affidavit for replevin, conditioned for the delivery of the property to the plaintiff, if such delivery be adjudged, and for payment to him of such sum as may for any cause be recovered against the defendant in the suit. $2759. The sheriff shall judge of the sufficiency of the sureties on the bond of the defendant, and shall return the same with the writ of replevin into the district court; and shall be responsible on his official bond on returning any property replevied; but any party interested in the result of any such cause may move the court on cause shown to require the defendant in such cases to give additional security, when that taken by the sheriff shall be deemed insufficient, or to return the property to the sheriff to be delivered over to the plaintiff, if the plaintiff has given a good and sufficient replevin bond, as required by law. Archibeque vs. Miera, vol. 1. page 419, N. M. Rep. § 2760. The writ of mandamus is regulated as in this tion of chapter prescribed. § 2761. It may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust and station; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion. Territory vs. Ortiz, vol. 1. page 5, N. M. Rep. $ 2762. The writ shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law. It shall issue on the information of the party beneficially interested. L. 1884. chap. 1. § 37: April 1. Writ may issue: when and for what. Id. § 38. Writ when. prohibited: Id. § 39. C. 1, L. 84, § 40: April 1. Writ: alternative and peremptory. state: what. § 2763. The writ is either alternative or peremptory. The alternative writ shall state concisely the facts showing the obligation of the defendant to perform the act, and his Alternative. to omission to perform it, and command him, that immediately after the receipt of the writ, or at some other specified time, he do the act required to be performed, or show cause before the court out of which the writ issued, at a specified time and place, why he has not done so; and that he then and there return the writ with his certificate of having done as Peremptory writ. he is commanded. The peremptory writ shall be in a similar form, except that the words requiring the defendant to show cause why he has not done as commanded, shall be omitted. § 2764. When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases the alternative writ shall be first issued. Peremptory writ may issue first; when. Id. § 41. § 2765. The court or judge, by an indorsement on the writ, shall allow the same, designate the return day thereof and direct the manner of service. § 2766. On the return day of the alternative writ, or such further day as the court allows, the party on whom the writ is served may show cause by answer, made in the same manner as an answer to a complaint in civil action. Branford vs. Erant, vol. 1. page 579. N. M. Rep. § 2767. If no answer is made a peremptory mandamus shall be allowed against the defendant: if an answer is made containing new matter, the plaintiff may, on the trial or other proceedings, avail himself of any valid objection to its sufficiency, or may countervail it by evidence either in direct denial or by way of avoidance. § 2768. No other pleading or written allegation is allowed than the writ and answer. They shall be construed and amended in the same manner as pleadings in a civil action, and the issues thereby joined shall be tried and further proceedings had in the same manner as in a civil action. § 2769. If judgment is given for the plaintiff, he shall recover the damages which he has sustained, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay. § 2770. Whenever a peremptory mandamus is directed to a public officer, body or board, commanding the performance of any public duty specially enjoined by law, if it appears to the court that such officer or any member of such body or board, without just excuse, refuses or neglects to perform the duty so enjoined, the court may impose a fine not exceeding two hundred and fifty dollars upon every such officer or member of such body or board; such fine, when collected, shall be paid into the territorial treasury, and the payment of such fine is a bar to an action for any penalty incurred by such officer or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined. $ 2771. The district court has exclusive original jurisdiction in all cases of mandamus, except where such writ is to be directed to a district court or a judge thereof in his official April 1. capacity, in which case the supreme court has exclusive C., L. 84. § 48: original jurisdiction, and in such case the supreme court or a judge thereof shall first make a rule, returnable in term, that such district court or judge thereof, show cause before the court why a peremptory writ of mandamus should not issue, and upon the return day of such rule such district court or judge may show cause against the rule by affidavit or record evidence, and upon the hearing thereof, the supreme court shall award a peremptory writ, or dismiss the rule. In case of emergency, a judge of the supreme court, at the time of making the rule to show cause, may also appoint a special term of the court for hearing the motion, and at which the rule shall be made returnable. $2772. An appeal lies in the supreme court from the district court in mandamus as in civil actions. Appeal. Id. § 49. Final judgment reviewable. § 2773. That in all cases of proceedings by mandamus in any district court of this territory, the final judgment of the court thereon shall be reviewable by appeal or writ of error in the same manner as now provided by law in other civil cases, except that such appeal or writ of error shall not oper- Feb. 24. ate as a supersedeas of any judgment of the district court. C. 60. L. 87. § 1; District court open at all times. $ 2774. For the purpose of hearing application for, and issuing writs of mandamus, the district courts shall be regarded as open at all times, wherever the judge of such court may April 1. be within the territory. PROHIBITION. L. 1884, C. 1. § 50; Jurisdiction exclusive in supreme Writ: command of. § 2775. Writs of prohibition shall only be issued out of the supreme court, and shall be applied for upon affidavit, by court. motion to the court, or a judge thereof in vacation, and if the cause shown appears to