Fish against Weatherwax, 2 Johns. Cas. 215

Benson, J. delivered the opinion of the court. There may he a judgment, for the insufficiency of the declaration or plea, as the case may be, against the party, though there may be a verdict for him. If the party for whom a verdict is found, will not move for judgment, the other party may pray for judgment against himself; but the entry on the record will still be as if the judgment had been on the prayer of the party for whom the judgment was found.

And where a party prays to have judgment rendered against him, to the intent, that he may bring a writ of error, he is entitled to have it so rendered against him, as matter of right.

Where the verdict is for the plaintiff, if the defendant, in stead of letting the plaintiff take a judgment for himself, prays only that the court, omitting to render judgment, shall, as their final act in the cause, say to the parties, that they may go without any further day given to them to appear again; and if the plaintiff, when the court have declared their opinion against him, does not pray judgment against himself, the judgment, *in such case, is said to be arrested, as distinguished from the case where it is rendered : for, according to the ordinary, though, perhaps, improper sense of the expression, a judgment is said to be arrested, when the court, by an interlocutory act, award a new trial, or repleader, or other further proceedings ; and where the party for whom the verdict was given, must still so further proceed, until there shall finally be a judgment in the cause, and then, on a writ of error, he may have judgment on the verdict, if entitled to it, and the judgment of the court, in awarding the further proceedings, and of consequence the proceedings themselves, be reversed.

The arresting of judgment, however, in the present case, is the final act of the court; and the question is, whether it is such a judgment, as that a writ of error will lie upon it. In some cases, where a judgment is rendered against the plaintiff, it will be a bar to an another action for the same cause, and his only remedy is, by a writ of error, to have the judgment reversed ; but if the remedy, where the judgment is arrested, is also by writ of error, then the law, to be consistent with itself, must make an arrest of judgment a bar to a new action, in the same cases where the rendering of judgment is a bar.

But as the arrest of judgment is not, by law, a bar in any case, the inference must be, that a writ of error will not lie on it. That this is the law, is further evident, from the form of the entry where the judgment is arrested, and the form of the court of errors. In the first case the entry is, “ omitting the rendering of judgment,” &c. in the latter case, the writ of error states, “ that in rendering judgment, manifest error,” &c.

If, then, the plaintiff has no remedy by a writ of error, he must have it by a writ of mandamus ; though, strictly speaking, he is not entitled to his rule, before he has prayed the court below to render judgment against *himself, for until then there is no default in the judge of the inferior court; yet as this case is new, and to prevent delay, the court will grant a special rule, that if the judges of the court below shall refuse, on the prayer of the plaintiff, to render judgment against himself, and for the defendant, that then they show cause by the first day of the next term, why a mandamus should not issue to them to proceed to judgment in the cause.() (Lutw. 124, 166, 1052, 1419, 1498, 1608. 2 Barnes, 206, 226.

Plowd. 209. 2 Saund. 228. 2 Town. Jud. 118, 155. 5 Co. 32. 1 Mod. 207.) Rule granted accordingly.() (а) See infra note (5), (

b) The editor trusts that he will be excused in submitting to the profession a collection of cases upon the law of mandamus, broader and fuller than is required to elucidate the decision in the principal case. In the progress of legal science almost every branch of jurisprudence has become the subject of a distinct modern treatise, and it is somewhat singular therefore that this should have been neglected, since the Courts and the Bar are daily occupied in its consideration.

The intention of the editor has been, in some degree, to supply the neglect of others, though it might not be done with any thing like that completeness which is desirable, and the result is submitted to the use and to the judgment of the profession. 1. In the administration of political affairs and in the proper government of subordinate officers and tribunals, it is necessary that some power should exist to compel them to those acts which public justice demands.

And whatever may be the wisdom with which specific remedies, the instruments of that power, are devised, many cases must arise to which they cannot be applied, and in which “ a failure of justice and defect of police ” must be the consequence. The necessity therefore has become apparent of establishing some general residuary remedy to be used upon all occasions where the law has bestowed no other, and where in justice there ought to be one. (See per Lord Mansfield in Rex v.

Baker, 3 Burr. 1274.) This remedy is called the Writ of Mandamus and it is liberally interposed for the benefit of the citizen and the advancement of justice ; “ the value of the matter or the degree of its importance to the public police is not scrupulously weighed; if there be a right and no other specific remedy, it will not be denied: in fact, where there is a right to execute an office, perform a service, or exercise a franchise, more especially if it be a matter of public concern, or attended with profit, and a pelson is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, the court will interpose by mandamus upon reasons of justice as the writ expresses — Nos A.B. debitam et festinam justitiam in hac parte fieri volentes, ut est justum; and upon reasons of public policy, to preserve peace, order, and good government.” (Rex v.

