A TREATISE

ON THE

LEGAL REMEDIES OF

Mandamus and Prohibition,

HABEAS CORPUS,

Certiorari, and Quo Warranto,

BY HORACE G. WOOD.

WITH FORMS.

THIRD EDITION— REVISED AND ENLARGED.

BY CHARLES F. BRIDGE, ESQ..

OF THE ALBANY BAR.

ALBANY, N. Y.

W. C. LITTLE & Co., LAW BOOKSELLERS.

1896.

Library of Congress Cataloging-ln-Publicatlon Data

Wood, H. G. (Horace Gay). 1831-1893.

A treatise on the legal remedies of mandamus and prohibition, habeas corpus, certiorari, and quo warranto : with foms / by Horace G. Wood. — 3rd. ed. / rev. and en), by Charles F. Bridge.

p. cm.

Originally published Albany, N.Y. . W.C. Little 4 Co., Law Booksellers. 1896. Includes Index.

ISBN 0-8377-2787-1 (lib. bdg. alk. paper)

1. Extraordinary remedies—New York (State) 2. Mandanus—New York (State) 3. Prohibition (Law)—New York (State) 4. Habeas corpus--New York (State) 5. Quo warranto. I. Bridge, Charles F. (Charles Francis), b. 1865. II. Title. KFN6070.W6 1997

347.747'077—dc21 97-4206

CIP

Printed in United States of America

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39 48-1984

Copyrighted, 1880, BY W. C. LITTLE & CO.

Copyrighted, 1891, BY W. C. LITTLE & CO.

Copyrighted, 1896, W. C. LITTLE & CO.

PREFACE TO FIRST EDITION.

In this volume the author has sought to delineate the principles governing the courts in administering relief by the Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari and Quo Warranto. In the prosecution of this object his labors have covered a field which has hitherto been but partially explored. It has been his aim to set forth the results of the most reliable English and American Decisions on the several subjects treated upon which have been gathered in many months of careful study and research of the cases which are referred to under the different heads.

In cases where the former New York Code is referred to the corresponding sections of the New Code are given. Where no reference to the New Code is given, it may be understood that the present Code makes no changes in the sections referred to in the old.

ALBANY, N. Y., April 20, 1880.

PREFACE TO SECOND EDITION.

At the time when this work was originally prepared by Mr. Wood, the courts were passing from the practice under the old Code to that under the new. Whether the change was a beneficial one or not still seems to be a question in the minds of many. That it was a decided change, no one will deny. The aim of this edition has been to conform the work to the present practice; to give all the changes in statutory law, as well as references to late cases in this and other States bearing upon the subject in hand, and, at the same time, to preserve, for the benefit of those accustomed to it, the arrangement and general scheme of the first edition. The work has been carefully done, all authorities have been verified, and it will, it is believed, be worthy of the generous reception accorded its predecessor. CHARLES F. BRIDGE.

ALBANY, N. Y., Jan. 1st, 1891.

CONTENTS.

CHAPTER I.

PAGE

Mandamus and Prohibition, 1

CHAPTER II. Habeas Corpus and Certiorari, ... 111

CHAPTER III. Certiorari, ....... 148

CHAPTER IV. Quo Warranto, . 188

CHAPTER IV. THE ACTION OF QUO WARRANTO.

The writ of quo warranto, and proceedings by information in the nature of quo warranto, have been abolished. The relief formerly obtained by means of either of those writs, may be obtained by action, where an appropriate action therefor is prescribed in this act.¹

An examination of the provisions of the statute under which the former proceedings were had, by information in the nature of a quo warranto, and the provisions of the Code by which a civil action is substituted as a means of attaining the same remedies, will show that the former proceeding by information, and the latter by action, are substantially the same; almost every provision of the Code is a re-enactment of the same or similar provisions of the statute; consequently, the practice under the Code will differ from that under the statute only as the practice in civil actions may differ from that in special proceedings. The differences between the two modes of proceeding will be pointed out during the progress of this chapter.

Against corporations. — The attorney-general, whenever he is so directed by the legislature, must bring an action against a corporation created by or under the laws of the State, to procure a judgment, vacating or annulling the act of incorporation, or any act renewing the corporation, or continuing its corporate existence, upon the ground that the act was procured upon a fraudulent suggestion, or the concealment of a material fact, made by or with the knowledge and consent of any of the persons incorporated.²

¹ Code Civ. Pro., § 1983. ² Code Civ. Pro., § 1797.

Or the attorney-general may bring the like action on leave granted for that purpose by the court,¹ for the purpose of vacating the charter or annulling the existence of a corporation upon the ground that such corporation has either: 1. Offended against any provision of an act by or under which it were created, altered or renewed, or an act amending the same and applicable to the corporation; or, 2. When it shall have violated any provision of law, whereby it shall have forfeited its charter or become liable to be dissolved by abuse of its powers; or, 3. Whenever it shall have forfeited its privileges or franchises by failure to exercise its powers; or, 4. Whenever it shall have done or omitted any act which amounts to a surrender of its corporate rights, privileges and franchises; or, 5. Whenever it shall have exercised a franchise or privilege not conferred upon it by law;² and it is made the duty of the attorney-general, whenever he has good reason to believe that any of these acts and omissions can be established by proof, to apply for such leave; and upon leave being granted, to bring such action, in every case of public interest, and also in every other case where satisfactory security for costs and expenses shall be given.³ Actions of this character must be brought by the attorney-general, in the name of the people of the State.⁴

Leave, how obtained.—Leave to bring the action is granted upon the application of the attorney-general; and tho court, in its discretion, directs notice of such application to be given to the corporation or to its officers, previous to granting such leave; and it may hear the corporation in opposition thereto.⁵

It is said in a recent case, that the attorney-general may, under sections 1798, 1799, make an ex parte appli-

¹ Code Civ. Pro. § 1799; see Code Civ. Pro., § 1804, supra.

* Code Civ. Pro. §1798. ³ Code Civ. Pro. § 1808. « Code Civ. Pro. § 1934.

* Code Civ. Pro. § 1799.

cation for leave to bring an action against a corporation; but it is within the power of the court to direct that notice of the application be given to the proposed defendant. Where the application has been granted ex parte, the defendant may, after the commencement of the action, inquire into the regularity of the leave; and the proper mode of presenting objections to the order, and directing attention to whatever might, in the first instance, have induced the court to refrain from granting the same, is to move, before the court, to set aside the order. Application by the attorney-general for leave to begin an action must be made on written petition, and whatever papers are referred to in the petition become the basis thereof, and should be filed therewith, and the petition must be signed by the attorney-general himself. Upon the application, the court never demands the evidence upon which the application can be successfully maintained, nor does it, as a rule, require more than the most general statement of the right to maintain an an action. It does require the certainty of a complaint.¹ An action, brought as prescribed in this article, is triable, of course and of right, by a jury, as if it was an action specified in section 968 of this act, and without procuring an order, as prescribed in section 970 of this act.'

When action will lie.—The omission of a corporation to exercise its powers, when unconnected with other acts, does not work a forfeitui-e.³ Non-compliance with the requirements of the act of incorporation as to construction of a road is a misuser which forfeits, but the non-compliance with the conditions must be substantial.⁴ The purchase by copartners of the charter and property of a manufacturing corporation does not dissolve it.⁸ A bank does not forfeit its charter by insolvency and clos-

'2McC.,295, sub.

* Code Civ. Pro., § 1800. 'Hopk., 354.

⁴ 23 Wend., 194.

• 4 Paige, 481.

ing its banking operations, if it resumes payment before prosecution by the people.' A corporation may be dissolved, as to, creditors, by a, surrender of its corporate rights.⁴ Suffering an act to be done which destroys, the end and object of its creation is equivalent to surrender." Where, after the lapse of over fifty years from the incorporation of a turnpike company and the construction of its road, an action was brought to vacate its charter on the ground of misuser in omitting to comply with the provisions of the general turnpike law in the original construction of the road, and also in failing to keep the road in repair, held, that the fact must be established not only of a deviation from the statute, in the construction of the road, but that the road was thereby rendered injurious or inconvenient to the public; that the company was not bound to continue the road in the same condition required in its original construction, but only in a state of general repair; and that to warrant a forfeiture for an omission to keep in repair, it must be alleged and found that the want of repair was such as to render the road dangerous or inconvenient to travelers.*

The legislature in chartering a corporation has the power to provide that it may lose its corporate existence without the intervention of the courts, by any omission of duty or violation of its charter, or default as to limitations imposed, when the language used shows the legislative intent was to make the continued existence of the corporation depend upon its compliance with some requirement of the charter. In case of non-compliance, the powers, rights and franchises granted are forfeited and terminated. It is not simply a case of forfeiture to be enforced in an action by the attorney-general,⁶ but the forfeiture of rights which have been lawfully used

¹ 6 Cow., 196. ¹19 Johns., 456.

³ 6 Cow., 217, 27 Hun, 582.

⁴ 47 N. Y., E86.

⁵ 78 N. Y., 524.

and enjoyed, cannot be inquired of collaterally; hence, it is not available as a ground for enjoining the road of a corporation, at the suit of a property owner injured thereby.¹

A municipal corporation has the same right to question the corporate existence, and the rights of a railroad corporation seeking to use its streets, as a private owner would where the use of his property is sought." The charters of business corporotions imply and and require that they shall perform the business for which they were instituted, and a substantial suspension of business after its commencement, like an entire omission to begin business, is a violation of a charter.³ A corporation may be dissolved by forfeiture through abuse or neglect of its franchises; but such forfeiture, unless there be special provision by statute, can only be enforced by the sovereign power in some proceeding instituted in its behalf.*

Where an action is brought to annul the charter of a railroad company, another company, which has become a lessee of part of the road, is er titled, in its application, to be made a defendant.⁵ A forfeiture may be waived by legislation." A portion of the stockholders of a manufacturing corporation, cannot maintain an action to dissolve it; nor have they, in the absence of proof of fraud, mismanagement or \vrong-doing on the part of its direc-rectors, an absolute right to have a receiver of its prop erty appointed; and this, although the corporation be utterly insolvent. It is at least discretionary with the court.⁷

An action cannot be maintained against a corporation, by a stockholder, to effect a forfieture of the charter, for non-user within a year, and in any case, even when

¹ 3 Abb. N. C., 306; appeal determined, 67 N. Y., 484. ³ 78 N. Y., 534.

