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tax sale: Hewell v. Lane, 53 Id. 213. Mandamus is an appropriate remedy to compel a sheriff, after proper application, to remit a tax illegally assessed: Smith v. King, 14 Or. 10. But the remedy by mandamus will not lie where a county treasurer has no money applicable to the claim: Cramer v. Sacramento, 18 Id. 384. Nor where he is bound to act on the auditor's warrants, but no such warrant has been presented: People v. Fogg, 11 Id. 359; or if the warrant was not legally chargeable against the county: Keller v. Hyde, 20 Id. 595.

If there is an ordinance of a city prohibiting the treasurer from paying claims against the city before they have been audited and approved by the commnon council, mandamus will not lie to compel him to pay such claims until thus audited and approved: Dubordieu v. Butler, 49 Cal. 512. But a provision in the city charter that suits on bonds issued by the city shall not be brought will not prevent mandamus to the treasurer from issuing: Meyer v. Porter, 1 West Coast Rep. 874. A party entitled to stock in a private corporation has an action for damages against the corporation for the refusal of its officers to transfer the stock to him on the company's books, and therefore mandamus will not lie, unless, perhaps, in cases where the stock is of a specific value over other stock of the corporation: Kimball v. Union W. Co., 44 Cal. 175; King v. Bank of England, 2 Doug. 526; Shipley v. Mechanics' Bank, 10 Johns. 484; Wilkinson v. Providence Bank, 3 R. I. 22; Ex parte Fireman's Insurance Co., 6 Hill, 243; American Asylum etc. v. Phoenix Bank, 4 Conn. 172; Sargent v. Franklin Insurance Co., 8 Pick. 90; S. C., 19 Am. Dec. 306. Nor will it be issued when the vital merits of the motion are extinct at the time of the hearing: Harrington v. Sawyer, 36 Cal. 289. It is not the proceeding in which to try title to land: Babcock v. Good rich, 47 Id. 488.

The writ will not issue where the applicant has not complied with the conditions of the law upon which he alone is entitled to that which he seeks to obtain by mandamus: Purdy v. Sinton, 56 Cal. 133. Nor to compel the register of the land office to issue a certificate to recover money paid to the state for lands it could not grant: Sullivan v. Shanklin, 63 Id. 247.

Where relator conveyed to Y. one

third of a certain real estate, in con- Oct. 11, 1862, sideration that Y. should attend to a § 583. suit pending in the name of relator, for the recovery of the property, etc. Y. employed an attorney. Relator moved the court below to substitute another attorney in his place, but the court refused to grant the motion, the only reason urged for the substitution being that Y. had neglected to prosecute the suit. Relator applied to the supreme court for a mandamus, which was granted: Downer v. Norton, 16 Cal. 436. It is no answer to proceedings by mandamus to a treasurer to pay coupons on bonds issued by a city, that the charter under which the bonds were issued provided that no suit thereon should be commenced against the city: Meyer v. Porter, 1 West Coast Rep. 874.

Water companies charged with the public duty of supplying water may be compelled to perform the same through the medium of this writ: Price v. R. L. & I. Co., 56 Cal. 431.

Where nothing will be gained, mandamus will not issue; as to compel a judge to settle a statement where the motion for the new trial was made too late: Clark v. Crane, 57 Cal. 629. Nor to compel the court below to allow the personal representative of a deceased plaintiff to be substituted, and to proceed to a new trial, if the judgment erroneously rendered against the deceased before knowledge of his death had been obtained by the court, is not set aside in that court: Elliott v. Paterson, 2 West Coast Rep. 376.

Whom mandamus will not control. Where courts have concurrent jurisdiction, there is neither the right to command nor to prohibit nor the duty to obey; and it would be inconsistent with the relations which they hold towards each other that one should attempt to supervise or direct or restrain the action of another: People v. Turner, 1 Cal. 149. Mandamus will not lie to try title to an office filled de facto. The court cannot determine the right to the fees of an office until the right to the office is determined: Meredith v. Supervisors, 50 Id. 433. The writ will not lie to try title to an office: Warner v. Myers, 4 Or. 72; S. C., 3 Or. 218; People v. Scannell, 7 Cal. 442; People v. Olds, 3 Id. 175. But mandamus is proper to compel the incumbent of an office to deliver to his successors

Oct. 11, 1862, $583.

Oct, 11, 1862, $584.

How writ ap

whom allowed and

the appurtenances, etc.: Warner v.
Myers, 4 Or. 72. The writ is not to
be used to try the eligibility of de-
fendant to an office: Turner v. Melo-
ney, 13 Cal. 621. It is an imperative
rule of the law of mandamus that,
previously to the making of the appli-
cation, an express and distinct de-
mand or request to perform the act
must have been made by the prosecutor
to the defendant, who must have re-
fused to comply with such demand,
either in direct terms, or by conduct
from which a refusal can be conclu-
sively implied: People v. Romero, 18
Id. 91; Crandall v. Amador Co., 20
Id. 72; though the rule may be other-
wise where the relator or petitioner

has no private interest in or claims the immediate benefit of the act or proceeding required to be done or taken, but it amounts to a mere public duty: O. & V. R. R. Co. v. Plumas, Co., 37 Id. 362. But a public board is not in default so as to be subject to mandamus until after demand and refusal: Talcott v. Harbor Commissioners, 53 Id. 199.

This demand must be definite and specific, "as certain as the subject matter of the litigation which may follow a refusal will admit of." Ä failure to allege such demand may be taken advantage of by general demurrer: Price v. R. L. & I. Co., 56 Cal. 431.

§ 594. [584.] The writ shall be allowed by the court, or judge thereof, upon the petition, verified as a complied for, and plaint 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.

issued.

