$2041. When certiorari to issue on application for habeas corpus. Where an application is made for a writ of habeas corpus, as prescribed in this article, and it appears to the court or judge, upon the petition and the documents annexed thereto, that the cause or offence, for which the party is imprisoned or detained, is not bailable, a writ of certiorari may be granted,. instead of a writ of habeas corpus, as if the application had been made for the former writ.

§ 2042. Proceedings upon its return. Upon the return to such a writ of certiorari, the court or judge, before which or whom it is returnable, must proceed as upon a return to a writ of habeas corpus, and must hear the proofs of the parties, in support of and against the return.

§ 2043. Id.; when discharge to be granted; when proceedings to cease. If it appears, that the prisoner is unlawfully imprisoned or restrained in his liberty, the court or judge must make a final order, discharging him forthwith. If it appears that he is lawfully imprisoned or detained, and is not entitled to be bailed, the court or judge must make a final order, dismissing the proceedings.

§ 2044. When certiorari does not prevent habeas corpus. Notwithstanding a writ of certiorari has been issued or returned, as prescribed in this article, the court or judge, before which or whom it is returnable, may issue a writ of habeas corpus, which is, in all respects, subject to the foregoing provisions of this article, relating to the latter writ. If the court or judge refuse a writ of certiorari, or, upon the return thereof, refuse to discharge the prisoner, the latter may claim, and is entitled to, the writ of habeas corpus, as prescribed in this article.

§ 2045. Bail on certiorari; when and how ordered. If, upon the return to a writ of certiorari, issued as prescribed in this article, it appears, that the person imprisoned or detained is entitled to be bailed, the court or judge must make a final order, fixing the sum in which he is to be admitted to bail; specifying the court, and the term thereof, at which he is required to appear; and directing his discharge, upon bail being given accordingly, as required by law. If sufficient bail is immediately offered, the court or judge must take it; otherwise, bail may be given afterwards as prescribed in the next section.

§ 2046. Bail on certiorari; by whom and how taken. Upon the production of an order, or, if it was made by a court, of a certified copy thereof, to a justice of the supreme court, or to the county judge or special county judge of the county, where the prisoner is detained, the judge must take the recognizance of the prisoner, with two sureties, in the sum so fixed, conditioned for the appearance of the prisoner, as prescribed in the order. Each person, offering himself as a surety, must show, by his oath, to the satisfaction of the judge, that he is a householder in the county, and worth twice the sum in which he is required to be bound, over and above all demands against him. It is not necessary that the prisoner should appear in person before the judge, to acknowledge the recognizance; but it may be acknowledged by the prisoner, and certified, in like manner as a deed to be recorded in the county. [AM'D BY CH. 946 or 1895. In effect Jan. 1, 1896.]

§ 2047. Discharge of prisoner bailed. The judge must immediately file the recognizance with the clerk of the court, before which the prisoner is bound to appear. He must also make a certificate upon the order, or the certified copy thereof, to the effect that it has been complied with. Upon production of the certificate, the prisoner is entitled to his discharge from imprisonment, for any cause stated in the return to the certiorari.

§ 2048. Order substituted for writ of discharge; service and effect thereof. The writ of discharge is abolished. A final order to discharge a prisoner, made as prescribed in this article, may be served in like manner as an injunction order, and when so served, it may be enforced in the same manner as a final judgment in a civil action, except where special provision for its enforcement is otherwise made in this act. Where such an order directs a discharge, upon giving bail, the service thereof is not complete until service of the certificate, or other proof prescribed by law, showing that bail has been given, as required thereby.

§ 2049. Enforcing order for discharge; penalty, etc. Obedience to a final order to discharge a prisoner, made as prescribed in this article, may be enforced by the court which, or the judge who, made the same, by attachment, as for a neglect to make a return to a writ of habeas corpus, and with like effect. A person guilty of such disobedience forfeits, to the prisoner aggrieved, one thousand two hundred and fifty dollars, in addition to the damages which the latter sustains.

§ 2050. When prisoner discharged not to be re-imprisoned; when he may be. A prisoner who has been discharged by a final order, made upon a writ of habeas corpus or certiorari, issued as prescribed in this article, shall not be again imprisoned, restrained, or kept in custody, for the same cause. But it is not deemed to be the same cause in either of the following

cases:

1. Where he has been discharged from a commitment on a criminal charge; and is afterwards committed for the same offence, by the lawful order or other mandate of the court wherein he was bound by recognizance to appear, or in which he has been indicted or convicted for the same offence.

2. Where he has been discharged, in a criminal cause, for defect of proof, or for a material defect in the commitment; and is afterwards arrested on sufficient proof, and committed by a lawful mandate, for the same offence.