³ 4 Sandf. Ch., 559.

⁴ 80 N. Y., 599. ⁴ 77 N. Y., 332.

« 9 Wend., 851, 70 N. Y., 327; 54 How., 168. ' 80 N. Y., 599.

the action is brought by the attorney-general, a receiver cannot be appointed until judgment in the action.' The complaint, in an action by the people against a corporation for its dissolution, alleged that the corporation was insolvent thirteen years before; that it then surrendered its property to its creditors; that ever since it had remained insolvent and neglected to pay its debts, and entirely suspended its ordinary business; that certain defendants named claiming to be stockholders of the original corporation, had usurped the franchise, pretended to elect directors, and commenced an action to obtain title and posssession of the road, which facts were not denied in the answer, although the alleged forfieture was sought to be excused. Held, that no issue was formed by the pleadings; and judgment, as prayed in the complaint, and also appointing a receiver of the original corporation, was properly rendered at special term, on a motion for judgment upon pleadings, or for other and further relief.²

Judgment.—Where any of the matters, specified in section 1797 or section 1798 of this act, are established in an action brought as prescribed in either of those sections, the court may render final judgment that the corporation, and each officer thereof, be perpetually enjoined from exercising any of its corporate rights, privileges, and franchises, and that it be dissolved. The judgment must also provide for the appointment of a receiver, the taking of an account, and the distribution of the property of the corporation, among its creditors and stockholders, as where a corporation is dissolved upon its voluntary application, as prescribed in chapter seventeenth of this act.³ And in such case, or in case the judgment be against persons claiming to be a corporation, the court may direct the costs to be collected by execution against

¹ 61 Barb , 9

' 42 N Y , 217. ¹ Code Civ. Pro , § 1801. 9K

any of the persons claiming to be a corporation, or by warrant of attachment, or other process, against the person of any director or other officer of the corporation.¹

Injunction may issue.—In an action, brought as prescribed in this article, an injunction order may be granted at any stage of the action, restraining the corporation, and any or all of its directors, trustees and other officers, from exercising any of its corporate rights, privileges or franchises; or from exercising certain of its corporate rights, privileges, or franchises specified in the injunction order; or from exercising any franchise, liberty or privilege, or transacting any business, not allowed by law. Such an injunction is deemed one of those specified in section 603 of this act, and all the provisions of title second of chapter seventh of this act, applicable to an injunction specified in that section, apply to an injunction granted as prescribed in this section, except that it can be granted only by the court.⁵

Filing and publishing judgment.—Where final judgment is rendered against a corporation, in an action, brought as prescribed in this article, the attorney-general must cause a copy of the judgment-roll to be forthwith filed in the office of the secretary of State; who must cause a notice of the substance and effect of the judgment, to be published, for four weeks, in the newspaper printed at Albany, in which legal notices are required to be published, and also in a newspaper printed in the county, wherein the principal place of busines of the corporation was located.'

Certain corporations excepted.—Articles second, third and fourth of this title, do not apply to an incorporated library society; to a religious corporation; to a select school or academy, incorporated by the regents of the university, or by an act of the legislature; or to a mu-

¹ Code Civ. Pro., g 1987. ⁸ Codo Civ. Pro., § 1802. ' Code Civ. Pro., § 1803.

nicipal or other political corporation, created by tfra constitution, or by or tinder the laws of this State."

Compelling officers and agents to testify.—In an action, brought as prescribed in article second, third, or fourth of this title, a stockholder, officer, alienee or agent of a corporation, is not excused from answering a question, relating to the management of the corporation, or the transfer or disposition of its property, on the ground that his answer may expose the corporation to a forfeiture of any of its corporate rights, or will tend to convict him of a criminal offense, or to subject him to a penalty or forfeiture. But his testimony shall not be used, as evidence against him, in a criminal action or special proceeding.¹

Action upon information or complaint of course against

individuals.

The attorney-general may maintain an action, upon his own information, or upon the complaint of a private person, in either of the following cases:

1. Against a person who usurps, intrudes into, or unlawfully holds or exercises, within the State, a franchise, or a public office, civil or military, or an office in a domestic corporation.

2. Against a public officer, civil or military, who has done or suffered an act which by law works a forfeiture of his office.

3. Against one or more persons who act as a corporation within the State without being duly incorporated; or exercise, within the State, any corporate rights, privileges or franchises not granted to them by the law of the State.'

It is only the old form of the writ of quo warranto that is done away with. The jurisdiction and power of the courts is not touched. The right to seek and reach, through them, all the remedy which the writ or infor-

¹ Code Civ. Pro., § 1804.

* Code Civ. Pro., § 1805; 7 Civ. Pro., 5.

' Code Civ. Pro., § 1948.

mation once offered remains.¹ It furnishes the only remedy for determining the title to office.* The title to office cannot be tried by suit for salary.³ It is the appropriate action to test the legality of a corporation formed under the general village act." The remedies given by statute for testing by a direct action the title of officers of a corporation are exclusive.'

The action lies against persons who intrude into the office of directors of a corporation, or into an office created for the government of a corporation, or against persons who usurp the right to be a corporation." It is the proper remedy where an unauthorized person has usurped the office of alderman in a municipal corporation; ^T against one intruding into the office of sheriff by reason of an unlawful decision of the board of county canvassers in his favor;" to oust a county judge alleged to have obtained his office by a promise to serve for less than the legal salary;⁹ to try the title to a military office.¹⁰ It will lie where the party proceeded against is a defacto or dejure officer in possession of the office, and the facts are disputed." A claimant to a municipal office cannot maintain an action in his own name, when it does not appear that any person claims the office in hostility to him, or that there has been any interference with his legal rights as an officer by defendant; nor can an individual, as a taxpayer, maintain an action to determine the validity of an election, or to restrain illegal acts.'²

The action will not lie against the secretary and treas-

¹ 9 Reporter, 479, 80 N. T., 117.

* 45 How., 110, 14 Abb. N. S., 191; 24 N. Y., 86

³15 Hun, 204.

⁴ 70 N Y., 518.

⁵14 Abb. N S., 191

⁶ 4 Cow , 358

' 4 Abb , 121.

⁸4Co\\., 297.

⁹ 2r> ITu-i, 503.

¹⁰ 2^r> Barb , 254.

¹¹ 77 F Y , 503.

¹⁴ 63 N. Y , 320, 67 Barb., 312, 4 Hun, 627.

urer of a railroad company, holding his office as a mere servant, and at the will of the directors.¹ A civil action cannot bo maintained in the name of the people for the redress of private wrongs; the people cannot intervene, except upon the assertion of a distinct right on the part of the public in respect to the subject-matter litigated.² The action will not lie before the commencement of the term of office.³ The title of rival claimants to the office of trustee of a religious corporation cannot be determined in an equitable action brought by one claimant or set of claimants against another or others, the remedy is by an action brought by the attorney-general in the name of the people.⁴ Quo tuarranto is the remedy for intrusion into an office,⁵ but where the people, through their constitutional agents, ratify and recognize the title of a citizen to tin. office, it is not competent for them to question it by quo warranto.'

The attorney-general may locate the place of trial in any county of the State, subject to the power of the court to change it for the convenience of witnesses, whenever tho same is in a proper condition for such a motion.' The defendant cannot have the place of trial changed on account of residence.⁸ It is not necessary for the attorney-general to obtain leave of the court to bring an action under this section.⁹ The right to lemoveonewho has unlawfully intruded into a public office is vested in the State, and its decision by the attorney-general, as to whether or not an action shall be brought is final, and cannot be reviewed by the courts.^I0 The attorney-general, in an action brought by him, represents the whole

¹ 1 Lans., 202. * 57 N. Y., 161. ³11 Abb. N. 8., 129. ⁴ Code Civ. Pro., § 406. ⁶16 Hun, 219. «66N. Y., 238.

⁷10 N. Y. St. Rep., 577; affirmed 12 N. Y. St. Rep., 409 ⁸10 N. Y. St. Rep , 577. ⁹ 27 Hun, 528. ¹⁰ 8 Hun, 334, 22 Barb , 114, 67 N. Y , 334.

people and a public iuterst, and no question can be presented affecting only mere individuals and private rights.¹

Allowances to compensate special counsel employed by the attorney-general, in actions in which the State is interested, are not authorized.² In a late case, this holding was explained as being only a determination that the attorney-general, except in the cases pointed out by the statutes, was not authorized to employ counsel to appear for the people, so as to make their compensation a charge against the treasury; but not a decision that he could not depute special counsel to appear in his behalf, they making no claim against the State for compensation, nor that their right to so appear was open to question, more freely than if they claimed to represent a private individual.' The attorney-general may stipulate to waive right of appeal in action under Laws 1808, chapter 869, against canal contractors."

The attorney-general possesses the same powers he had at common law, and such additional ones as legislature has conferred upon him.'

In an action, brought as prescribed in the last section, for usurping, intruding into, unlawfully holding or exercising an office, the attorney-general, besides stating the cause of action in the complaint, may, in his discretion, set forth therein the name of the person rightfully entitled to the office, and the facts showing his right thereto; and thereupon, and upon proof, by affidavit, that the defendant, by means of his usurpation or intrusion, has received any fees or emoluments belonging to the office, an order to arrest the defendant may be granted by the court or judge. The provisions of title first of chapter seventh of this act apply to such an order, and the proceedings thereupon and subsequent thereto, except where special provision is otherwise made in this title.

¹ 89 N. T., 76.

' 88 N. Y., 571; 11 Abb. N. C., 304; 2 McCarthy, 295.

»99N. T,, 57.

⁴ 52 N. Y., 306.

