It can only be served by an elector of this state, and the service thereof shall not be deemed complete unless the party serving the same tenders to the person in whose custody the prisoner is, if such person is a sheriff, constable or marshal, the fees allowed by law for bringing up such prisoner. The officer granting the writ may, in his discretion, require a bond in a penalty not exceeding one thousand dollars [($1,000)], with sufficient sureties, conditioned that the obligators will pay all costs and expenses of the proceeding, and the reasonable charges of restoring the prisoner to the person from whose custody he was taken, if he is remanded. Such bond shall run to the sheriff of the county and be filed in the office of the clerk of the court from which the writ issues.

History: Laws 1884, ch. 1, § 31; C.L. 1884, § 2042; C.L. 1897, § 2812; Code 1915, § 2620; C.S. 1929, § 63-132; 1941 Comp., § 25-1132; 1953 Comp., § 22-11-32.

Cross references. — For sheriff's fees for producing prisoner, see 44-1-37 NMSA 1978.

Intention that petitioner either post bond or pay costs. — The evident intention of the legislature under this section is that the petitioner might advance the costs to the person in charge of the prisoner or that the officer might require bond for the payment of all costs. In re Fullen, 1913-NMSC-036, 17 N.M. 405, 132 P. 1137.

Taxing of costs done pursuant to section. — The taxing of costs under the terms of the bond, by the supreme court, is not an exercise of discretion, but is pursuant to this section. In re Fullen, 1913-NMSC-036, 17 N.M. 405, 132 P. 1137.

Law reviews. — For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Habeas Corpus §§ 133, 165 to 167.

39A C.J.S. Habeas Corpus §§ 177, 235.