2037. Custody of prisoner pending the proceedings. Pending the proceedings, and before a final order is made upon the return, the court or judge, before which or whom the prisoner is brought, may either commit him to the custody of the sheriff of the county wherein the proceedings are pending, or place him in such care or custody, as his age and other circumstances require.

Id.. 45. People v. Stone, 10 Paige, 606; Hassam v. Griffin, 18 Johns. 48; Martin v. Wood, 7 Wend. 132; Wilkins v. Willett, 1 Keyes, 521.

2038. Notice to person interested in detention.Where it appears, from the return to either writ, that the prisoner is in custody by virtue of a mandate, an order for his discharge shall not be made, until notice of the time when, and the place where, the writ is returnable, or to which the hearing has been adjourned, as the case may be, has been 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, as follows:

1. 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 restraint, or his attorney.

2. 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.

For the purpose of an appeal, the person to whom notice is given as prescribed in the first subdivision of this section, becomes a party to the special proceeding.

Id., 46 and 47, amended by L. 1837, ch. 240, 22 (4 Edm, 681). People v. Cassels, 5 Hill, 164, 169, 170; People v. Pelham, 14 Wend. 48; Ex parte Beatty, 12 id. 229.

2039. Prisoner may controvert return; proofs thereupon. A prisoner, produced upon the return of a writ of habeas corpus may, under oath, deny any material allegation of the return, or make any allegation of fact, showing either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. Thereupon the court or judge must proceed, in a summary way, to hear the evidence, produced in support of or against the imprisonment or detention, and to dispose of the prisoner as the justice of the case requires. Id., 48. See 3 Hill, 658, note 30; Jones v. People, 21 Alb. L. J. 15,

decided Nov. 25, 1879; Bennac v. People, 4 Barb. 31; Matter of Lagrave, 45 How. 31: Ex parte Wilson, 4 C. H. Rec. 47; Ex parte Stephen, I Wh, Cr. Cas. 323; People v. Richardson, 9 Abb. 393n'; People v. Ruloff, 3 Park. 126.

2040. Proceedings, etc., of prisoner. Where the return to a writ of habeas corpus states that the prisoner is so sick or infirm, that the production of him would endanger his life or health, and the return is otherwise sufficient, the court or judge, if satisfied of the truth of that statement, must decide upon the return, and dispose of the matter, as if a writ of certiorari had been issued.

Id., 49.

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 writ of habeas corpus, as if the application had been made for the former writ.

Id., 50. See People v. Sheriff of New York, 29 Barb. 622, 627.

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.

Id., 51. People r. Ryker, 6 Hun, 625.

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 im prisoned or detained, and is not entitled to be bailed, the court or judge must make a final order, dismissing the proceedings.

Id., 52, amended. People v. Sheriff of N. Y., 29 Barb. 622, 627.

S2044. When certiorari does not prevent habeas Notwithstanding a writ of certiorari has been issued or returned, as prescribed in this article, the

corpus.

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 refuses a writ of certiorari, or, upon the return thereof, refuses to discharge the prisoner, the latter may claim, and is entitled to, the writ of habeas corpus, as prescribed in this article.

Id., 53.

§ 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.

Id., 54, amended.

2046. Id.; by whom and how taken. Upon the production of the 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, or to a judge of a superior city court of the city, 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.

Id., 55, amended.

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.

Id., 56. Wiles v. Brown, 3 Barb. 37; Bullymore v. Cooper, 2 Lans. 71.

§ 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.

New. See 22 610 and 1241, ante. Matter of Barnett, 11 Hun, 468,

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.

Section 57, R. S., amended; also, see 2020, ante, and 2051, post.

$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.

Id., 50. Matter of Hayward, 1 Code R. 45; 8. c., 1 Sandf. 701; Matter of Rutter, 7 Abb. N. S. 67; People v. Spalding, 10 Paige, 284; 8. c., 7 Hill, 301; Case of Yates, 4 Johns. 317; Yates v. Lansing, 5 id. 282; 8. C., 9 id. 395; Cable r. Cooper, 15 id. 152; Snyder v. Van Ingen, 9 Ilun, 569.

§ 2051. Penalty for violating the last section. If a court, or 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.

Id., 60 and part of 2 64. Ex parte Tilton, 16 How. Pr. 303.

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 per son for whose relief a writ of habeas corpus or a writ of