⁵ 2 Lans.. 396.

'For that purpose, the order is deemed to have been made as prescribed in section 549 of this act. Judgment may be rendered upon the right of the defendant, and of the party so alleged to be entitled; or only upon the right of the defendant, as justice requires.¹

It need not be averred in the complaint, that the re-lator possessed the requisite qualifications nor that he has taken oath, or given bond; nor need the number of votes be stated, if the relator is stated to have the plurality.³ The people need not allege defendant's election and inability to hold office, but simply that he has intruded into office unlawfully.³ It is not necessary to set forth in the complaint the grounds of defect, in defendant's claim to office. It is enough to aver that he unlawfully exercises the office, and to call upon him to set up and show his title, if he has any. Every man who exercises an office, must be ready to show his authority whenever the people, in the appropriate manner, demand to know it.⁴

An action, brought as prescribed in this article, is triable, of course and of right, by a jury, in like manner as if it was an action specified in section 9G8 of this act, and without procuring an order, as prescribed in section 970 of this act.⁵

An action to try title to public office is one of legal, not equitable cognizance, and the issues therein are strictly legal and triable by jury.⁶ Nor is the right to trial by jury lost by uniting other equitable causes of action.⁷

Where final judgment is rendered, upon the right and in favor of the person so alleged to be entitled, he may, after taking the oath of office, and giving an official

¹ Code Civ. Pro., £ 1949.

² 12 N. Y., 433.

³ 38 Hun, 236.

⁴ ION. Y. St. Eep., 717.

⁵ Code Civ. Pro., § 1950. « 57 N. Y., 151.

* 66 N. Y., 237.

bond, as prescribed by law, take upon himself the execution of the office. He must, immediately thereafter, demand of tlie defendant in the action, delivery of all the books and papers in the custody, or under the control, of the defendant, belonging to the office from which the defendant has been so excluded.¹

Upon the rendition of a regular judgment of ouster against an officer, and in favor of the claimant, the officer becomes ousted, and the party declared to be entitled, upon taking the official oath, and filing bonds, if required, becomes eo instanti invested with the office.²

If the defendant refuses or neglects to deliver any of the books or papers, demanded as prescribed in the last section, he is guilty of a misdemeanor; and the same proceedings must be taken, to compel the delivery thereof, as are now or shall hereafter be prescribed by law, where a person, who has held an office, refuses or neglects to deliver the official books or papers to his successor.³

No proceedings can be had to compel the delivery of books and papers belonging or appertaining to a public office, until a judgment of ouster has been regularly entered against the person executing the duties of the office. An allegation, in a petition for an order to compel such delivery, that judgment was rendered and duly perfected in an action in the nature of a quo warranto brought by the people, to try the right of an individual to an office, on such a day; without stating in what court the judgment was rendered, or whether under the direction of a single judge, or at a special term or a general term, is not sufficient, if the facts are denied.⁴

The application for books is not a motion in the Supreme Court, but one to a justice out of court, and any justice has jurisdiction.⁶ Although the application for

¹ Code Civ. Pro., § 1951.

⁸ 6 Abb. 220; 7 How., 282; 59 How., 106.

⁸ Code Civ. Pro., § 1952.

⁴ 14 Barb , 396.

⁵ 7 How., 282.

the delivery of books may involve the question of the title to office, it is still maintainable. In this respect it is consistent with quo ivarranto,' but it is only applicable when the title is clear and free from reasonable doubt.² The order should be made only in favor of one actually in possession and when his title is clear.³ The justice before whom the proceedings are pending to obtain the delivery of books and paper pertaining to the office, must examine tho question of the title of the respective claimants to the office, so far as to enable him to determine properly the question to be submitted.⁴ An appeal from a judgment of ouster cannot in any way act as a stay of proceedings.^b

Where final judgment has been rendered, upon the right and in favor of the person so alleged to be entitled, he may recover, by action, against the defendant, the damages which he has sustained, in consequences of the defendant's usurpation, intrusion into, unlawful holding, or exercise of the office.⁶

In an action in the nature of a quo warranto brought against a number of defendants, where the court has no power to adjust the ultimate rights of the defendants in the subject of the action, it cannot compel a part of the defendants to pay costs to the other defendants.⁷

Where two or more persons claim to be entitled to the same office or franchise, the attorney-general may bring the action against all, to determine their respective rights thereto.⁸

In an action, brought as prescribed in subdivision third of section 1948 of this act, the final judgment, in favor

¹ 9 How., 414. ³11 How., 418.

³ 5 Abb., 73.

⁴ 42 Barb., 203 ⁶ 7 How., 282.

⁶ Code Civ. Pro., § 1953.

' 5 Lans., 25

⁸ Code Civ. Pro., § 1954.

of the plaintiff, must perpetually restrain the defendant or defendants, from the commission or continuance of the act or acts complained of. A temporary injunction to restrain the commission or continuance thereof, may be granted, upon proof, by affidavit, that the defendant or defendants enjoined have acted as a corporation, within the State, without being duly incorporated, or have usurped, exercised, or claimed, within the State, a franchise, liberty, or corporate right, not granted to them by law. The provisions of title second of chapter seventh of this act apply to such a temporary injunction, and the proceedings thereupon, except where special provision is otherwise made in this title. For that purpose, the injunction order is deemed to have been granted as prescribed in section 603 of this act.

In any other action, brought as prescribed in this article, where a defendant is adjudged to be guilty of usurping or intruding into, or unlawfully holding or exercising, an office, franchise, or privilege, final judgment must be rendered, ousting and excluding him therefrom, and in favor of the people or the relator, as the case requires, for the costs of the action. As a part of the final judgment, the court may, in its discretion, also award, that the defendant, or, where there are two or more defendants, that one or more of them, pay to the people a fine, not exceeding two thousand dollars. The judgment for the fine may be docketed, and execution may be issued thereupon, in favor of the people, as if it had been rendered in an action to recover the fine. The fine, when collected, rmist be paid into the treasury of the State.¹

Action to vacate a patent.

The attorney-general may maintain an action to vacate or annul letters patent, granted by the people of the State, in either of the following cases:

1. Where they were obtained by means of a fraudulent

¹ Code Civ. Pro., § 1956; 6 Abb., 230; 73 N. T., 535; 26 How., 213; 52 H. T., 576.

suggestion, or concealment of a material fact, made by or with the knowledge or consent of the person to whom they were issued.

2. Where they were issued in ignorance of a material fact, or through mistake.

3. Where the patentee, or those claiming under him, have done or omitted an act, in violation of the terms and conditions upon which the letters patent were granted, or have, by any other means, forfeited the interest acquired under the same.

Whenever the attorney-general has good reason to believe that any act or omission, specified in this section, can be proved, and that the person to be made defendant has no sufficient legal defense, he must commence such an action.¹

This section is limited to letters patent granted by the people, and does not extend to letters granted by the king, prior to the revolution. Where letters patent are sought to be vacated on the ground that they were granted on false suggestions, it must appear that the suggestions were material. The people are liable to pay •costs if they fail in an action to declare letters patent void.¹

An action brought as prescribed in this article, is triable, of course and of right, by a jury, as if it was an action specified in section 968 of this act, and without procuring an order, as prescribed in section 970 of this act.¹

Where final judgment, vacating or annulling letters patent, is rendered in an action, brought as prescribed in the last section, the attorney-general must cause a copy of the judgment roll to be forthwith filed in the office of the secretary of State, who must make an entry, in the records of the commissioners of the land office, stating the substance and effect of the judgment, and the time

¹ Code Civ. Pro., § 1957.

» 10 Barb., 120; affirmed, 9 N. T., 349.

* Code Civ. Pro., § 1958.

when the judgment-roll was filed. The real property granted by the letters patent may thereafter be disposed of by the commissioners of the land office, as if the letters patent had not been issued.'

Immediately after making the entry prescribed in the last section, the secretary of State must transmit a certified transcript thereof to the clerk, or the register, as the case requires, of each county in which the real property affected by the judgment is situated. The clerk or register must file it; and if the letters patent are recorded in his office, he must note the contents of the transcript in the margin of the record."

Miscellaneous Provisions.

When actions brought in name of people.—An action, brought as pi-escribed in this title, except an action to recover a penalty or forfeiture, expressly given by law to a particular officer, must be brought in the name of the people of the State; and the proceedings therein are the same, as in an action by a private person, except as otherwise specially prescribed in this title.³

Where a judgment is rendered, or a final order is made against the people, in a civil action brought, or special proceeding instituted in their name by a public officer, pursuant to a provision of law, it must be to the same effect and in the same form as against a private individual who brings a like action, or institutes a like special proceeding, except as otherwise specially prescribed by law. But an execution shall not be issued against the people.⁴

delator joined as plaintiff; compensation to attorney-general.—Where an action is brought by the attorney-general, as prescribed in this title, on the relation or information of a person, having an interest in the ques-

¹ Code Civ. Pro., § 1959. . » Code Civ Pro., § 1900. • Code Civ. Pro , § 1984. ⁴ Code Civ. Pro., § 1985.

tion, the complaint must allege, and the title of the action must show, that the action is brought upon the relation of that person. In such a case, the attorney-general must, as a condition of bringing the action, require the relator to give satisfactory security to indemnify the people, against the costs and expenses tnereof. Where security is so given, the attorney-general is entitled to compensation for his services, to be paid the relator, in like manner as the attorney and counsel for a private person.¹ The provision which entitles the attorney-general to compensation for his services, to be paid by the relator, is unconstitutional.*

Joinder of causes.—Where two or more causes of action exist, in favor of the people, against the same person, for money due upon, or damages for the non-performance of, one or more contracts of the same nature, the attorney-general must join all those causes in one action.³

Consolidation of action—Where two or more actions, brought in behalf of the people, upon the same mortgage or other contract, are pending against separate defendants, claiming or defending under the same title the attorney-general must, upon the request of the defendants, cause them to be consolidated into one action; and only one bill of costs can be taxed against the defendants.⁴

No security by people or municipal corporations.— Each provision of this act, requiring a party to give security, for the purpose of procuring an order of arrest, an injunction order, or a warrant of attachment, or as a condition of obtaining any other relief, or taking any proceeding; or allowing the court, or a judge, to require such security to be given; is to be construed, as excluding an action brought by the people of the State, or by

¹ Code Civ. Pro., § 1986. » 2 McC., 295. « Code Civ. Pro , § 1988. ⁴ Code Civ. Pro. § 1989.

a domestic municipal corporation ; or by a public officer, in behalf of the people, or of such a corporation; except where the security, to be given in such an action, is specially regulated by the provision in question; but in any action in which a domestic municipal corporation, or a public officer in behalf of such corporation, shall be, by the foregoing provisions of this section, excused from giving security on procuring an order of arrest, an order of injunction or a warrant of attachment, such corporation shall be liable for all damages that may be so sustained by the opposite party by reason of such order of arrest, attachment or injunction in the same case and ta the same extent as sureties to an undertaking would have been, if such an undertaking had been given.¹

¹ Code Civ. Proc., § 1990 as am'd 1894.

