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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. 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. 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 fine, not exceeding one thousand dollars, or by imprisonment, not exceeding six months, or by both, in the discretion of the court.

§ 2052. 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 custody, or places him under the power or control, of another, or con

ARTICLE FIFTH.

PROVISIONS RELATING GENERALLY TO LETTERS; AND GENERALLY TO EXECUTORS, ADMINISTRATORS, GUARDIANS, AND TESTAMENTARY TRUSTEES.

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2590. Letters testamentary, letters of adminstration, and letters of guardianship must be in the name of the people of the State. Where they are granted by a surrogate, or by an officor or person appointed by the board of supervisors, temporarily acting as surrogate, they must be tested in the name of the officer granting them, signed by him, or by the clerk of the surragate's court, and sealed with the seal of the surrogate's court. Where they are issued out of another court, they must be tested in the name of the judge holding the court, signed by the clerk thereof, and sealed with its seal.

2591. Subject to the provisions of the next section, regulating the priority among different letters, letters testamentary, letters of administration, and letters of guardianship, granted by a court or officer, having jurisdiction to grant them, as prescribed in this chapter, are conclusive evidence of the authority of the persons to whom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked, as prescribed in this chapter.

§ 2592. The person or persons, to whom letters testamentary, or letters of administration are first issued, from a surrogate's court having jurisdiction to issue them, as prescribed in article first of title first of this chapter, have sole and exclusive authority, as executors or administrators, pursuant to the letters, until the letters are revoked, as prescribed by law; and they are entitled to demand and recover from any person, to whom letters upon the same

estate are afterwards issued, by any other surrogate's court, the decedent's property in his hands. But the acts of a person, to whom letters were afterwards issued, done in good faith, before notice of the letters first issued, are valid; and an action or special proceeding, commenced by him, may be continued by and in the name of the person or persons to whom the letters were first issued.

2593. Where it is prescribed by law, that an act, with respect to the estate of a decedent, must or may be done within a specified time after letters testamentary or letters of administration are issued, and successive or supplementary letters are issued upon the same estate, the time so specified must be reckoned from the issuing of the first letters, except in a case where it is otherwise specially prescribed by law; or where the first or any subsequent letters are revoked, as prescribed in section two thousand six hundred and eighty-four of this act, or by reason of the want of power in the surrogate's court, to issue the same, for any cause.

$2594. The official oath or affirmation of an executor, 8 Misc. 142. administrator, or guardian, to the effect that he will well, faithfully, and honestly discharge the duties of his office, describing it, must be filed with the surrogate, before letters are issued to him. The oath may be taken before any officer, within or without the State, who is authorized to take an affidavit, to be used in the supreme court. Where it is taken without the State, it must be certified as required by law, with respect to an affidavit to be used in the supreme court.

§ 2595. [Am'd 1885.] In a case where a bond, or new sureties to a bond, may be required by a surrogate from an executor, administrator, guardian, or other trustee, if the value of the estate or fund is so great that the surrogate deems it expedient to require security in the full amount prescribed by law, he may direct that any securities for the payment of money belonging to the estate or fund be deposited with him, to be delivered to the county treasurer, or be deposited subject to the order of the trustee, countersigned by the surrogate, with a trust company duly authorized by law to receive the same. After such a deposit has been made, the surrogate may fix he amount of the bond with respect to the value of the remainder only of the estate or fund. A security thus deposited shall not be withdrawn from the custody of the county treasurer or trust company, and no person other than the county treasurer or the proper officer of the trust company shall receive or collect any of the principal or interest secured thereby without the special order of the surrogate entered in the appropriate book. Such an order can be made in favor of the trustee appointed, only where an additional bond has been given by him, or upon proof that the estate or fund has been so reduced by payments or

otherwise, that the penalty of the bond originally given will be sufficient in amount to satisfy the provisions of law relating to the penalty thereof, if the security so withdrawn is also reckoned in the estate or fund.

