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 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, Id., 61, 62 and remainder of 64. 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. Id., 63. 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 a good reason to believe, that he will be carried out of the State, or suffer irreparable iujury, 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. Id., 265. 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. Id., 66. 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. Id., 267. 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 criminal case of the same nature. Id., 68. § 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. Substituted for id., 2 69. Husted's Case, 17 Abb. Pr. 326, note; People v. Mayer, 16 Barb. 362; Leary's Case, 6 Abb. N. C. 43; 2 1356 and 1357, ante; U. S. r. Wyngall, 5 Hill, 16; People v. Kling, 6 Barb. 366; People v. Humphreys, 24, id, 521; People v. Kelly, 35 id. 444; S. c., 13 Abb. 405; People v. Hicks, 15 Barb. 153. 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 attorney-general or the district-attorney. Substituted for id., 23 70 and 71; 1336-1361, ante; 2121, post. 2060. Prisoner who appeals may be admitted to bail. Where a prisoner, who stands charged, upon a criminal accusation, with a bailable offence, has per fected, 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. L. 1873, ch. 663, part of 1 (9 Edm. 704). § 2061. Id.; recognizance, etc.-The recognizance for that purpose must be conditioned, that the prisoner will appear, at the general term of the appellate court to be held at a time and place designated in the order, and abide by and perform the judgment or 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, or, in the city of New-York, by a judge of the court of common pleas for that city and county. In all other respects, the proceedings are the same as prescribed in this article, where it appears, upon the return of a writ of certiorari, that the prisoner is entitled to be admitted to bail. Id., part of 1. 2062. Id.; on appeal to court of appeals.—Where a prisoner, who stands charged with an offence, specified in the last section, has perfected an appeal, to the court of appeals, from a final order of the supreme court, or of a superior city 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 general term of the court from which the appeal is taken, to abide by and perform its judgment or order, made after the determination of the appeal. Part of same section, amended. § 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. Remainder of same statute, amended. § 2064. When recognizance to be valid for an adjournment, etc.-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 2061 or section 2062 of this act, the matter is deemed adjourned, without an order to that effect, to the next general term of the same court; or, in the supreme court, to the next general term thereof to be held in the same department; and thereafter to each successive general term, until such an order or direction is made. The prisoner is bound to attend at each successive general term; and the recognizance is valid for his attendance accordingly, without any notice or other formal proceedings. New. 2065. Penalty for refusing copy of process, etc.An officer or other person, who detains 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. If he knowingly refuses so to do, he forfeits two hundred dollars to the prisoner. Section 72, R. S., amended. 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 stat ute or the common law, must be exercised in conformity to this article, in any case therein provided for. Id., 73 and 86. People ex rel. Rhoades v. Humphreys, 24 Barb. 521; People v. Liscomb, 60 N. Y. 559. ARTICLE FOURTH. THE WRIT OF MANDAMUS. SEC. 2067. Kinds of writ; how alternative writ granted. 2008. When writ granted at special term. 2069. Id. at general term of supreme court. 2070. When peremptory mandamus to issue in first instance. 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. 2080. Application of certain provisions of chapter sixth. 2042. Subsequent proceedings the same as in an action, 20×3. Issue of fact; how triable. 2084. Id.; where triable. 2085. Issue of law upon general term mandamus; how and where triable. 2086. Costs. 2057. Appeals. 2098. When relator to recover damages. 2089. Stay of proceedings; enlargement of time. 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. New. People v. Supervisors of Schuyler, 2 Abb. N. S. 78, 82; Matter of Gephard, I Johns. Cas. 134; Fish . Weatherwax, 2 id. 215, 217, 262; People v. Brown, 55 N. Y. 190; Haight. Turner, 2 Johns, 377: People r. Sage, 2 How. 60; Milliken v. Selye, 3 Denio, 54; People v. Dikeman, 7 How. 124; Ex parte La Farge, 6 Cow. 61; People ex rel. Lumley . Lewis, 28 How. 470. 2068. When writ granted at special term.-Except where special provision therefor is otherwise made in this article, a writ of mandamus can be granted only at a special term of the court. In the supreme court, the special term must be one held within the judicial dis trict, embracing the county, wherein an issue of fact, |