APPENDIX OF FORMS.

MANDAMUS.

No. 1.

Affidavit on Application for Mandamus.

(Code Civil Procedure, § 2067.) Ante p. 15.

STATE OF NEW YORK, { _gs . County of Delaware, S

Thomas Niles of --------, in said county, being duly

sworn, says (here set forth all the facts precisely but briefly, entitling relator to writ, ante pp. 15-19)

THOMAS NILES.

Subscribed and sworn to before me,) this 2d day of October, 1890. I

EICHARD STILES, Notary Public, Delaware County, N. Y.

No. 2. Notice of Motion for Mandamus.

(Code Civil Procedure, §§ 2067-2069.) Ante pp. 15-17.

To Henry Durk, Esq.:

SIR—Take notice that upon an affidavit, with a copy of which you are herewith served, I shall move the Supreme Court, at the next special term thereof (or general term, Code Civil Procedure, § 2069), to be held at the court house in the city of Buffalo, on the 19th day of

October, 1890, at the opening of the court or as soon thereafter as counsel can be heard, for an order that a writ of mandamus, under the seal of the court, issue therefrom, directed to and commanding you to (state the action to be taken or relief granted), or for such other or further relief as may be just in the premises.

Yours, etc.,

WILLIAM DAY,

Attorney for Relator.

Office and post-office address, Altamont, N. Y.

No. 3.

Order to Show Cause why Mandamus should not Issue.

(Code Civil Procedure, § 2067.) Ante, p. 13.

At a special term of the Supreme Court, held at the court house in the city of Buffalo, on the 19th day of October, 1890.

Present—Hon. A. M. OSBORNE, Justice.

THE PEOPLE OF THE STATE OF NEW YORK ex rei. DAVID MIX

against

THE PRESIDENT AND TRUSTEES OF THE VILLAGE OF ELMA.

On reading and filing the affidavit of David Mix, re-lator above named, dated the 2d day of October, 1890, and on motion of \Yilliam Day, relator's counsel (after hearing Martin Wilkius, in opposition thereto), it is

Ordered, That the president and trustees of the said village of Elma, show cause before this court, at the next special term thereof, to be held at the court house in the city of Buffalo, on the 23d day of November, 1890, why they, the said president and trustees, do not (grant the relief prayed for), or why they should not be

compelled to so act forthwith, or why an alternative mandamus in the usual form should not issue to them, requiring them to so act.

Let a copy of this order, and of the affidavit upon which it was granted, be served on each of said defendants, on or before the--------day of November, 1890.

Dated October 19, 1890.

A. M. OSBORNE,

Justice Supreme Court.

No. 4.

Order Granting Alternative Mandamus.

(Code Civil Procedure, §§ 2067, 2070.) Ante, p. 18.

At a special term of the Supreme Court, held at the court house in the city of Buffalo, on the 23d day

of November, 1890.

Present—Hon. C. E. INGALLS, Justice.

THE PEOPLE OF THE STATE OF NEW YORK <a> rei. DAVID MIX

against

THE PRESIDENT AND TRUSTEES OF THE VILLAGE OF ELMA.

On reading and filing the affidavit of David Mix, the relator above named, dated the 2d day of October, 1890, and on motion of William Day, Esq., of counsel for relator (after hearing Peter A. Carr, Esq., in opposition thereto), it is

Ordered, That an alternative mandamus issue out of and under the seal of this court, directed to the said president and trustees of the village of Elma, commanding them forthwith (set forth what the writ commands defendants to do); or that the said defendants show cause

to the contrary, before this court, at the next special term thereof, to be held at the court house in the city of Buffalo, on the 22d day of December, 1890. Dated November 23d, 1890.

0. E. INGALLS,

Justice Supreme Court.

No. 5.

Alternative Mandamus.

(Code of Civil Procedure, §§ 3067, 2069, 2082). Ante, p. 18.

In the name of the People of the State of New York to George D. Williamson, Peter Long and John Hawkes_f greeting:

Whereas (set forth all the facts briefly and concisely), Nevertheless you have unjustly refused to (state the act or omission complained of), as appears to us by the affidavit of Henry H. Jones, relator herein.

Now, therefore, we desiring that speedy justice shall be done in the premises, to the said Henry H. Jones, relator herein, do, therefore, command you, that immediately upon the service upon you of this writ, you do (grant the relief demanded, in manner as set forth in the order granting the writ), or that you show cause to the contrary thereof, before our Supreme Court, and that you make return to this writ, within twenty days after service thereof upon, at the office of the clerk of this court at the city of Albany (or to the clerk of Albany county [C. C. P., §2072.]).

Witness, Hon. WILLIAM L. LEARNED, Justice of [L. S.] the Supreme Court, at the court house in the city of Albany, on the 12th day of April, 1890. ANSEL C. BEQUA.

Clerk. N. B. SPAULDING,

Attorney for the Relator.

No. 6.

Order Granting Peremptory Mandamus.

(Code Civil Procedure, §§ 2067, 2070.) Ante, p. 13.

At a special term of the Supreme Court, held at the court-house in the city of Buffalo, on the 22d day of December, 1890.

Present—Hon. C. E. INGALLS, Justice.

THE PEOPLE OF THE STATE OF NEW YORK ex rei. DAVID MIX,

against

THE PRESIDENT AND TRUSTEES OF THE VILLAGE OF ELMA.

On reading and filing the affidavit of David Mix, the relator above-named, dated the 2d day of October, 1890, and upon the return of the order heretofore granted at a special term of this court, held at the court house in the city of Buffalo, on the 23d day of November, 1890, before Hon. C. E. Ingalls, Justice, requiring the president and trustees of said village of Elma to (state relief asked), or, that they show cause why they do not at this time and place, and the said parties appearing and answering thereto by Mark A. Cadwell, their counsel, and not denying their allegations contained in the affidavit of David Mix, the relator above named, dated the 2d day of October, 1890; now, on motion of William Day, Esq., counsel for said relator, it is

Ordered, that a peremptory writ of mandamus forthwith issue out of and under the seal of this court, directed to the said president and trustees of said village of Elma, requiring them to (grant relief asked).

C. E. INGALLS,

Justice Supreme Court.

NO. r.

Peremptory Mandamus.

(Code of Civil Procedure, §§ 2067-3090.) Ante, p. 13.

TM People of tho Stzic of NCZ-J Yarls [«po» the relation of David Mix] to the President and Trustees of the Village of Elma, greeting:

WHEREAS (set forth all the facts in brief, including the fact that an order to show cause has been granted, and omission to grant relief asked for, or that the applicant's right to mandamus depends only upon questions of law, and notice of application has been given to the parties intended), as clearly appears to us by the annexed affidavit of David Mix:

Now, therefore, that justice may at once be done to said relator, we command you, that, immediately upon the service upon you of this writ, you, the said (defendants) do forthwith (grant the relief asked, in the terms set forth in order granting writ), lest complaint shall again come to us by your default, and in what manner this, our command, shall be executed, make to appear to our said Supreme Court, at a special term thereof, on the 25th day of January, 1891, at the court house in the city of Buffalo, there and then returning this our writ. Witness, the Hon. C. E. INGALLS, Justice of our [L. S.] said court, at the court house in the city of Buffalo, this 22d day of December, A. D., 1890.

CHARLES A. ORE, Clerk. WILLIAM DAY,

Attorney for Relator. No. 8.

Return of Compliance with Writ of Mandamus.

(Code of Civil Procedure, §§ 2073, 2074.) Ante, n 25.

(Title.)

The return of the defendants to the peremptory writ

of mandamus granted herein, on the 22d day of December, 1890, shows to the court that we have (state duty required), as commanded in said writ.

In witness whereof, -we have hereunto affixed our signatures, this 25th day of January, 1890.

(Signed by all Defendants.) MARK A. CADWELL,

Attorney for Defendants.

No. 9.

Return or Demurrer to Mandamus.

(Code of Civil Procedure, §§ 1994, 2073, 2074, 2076, 2077.) Ante, p. 22.

(Title.)

The defendants above named, for a return to the alternative writ of mandamus issued herein, a copy of which is hereto annexed, make answer (as in an answer to

complaint).

EDWIN D. HOWE,

Attorney for Defendants.

Or, (Title.)

The defendants above named demur to the alternative writ of mandamus herein, a copy of which is hereto annexed, on the ground (as in demurrer to complaint). WM. A. PARSHALL,

Attorney for Defendants.

No. 10.

Notice of Filing Return and Demurrer.

(Code of Civil Procedure, § 2081.) Ante, p. 25.

(Title.)

To CHARLES 0. PRATT, Esq.,

Attorney for Eelator.

gIK>—Take notice, that a return to an alternative writ

of mandamus, issued against Paul A. Wheeler, defendant herein, was, on the 6th day of March, 1889, filed in the office of the clerk of this court (or in the office of the

clerk of ------- county), and that you are required to

demur or plead to the said return within twenty days after the service of this notice.

