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mine, lead, lode, or mining claim in question, in such manner, at such time, and by such persons as are mentioned in the order. Such persons shall thereupon have free access to such mine, lead, lode, or mining claim, for the purpose of such inspection, examination, or survey in conformity with the order (of the court or judge), and any interference with such persons while acting under such order, shall be a contempt of court and punished accordingly. If the order of the court is made while an action is pending between the parties to the order, the costs of obtaining the order shall abide the result of the action. If no action be pending when the order is made, all the costs thereof shall be paid by the petitioner.

TITLE XII.

CHAPTER I.

OF THE WRIT OF CERTIORARI AND MANDAMUS.

Sec. 506. The writ of certiorari-denomination of.

Sec. 507. This writ may be issued by a superior court to an inferior tribunal-in what cases.

Sec. 508. The application shall be made on affidavit, with notice

or without.

Sec. 509. The writ to be directed to the inferior tribunal.

Sec. 510. The contents of the writ.

Sec. 511. Proceedings in the inferior court, etc., may be stayed

or not.

Sec. 512. Service of the writ.

Sec. 513. The review under the writ, extent of.

Sec. 514. A defective return of the writ may be perfected; hearing and judgment.

Sec. 515. Copy of judgment shall be sent to the inferior tribunal, Sec. 516. Judgment roll; appeals may be taken as in civil cases.

etc.

Section 506. The writ of ceritorari may be denominated the

writ of review.

of this territory, except a justice's, probate, or mayor's court; the writ shall be granted in all cases when an inferior tribunal, Sec. 507. This writ may be granted on application by any court board, or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer, and there is no

appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy.

Sec. 508. The application shall be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.

Sec. 509. The writ may be directed to the inferior tribunal, board, or officer, or to any other person having the custody of the record or proceedings to be certified; when directed to a tribunal, the clerk, if there be one, shall return the writ with the transcript required.

Sec. 510. The writ of review shall command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, and annex to the writ a transcript of the record and proceedings (describing or referring to them with convenient certainty), that the same may be reviewed by the court; and requiring the party, in the meantime, to desist from further proceedings in the matter to be reviewed.

Sec. 511. If a stay of proceedings be not intended, the words requiring the stay shall be omitted from the writ; these words may be inserted or omitted in the sound discretion of the court; but if omitted, the power of the inferior court or officer shall not be suspended, nor the proceedings stayed.

Sec. 512. The writ shall be served in the same manner as a summons in a civil action, except when otherwise expressly directed by the court.

Sec. 513. The review upon this writ shall not be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer.

Sec. 514. If the return of the writ be defective, the court may order a further return to be made. When a full return has been made, the court shall proceed to hear the parties, or such of them as may attend for that purpose, and may thereupon give judg ment, either affirming or annulling or modifying the proceedings

below.

Sec. 515. A copy of the judgment, signed by the clerk, shall be transmitted to the inferior tribunal, board, or officer having the custody of the record or proceeding certified up.

Sec. 516. A copy of the judgment, signed by the clerk, entered upon or attached to the writ and return, shall constitute the judgment roll. If the proceeding be had in any other than the supreme court, an appeal may be taken from the judgment in the same manner and upon the same terms as from a judgment in a civil action.

CHAPTER II.

THE WRIT OF MANDATE OR MANDAMUS.

Sec. 517. The writ of mandamus, denomination of. Sec. 518. The writ may be issued by a superior court to an inferior tribunal, etc., in what cases.

Sec. 519. The writ shall issue on affidavit where there is no adequate remedy in the ordinary course of law. Sec. 520. Shall be either alternative or peremptory substance of the writ.

Sec. 521. If the application be without notice the alternative writ shall issue; otherwise, the peremptory. Notice and

default.

Sec. 522. The adverse party may answer under oath.

Sec. 523. If an essential question of fact is raised, the court may order a jury trial.

Sec. 524. The applicant may demur to the answer or countervail it by proof.

Sec. 525. Either party may move for a new trial.

for the same party shall be conclusive.