3. Where he has been discharged, in a civil action or special proceeding, for an illegality in the judgment, final order, or other mandate, as prescribed in this article; and is afterwards imprisoned, by virtue of a lawful judgment, final order, or other mandate, for the same cause of action.

4. Where he has been discharged, in a civil action or special proceeding, from imprisonment by virtue of an order of arrest; and is afterwards taken in execution, or other final process, in the same action or special proceeding, or arrested in another action or special proceeding, after the first was discontinued.

§ 2051. Penalty for violating the last section. If a court, or a judge, or any other person, in the execution of a judgment, order or other mandate, or otherwise knowingly violates, causes to be violated, or assists in the violation of, the last section, he, or if the act or omission was that of a court, each member of the court assenting thereto, forfeits, to the prisoner aggrieved, one thousand two hundred and fifty dollars. He is also guilty of a misdemeanor; and, upon conviction thereof, shall be punished by a fine, not exceeding one thousand dollars, or by imprisonment, not exceeding six months, or by both, in the discretion of the court.

$2052. Id.; for concealing prisoner, etc., to avoid writ. Any one' having in his custody, or under his power, a person entitled to a writ of habeas corpus, or a writ of certiorari, as prescribed in this article, or a person for whose relief a writ of habeas corpus or a writ of certiorari has been duly issued, as prescribed in this article, who with intent to elude the service of the writ, or to avoid the effect thereof, transfers the prisoner to the

1

custody, or places him under the power or control, of another, or conceals him, or changes the place of his confinement, is guilty of a misdemeanor; and, upon conviction thereof, shall be punished as specified in the last

section.

§ 2053. Id.; for aiding, etc. A person who knowingly assists in the violation of the last section, is guilty of a misdemeanor; and, upon conviction thereof, shall be punished as specified in the last section but one.

§ 2054. Warrant to bring up prisoner about being removed. Where it appears, by proof satisfactory to a court or judge, authorized to grant either writ, that a person is held in unlawful confinement or custody, and that there is good reason to believe that he will be carried out of the State, or suffer irreparable injury, before he can be relieved by a writ of habeas corpus or a writ of certiorari; the court or judge must issue a warrant, reciting the facts, directed to a particular sheriff, or generally to any sheriff or constable, or to a person specially designated therein; and commanding him to take, and forthwith to bring before the court or judge, the prisoner, to be dealt with according to law. If the warrant is issued by a court, it must be under the seal thereof; if by a judge, it must be under his hand.

§ 2055. When offender to be arrested. Where the proof, specified in the last section is also sufficient to justify an arrest of the person having the prisoner in his custody, as for a criminal offence, committed in taking or detaining him, the warrant must also contain a direction to arrest that person, for the offence.

$2056. Execution of warrant; proceedings to relieve prisoner. The officer or other person, to whom the warrant is directed and delivered, must execute it by bringing the prisoner therein named, and also, if so commanded in the warrant, the person who detains him, before the court or judge issuing it; and thereupon the person detaining the prisoner 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.

2057. Id.; proceedings to punish offender. If the person having the prisoner in his custody, is brought before the court or judge, as for a criminal offence, he 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.

§ 2058. When appeal may be taken in cases under this article. An appeal may be taken from an order refusing to grant a writ of habeas corpus, or a writ of certiorari, as prescribed in this article, or from a final order, made upon the return of such a writ, to discharge or remand a prisoner, or to dismiss the proceedings. Where a final order is made, to discharge a prisoner, upon his giving bail, an appeal therefrom may be taken, before bail is given; but where the appeal is taken by the people, the discharge of the prisoner upon bail shall not be stayed thereby. An appeal does not lie, from an order of the court or judge, before which or whom the writ is made returnable, except as prescribed in this section.

§ 2059. Id.; by people. An appeal from a final order, discharging a prisoner committed upon a criminal accusation, or from the affirmance of such an order, may be taken, in the name of the people, by the AttorneyGeneral or the district-attorney.

§ 2060. Prisoner who appeals may be admitted to bail, Where a prisoner, who stands charged, upon a criminal accusation, with a bailable

offence, has perfected, or intends to take, an appeal from a final order dismissing the proceedings, remanding him, or otherwise refusing to discharge him, made as prescribed in this article, the court or judge, upon his application, either before or after the final order, must, upon such notice to the district attorney as the court or judge thinks proper, make an order, fixing the sum in which the applicant shall be admitted to bail, pending the appeal; and thereupon, when his appeal is perfected, he must be admitted to bail accordingly.