PETER A. DELANEY,

Attorney for Defendant. (Office and P. 0. address.)

No. 11.

Notice of Motion to Quash Writ.

(Code of Civil Procedure, § 2075.) Ante, p. 22.

To WM. B. TEN EYCK, Esq.,

Attorney for Relator :

SIR.—Please take notice, that this court will be moved at a special term thereof, to be held at the court house in the city of Utica, on the 27th day of May, 1889, at the opening of the court on that day, for an order quashing and setting aside the alternative writ of mandamus, herein granted April 30, 1889, or for such other or further relief as to the court may seem just. Yours, etc.,

WM. S. DYER,

Attorney for Defendant.

No. 12.

Form of Judgment.

(Code of Civil Procedure, § 2082.) Ante, p. 81.

(Title.)

A peremptory writ of mandamus having issued out of this court after due notice to the defendants above named, on order of special term, granted February 24, 1890, in and by which these defendants were commanded to (here state thing required to be done), and granting forty dol-

lars costs and his disbursements to the relator, and the defendants having made and filed the certificate required by such order and writ, and the return thereto: Now, on motion of H. C. Mandeville, attorney for relator, it is adjudged that (here set forth what is adjudged).

It is further adjudged, that the relator recover of the defendants, John P. Smart, Patrick H. Reilly and Harry S. Jones, the sum of seventy dollars costs and disbursements, and have execution therefor.

ANSEL C. REQUA, Clerk.

No. 13.

Order Staying Proceedings, Pending Appeal.

(Code of Civil Procedure, § 2089). Ante, p. 33.

(Title.)

An application having been this day made for a writ of mandamus, directing (here state relief asked), and the same having been granted by order of the court, after hearing Henry K. Cowen for the motion, and Charles N. Palmer opposed, and it appearing that the defendant is about taking an appeal from said order. Now, on motion of defendant's counsel, it is ordered that all proceedings on said writ be stayed until the expiration of the time to appeal from said order, and in case such appeal is taken, then that all proceedings thereon be stayed till the hearing and determination of said appeal.

Enter in Albany county.

WM. L. LEARNED, Justice Supreme Court.

No. 14.

Notice of Appeal from Order Granting Mandamus.

(Code of Civil Procedure, § 2089.) Ante, p. 83.

{Title.)

Please take notice, that John H. Day, Peter Wagner

and Henry Smith, defendants herein, appeal to the general term of this court from the order made in the above-entitled proceedings by this court at a special term thereof, held at city hall in the city of Albany, on the 20th day of December, 1889, and that the appellants intend to bring up for review, upon such appeal, so much of the order made as directs that (here state part of order appealed from.

Yours, etc.,

PAUL F. DUKE,

Attorney for Appellants. (Office and P. O. Address.)

To FRANK H. JENNISON, Esq.,

Attorney for Relator, Respondent, and the County Clerk of the county of Albany.

WRIT OF PROHIBITION.

No. 15.

Affidavit on Application for Writ of Prohibition.

(Code of Civil Procedure, § 2091.) Ante, p. 100.

(Substantially the same as Form No. 1.)

No. 16.

Notice of Motion for Writ of Prohibition.

(Code of Civil Procedure, §§ 2091, 2092.) Ante, p. 100.

To the--------Court [or to Hon.--------, Judge of--------

Court], and to John Stiles :

SIR.—Take notice, that, on an affidavit, with a copy of

which you are herewith served, I shall move the--------

court, at the next special term thereof (or general term, C. C. P., § 2095), to be held at the court house, in the city of Hudson, on the 26th day of March, 1890, at the opening of the court, or as soon thereafter as counsel can be heard, for an order that a writ [or an. alternative writ] of prohibition, under the seal of the court, issue therefrom, directed to and commanding you [state requirements of writ], and for such other and further relief as may be just in the premises. Yours, etc.,

N. B. SPALDING-,

Attorney for Relator*

(Office and P. 0. address.)

To JOHN STILES, Esq.

NO. ir.

Order Granting Alternative Writ of Prohibition.

(Code of Civil Procedure, §§ 2091, 2092.) Ante, p. 102.

At a special term of the Supreme Court, held at the court house, in the city of Hudson, on the 26th day of March, 1890.

Present—Hon. SAMUEL EDWARDS, Justice.

THE PEOPLE OF THE STAE OF NEW YORK ex rei. HENRY T. JONES

against

TO THE -------- COURT [OR TO HON.

--------, JUDGE OF--------COURT], AND

TO JOHN STILES.

On reading and filing the affidavit of Henry T. Jones, the relator above named, dated February 23, 1890, and on motion of N. B. Spalding, Esq., counsel for relator (after hearing Edwin D. Howe, Esq., in opposition thereto), it is

Ordered, That an alternative writ of prohibition issue out of and under the seal of this court, directed to the

--------court [or to Hon.--------, judge of--------court],

and to the said John Stiles, commanding them to desist and refrain from any further proceedings in (state matter to be prohibited), until the further direction of this court, and let the (defendants) show cause before this court, at the next special term thereof, to be held at the court house in the city of Hudson, on the 29th day of April, 1890, why they should not be absolutely restrained from any further proceedings in (that action, special proceedings or matter).

SAMUEL EDWAEDS,

Justice Supreme Court.

No. 18.

Alternative Writ of Prohibition.

(Code of Civil Procedure, g§ 2094, 2095.) Ante, p. 100.

The People of the State of New York [on the relation

of Henry L. Jones], to the -------- Court [or to Hon.

--------, Judge of -------- Court], and to John Stiles,

greeting:

WHEREAS, Henry L. Jones, at a special term of our •court, held at the court house in the city of Hudson, on the 26th day of March, 1890, by his affidavit, dated the 23d day of February, 1890, there presented, made known to this court that [state the grievance complained of; but it is not necessary to s^ate the facts or legal objections upon which the relator founds his claim for relief]: Now, therefore, that justice may be done in the premises, and it appearing that adequate relief can only be had by writ of prohibition, restraining you and each of you from taking any further proceedings in the matter hereinbefore set forth, we, therefore, command you, the said

court of--------[or the said Hon.--------, judge of--------

court], and the said John Stiles, to desist and refrain from any further (as in order) until further direction of this court; and also to show cause before this court (upon the first day of a future term, specifying it, at which application for the writ might have been made), why you should not be absolutely restrained from any further proceedings in the (action, special proceeding or matter).

Witness, the Hon. Samuel Edwards, one of the justices of the Supreme Court, at the court [L. s.] house in the city of Hudson, this 29th day of April, 1890.

By the court. ISAAC P. ROCKEFELLEE,

Clerk. N. B. SPALDING,

Attorney for Relator.

Allowed this 29th day of April, 1890.

SAMUEL EDWAEDS,

Justice Supreme Court,

No. 19.

Return to Alternative Writ of Prohibition.

(Code of Civil Procedure, §§ 2095-2098.) Aate, p. 103.

(Title.)

The said -------- Court (or the said --------, judge of

--------Court, held in and for, etc. [or--------, justice,

etc.), to whom the annexed writ of prohibition was issued, for answer to the said writ, makes the following return (give a full account of the proceedings had by the court).

In witness whereof, I have caused the seal of said

[L. s.j court to be hereunto affixed, this--------day

OI , 18—•

By the court.

W. H. D.,

Clerk* Or,

(Title.)

I, John Stiles, the party to whom the writ of prohibition, a copy of which is hereto annexed, is directed, deny all and all manner of grievance in said writ alleged, and certify and return to the Supreme Court (insert here the facts, or adopt the return of the court or judge), and rely upon the matters hereinbefore set forth (or upon the matter therein contained), as sufficient cause why the said court (or judge, etc.), should not be restrained, as mentioned in said writ.

Witness my hand, this 18th day of June, 1890.

JOHN STILES.

(Verification. ^

No. 20.

Final Order for Absolute Writ of Prohibition, or Agn.<«nf. the

Relator.

(Code Civil Procedure, § 2100.) Ante, p. 104.

At a special term of the Supreme Court held at the court house in the city of Hudson, on the 20th day of June, 1890.

Present—Hon. SAMUEL EDWARDS, Justice.

THE PEOPLE OF THE STATE OF NEW~ YORK ex rei. HENRY T. JONES,

against

TO THE ------- COURT [OR, TO HON.

--------, JUDGE -------- COURT], AND

TO JOHN STILES. j

It appearing to this court that an alternative writ of prohibition was on the 26th day of March, 1890, issued in the above entitled matter pursuant to the order of this court herein, dated on the 26th day of March, 1890,

returnable at, etc., directed to the--------court [or, to

Hon. --------, Judge of the -------- court], and to John

Stiles, commanding that [recite the directions of the writ], and said writ having been duly served on (the defendants), and no return having been made, as required, to said court (or, if return has been made set it forth, and the action taken on it). Now, on reading and filing due proof of service of said writ on all parties defendant, on the writ and return (and all the other papers, naming them), and having heard N. B. Spaulding, Esq., of counsel for relator (and Edwin D. Howe, Esq., of counsel for defendants), and due deliberation having been had thereon, on motion of * N. B. Spaulding, for relator, it is

Ordered, That an absolute writ of prohibition issue herein, out of and under the seal of this court, commanding the said (defendants), to desist and refrain from any further proceedings in the said action (or special pro-

ceeding or matter), and that all proceedings (or specify proceedings), hereafter taken in the action (or special proceedings or matter), be vacated and annulled, and that the said defendants, John Stiles, pay to the said relator,

Henry T. Jones, the sum of -------- dollars, costs and

disbursements of this proceedings.

SAMUEL EDWARDS,

Justice Suprewe Court. Or, [from the *]

Ordered, That the said court (or judge), and John Stiles, defendants defendants herein, are authorized to-proceed in the action (special procediugs or matter), as if the alternative writ had not been issued), and that the said relator, Henry T. Jones, pay to the defendant, John Stiles, the sum of--------dollars, costs and disbursements of this proceeding.

No. 21. Absolute Writ of Prohibition.