20 Or. 156.

Oct. 11, 1862, $585.

How directed.
Service of,

Oct. 11, 1862, 586.

Who may apply for writ. - To entitle one to the writ, it must appear that the defendant refuses to perform the duty: People v. Supervisors, 64 N. Y. 600; People v. Collins, 19 Wend. 65; and that plaintiff clearly has a right to have the act done: Fitch v. McDiarmid, 26 Ark. 482; Draper v.

Noteware, 7 Cal. 276. A tax-payer is a party beneficially interested in having all the property in the district assessed, and is a proper party to make the affidavit for the writ to compel the assessor to assess property subject thereto: Hyatt v. Allen, 54 Id. 353.

§ 595. [585.] The writ shall be directed to the court, corporation, board, officer, or person mentioned 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 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.

§ 596. [586.] The writ is either alternative or peremptory; when in the alternative, it shall state concisely the facts, according to the petition, showing the obliga

$ 586.

Writs are

alternative.

tion of the defendant to perform the act, and his omis- Oct. 11, 1862, sion to perform it, and command him, that immediately after the receipt of the writ, or at some other specified peremptory or 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 a 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.

§ 587.

When peremp

§ 597. [587.] When the right to require the perform- Oct. 11, 1862, ance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory tory writ shall mandamus shall be allowed in the first instance; in all other cases, the alternative writ shall be first issued.

be issued.

$588.

§ 598. [588.] On the return day of the alternative Oct. 11, 1862, writ, or such further day as the court or judge thereof Defendant may allow, the defendant on whom the writ shall have may show been served may show cause by demurrer or answer to the writ, in the same manner as to a complaint in an action.

Answer. The rules of the code are as strictly applicable to the pleadings in mandamus as to those in any action; and under those rules no one may answer except those who are made or are by the court admitted as defendants. The remark found in the treatises on mandamus, that if two separate returns be made by different portions of the same corporation, the court will take that which appears to be made by the majority, means that, to have any standing, it must be made as the return of the whole corporation, or at least of a particular portion or branch of it, and then, if two returns are made in that capacity, the court will ascertain which is the true return: People v. S. F., 27 Cal. 670. The general rules as to denying allegation, on information or

belief, are also applicable, and the
respondent cannot deny in this form
facts whose existence or non-existence
must be known to him: Forbes v. El
Dorado, 12 Pac. C. L. J. 341.

answer

Amending answer. -The
may be amended, and ought to be
allowed to be amended, in a proper
case: Grady v. Bramlet, 59 Cal. 105.
In this case the supreme court reversed
the action of the lower court in refus-
ing to allow a supplemental answer to
be filed.

Demurrer to answer. — - A motion to
strike out and disregard the answer
as immaterial is in effect a general
demurrer: Middleton v. Low, 30 Cal.
599. So is a motion that the writ
issue notwithstanding the answer:
Ward v. Flood, 48 Id. 36.

cause.

Oct. 11, 1862, $589.

Peremptory mandamus, Issuance of.

Oct. 11, 1862, $590.

Pleadings and mode of proceedings.

Oct. 11, 1862, 591.

Recovery of damages.

16 Or. 362.

Oct. 11, 1862, $ 592.

Recovery as a bar.

Oct. 11, 1862, $593.

When court may impose fine.

§ 599. [589.] If the defendant do not show cause by demurrer or answer, a peremptory mandamus shall be allowed against him. If the answer contain new matter, the same may be demurred or replied to by the 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.

§ 600. [590.] The pleadings in the proceeding by mandamus are those mentioned in sections 598 [588] and 599 [589], and none other are allowed. They are to have the same 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.

§ 601. [591.] 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.

§ 602. [592.] A recovery of damages by virtue of this title against a party who shall have made a return to a writ of mandamus is a bar to any other action or suit against the same party for the same cause.

§ 603. [593.] Whenever a peremptory mandamus is directed to a public officer or body commanding the performance of any public duty specially 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 impose a fine, not exceed ing five hundred dollars, upon every such officer or

$593.
When court

member of such body; and the payment thereof is a oct. 11, 1862, bar to any action for any penalty incurred by such officer or member by reason of his refusal or neglect to per- may impose form the duty so enjoined.

fine.

$ 594.

When court

tion.

§ 604. [594.] The circuit court, or judge thereof, of oct. 11, 1862, the county wherein the defendant, if a public officer or body, exercises his or its functions, or if a private person has jurisdicor corporation, wherein such person resides or may be found, or such private corporation might be sued in an 11 Or. 321. action, shall have exclusive jurisdiction of the proceeding herein prescribed, except that the supreme court shall have jurisdiction of such proceeding in all cases. arising in the state where it may be necessary or proper to enable such court to maintain its appellate jurisdiction.

$595.

How tried.

§ 605. [595.] In the circuit court the writ may be Oct. 11, 1862, 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. In the supreme court the writ may be allowed. by the court or any judge thereof, but shall only be tried and determined by the court; and all issues of either fact or law therein shall be tried by the court.

$596. Appeal.

§ 606. [596.] From the judgment of the circuit court, Oct. 11, 1862, or judge thereof, refusing to allow a mandamus, or directing a peremptory mandamus, an appeal may be taken to the supreme court in like manner and with like effect as in an action.

TITLE III.

OF THE WRIT OF HABEAS CORPUS.

§ 607. Definition of, and who may prosecute it.

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§ 610.

§ 611.

Petition for writ, what it shall contain.

Writ to be allowed without delay, unless it appear that plaintiff not
entitled to prosecute; clerk to issue writ.

§ 612. What the writ shall contain.

§ 613. Writ not to be disobeyed for want of form. What is sufficient.

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