decide on the return, or the hearing may be adjourned until the party can be produced or for other good cause. The plaintiff may except to the sufficiency of, or controvert, the return or any part thereof, or allege any new matter in avoidance; the new matter shall be verified, except in cases of commitment on a criminal charge. The return and pleadings may be amended without causing any delay. (723.)

1. A demurrer will not lie to the writ or return.- Cunningham v. Thomas, 25 Ind. 171.

1118. Hearing-Party, when discharged. 789. The Court or Judge shall thereupon proceed, in a summary way, to hear and determine the cause; and if no legal cause be shown for the restraint or for the continuation thereof shall discharge the party. (724.)

1. If the detention be illegal, the Judge should discharge the petitioner therefrom. -State v. Best, 7 Blackf. 611; Miller v. Snyder, 6 Ind. 1; State v. Banks, 25 id. 495. 2. Appeal will lie from an interlocutory or final judgment in kabeas corpus.— Henson v. Walts, 40 Ind. 170; Speer v. Davis, 38 id. 271.

1119. Judgment, etc., when not questioned. 790. No Court or Judge shall inquire into the legality of any judgment or process whereby the party is in his custody, or discharge him when the term of commitment has not expired, in either of the cases following:

First. Upon process issued by any Court or Judge of the United States, where the Court or Judge has exclusive jurisdiction.

Second. Upon any process issued on any final judgment of a Court of competent jurisdiction.

Third. For any contempt of any Court, officer, or body having authority to commit; but an order of commitment, as for contempt, upon proceedings to enforce the remedy of a party, is not included in any of the foregoing specifications.

Fourth. Upon a warrant issued from the Circuit Court upon an indictment or information.

(725.)

1., A commitment for contempt which does not show a conviction therefor is a nullity.- Privett v. Pressley, 62 Ind. 491.

2. A detention is illegal if it occur under the judgment and sentence of a Court having no jurisdiction. Miller v. Snider, 6 Ind. i.

3. Habeas corpus will not lie in favor of a party arrested on a capias ad respondendum, until twenty-four hours have elapsed from the time of the arrest.- Dwire v. Saunders, 15 Ind. 306.

1120. When no discharge - Proceedings. 791. No person shall be discharged from an order of commitment issued by any judicial or peace officer, for want of bail or in cases not bailable, on account of any defect in the charge or process, or for alleged want of probable cause; but in all such cases, the Court or Judge shall summon the prosecuting witnesses, investigate the criminal charge, discharge, let to bail, or re-commit the prisoner, as may be just and legal, and recognize witnesses when proper. (726.)

1121. Writ, to let to bail. 792. The writ may be had for the purpose of letting a prisoner to bail in civil and criminal actions. (727.)

1. Upon the hearing of an application to be admitted to bail on habeas corpus by one charged with murder, the burden is upon the applicant to show that the proof is not evident nor the presumption great.- Heffren, ex parte, 27 Ind. 87.

2. The Judge, in such cases, may fix bail in his own discretion, without reference to the amount already fixed by the magistrate.-State v. Best, 7 Blackf, 611.

3. On appeal to the Supreme Court from the decision of a nisi prius Judge, upon a

habeas corpus to be let to bail, the evidence will be weighed without regard to the finding of such Judge. Sutherlin, ex parte, 56 Ind. 595.

4. When the presumption is not great, and the proof not strong and evident, the defendant in murder should be admitted to bail.- Hock, ex parte, 68 Ind. 206.

1122. Notice. 793. When any person has an interest in the detention, the prisoner shall not be discharged until the person having such interest is notified. (728.)

1123. Powers of Court or Judge. 794. The Court or Judge shall have power to require and compel the attendance of witnesses, and to do all other acts necessary to determine the case. (729.)

1124. Officer not liable for obeying. 795- No Sheriff or other officer shall be liable to a civil action for obeying any writ of habeas corpus or order of discharge made thereon. (730.)

1125. Warrant to prevent removal. 796. Whenever it shall appear by affidavit that any one is illegally held in custody or restraint, and that there is good reason to believe that such person will be carried out of the jurisdiction of the Court or Judge before whom the application is made, or will suffer some irreparable injury before compliance with the writ can be enforced, such Court or Judge may cause a warrant to be issued, reciting the facts, and directed to the Sheriff or any Constable of the county, commanding him to take the person thus held in custody or restraint, and forthwith bring him before the Court or Judge, to be dealt with according to law. (731.)

1126. Warrant. 797. The Court or Judge may also, if the same be deemed necessary, insert in the warrant a command for the apprehension of the person charged with causing the illegal restraint. (732.)