§ 2061. Prisoner who appeals; recognizance, etc. The recognizance for that purpose must be conditioned, that the prisoner will appear at a term of the appellate division of the supreme court to be held at a time and place designated in the order, and abide by and perform the judgment of order of the appellate court. It must be taken and approved by a justice of the supreme court, or by the court or judge from whose order the appeal is taken, or by the county judge of the county in which the order was made. In all other respects, the proceedings are the same as prescribed in this article, when it appears, upon the return of a writ of certiorari, that the prisoner is entitled to be admitted to bail. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 2062. Recognizance, etc.; on appeal to court of appeals. Where a prisoner, who stands charged with an offense, specified in the last section, has perfected an appeal, to the court of appeals, from a final order of the supreme court, affirming an order refusing his discharge, or reversing an order granting his discharge, the court, from whose order the appeal is taken, or a judge thereof, must, upon his application, admit him to bail, as prescribed in the last section; except that the recognizance must be conditioned to appear, at a term of the appellate division of the supreme court from which the appeal is taken, to abide by and perform its judgment or order, made after the determination of the appeal. [AM'D BY CH. 946 of 1895. In effect Jan. 1, 1896.]

§ 2063. Custody of prisoner until he gives bail. Where the sum, in which a prisoner shall be admitted to bail, has been fixed, as prescribed in either of the last two sections, he must remain in the custody of the sheriff of the county in which he then is, until he is admitted to bail, as therein prescribed; or, if he does not give the requisite bail, until the time to appeal has expired, or the appeal is disposed of, and the further direction of the court, made thereupon.

§ 2061. Recognizance valid for adjourned terms. Where no order or other direction of the court, relating to the disposition of the prisoner, is made at the term specified in a recognizance, given as prescribed in section two thousand and sixty-one or section two thousand and sixty-two of this act, the matter is deemed adjourned without an order to that effect, to the next term of the appellate division of the supreme court, to be held in the same department; and thereafter to each successive term, until such an order or direction is made. The prisoner is bound to attend at each successive term of the appellate division; and the recognizance is valid for his attendance accordingly, without any notice or other formal proceedings. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 2065. Penalty for refusing copy of process, etc. An officer or other person, who detained any one by virtue of a mandate, or other written authority, must, upon reasonable demand, and tender of his fees, deliver a copy thereof to any person who applies therefor, for the purpose of procuring a writ of habeas corpus or a writ of certiorari, in behalf of the prisoner. It he knowingly refuses so to do, he forfeits two hundred dollars to the prisoner.

So in original.

§ 2066. Application of this article to other writs of habeas corpus. Except as otherwise expressly prescribed by statute, the provisions of this article apply to and regulate the proceedings upon every common law or statutory writ of habeas corpus, as far as they are applicable; and the authority of a court or a judge, to grant such a writ, or to proceed thereupon, by statute or the common law, must be exercised in conformity to this article, in any case therein provided for.

ARTICLE FOURTH.

THE WRIT OF MANDAMUS.

SECTION 2067. Kinds of writ; how alternative writ granted. 2068. When writ granted at special term.

2069. Id.; at general term of supreme court.

2070. When peremptory mandamus to issue in first instance.
2071. Alternative writ; how served.

2072. Writ; how returnable.

2073. Return or demurrer to first writ.

2074. Return; how made.

2075. Motion to set aside writ.

2076. Contents of alternative writ; demurrer thereto.

2077. Form and contents of return.

2078. Further return cannot be compelled; demurrer to return.

2079. Issue of fact; when it arises.

2080. Application of certain provisions of chapter sixth.

2081. Service of notice of filing return, and demurrer.

2082. Subsequent proceedings the same as in an action.

2083. Issue of fact; how triable.

2084. Id.; where triable.

2085. Issue of law upon general term mandamus; how and where triable. 2086. Costs.

§ 2067. Kinds of writ; how alternative writ granted. A writ of mandamus is either alternative or peremptory. The alternative writ may be granted upon an affidavit, or other written proof, showing a proper case therefor; and either with or without previous notice of the application, as the court thinks proper.

§ 2068. When writ granted at special term. Except where special provision there for is otherwise made in this article, a writ of mandamus can be granted only at a special term of the supreme court held within the judicial district embracing the county wherein an issue of fact, joined upon an alternative writ of mandamus, is triable, as prescribed in this article. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 2069. Where writ granted at term of appellate division of the] supreme court. A writ of mandamus may be granted, at a term of the appellate division of the supreme court only, directing generally to any judge holding, or to hold, a special term of the same court, or directed to one or more judges the same court named therein, in any case where such a writ may be issued out of the supreme court, directed to any other court, or to a judge thereof. Such a writ can be granted only at a term of the appellate division of the judicial department, embracing the county, wherein the action is triable, or the special proceeding is brought, in the course of which the matter sought to be enforced by the mandamus originated, unless that term is not in session; in which case it may be granted at a term of the appellate division *So in original.