Hardest, P. J.
From the papers before us it would appear that Eugenia Meehan was alleged “ to be held in unlawful confinement and custody by one John Eavagh and one J. A. Milne, in the city of Oswego. ... of which child ” the Eew York society for the prevention of cruelty to children is the “lawful guardian, duly appointed such by the Supreme Court of this State by order thereof duly made and entered.”
It also appears that the child was under twelve years of age, to wit, three years and five months, and that Eavagh and Milne “ are not, nor is either the lawful guardian of such child or entitled to its custody, care or control, and that said child was seized and taken possession of by them on the death of its mother without any warrant or authority of law, and that they refused to deliver said child to said society.”
It also appears that Eavagh, with the counsel and assistance of Milne, “ unlawfully, feloniously and wilfully did seize, confine, inveigle and kidnap the said child with intent to cause her, without the authority of law, to be secretly confined within this State, and did then and there unlawfully, feloniously and wilfully lead, take, entice away and detain the said child, . . . with intent then and there to keep and conceal said child from the persons having the lawful care and control thereof, in violation of the provisions of section 211 of the Penal Code of the State of Eew York.”
And it appears also upon the papers before us that it was alleged that said child, viz.: “ Is now by the said John Eavagh and the said J. A. Milne secretly confined, kept and concealed as aforesaid in violation of the legal rights of said society as the lawful guardian of said child.”
It also appears that it was stated in the warrant so issued by a justice of this court., viz.: “ That there is good reason to believe [296]*296that the said child will he earned out of the State by, or will suffer irreparable injury at the hands of the said John Eavagh and the said J. A Milne before said child can be relieved by the issuing of a habeas corpus or certiorari
It was also recited in the warrant, viz.: It satisfactorily appears to the officer issuing the warrant “ that the said child Eugenia is held in unlawful confinement and custody by the said John Eavagh and the said J. A Milne.”
According to the tenor of the warrant and the return made • to the writ of habeas corpus it would seem that the warrant was issued in pursuance of section 2054 of the Code of Civil Procedure. That section authorized the issuance of the warrant and the arrest of Eavagh and Milne. That section provides for a warrant of the character of the one now before us. It also authorized the direction of such a warrant to a “ person specially designated therein,” and commanding him to take and forthwith bring before the court or judge the prisoner, to be dealt with according to law. Proceedings under that statute are criminal in their nature. People ex rel. Society for Prevention of Cruelty to Children v. Gilmore, 26 Hun, 1; affirmed, 88 N. Y. 626.
In section 211 of the Penal Code, defining the-, crime of kidnapping, it is provided that™ a person who wilfully leads, takes, entices away or detains a child under the age of twelve years with intent to keep or conceal it from its parent, guardian or other person having lawful care or control thereof . . . is guilty of kidnapping, and is punishable by imprisonment for not more than fifteen years.
We are of opinion that the warrant before us charged a felony against Eavagh and Milne under the section from which we have quoted, and that all the facts and allegations requisite to bring the cáse within section 2054 of the Code of Civil Procedure, which authorizes a warrant, are found in the warrant under which Eavagh and Milne were arrested. It was the duty of the persons who received the warrant for execution to take the prisoners therein named before the judge issuing the warrant Code of Civ. Pro § 2056. It is provided in that section that wherever it appears that the “ person detaining the prisoner ” is [297]*297thus taken before a judge in virtue of such a warrant that the person “ must make a return, in like manner and the like proceedings must be taken as if a writ of habeas corpus had been issued in the first instance.”
It is further provided by section 2057 that the person thus arrested “ is entitled to be examined, and must be committed, bailed or discharged by the court or judge as in any other criminal case of the same nature.”
We are of the opinion that it was the duly of the officer or officers receiving the warrant to carry the prisoners before the magistrate who issued it to the end that such proceedings as are authorized by the section to which we have alluded, might be had, and to the end that they might be “ examined, . . . committed, bailed or discharged by ... . the judge, as in other criminal cases of the same nature.” The grade of the crime charged in the warrant was that of felony. It was within the province of the judge who issued the warrant to deal with the prisoner’s offense named in the warrant. We think this sufficiently appears from the tenor of the sections 2054, 2055, 2056, 2057, of the Code of Civil Procedure. Section 2057 cléarly authorized the persons charged under the previous sections, which we have just quoted, to be dealt with in the same manner as “ in any other criminal case of the same nature.” As stated, the nature and grade of the offense charged was that of a felony. By section 158 of the Code of Criminal Procedure it is provided, viz.: If the crime charged in the warrant be a felony the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in section 164.
Section 164 of the Code of Criminal Procedure seems to contemplate the taking of such prisoners before the magistrate who issued the warrant, as it provides that if the magistrate who issued the warrant “be absent or unable to act,” then in that case the prisoner is to be taken before the nearest or most accessible magistrate in. the same county. People ex rel. Sichel v. Chapman, 30 How. 202; People v. Clews, 77 N. Y. 39.