§ 2596. A person to whom letters are issued, is liable for money or other personal property of the estate, which was in his hands, or under his control, when his letters were issued; in whatever capacity it was received by him, or came under his control. Where it was received by him. or came under his coutrol, by virtue of letters previously issued to him, in the same or another capacity, an action to recover the money, or damages for failure to deliver the property, may be maintained upon both official bonds; but, as between the sureties upon the official bond given upon the prior letters, and those upon the official bond given upon the subsequent letters, the latter are liable over to the former.

§ 2597. Any person, interested in the estate or fund, may present to the surrogate's court a written petition, duly verified, setting forth that a surety in a bond, taken as prescribed in this chapter, is insufficient, or has removed, or is about to remove, from the State, or that the bond is inadequate in amount; and praying that the principal in the bond may be required to give a new bond, in a larger penalty, or new or additional sureties, as the case requires; or, in default thereof, that he may be removed from his office, and that letters issued to him may be revoked. Where the bond so taken is that of a guardian, the petition may also be presented by any relative of the infant. When the bond is that of an executor or administrator, the petition may also be presented by any creditor of the decedent. If it appears to the surrogate, that there is reason to believe that the allegations of the petition are true, he must cite the principal in the bond to show cause, why the prayer of the petition should not be granted.

2598. Upon the return of a citation, issued as prescribed in the last section, the surrogate must hear the allegations and proofs of the parties; and if the objections, or any of them, are found to be valid, he must make an order, requiring the principal in the bond to give new or additional sureties, or a new bond in a larger penalty, as the case requires, within such a reasonable time, not exceeding five days, as the surrogate fixes; and directing that, in default thereof, his letters be revoked.

2599. If a bond with new or additional sureties, or in a larger penalty, is approved and filed in the surrogate's office, as required by such an order, the surrogate must make a decree, dismissing the proceedings, upon such terms, as to costs, as justice requires; otherwise, he must make a decree, removing the delinquent from office, and revoking the letters issued to him,

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§ 2068. [Am'd 1895, amendment to take effect January 135 N. Y. 76. 1, 1896.] Except where special provision therefor is other. 20 App. Div, wise 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.

§ 2069. [Am'd 1895, amendment to take effect January 1, 135 N. Y. 76: 1896,] A writ of mandamus may be granted, at a term of the appellate division of the supreme court only, directed generally to any judge holding, or to hold, a special term of the same court, or directed to one or more judges of 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 of an adjoining judicial department.

§ 2070. [Am'd 1895, amendment to take effect January 1, 1896.] A peremptory writ of mandamus may be issued, in the first instance, where the applicant's right to the mandamus depends only upon questions of law, and notice of the application has been given to a judge of the court, or to the corporation, board, or other body, officer, or other person, to which or to whom it is directed. The notice must be

served, at least eight days before the application is heard; unless a shorter time is prescribed by an order to show cause, made, where the application is to the special term, by the court, or a judge thereof; or, where the application is to the appellate division, by the appellate division, or a justice of the appellate division of that judicial department. In such a case, the application must be founded upon affidavits, or other written proofs, a copy or which must be served with the notice, or order to show cause. Where the court, board, or other body to be served, consists of three or more memhers, the notice or order to show cause, and the papers upon which the application is to be made, may be served, as prescribed in the next section for service of an alternative writ of mandamus. Except as prescribed in this section, or by special provision of law, a peremptory mandamus can not be issued, until an alternative mandamus has been issued and duly served, and the return day thereof has elapsed.

§ 2071. An alternative writ of mandamus must be served, by showing the original writ, and delivering a copy thereof, to the person to be served. Where it is directed to a court, or to the judge or judges of a court, it must be served, either in term time or in vacation, upon the judge or judges of the court; except that, where the court consists of three or more judges, service upon a majority of them is suffi

34 Hun, 584. 99 N. Y. 620,

135 Id 522.

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