(Code Civ. Procedure, § 3100.) Ante, p. 100.

As in Form No. 17, except that the terms of the final order are to be imbodied in it instead of order to show cause.

HABEAS CORPUS.

No. 22.

Application for Writ of Habeas Corpus to testify.

(Code of Civil Procedure, §§ 2011, 2012.) Ante, p. 145.

To Hon. --------.

The petition of John Doe respectfully shows that a certain action (or special proceeding) is now on trial

before the court, sitting at--------(or before Hon. —•-----,

justice of the court, at--------). That said action is entitled John Doe against Richard Roe, and is in the nature of--------.

That the testimony of one Richard Stiles is material and necessary to this applicant, on the trial of said action-far the hearing of said special proceeding), as this deponent is advised by his counsel, Paul Hawkins, of Waverly, N. Y., and verily believes.

That said Richard Stiles is confined at the county jail at Hudson, N. Y.

That said Richard Stiles is not confined in said jail, under a sentence of death, or under any other sentence for a felony.

Wherefore, your petitioner prays that a writ of habeas corpus issue to (the person in whose charge said prisoner may be), commanding him that he have the body of said Richard Stiles, by him imprisoned and detained, before (the court or judge), at the--------(place of trial)

--------, on the 18th day of May, 1889.

Dated VALATIE, N. Y., May 3, 1889.

PAUL HAWKINS,

Attorney for Petitioner.

JOHN DOE.

STATE OF NEW YORK, |

County of Columbia, } ^ss'^:

John Doe, being duly sworn, says, that he has heard read the foregoing petition, and knows the contents thereof, and believes it to be true.

JOHN DOE.

Subscribed and sworn to before me, \ this 3d day of May, 1889. j PETER DAY,

Notary Public, Columbia Co.

No. 23.

Writ of Habeas Corpus to testify.

(Code of Civil Procedure, §§ 2008-2014.) Ante, p. 145.

The People of the State of New York on the relation of John Doe.

To JOHN M. FELTS, Sheriff of Columbia County :

We command you that you have the body of [L. 8.] Eichard Stiles, by you imprisoned and detained, as it is said, at Hudson, N. Y,, at

our-------- court (or before H. D., referee), at a term

thereof (or hearing), to be held at the court house, in the city of Hudson, on the 18th day of May, 1889, then and there to testify as a witness in a certain action (or proceeding) now pending therein; and that you safely return him to said (place of detention) immediately upon the conclusion of his testimony in said action (or hearing), and have you then and there this writ.

Witness Hon.--------, one of the--------court of--------,

the 3d day of May, 1889.

ISEAEL P. ROCKEFELLER,

Clerk. PAUL HAWKINS,

Attorney for Petitioner.

Allowed this 3d day of May, 1889, on application of John Doe; and said John Doe is hereby ordered to -pay

to John M. Felts, sheriff, -------- dollars, charges, for

bringing up said Richard Stiles.

SAMUEL EDWARDS,

Justice Supreme Court.

Habeas Corpus or Certiorari to Inquire into Cause of Detention.

No. 24.

Petition for Writ of Habeas Corpus, or of Certiorari, to Inquire into Cause of Detention.

(Code of Civil Procedure, § 2019.) Ante, p. 115.

To Hon. GEORGE S. WEED, County Judge of Clinton County:

The petition of David Gage respectfully shows that he is now a prisoner in the custody of J. B. White, in the county jail of Clinton county, at Plattsburgh, N. Y.

That he has not been committed, nor is he detained by virtue of a mandate, issued by a court or judge of the United States, in a case where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of legal proceedings in such a court.

That he is not committed or detained by virtue of a final judgment or decree of a competent tribunal of civil or criminal jurisdiction, or the final order of such a tribunal, made in a special proceeding, instituted for any cause (except to punish for a contempt), or by virtue of an execution or other process, issued upon such a judgment, decree or final order.

That the cause or pretense of the imprisonment or restraint, according to the best knowledge and belief of your petitioner, is (state the alleged cause of detention);" and that the same is illegal, as he is advised by his counsel, and as he verily believes.

(If imprisonment is by virtue of a mandate, annex it, or aver a demand for it, with tender of legal fees, and a refusal to deliver copy.)f

Wherefore, your petitioner prays that a writ of habeas corpus (or certiorari) issue, directed to J. B. White, commanding him that he have the body of said David Gage, by him imprisoned and detained, together with the cause of such imprisonment and detention, before Hon. George S. Weed, county judge of Clinton county, at the court house in the village of Plattsburgh, on the 14th day of September, 1890.

Dated PLATTSBURGH, N. Y., Sept. 10, 1890.

DAVID GAGE.

STATE OF NEW YORK, }

County of Clinton,) ^ss'' David Gage, being duly sworn, says, that he has heard read the foregoing petition, and knows the contents thereof, and that he believes it to be true.

DAVID GAGE.

Subscribed and sworn to befere me, i this 10th day of September, 1890. \ HENRY PETERS,

Notary Public, Clinton Co.

No. 25.

Affidavit when Application is made in another County.

(Code of Civil Procedure, §§ 2017, 2018, 2021)

Ante, p. 116.

STATE OF NEW YORK, |

County of Essex,) ^ss"

Richard Stiles, being duly, sworn, says, that he is the applicant that verifies the annexed petition for a writ of habeas corpus (or certiorari). That there is no special or general term of the Supreme Court now setting in the judicial district (naming the district which includes the county in which prisoner is confined). That there is no officers authorized to perform the duties of justice of the Supreme Court at Chambers, now within the (county where prisoner is detained), or,

That the only officer within the county of--------, authorized to grant said writ, is the Hon. --------, who is

incapable of acting by reason of (set forth the cause of incapacity, specially).

RICHAKD STILES, Subscribed and sworn to before me,) this 18th day of May, 1890. )

JOHN H. CAREY, Notary Public, Essex County.

No. 26.

Writ of Habeas Corpus.

(Code of Civil Procedure, § 2021). Ante, p. 118.

" The People of the State of New York, to the Sheriff of,"etc. [.or ^li to A. A"]:

" We command you, that you 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 whatsoever name the said C. D. is called

or charged, before--------,'⁷ ["the Supreme Court at a

special" term (or term of the appellate division thereof), "term thereof, to be held," or "E. F., Justice of the Supreme Court," or otherwise, as the case may be], "at

--------, on--------," [or " immediately after the receipt of

this writ," [-'to do and receive what shall then and there be considered, concerning the said C. D. And have you then there this writ.

"Witness,--------, one of the justices "(or "judges")

"of the said court," [or "county judge," or

[L. s.] otherwise, as the case maybe], "the-------

day of--------, in the year eighteen hundred

and--------."

No. 27.

Writ of Certiorari to Inquire into Cause of Detention.

(Code of Civil Procedure, § 2032). Ante, p. 154.

" Tlie People of the State of New York, to the Sheriff of," etc. [or ^l'to A. #."]:

"We command you, that you certify fully and at

large, to —— --------" ["the Supreme Court, at a

special" (or "general") "term thereof, to be held," or "E. F., justice of Supreme Court," or otherwise, as the case may be], "at--------, on --------" [or " immediately after the receipt of this writ"] "the day and cause of the imprisonment of C. D., by you detained, as it is said, by whatsoever name the said C. D. is called or charged. And have you then there this writ.

"Witness,---------, one of the justices" (or

"judges'") "of the said court" [or "county [L. s.] judge," or otherwise, as the case may be], the --------day of--------, in the year eighteen hundred and--------."

No. 28.

Undertaking on Writ of Habeas Corpus.

(Code of Chil Procedure, § 2000.)

WHEREAS, a writ of habeas corpus has been issued by Hon. John C. Nott, county judge of Albany county, by which John W. Hart, sheriff of Albany county, is commanded to have the body of John Stiles before Mm, at his chambers in the city of Albany, in said county, on the 8th day of March, 1888, at three o'clock in the afternoon, to do and receive what then and there shall be considered concerning said John Stiles: Now, therefore, I (or we\ Henry B. Peck, banker, of the said city of Albany, in the said county of Albany (and John H. Martin, merchant, of said city and county), do hereby (jointly and severally) undertake, in the sum of $1,200, to pay to

said John W. Hart, all charges of carrying back such prisoner if he shall be remanded, and that such prisoner shall not escape by the way, either in going to, remaining at, or returning from the place to which he is to be taken.

HENEY E. PECK. [L. s.j

No. 29. Return to Writ of Habeas Corpus or Certiorari.

(Code of Civil Procedure, | 2026.) Ante, p. 123.

To the Supreme Court of the State of New York:

The return of John W. Hart, sheriff of Albany county, to the annexed writ of habeas corpus (or certiorari).

As commanded by the annexed writ, I hereby make return thereto, as follows:

At the time when said writ was served upon me, viz.: the 18th day of May, 1888, the said Peter Downer, therein named, was in my custody as sheriff, and confined in the county jail of Albany county, under and by virtue of (here state authority, setting forth at length the cause of detention; if by written authority, annex a copy and produce the original), and that said Peter Downer is still in my custody, and * here now had before this court, as by said writ commanded.

Or,

That previous to the service upon me of the annexed writ, and on the 2d day of May, 1888, I had the said Peter Downer, therein named, in my custody, confined by virtue of (setting at length the cause of his detention);

but that on the--------day of--------, 1888, I transferred

him to the custody of Henry Williams, sheriff of Erie county, under and by virtue of an order of the Hon. Judson S. Landon, justice of the Supreme Court. That I so held him by virtue of a mandate (setting forth its substance), the original of which is no longer in my possession, on account of which I cannot produce said Peter Downer, as commanded in said writ.

Or, at * said Peter Donner is so sick or infirm, that the production of him here would endanger his life or his health. (§ 2027).

All of which I respectfully certify to this honorable court.

Dated Albany, May 18, 1881.

JOHN W. HAET. STATE OP NEW YORK, i

County of--------, )

J. W. Hart, being duly sworn, says, that the above return, subscribed by him is true of his own knowledge, except as to those matters therein stated to be alleged on information and belief, and that as to those matters he

believes it to be true.