[298]*298If the prisoners had been arrested for a misdemeanor it seems that it would have been competent for a magistrate residing in the county in which the arrest was made to have let the prisoners to bail People v. Chapman; People v. Clews (supra).
We are of the opinion that the magistrate who issued the warrant had exclusive jurisdiction (except in case of his absence or inability to act), and that a contraiy construction would frustrate and defeat the object and intent of the Legislature in enacting the exceptional provisions found in section 2054 of the Code of Civil Procedure.
It seems no notice was given to the attorney whose name was indorsed upon the warrant nor to the district attorney of the county where the habeas corpus was issued. Section 2038 of the Code of Civil Procedure forbids a discharge of a person on a writ of habeas corpus
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Hardest, P. J.
From the papers before us it would appear that Eugenia Meehan was alleged “ to be held in unlawful confinement and custody by one John Eavagh and one J. A. Milne, in the city of Oswego. ... of which child ” the Eew York society for the prevention of cruelty to children is the “lawful guardian, duly appointed such by the Supreme Court of this State by order thereof duly made and entered.”
It also appears that the child was under twelve years of age, to wit, three years and five months, and that Eavagh and Milne “ are not, nor is either the lawful guardian of such child or entitled to its custody, care or control, and that said child was seized and taken possession of by them on the death of its mother without any warrant or authority of law, and that they refused to deliver said child to said society.”
It also appears that Eavagh, with the counsel and assistance of Milne, “ unlawfully, feloniously and wilfully did seize, confine, inveigle and kidnap the said child with intent to cause her, without the authority of law, to be secretly confined within this State, and did then and there unlawfully, feloniously and wilfully lead, take, entice away and detain the said child, . . . with intent then and there to keep and conceal said child from the persons having the lawful care and control thereof, in violation of the provisions of section 211 of the Penal Code of the State of Eew York.”
And it appears also upon the papers before us that it was alleged that said child, viz.: “ Is now by the said John Eavagh and the said J. A. Milne secretly confined, kept and concealed as aforesaid in violation of the legal rights of said society as the lawful guardian of said child.”
It also appears that it was stated in the warrant so issued by a justice of this court., viz.: “ That there is good reason to believe [296]*296that the said child will he earned out of the State by, or will suffer irreparable injury at the hands of the said John Eavagh and the said J. A Milne before said child can be relieved by the issuing of a habeas corpus or certiorari
It was also recited in the warrant, viz.: It satisfactorily appears to the officer issuing the warrant “ that the said child Eugenia is held in unlawful confinement and custody by the said John Eavagh and the said J. A Milne.”
According to the tenor of the warrant and the return made • to the writ of habeas corpus it would seem that the warrant was issued in pursuance of section 2054 of the Code of Civil Procedure. That section authorized the issuance of the warrant and the arrest of Eavagh and Milne. That section provides for a warrant of the character of the one now before us. It also authorized the direction of such a warrant to a “ person specially designated therein,” and commanding him to take and forthwith bring before the court or judge the prisoner, to be dealt with according to law. Proceedings under that statute are criminal in their nature. People ex rel. Society for Prevention of Cruelty to Children v. Gilmore, 26 Hun, 1; affirmed, 88 N. Y. 626.
In section 211 of the Penal Code, defining the-, crime of kidnapping, it is provided that™ a person who wilfully leads, takes, entices away or detains a child under the age of twelve years with intent to keep or conceal it from its parent, guardian or other person having lawful care or control thereof . . . is guilty of kidnapping, and is punishable by imprisonment for not more than fifteen years.
We are of opinion that the warrant before us charged a felony against Eavagh and Milne under the section from which we have quoted, and that all the facts and allegations requisite to bring the cáse within section 2054 of the Code of Civil Procedure, which authorizes a warrant, are found in the warrant under which Eavagh and Milne were arrested. It was the duty of the persons who received the warrant for execution to take the prisoners therein named before the judge issuing the warrant Code of Civ. Pro § 2056. It is provided in that section that wherever it appears that the “ person detaining the prisoner ” is [297]*297thus taken before a judge in virtue of such a warrant that the person “ must make a return, in like manner and the like proceedings must be taken as if a writ of habeas corpus had been issued in the first instance.”
It is further provided by section 2057 that the person thus arrested “ is entitled to be examined, and must be committed, bailed or discharged by the court or judge as in any other criminal case of the same nature.”