1127. Service and proceedings. 798. The officer shall execute the writ by bringing the person therein named before the Court or Judge, and the like return and proceedings shall be required and had as in case of writs of habeas corpus. (733)

1128. Temporary orders. 799. The Court or Judge may make any temporary orders in the cause or disposition of the party, during the progress of the proceedings, that justice may require. The custody of any party restrained may be changed from one person to another by order of the Court or Judge. (734)

1129. Issue on Sunday, when. 8oo. Any writ or process authorized by this Article may be issued and served, in cases of emergency, on Sunday. (735.)

1130. Writ-Amendments and commitments. 8ot. All writs and other process, authorized by the provisions of this Article, shall be issued by the Clerk of the Court, and, except summonses, sealed with the seal of such Court; and shall be served and returned forthwith, unless the Court or Judge shall specify a particular time for any such return. And no writ or other process shall be disregarded for any defect therein, if enough is shown to notify the officer or person of the purport of the process. Amendments may be allowed and temporary commitments, when necessary! (736.)

[1881 S., p. 240.

SEC.

1142. Judgment against corporation.
1143. To recover escheated property.
1144. Costs.

1145. To annul instrument,

1146. Proceedings to annul.

In force September 19, 1881.]

1131. When filed. 814. An information may be filed against any person or corporation in the following cases:

First. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office or any franchise within this State, or any office in any corporation created by the authority of this State."

Second. Whenever any public officer shall have done or suffered any act which, by the provisions of law, shall work a forfeiture of his office,

Third. Where any association or number of persons shall act, within this State, as a corporation, without being legally incorporated.

Fourth. Or where any corporation do or omit acts which amount to a surrender or a forfeiture of their rights and privileges as a corporation, or when they exercise powers not conferred by law. (749.)

1. The proper way to attack the title to a city office is by information, there being no provision for contesting the election.-- Gass v. State, 34 Ind. 425.

2. An information against a person for the unlawful exercise of a franchise must be filed by some person interested in such franchise.— State v. Smith, 32 Ind. 213. 3. Present insolvency alone will not support quo warranto against a corporation.State v. Baily, 16 Ind. 46.

4. When a corporation does, or fails to do, acts which amount to a forfeiture of its charter, or exercises powers not conferred thereby, an information may be sustained against it.- Danville, etc., P. R. Co. v. State, 16 Ind. 456.

5. Information may be filed by the Prosecuting Attorney, in the name of the State, on the relation of a stockholder therein, against an alleged illegally organized banking company, to compel the appointment of a receiver and the liquidation of its assets and liabilities.- Albert v. State, 65 Ind. 413.

6. A proceeding by information in the nature of a quo warranto lies where persons act as a corporation without being incorporated.— Board v. Hall, 70 Ind. 469.

1132. By whom filed. 815. The information may be filed by the Prosecuting Attorney in the Circuit Court of the proper county, upon his own relation, whenever he shall deem it his duty to do so, or shall be directed by the Court or other competent authority, or by any other person on his own relation, whenever he claims an interest in the office, franchise, or corporation which is the subject of the information. (750.)

1133. Of what to consist. 816. The information shall consist of a plain statement of the facts which constitute the grounds of the proceeding, addressed to the Court. (751.)

1134. For usurping office. 817. Whenever an information shall be filed against a person for usurping an office, by the Prosecuting Attorney, he shall also set forth therein the name of the person rightfully entitled to the office, with an averment of his right thereto; and when filed by any other person, he shall show his interest in the matter; and he may claim the damages he has sustained. (752.)

1135. Šummons and proceedings. 818. Whenever an information is filed, a summons shall issue thereon; which shall be served and returned as in other actions. The defendant shall appear and answer, or suffer default, and subsequent proceedings be had as in other cases. (753-)

1136. Contest for office-Judgment. 819. In every case contesting the right to an office, judgment shall be rendered upon the rights

of the parties and for damages the relator may show himself entitled to, if any, to the time of the judgment. (754)

1137. Judgment for relator. 820. If judgment be rendered in favor of the relator, he shall proceed to exercise the functions of the office, after he has been qualified as required by law; and the Court shall order the defendant to deliver over all the books and papers in his custody or within his power, belonging to the office from which he shall have been ousted. (755.)

1138. Order, how enforced. 821. If the defendant shall refuse or neglect to deliver over the books and papers, pursuant to the order, the Court, or Judge thereof, shall enforce the order by attachment and imprisonment. (756.)