J. W. HAET.

Subscribed and sworn to before me, ] this-----day of--------, 1889. \

> Notary Public, Albany County.

No. 30. Wan-rant of Attachment for Disobeying Writ.

(Code Civil Procedure, § 2028.) Ante, p. 122.

The People of the State of New York, to the Sheriff of any county in the State of New York, where the said

--------may be found [or the coroner of the county of

--------], [or John Doe, who is hereby especially appointed

and designated to execute this warrant], greeting:

Whereas, Due proof having been made, that on the

-----th day of --------, 1883, a writ of habeas corpus, (or

certiorari), was issued out of this court, directed to said John W. Hart, commanding him to bring the body of one, Peter Donner, by him imprisoned and detained, together with the time and cause of such imprisonment, before this court at a special term thereof, to be held at

the court house in the -------- of--------, on the--------

day of --------, 1889, and further proof being made that

said writ was duly served on the said --------, on the

--------day of--------, 1889, and further proof being made

that in defiance of the command of this court in said writ contained, said John W. Hart has refused or neglected, without sufficient cause being shown by him, fully to obey it, or prescribed in sections 2026 and 2027 of the Code of Civil Procedure, and (here set forth in brief his refusal or excuse).

Now, therefore, you are commanded forthwith to

apprehend the said John W. Hart, and bring

Mm before me (or before this court), at a

[L. s.] special term thereof to be held at the court

house in the-------- of--------, on the --------

day of--------, 1889, at ten o'clock in the forenoon of said day.

Witness, Hon. --------, one of the justices of the Supreme Court of the State of New York at the court house in the city of--------, this 18th day of--------, 1888.

ROBERT H. MOORE, Clerk.

LEWIS CASS,

Attorney for Petitoner.

No. 31.

Order of Commitment.

(Code of Civil Procedure, § 2028.) Ante, p. 122.

At a special term of the supreme court, held at the court house, in the city of Albany, on the 22d day of May, 1888.

Present—Hon. WM. L. LEAENED, Justice.

IN THE MATTER OF THE APPLICATION OF PETER DOWNER FOR A WRIT OF HABEAS CORPUS (OR CERTIORARI) TO INQUIRE INTO THE CAUSE OF HIS DETENTION.

Due proof having been made (as in warrant of attach-

ment to f), and that on such proof a warrant having been duly issued for the apprehension of said John W. Hart, and said John W. Hart having been brought before this court thereby, and said John W. Hart still refusing to obey said writ, and giving no sufficient excuse or reason for such disobedience; now, therefore, it is

Ordered, That said John W. Hart be and hereby is committed to close custody in the common jail of the county of Columbia (the county in which the court or judge is, or if he is sheriff of that county, in that of some county other than his own), without being allowed the liberties of the jail, and that he so stand committed until he makes return to the said writ, and complies with any order which may be made by the court (or judge) in relation to (the person for whose relief the writ was issued).

WM. L. LEARNED,

Justice Supreme Court.

No. 32.

Precept to bring up Prisoner after Disobedience of the Writ.

(Code of Civil Procedure, § 2929.) Ante, p. 113.

The People of the State of New York, to (the Sheriff, Coroner or, other person, to whom the warrant was directed):

WHEREAS, Due proof having been made before us, that (as in warrant of attachment to t)> and,

WHEREAS, A warrant of attachment having been issued, directing you to apprehend the said John W. Hart, and bring him before the court at this term thereof, to answer therefor; and,

WHEREAS, The said John W. Hart has this day "been brought before the court, and failed to show sufficient cause for his neglect and refusal to obey the writ, and still refuses to obey the command thereof:

Now, on motion of Albert Eathbone, attorney for petitioner, we do, therefore, command you to forthwith bring the said Peter Downer before this court, at a special term thereof, to be held in the couit house in the city of Albany, 011 the 1st day of June, 1888, at ten o'clock in the forenoon, and the said Peter Downer to remain in your custody till discharged, bailed or remanded, as the court may then direct.

Witness, Hon. Wm. L. Learned, justice of the [L. s.] Supreme Court, this 22d day of May, 1888. EGBERT H. MOOEE, Clerk.

Indorsed: "Granted this 22d day of May, 1888." WM. L. LEAENED,

Justice Supreme Court.

No. 33.

Final Order on Return of Writ.

(Code of Civil Procedure, |§ 2032, 2048.) Ante, p. 128.

At a special term of the Supreme Court, held at the court house in the city of Albany, on the 1st day of June, 1888.

Present—Hon. WM. L. LEARNED, Justice.

IN THE MATTER OF THE APPLICA- ] TION OP PETER DOWNER, FOR A j WRIT OF HABEAS CORPUS [OR CER- \-TIORARI] TO INQUIRE INTO THE ! CAUSE OF HIS DETENTION j

WHEREAS (setting forth the whole proceeding).

Now, therefore, it appearing upon the return of the writ of habeas corpus (or certiorari), allowed by me, that Peter Downer is imprisoned (confined or restrained) by (name of officer or person by whom held), and no lawful cause for the said imprisonment (confinement or restraint) of said Peter Downer, or for the continuance thereof, having been shown, it is finally

Ordered, That said Peter Downer be and hereby is discharged forthwith, from the custody of said (sheriff, coroner or other person).

Dated Albany, N. Y., June 1, 1888.

WM. L. LEAENED,

Justice Supreme Court.

Or (under sections 2036, 2043.)

Now, therefore, due proof having been made by the return to said writ, and the subsequent proceedings herein, that the said Peter Downer is not unlawfully imprisoned or restrained of his liberty, but is lawfully held in the custody and control of said (sheriff or other person), under and by virtue of (state grounds), it is hereby finally

Ordered, That the said Peter Downer be and hereby is remanded to his former confinement and restraint in the custody of said (sheriff, or to the care and custody of J.

H., sheriff of -------- county), under said mandate, and

the said proceedings upon said writ are hereby dismissed.

Dated.

(Signature.)

No. 34.

Order Admitting Prisoner to Bail,

(Code of Civil Procedure, § 2045). Ante, p. 127.

IN THE MATTER OF THE APPLICATION OF HENRY JONES FOR A WRIT OF HABEAS CORPUS (OR CER-TIORA.RI).

It appearing from the return to said writ and the subsequent proceedings, that said Henry Jones, so imprisoned or detained is entitled* to be admitted to bail. Now, therefore, it is

Ordered, That the said Henry Jones be and hereby is discharged from imprisonment under said (warrant), and from the custody of said (sheriff), upon his entering into

a recognizance, with two sufficient sureties, in the sum of two thousand dollars, to the people of the State of New York, to appear at the next court of special sessions to be held in and for the county of Albany, at the court house in the city of Albany, on the 18th day of June, 1888, at ten o'clock in the forenoon, then and there to be dealt with as justice shall require. Dated ALBANY, N. Y., June 2d, 1888.

JOHN C. NOTT,

County Justice.

No. 35.

Judge's Certificate of Compliance to be Indorsed on Order.

(Code of Civil Prodedure, § 2049.)

Ant , p. 129.

I, John C. Nott, county judge of Albany county, having granted the within final order, do certify that Henry Jones, the within named prisoner, has given the undertaking required by section 2045 of the Code of Civil Procedure, and is entitled to be discharged from imprisonment. Dated ALBANY, N. Y., June 9, 1888.

JOHN C. NOTT,

County Judge.

No. 36.

Petition for Warrant for Prisoner about to be Removed,

(Code of Civil Piocedure, § 2054.) Ante, pp.

(As in petition for habeas corpus to f.)

That (state facts fully but briefly), 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 certiorari.

That no previous application has been made for arrest herein (or if made, to whom and what facts have been discovered, etc.).

Wherefore, deponent asks that a warrant may issue, directed to the proper officer, commanding him to take and forthwith bring before the court the said Henry K. Thomas (and the said J. H., sheriff, § 2055), to be dealt with according to law.

Dated ALBANY, Sept. 2, 1890.

HENRY K. THOMAS.

(Verification.)

No. 37.

Warrant to Bring up Prisoner About to be Removed.

(Code of Civil Procedure, § 2054). Ante, p. 144.

The People of the State of New Yorfc to the Sheriff of the county of Albany (or coroner, or John Doe):

It appearing to the satisfaction of this court, by the petition of Henry K. Thomas, sworn to the 2d day of September, 1890, that (statement of facts), 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:

Now, therefore, we command you to forthwith take and bring before me, the said Henry K. Thomas, to be dealt with according to law.

Witness my hand this 2d day of September, 1890, at the court house in the city of Albany, N. Y.

JACOB H. CLUTE,

County Judge.

WILLIAM T. SMITH,

Attorney for Petitioner.

(Office and P. O. Address.)

No. 38.

Notice of Appeal from an Order Refusing to Grant Writ of Habeas Corpus or Certiorari.

(Code of Civil Procedure, § 2058.) Ante, p. 142.

(As in Form No. 14.)

No. 39. Order Fixing Bail Pending Appeal.

(Code of Civil Procedure, § 2060.) Ante, p. 142.

At a special term of the Supreme Court, held in and for the county of Columbia, at the court house in Hudson, on the 18th day of March, 1890.

Present—Hon. SAMUEL EDWARDS, Justice.

IN THE MATTER OF THE APPLICATION OP RICHARD COLLINS FOR A WRIT OF HABEAS CORPUS OR CER-.f TIORARI.

A writ of habeas corpus (or certiorari), having been, heretofore issued on the application of Richard Collins, and the said Richard Collins having been brought before the court, as commanded in said writ, and a final order having been made by the court, dated the 18th day of March, 1890, by which said writ was dismissed, and said Richard Collins was remanded; now, after hearing Everett Fowler, Esq., for the prisoner, and Edwin D. Howe, Esq., district attorney, opposed, and it appearing that the offiense with which the said Richard Collins is charged is a bailable one, and that the said Richard Collins has taken an appeal (or intends to take an appeal), from the said final order to the general term of the Supreme Court, it is

Ordered, That the said Richard Collins be admitted to bail pending such appeal in the sum of $1,000, and that he be discharged upon perfecting said bail.