We are of the opinion that it was the duly of the officer or officers receiving the warrant to carry the prisoners before the magistrate who issued it to the end that such proceedings as are authorized by the section to which we have alluded, might be had, and to the end that they might be “ examined, . . . committed, bailed or discharged by ... . the judge, as in other criminal cases of the same nature.” The grade of the crime charged in the warrant was that of felony. It was within the province of the judge who issued the warrant to deal with the prisoner’s offense named in the warrant. We think this sufficiently appears from the tenor of the sections 2054, 2055, 2056, 2057, of the Code of Civil Procedure. Section 2057 cléarly authorized the persons charged under the previous sections, which we have just quoted, to be dealt with in the same manner as “ in any other criminal case of the same nature.” As stated, the nature and grade of the offense charged was that of a felony. By section 158 of the Code of Criminal Procedure it is provided, viz.: If the crime charged in the warrant be a felony the officer making the arrest must take the defendant before the magistrate who issued the warrant, or some other magistrate in the same county, as provided in section 164.
Section 164 of the Code of Criminal Procedure seems to contemplate the taking of such prisoners before the magistrate who issued the warrant, as it provides that if the magistrate who issued the warrant “be absent or unable to act,” then in that case the prisoner is to be taken before the nearest or most accessible magistrate in. the same county. People ex rel. Sichel v. Chapman, 30 How. 202; People v. Clews, 77 N. Y. 39.
[298]*298If the prisoners had been arrested for a misdemeanor it seems that it would have been competent for a magistrate residing in the county in which the arrest was made to have let the prisoners to bail People v. Chapman; People v. Clews (supra).
We are of the opinion that the magistrate who issued the warrant had exclusive jurisdiction (except in case of his absence or inability to act), and that a contraiy construction would frustrate and defeat the object and intent of the Legislature in enacting the exceptional provisions found in section 2054 of the Code of Civil Procedure.
It seems no notice was given to the attorney whose name was indorsed upon the warrant nor to the district attorney of the county where the habeas corpus was issued. Section 2038 of the Code of Civil Procedure forbids a discharge of a person on a writ of habeas corpus where he is held by virtue of a mandate, until notice of the time when, and the place where, the writ is returnable, or to which the hearing has been adjourned, is either personally served eight days previously, or given in such other manner and for such previous length of time as the court or judge prescribes—where the mandate was issued or made in a civil action or special proceeding, to the person who has an interest in continuing the imprisonment, or his attorney—and in every other case, to the district attorney of the county within which the prisoner was detained at the time when the writ was served. Inasmuch as the writ of habeas corpus in this case was not issued in a civil action or a special proceeding, but rather in a criminal action (People ex rel. v. Gilmore, 88 N. Y. 628), and as section 2057 provides that the discharge or bailing or committal shall be “ as in any other criminal case of the same nature,” it would seem that the discharge of the prisoners without notice to the district attorney of the county of Oswego, was irregular. Code Civ. Pro. %% 2038, 2057 ; People ex rel. v. Gilmore, 88 N. Y. 628.
There is nothing before us in the appeal book to show that any question was made before the justice who granted the discharge as to the genuineness of the warrant, and we think it is too late to raise the question upon this appeal, as it appears by [299]*299the clerk’s certificate forming a part of the appeal papers herein, that he has compared the copy of warrant certified to us with the original on file in his office, and that copy appears to be issued by a justice of this court residing in the city of New York, clothed with all the powers given by section 2054 of the Code of Civil Procedure. Whether or not the persons named in the warrant, charged with a felony, should be admitted to bail, rested in judicial discretion, and our views already expressed lead us to the conclusion that the exercise of that judicial discretion should have been by the magistrate issuing the warrant. From note 38, in People v. McLeod (3 Hill, 663), as somewhat appropriate to the question involved here, we quote, viz.: “ It is believed that the rules of common law, under which one superior court rarely allowed itself to interfere with the process of another, still hold their full sway, and should, indeed, be allowed a peculiar force when the power of a single magistrate is invoked.” Again, it was said in note 45 to the same case (at p. 673), viz.: “Valid process alone, both in criminal and in civil cases, prima facie, renders it obligatory on the court or officer to remand. It lies with the parties suing out the writ to show affirmatively that it is insufficient to authorize his detention. The people are, therefore, under no obligation to produce evidence even in cases where this may be looked into. The accused, who appeals by habeas corpus, must, at his peril, show that he has been committed upon insufficient evidence.”
We find nothing inconsistent with this in section 553 of the Code of Criminal Procedure, nor does section 190 of the Code of Criminal Procedure contain any provision inconsistent with the views already expressed. Under that section had the prisoners been taken before the magistrate who issued' the warrant, they might have waived an examination and at once elected to give bail Code Crim. Pro. §§ 188, 189, 190, 210.
We are of the opinion that the recital of the facts found in the warrant is sufficient, and that it ought not to be said, upon this appeal, that the same was issued without proper proofs to confer jurisdiction upon the officer issuing the same.
[300]*300We are of the opinion that the order appealed from should, be reversed.
Order reversed; no costs. See 88 N. Y. 628.
Boardman and Follett, JJ., concur.