Two verdicts

Sec. 526. The clerk shall transmit the verdict to the court where the motion is pending, after which the hearing shall

Sec. 527.

Sec. 528.

be had on motion.

If no answer be made, or if the answer raise no material issue of fact, the hearing shall be before the court. If the applicant succeed, he may have damages, costs, and a peremptory mandate.

Sec. 529. Service of writ.

Sec. 530. Penalty for disobedience to the writ of mandate.

Section 517. The writ of mandamus may be denominated the writ of mandate.

Sec. 518. It may be issued by any court in this territory, except a justice's, probate, or mayor's court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.

Sec. 519. The writ shall be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It shall be issued upon affidavit on the application of the party beneficially interested."

Sec. 520. The writ shall be either alternative or peremptory; the alternative writ shall state generally the allegation against the party to whom it is directed, and command such party, immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court, at a specified time and place, why he has not done so. The peremptory writ shall be in a similar form, except that the words requiring the party to show cause why he has not done as commanded shall be omitted and a return day shall be inserted.

Sec. 521. When the application to the court is made without notice to the adverse party, and the writ be allowed, the alternative shall be first issued; but if the application be upon due notice, and the writ be allowed, the peremptory writ may be issued in the first instance. The notice of the application, when given, shall be, at least, ten days. The writ shall not be granted by default. The case shall be heard by the court whether the adverse party appear or not.

Sec. 522. On the return of the alternative, or the day on which the application of the writ is noticed, or such further day as the court may allow, the party on whom the writ or notice. shall have been served may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action.

Sec. 523. If an answer is made which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation on which the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had, and the verdict certified to the court. The question to be tried shall be distinctly stated in the order for trial, and the county shall be designated in which the same shall be had. The order may also direct the jury to assess any damages which the applicant may have sustained in case they find for him.

Sec. 524. On the trial the applicant shall not be precluded by the answer of any valid objection to its sufficiency, and may countervail it by proof, either in direct denial or by way of avoidance.

Sec. 525. If either party be dissatisfied with the verdict of the jury, he may move for a new trial upon a statement prepared as provided in section two hundred and thirty-five (of this act). The motion for a new trial may, upon reasonable notice, be brought on before the judge of the court in which the cause was tried, either in term or vacation. If a new trial be granted the jury shall, within five days thereafter, unless the parties agree on

a longer time, be summoned to try the issue. After a second verdict in favor of the same party, a new trial shall not be had.

Sec. 526. If no notice for a new trial be given, or, if given, it be denied, the clerk, within five days after the rendition of the verdict or denial of the motion, shall transmit to the court in which the application for the writ is pending, a certified copy of the verdict attached to the order of trial, after which either party may bring on the argument of the application upon reasonable notice to the adverse party.

Sec. 527. If no answer be made the case shall be heard on the papers of the applicant. If an answer be made which does not raise a question, such as is mentioned in section five hundred and twenty-three (of this act), but only such matters as may be explained or avoided by a reply, the court may, in its discretion, grant time for replying; if the answer, or answer and reply, raise only questions of law, or put in issue immaterial statements, not affecting the substantial rights of the parties, the court shall proceed to hear, or fix a day for hearing, the argument of the case.

Sec. 528. If judgment be given for the applicant he shall recover the damages which he shall have sustained, as found by the jury, or as may be determined by the court, or referees upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue, and a peremptory mandate shall also be awarded without delay.

Sec. 529. The writ shall be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the court.

Sec. 530. When a peremptory mandate has been issued and directed to any inferior tribunal, corporation, board, or person, if it appear to the court that any member of such tribunal, corporation, board, or such person upon whom the writ has been personally served has, without just excuse, refused or neglected to obey the same, the court may, upon motion, impose a fine not exceeding one thousand dollars. In case of a persistance in a refusal of obedience, the court may order the party to be imprisoned for a period not exceeding three months, and may make any orders necessary and proper for the complete enforcement of the writ.

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