Mandamus to be SEC. 552. The writ of mandamus is known in this code as prescribed known as in this and regulated in this chapter. chapter. To whom writ may issue; not to control judicial discretion. How writ ap whom allowed and issued. SEC. 553. It may be issued to any inferior court, corporation, board, officer, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. But though the writ may require such court, corporation, board, officer, or person to exercise its or his judgment, or proceed to the discharge of any of its or his functions, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law. SEC. 554. The writ shall be allowed by the court, or judge thereof, plied for and by upon the petition, verified as a complaint in an action, of the party beneficially interested. It may be allowed with or without notice to the adverse party, as in the case of a writ of review. Upon the filing of the petition and order of allowance, the writ shall be issued by the clerk in accordance therewith. How directed and served. Either alterna SEC. 555. The writ shall be directed to the court, corporation, board, officer, or person mentaoned or designated in the order of allowance, and may be served thereon by any officer or person authorized to serve a summons by delivery of a copy of the original to such officer or person, or to any member of such court, or to any officer of such corporation upon whom this code authorizes a summons to be served. The proof of service shall be the same as in a writ of review, and obedience to the writ may be enforced in such manner as the court, or judge thereof, shall direct. SEC. 556. The writ is either alternative or peremptory. When it tive or peremp- is alternative, it shall state concisely the facts according to the petition, tory; what to contain. showing the obligation of the defendant to perform the act, and his omission to perform it, and command him that immediately after the receipt of the writ, or at some other specified time, he do the act required to be performed, or show cause before the court or judge thereof by whom the writ was allowed, at a time and place therein specified, why he has not done so; and that he then and there return the writ, with his certificate annexed, of having done as he is commanded, or the cause of his omission thereof. When peremptory, the writ shall be in similar form, except that the words requiring the defendant to show cause why he has not done as commanded, and to return the cause therefor, shall be omitted. What peremp SEC. 557. When the right to require the performance of the act is tory writ shall be clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus shall be allowed in the first instance; in all other cases the alternative writ shall be first issued. issued in first instance. SEC. 558. On the return day of the alternative writ, or such further When defendday as the court or judge thereof may allow, the defendant on whom ant may show the writ shall have been served may show cause by demurrer or answer to the writ in the same manner as to a complaint in an action. cause, and how. If defendant fail to issue. SEC. 559. If the defendant do not show cause by demurrer or answer, a peremptory mandamus shall be allowed against him. If the answer to show cause, contain new matter, the same may be demurred or replied to by the peremptory writ plaintiff within such time as the court or judge may prescribe. If the replication contain new matter, the same may be demurred to by the defendant within such time as the court or judge may prescribe, or he may countervail such matter on the trial or other proceedings by proof, either in direct denial or by way of avoidance. Pleadings and ings therein. SEC. 560. The pleadings in the proceeding by mandamus are those mentioned in the two sections last preceding. They are to have the mode of proceedsame effect, and to be construed and may be amended in the same manner, as pleadings in an action. Either party may move to strike out, or be allowed to plead over after motion or demurrer allowed or disallowed, and the issues joined shall be tried and the further proceedings thereon had in like manner and with like effect as in an action. SEC. 561. If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained by reason of the premises, to be ascertained in the same manner as in an action, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay. SEC. 562. A recovery of damages by virtue of this chapter against a party who shall have made a return to a writ of mandamus is a bar to any other action against the same party for the same cause. Recovery of damages. Recovery of damages a bar to other suit or action. When court may impose fine upon SEC. 563. Whenever a peremptory mandamus is directed to a public. officer or body commanding the performance of any public duty spe- defendant. cially enjoined by law, if it appear to the court or judge thereof that such officer or any member of such body has without just excuse refused or neglected to perform the duty so enjoined, the court or judge may imprison, or impose a fine, not exceeding one thousand dollars, upon every such officer or member of such body for each refusal. SEC. 564. In the district court the writ may be made returnable either in term time or vacation, and if the latter, may be tried and determined before the judge thereof in like manner and with like effect as in term time. How tried. Appeal from SEC. 565. From the judgment of the district court, or judge thereof, refusing to allow a mandamus, or directing a peremptory mandamus, judgment of disan appeal may be taken in like manner and with like effect as in an action. trict court. Habeas corpus. 