the court or judge to be sufficient, a writ shall be thereupon issued, which shall command the court and party, or officer to whom it is directed, to desist and refrain from any other proceedings in the action or matter specified therein, until the next term of said supreme court, or the further order of the court thereon; and to show cause at the next term of said court, or some day to be named in the same term, at the option of the court, if issued in term time, why they should not be absolutely restrained from any further proceedings in such action or matter. § 2776. Such writ shall be served upon the court and party or officer to whom it is directed, in the same manner as a writ of mandamus, and a return shall be made thereto by such court or officer, which may be enforced by attachment. § 2777. If the party to whom such writ is directed shall, by an instrument in writing, to be signed by him and annexed to such return, adopt the same return, and rely upon the matters therein contained as sufficient cause why such court should not be restrained, as mentioned in said writ, such party shall thenceforth be deemed the defendant in such proceeding, and the person prosecuting such writ may take issue or demur to the matters so relied upon by such defend ant. Id. § 51. Writ, service and return of. Id. § 52. Party defendant: when. Id. § 53. Procedure: when return is not adopt $ 2778. If the party to whom such writ is directed shall not adopt such return, the party prosecuting such writ shall ed. April 1. ̄ C. 1, L. 84. § 54: bring on the argument of such return, as upon a rule to show cause; and he may, by his own affidavit and other proofs controvert the matter set forth in such return. Judgment: how to be rendered. Id. § 55. Prohibition absolute: when. Id. § 56. § 2779. The court, after hearing the proofs and allegations of the parties, shall render judgment either that a prohibition absolute restraining the said court and party, or officer, from proceeding in such action or matter, do issue, or a writ of consultation authorizing the court and party, or officer, to proceed in the action or matter in question, and may make and enforce such order in relation to costs and charges and the amount thereof as may be deemed just. § 2780. If the party to whom such first writ of prohibition is directed adopts the return of the court thereto, and judgment is rendered for the party prosecuting such writ, a prohibition absolute shall be issued, but if judgment is given against such party, a writ of consultation shall be issued as above provided. Writ: who may prosecute. L. 1884, chap. 1. §1; April 1. Writ: who may not prosecute. § 2781. Every person imprisoned or otherwise restrained of his liberty, except in the cases in the following section specified, may prosecute a writ of habeas corpus, according to the provisions of this chapter, to obtain relief from such imprisonment or restraint, if it proves to be unlawful. McDonald vs. Carlton, vol. 1, page 172. N. M. Rep. § 2782. The following persons are not entitled to prosecute such writ: Persons committed or detained by virtue of the final judgment, conviction or decree of any competent tribunal or by virtue of an execution issued upon such judgment or decree; but no order of commitment for any alleged contempt, or upon proceedings as for contempt, to enforce the rights or remedies of any party shall be deemed a judg ment, conviction or decree within the meaning of this section; nor shall any attachment or other process issued upon any such order be deemed an execution within the meaning of this section. C. 1, L. 84. § April 1. Execution; term defined. Application; how and when to be See L. 89, C. 89. See L. 95, C. 19. Id. § 3. $2783. Application for such writ shall be made by petition to any judge of the supreme court, signed and verified made. either by the party for whose relief it is intended, or by some person in his behalf, as follows: To the supreme or district court or to any judge thereof, being within the district where the prisoner is detained; or if there is no such officer within such district, or if he be absent or from any cause is incapable of acting, or has refused to grant such writ, then to some officer having such authority residing in any other district. § 2784. Whenever application for any such writ is made to any officer not residing within the district where the prisoner is detained, he shall require proof by the oath of the party applying, or by other sufficient evidence, that there is no officer in such district authorized to grant the writ; or if there is one, that he is absent or has refused to grant such writ; or for some cause, to be specially set forth, is incapable of acting, and if such proof is not produced, the application shall be denied. § 2785. The petition shall state in substance: Proof required. Id. § 4. Petition; substance First. That the person in whose behalf the writ is applied P for is imprisoned or restrained of his liberty, the officer or person by whom he is so confined or restrained, and the place where, naming both parties, if their names are known, or describing them if they are not. Second. That such person is not committed or detained by virtue of any process, judgment, decree, or execution, specified in section two thousand seven hundred and eighty-two. Third. The cause or pretense of such confinement or restraint, according to the knowledge or belief of the party verifying the petition. Fourth. If the confinement or restraint is by virtue of any warrant, or order, or process, a copy thereof shall be annexed, or it shall be averred that by reason of such prisoner being removed or concealed before application, a demand of such copy could not be made, or that such demand was made, and the legal fees therefor tendered to the officer or person having such prisoner in his custody, and that such copy was refused. Fifth. If the imprisonment is alleged to be illegal, the petition shall state in what the illegality consists. § 2786. Every writ of habeas corpus issued under the provisions of this chapter shall be substantially in the following form: The Territory of New Mexico to the Sheriff of, etc., or to A. B.: You are hereby commanded to have the body of C. D., by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by Id $5. |