug. 17, 1971.
If the person is imprisoned or restrained by order of a justice, or of any court or authority other than the supreme or superior court or a justice thereof, for contempt, the proceedings in the order and the cause thereof may be revised, and the order affirmed, modified or reversed by the superior court or a justice thereof.
Source. 1862, 2600:1. GS 224:25. GL 243:25. PS 239:25. PL 350:25. RL 406:25.
534:26 Copy of Process.
If an officer having the custody of a prisoner, on payment or tender of his fees therefor, shall not, within 12 business hours after demand made, deliver to the prisoner a true copy of the warrant or process by which he is holden in custody he shall forfeit to the party aggrieved the sum of two hundred dollars.
Source. RS 202:25. CS 215:25. GS 224:26. GL 243:26. PS 239:26. PL 350:26. RL 406:26. 1997, 247:1, eff. Aug. 18, 1997.
534:27 Disobeying Writ.
If a person to whom a writ of habeas corpus is directed refuses to receive it, or conceals himself or avoids, so that the writ cannot be delivered to him, or, after the receipt thereof, and payment or tender of expenses when required as aforesaid, he refuses or neglects to yield obedience thereto, unless prevented by the sickness of the person detained or other necessity, he shall forfeit for every such offense, to the person aggrieved, the sum of five hundred dollars.
Source. RS 202:26. CS 215:26. GS 224:27. GL 243:27. PS 239:27. PL 350:27. RL 406:27.
534:28 False Return.
If a person makes a false return to any such writ he shall be liable to the action of the party aggrieved, and also to any action at common law for false imprisonment or unlawful restraint.
Source. RS 202:27. CS 215:27. GS 224:28. GL 243:28. PS 239:28. PL 350:28. RL 406:28.
The court or justice awarding any such 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.
Source. RS 202:28. CS 215:28. GS 224:29. GL 243:29. PS 239:29. PL 350:29. RL 406:29.
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 an officer or other person shall wilfully again imprison or restrain the person so discharged, except as aforesaid, he shall forfeit to the party aggrieved eight hundred dollars.
Source. RS 202:29. CS 215:29. GS 224:30. GL 243:30. PS 239:30. PL 350:30. RL 406:30.
534:31 Limitation of Actions and Prosecutions.
All actions and prosecutions for any offense against the provisions of this chapter shall be begun within two years next after the commission of the offense, saving to all persons in prison the right to sue or prosecute at any time within two years after such impediment is removed.
Source. RS 202:30. CS 215:30. GS 224:31. GL 243:31. PS 239:31. PL 350:31. RL 406:31.
534:32 Survival of Right of Action.
The right of action in any such case shall not cease by the death of either party, but shall survive for and against the personal representatives of the deceased.
Source. RS 202:31. CS 215:31. GS 224:32. GL 243:32. 1885, 11:1. PS 239:32. PL 350:32. RL 406:32.