571. What the writ shall contain. 575. Warrant to issue in case of neglect 576. If officer neglects, to whom warrant 577. Precept to marshal. 578. When cause to be inquired into. 580. When party to be remanded. 582. Legality of certain judgments and 584. Until judgment given, how to be kept. 585. When notice to be given to third party. 586. Notice, when given to the district attorney. 587. Return may be controverted. Sec. 589. When production of person dis pensed with. 590. 591. Judgment of discharge or dismissal of proceedings. Precept requiring the production of the person. 592. Obedience to judgment of discharge, SEC. 566. Every person imprisoned, or otherwise restrained of his liberty, within the district, under any pretense whatsoever, except in -who may pros- the cases specified in the next section, may prosecute a writ of habeas corpus according to the provisions of this chapter, to inquire into the cause of such imprisonment or restraint, and if illegal to be delivered therefrom. ecute. -who not enti SEC. 567. Persons properly imprisoned or restrained by virtue of tled to prosecute. the legal judgment of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution regularly and lawfully issued upon such judgment or decree, shall not be allowed to prosecute the writ. -by whom al cation therefor. SEC. 568. The writ shall be allowed by the court, or the judge lowed, and appli- thereof, upon the petition of the party for whose relief it is intended, or by some other person in his behalf, signed and verified by the oath of the petitioner, to the effect that he believes it to be true. SEC. 569. The petition shall state in substance -contents of petition. First. That the party in whose behalf the writ is applied for is imprisoned or restrained of his liberty, the place where, and officer or person by whom he is imprisoned or restrained, naming both parties, if their names be known, or describing them, if not known; Second. That such person is not imprisoned or restrained by virtue of any order, judgment, or process specified in section five hundred and sixty-seven; Third. The cause or pretense of such imprisonment or restraint, according to the best knowledge or belief of the petitioner; Fourth. If the imprisonment or restraint be in virtue of any order, warrant, or process, a copy thereof shall be annexed to the petition, or it must be alleged that, by reason of the removal or concealment of the party before the application, a demand of such copy could not be made, or that such demand was made, and the legal fees therefor tendered to the person having the party in his custody, and that a copy was refused; Fifth. If the imprisonment or restraint be alleged to be illegal, in what the alleged illegality consists; Sixth. That the legality of the imprisonment or restraint has not been already adjudged upon a prior writ of habeas corpus to the knowledge or belief of the petitioner. SEC. 570. The court or judge to whom the petition is presented must allow the writ without delay, unless it appears from the petition itself, or from the documents annexed thereto, that the person for whose relief it is intended is by the provisions of this chapter prohibited from prosecuting the writ. Upon the filing of the petition and the order of allowance with the clerk, the clerk shall issue the writ immediately in accordance therewith. When allowed. What the writ SEC. 571. The writ shall command the defendant to produce the person imprisoned or restrained, by whatsoever name he may be charged shall contain. or called, and certify and return therewith the time and cause of his imprisonment or restraint, before the court or judge allowing the writ, at a time and place therein specified, or immediately after the receipt of the writ, to do and receive what shall then and there be considered concerning the person so imprisoned or restrained; or when it appears by the petition and documents thereto annexed that the cause or offense for which the person is imprisoned or restrained is not bailable, the production of the party may be dispensed with, though such production be prayed for in the petition, and the writ issued accordingly. SEC. 572. The writ shall not be disobeyed for any defect of form. It is sufficient First. If the officer or person having the custody of the party imprisoned or restrained be designated either by his name of office, if he have any, or by his own name, or if both such names be unknown or uncertain, he may be described by an assumed appellation; and anyone who may be served with the writ is to be deemed the officer or person to whom it was directed, although it may be directed to him by a wrong name or description, or to another person; Second. If the person who is directed to be produced