Witness, Hon. SAMUEL EDWARDS, Justice of the [L. s.] Supreme Court, at the court house in Hudson,, this 18th day of March, 1890.

ISAAC P. ROCKEFELLER, Clerk,

Indorsed: Granted this 18th day of March, 1890. SAMUEL EDWARDS,

Justice Supreme Court*

No. 40.

Recognizance on Appeal from Order Denying Writ.

(Code of Civil Procedure, §§ 2061, 2062.) Ante, p. 142.

STATE OP NEW YORK, }

County of Columbia, j ^ss''

Be it remembered, that on this 20th day of March, 1890, Richard Collins, of the city of Hudson, in said county, and Henry H. Roe, of the same place, merchant, and Edward L. Feenan, of the same place, banker, personally came before Samuel Edwards, a justice of the Supreme Court of the State of New York, and severally and respectively acknowledged themselves indebted to the people of the State of New York in the sum of $1,000, to be levied of their respective goods and chattals, lands and tenements, to the use of said people, if default be made in the condition following :

WHEREAS, The above-bounden Richard Collins is in the custody of John M. Fells, sheriff of Columbia county, under a commitment made by Henry Day, recorder of said city of Hudson, on a charge of manslaughter j and,

WHEREAS, An application has been made on behalf of said Richard Collins for a writ of habeas corpus (or certiorari), and the prisoner having been brought up and a hearing had, and the proceedings dismissed, and the said prisoner, Richard Collins, remanded by a final order of this court; and,

WHEREAS, Said Richard Collins having taken an appeal from said final order, and an order granted admitting him to bail, pending said appeal:

Now, therefore, the condition of this recognizance is such, that if the said Richard Collins shall appear at a general term of the Supreme Court, to be held at the court house in the village of Saratoga, on the 6th day of September, 1890, and perform and abide by the judg-

ment of said court on said appeal, this recognizance to be void; otherwise to remain in full force and effect. RICHARD COLLINS, [L. s.] HENRY H. ROE, [L. s.]

EDWARD L. FEENAN. [L. s.]

Subscribed and acknowledged before me, the day and year first above written.

SAMUEL EDWARDS,

Justice Supreme Court.

STATE OP NEW YORK, i

County of Columbia, \ ^ss''' Henry H. Roe and Edward L. Feenan, being severally sworn, each for himself, deposes and says, that he is one of the sureties named in the foregoing recognizance; that he is a resident and householder of the county of Columbia, and is worth the sum of one thousand dollars over and above all debts and liabilities against him.

HENRY H. ROE, EDWARD L. FEENAN.

Subscribed and sworn to before me, | this 20th day of March, 1890. }

SAMTJFL EDWARDS,

Justice Supreme Covrt. Approved March 20, 1890.

SAMUEL EDWARDS,

Justice Supreme Court.

The Writ of Certiorari to Supply Defect in

Record.

No. 41.

(Code of Civil Procedure, § 3124.) Ante, p. 155.

The People of the State of New York [on the relation of Henry Ddke] to the County Court of Albany County :

WHEREAS, In a certain appeal now pending in this Supreme Court, in the action of John Doe against Richard Roe, it is necessary, in order to supply a defect in the record before this court, that the record hereinafter mentioned and described should be produced in this court, and justice requires that said defect should be supplied, and adequate relief cannot be obtained by ah order:

Now, therefore, we command and enjoin you, that you do certify and return to this court, at a general term thereof, to be held at the court house, in the village of Saratoga, on the 8th day of September, 1890, under your hand, the complete record of the action of John Doe against Richard Roe.

Witness, Hon. Wm. L. Learned, one of the Jus-[L. s.] tices of the Supreme Court, this 2d day of September, 1890.

ANSEL C. REQUA, Clerk. GEORGE C. BAKER,

Attorney for Richard Roe.

Allowed this 2cl clay of September, 1890. WM. L. LEARNED,

Justice Supreme Court.

The Writ of Certiorari to Review.

No. 42.

Petition for Writ.

(Code of Civil Procedure, § 2127.) Ante, pp.

To the Supreme Court of the State of New York :

The petition of William L. Townsend respectfully shows to the court:

That (here give a complete history of the matter).

That this petitioner is advised that the determination of (court, board, or officer) can be reviewed by writ of certiorari, and relief granted your petitioner.

That no previous application has been made for a writ of certiorari in this matter.

Wherefore, your petitioner prays that a writ of certiorari may be issued and allowed by this honorable court, [directed to the said (court, board, or officer), commanding (it, him or them) to certify and return to this court all the records of said proceedings of said (court, board, or officer) in the above mentioned proceedings, with all things pertaining thereto, to the end that said (decision or action) of said (court, board or officer) may be reviewed and corrected on the merits by this honorable court, and that your petitioner may have such other and further relief as to the court may seem just, and that all proceedings on account of such (decision or action) by (court, board, person or officer) be stayed until the hearing and determination upon this writ.

Dated October I, 1890.

WILLIAM L. TOWNSEND. (Verification.)

No. 43. Order to Show Cause why Writ should not be Granted.

(Code of Civil Procedure, § 2128.) Ante, p. 158.

SUPREME COURT.

IN THE MATTER OF THE APPLICATION OF WILLIAM L. TOWNSEND, FOR A WRIT OF CERTIORARI.

On reading and filing the verified petition of WiJliam L. Townsend, praying for a writ of certiorari to review the (decision or action) of (court, board or officer), on (state fully proceeding as in petition), and that proper grounds exist for the granting of an order to show cause:

Now, on motion of George C. Baker, attorney for re-lator, let (court, board or officer) show cause at a special special term of this court, to be held at the city hall in the city of Albany, on the 14th day of October, 1890, at the opening of court, why a writ of certiorari should not be granted to bring up before this court the proceedings of said (court, board or officer), on said (matter). Let service be made on or before October 2, 1890.

Dated October 1, 1890.

WM. L. LEARNED,

Justice Supreme Court.

No. 44.

Order Granting Writ with Stay.

(Code of Civil Procedure, § 2128.) Ante, p. 158.

At a special term of the Supreme Court, held at the city haU in the city of Albany, on the 14th day pf October, 1890.

Present—Hon. WM. L. LEARNED, Justice.

IN THE MATTER OF THE APPLICA-1 TION OF WILLIAM L. TOWNSEND, l FOR A WRIT OF CERTIORARI.

On reading and filing the petition of William L. Town-send, verified the 1st day of October, 1890, and after hearing George 0. Baker, Esq., for the petitioner, and Charles 0. Pratt, Esq., opposed; it is

Ordered, That a writ of certiorari, as prayed for in Sam petiuiuu, be issued, directed to (court, board or officer). }

That said writ bo returnable to the clerk of the Supreme Court, in and for the county of Albany, in the city of Albany, within twenty days after service thereof, and that said writ be allowed and signed and sealed by the clerk of this court.

It is further ordered, that all further proceedings in said (matter) be stayed, pending this certiorari, or until the further order of this court.

Entered in Albany county.

WM. L. LEAENED,

Justice Supreme Court.

No. 45.

Writ of Certiorari.

(Code of Civil Procedure, § 2128.) Ante, p 158.

The People of the State of New York in the relation of William L. Townsend, to (court, board or officers):

WHEREAS, We have been informed, by the petition of William L. Townsend, verified the 1st day of October, 1890, that certain proceedings were had before you [here state proceedings as in petition], and we being willing, that you do certify and return those proceedings, with all things appertaining thereto, within twenty days after the service upon you of this writ, at the office of the clerk of the Supreme Court, in and for the county of Albany, in the city of Albany, under your hand, as fully as the same remains before you to the end that our Supreme Court may review and correct on. the merits the said (decision or action), of said (court, board or officer),

and that the same may be reviewed or corrected according to law, as to the court may seem just.

Witness, Hon. Wrn L. LEARNED, one of the jus-[L. s.] tices of the Supreme Court, at the city hall, in the city of Albany, on the 14th day of October, 1890.

ANSEL C. REQUA,

Clerk. GEORGE C. BAKER,

Attorney for Eelator.

No. 46.

Return to Writ of Certiorari.

(Code of Chil Procedure, § 2134.) Ante, p. 161

SUPREME COURT:

THE PEOPLE OF THE STATE OF NEW YORK ex rei. WILLIAM L. TOWXSEND

df/ain-st (COURT, BOARD OR OFFICER).

The return of (court, board or officer), to the writ of certiorari, a copy of which is hereto annexed:

I (or the court, board or officer), certify and return, to the Supreme Court, that (here state in full the proceedings), and have annex a transcript of the record (or proceedings), certified by me, specified in and required by said writ.

In witness whereof, I (or we), have hereunto set my hand and seal this 28th day of October, 1890.

[L. s.] J. H.

(Official Title.)

No. 47.

Order Dismissing Writ.

(Code of Civil Procedure, § 2144.) Ante, p. 169.

At a general term of the Supreme Court of the State of New York, held in and for the Third Judicial Department of said State, at the court house, in the city of Albany, on the 3d day of November,

1890.

Present—Hon. WM. L. LEARNED, Presiding Justice; Hons. CHARLES R. INGALLS and STEPHEN L. MAYHAM, Associate Jiistices.

THE PEOPLE OF THE STATE OF NEW ] YORK ex rei. WILLIAM L. TOWNSEND

against j

(COURT, BOARD OR OFFICER). j

This matter coming on to be heard on the petition, writ of certiorari, and the return thereto, and after hearing George C. Baker, Esq., counsel for relator, and Charles Pratt, Esq., counsel for respondent, it is

Ordered, That the writ of certiorari, herein granted, and tested on the 14th day of October, 1890, and the proceedings thereon, be and the same is hereby dismissed,* with sixty dollars costs and disbursements to the respondent.

JAMES GLEASON,

Deputy Clerk.