1139. Damages. 822. When the judgment is rendered in favor of the plaintiff, he may, if he has not claimed his damages in the information, have his action for the damages at any time within one year after the judgment. (757.)

tion

1140. One information against several. 823. When several persons claim to be entitled to the same office or franchise, one information may be filed against any or all such persons, in order to try their respective rights to the office or franchise. (758.)

1141. Judgment of ouster or forfeiture. 824. Whenever any person shall be found guilty of any usurpation of, or intrusion into, or unlawfully exercising any office or any franchise within this State, or any office in any corporation created by the authority of this State; or when any public officer, thus charged, shall be found guilty of having done or suffered any act which, by the provisions of law, shall work a forfeiture of his office; or when any association or number of persons shall be found guilty of having acted as a corporation, without having been legally incorporated, the Court shall give judgment of ouster against the defendant, and exclude him from the office, franchise, or corporate rights (and in cases of corporations, that the same shall be dissolved), and the Court shall adjudge costs in favor of the plaintiff. (759.)

1142. Judgment against corporation. 825. If judgment be rendered against any corporation, or against any persons claiming to be a corporation, the Court may cause the costs to be collected by execution against the persons claiming to be a corporation, or by attachment against the directors or other officers of the corporation; and shall restrain the corporation, appoint a receiver of its property and effects, take an account, and make a distribution thereof among the creditors. The Prosecuting Attorney shall immediately institute proceedings for that purpose. (760.) 1143. To recover escheated property. 826. Whenever any property shall escheat or be forfeited to the State for its use, the legal title shall be deemed to be in the State from the time of the escheat or forfeiture; and an information may be filed by the Prosecuting Attorney in the Circuit Court for the recovery of the property, alleging the ground on which the recovery is claimed; and like proceedings and judgment shall be had as in a civil action for the recovery of property. (761.).

1. The Attorney-General may file an information in the name of the State, on h.3 relation, to recover lands which have escheated to the State.-State v. Meyers, 63 Ind. 33.

1144. Costs. 827. When an information is filed by the Prosecuting

Attorney, he shall not be liable for costs; but when it is filed upon the relation of a private person, he shall be liable for costs, unless the same are adjudged against the defendant. (762.)

1145. To annul instrument. 828. An information may be prosecuted for the purpose of annulling or vacating any letters-patent, certificate, or deed granted by the proper authorities of this State, when there is reason to believe that the same were obtained by fraud, or through mistake or ignorance of a material fact, or when the patentee or those claiming under him have done or omitted an act in violation of the terms on which the letters, deed, or certificate was granted, or have by any other means forfeited the interest acquired under the same. (763.)

1146. Proceedings to annul. 829. In such cases, the information may be filed by the Prosecuting Attorney, upon his relation, or by any private person, upon his relation, showing his interest in the subject-matter; and the subsequent proceeding, judgment of the Court, and awarding of costs shall conform to the above provisions, and such letters-patent, deed, or certificate shall be annulled or sustained according to the right of the case. (764.)

1147. Who may grant. 177. Restraining orders and injunctions

may be granted by the Supreme Court in term time when necessary and proper for the due exercise of the jurisdiction and powers of such Court, or by any Judge thereof in vacation or recess, and by the Circuit Courts in their respective counties in term time, or by the Judges thereof in vacation; or if such Judges be absent from their circuits, or by reason of sickness or other cause be unable or incompetent to hear and determine the granting of a temporary injunction or restraining order, then any such Judge of an adjoining circuit may hear and determine the granting of such temporary injunction or restraining order, and the regular presiding Judge in the county where the petition was filed, shall hear and determine whether such injunction or restraining order shall be made permanent, and the said courts in term time or the Judges thereof in vacation, may, in any county of the circuit, issue restraining orders or injunctious to operate in any other county in the circuit. Provided, That all such petitions shall be filed in the Clerk's office in the county in which such writ is prayed for, [As amended, 1899, S., p. 537. Approved March 6, 1899. (136)

1. Injunction will lie against an illegal tax, when part of the taxes assessed is legal ; but the legal tax must be first tendered or paid.- City v. University, 69 Ind. 344.

2. Injunction lies to prevent the cutting of growing trees. Thatcher v. Humble, 67 Ind. 444; Robertson v. Meadors, 73 id. 43.

3. One not a citizen and taxpayer of a town can not injoin the opening of a highway therein.- Sparling v. Dwenger, 60 Ind. 72.

4. Legal proceedings will not usually be injoined on grounds of which the party may avail himself in defense thereto.- Hartman v. Heady, 57 Ind. 545.

5. Injunction lies against an unauthorized street improvement. McGill v. Bruner, 65 Ind. 421.

1148. Proceedings to obtain. 178. When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of