be designated by name, or if his name be uncertain or unknown, he may be described in any other way, so as to designate the person intended. SEC. 573. The officer or person upon whom the writ shall have been duly served shall state in his return, plainly and unquivocally First. Whether he has or has not the party in his custody or power or under his restraint, and if he have not, whether he has had the party in his custody or under his power or restraint at any and what time prior or subsequent to the date of the writ; Second. If he has the party in his custody or power, or under his restraint, the authority and true cause of such imprisonment or restraint, setting forth the same at large; Third. If the party be detained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return, and the original shall be produced and exhibited on the return of the writ to the court or judge before whom the same is returnable; Fourth. If the person upon whom such writ shall have been served shall have had the party in his power or custody or under his restraint at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, the return shall state particularly to whom, at what time, for what cause, and by what authority Not to be disobeyed for want of form. Contents of re turn. Person to be produced. Warrant to issue in case of neglect or refusal to obey If officer neg warrant to issue. such transfer took place. The return shall be signed by the person making the same, and, except where such person shall be a sworn public officer and shall make his return in his official capacity, it shall be verified by oath. SEC. 574. The person or officer on whom the habeas corpus shall have been served shall also bring the body of the person in his custody, according to the command of such writ, except in the case of the sickness of such person, as hereinafter provided. SEC. 575. If the person upon whom such writ shall have been duly served shall refuse or neglect to obey the same by producing the party named in such writ and making a full and explicit return thereto within the time required, and no sufficient excuse be shown, it shall be the duty of the court or judge before whom such writ shall have been made returnable, upon due proof of the service thereof, forthwith to issue a warrant against such person, directed to the marshal, and commanding him forthwith to apprehend such person and bring him immediately before such court or judge; and on such person being so brought he shall be committed to close custody until he shall make return to such writ and comply with any order that may be made in relation to the person for whose relief such writ shall have been issued. SEC. 576. If the marshal or any deputy shall have neglected to return lects, to whom such writ, the warrant may be directed to any other person to be designated therein, who shall have full power to execute the same, and such marshal or deputy upon being brought up may be committed to any jail or other place of imprisonment in the district. Precept to marshal. When cause to be inquired into. SEC. 577. The court or judge by whom any such warrant shall be issued may also, at the same time or afterwards, issue a precept to the marshal or other person to whom such warrant shall have been directed, commanding him to bring forthwith before such court or judge the party for whose benefit such writ shall have been allowed, who shall thereafter remain in the custody of such marshal or person until discharged or remanded. SEC. 578. The court or judge before whom the party shall be brought on such writ shall, immediately after the return thereof, proceed to examine into the facts contained in such return and into the cause of the imprisonment or restraint of such party, whether the same shall have been upon commitment for any criminal or supposed criminal matter or not. If no legal cause SEC. 579. If no legal cause be shown for such imprisonment or shown, discharge restraint, or for the continuation thereof, the court or judge shall disgranted. charge such party from the custody or restraint under which he is held. SEC. 580. It shall be the duty of the court or judge forthwith to remand such party if it shall appear that he is legally detained in custody. When party to be remanded. Prisoner, when SEC. 581. If it appear on the return that the prisoner is in custody to be discharged. by virtue of an order or civil process of any court legally constituted, or issued by an officer in the course of judicial proceedings before him, authorized by law, such prisoner shall be discharged in either of the following cases: First. When the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum, or person; Second. When, though the original imprisonment was lawful, yet by some act, omission, or event which has taken place afterwards the party has become entitled to be discharged; Third. When the order or process is defective in some matter of substance required by law, rendering such process void; Fourth. When the order or process, though in proper form, has been issued in a case not allowed by law; Fifth. When the person having the custody of the prisoner under such order or process is not the person empowered by law to detain him; or, |