Baker, 3 Burr. 1267. Per Lord Mansfield, ibid. 1266.) By means of this suppletory remedy inferior officers and tribunals are forced to perform their duties, and corporations are compelled to observe the ordinances of their constitution and the rights of those entitled to participate in their privileges. (See Angel & Ames on Corp. ed. 1832, p. 426.) Tile proceeding by mandamus was employed early in the annals of English jurisprudence, but it would be impossible to determine the date of its origin even if there were any object to be gained.by so useless a pursuit.

Indeed this has been the subject of considerable difference of opinion amongst legal antiquarians which it would be utterly idle at this day to attempt to solve. Let it suffice to observe that while on the one hand it has been supposed to be of modern existence and to owe its origin to Bagg’s case, on the other it has been traced back to the time of Edward III. and even earlier, to that of Edward I. (See Bac. Ab. tit. Mandamus A.; Lev. 23 ; Show. 263 ; Ca. Law & Eq. 53, 57 ; Palm. 51; Dyer, 333; Skinuer, 293, pl. 3, 310, pl. 4. See also per Lord Mansfield in Rex v.

Askew et al. 4 Burr. 2186, 2189.) But whatever may be the antiquity of this remedy, it is clear that its application upon distinct and Well settled principles is, comparatively speaking, of late date. In the more ancient cases the grounds upon which a mandamus was granted or refused were not explicitly stated, but within the last century it has been liberally interposed for the benefit of the citizen and the advancement of justice. (Bac. Ab. Bouvier’s ed. tit. Mandamus, introd. 3 Burr. 1267; 4 id. 2188 ; Cowp. 378.) § 2.

No definition of mandamus has been given which is on the whole, more satisfactory than that of Sir William Blaekstone. It substantially describes this writ as in general, a command Issuing in the name of the sovereign authority from a superior court and directed to any person, corporation or inferior court of judicature, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified which appertains to their office and duty. (3 Black. Comm. 110. See Bouvier’s Law Dict, tit. Mandamus.) § 3. Let us now briefly consider where the authority to issue a mandamus is reposed.

By the common law this writ was esteemed one of the flowers of the King’s Bench, (per Doddridge, J. in Audley v. Jay, Poph. 176,) and pe* culiar to that tribunal, because of the general superintendence which it exercised over all inferior jurisdictions and persons. The king originally sat there in person and aided in the administration of the law.

According to the theory of the English constitution the king is the fountain of justice, and where the laws did not afford a remedy and enable the individual to obtain his right, by the regular forms of judicial proceedings, the prerogative powers of the sovereign were brought in aid of the ordinary judicial powers of the court, and the mandamus was issued in his name to enforce the execution of the law.

And although the sovereign has long since ceased to sit there, yet he is still present in construction of law so far as to enable the court to exercise its prerogative powers in his name ; and hence its power to issue the writ of mandamus. It is therefore, evident, that by the principles of the common law, this power would not be incident to any court which did not possess the general superintending power of the Court of King’s Bench, (sed vid.

Vern. 175,) ia which the sovereignty might by construction of law be supposed to sit, and to exert there its prerogative powers in aid of the court in order that a right might not be without a remedy. (Per Taney, Ch. J. in Kendall v. The United States, 12 Peters, 524, 630.) It may therefore be stated, as a general principle, that all those courts which hear the same judicial relation to the sovereign power of the state that the King’s Bench does in England, have the authority to issue the writ of mandamus.

In every well constituted government the highest judicial authority must necessarily have this supervisory capacity to compel inferior or subordinate tribunals, magistrates, and all others exercising public powers, to perform their duty. (Strong, petitioner, 20 Pick. R. 484, 495. Howard v. Gage, 6 Mass. R. 462, 463. 1 Grah. Pr. 3d ed. 315. State v. Bruce, 1 Const. Rep. S. Ca. 165, 174, 175. See Commw. v. Commissioners of Lancaster, 6 Binney, 5 ; Commw. v. Judges of Common Pleas, 3 Binney, 273 ; The Same v. The Same, 1 Serg. & Rawle, 187 ; Morris v.

Buckley, 8 id. 211; Kolb’s case, 4 Watts, 154; see also 9 Serg. in Rawle, 72, per Tilghman, C. J.) The judiciary act of 1789, (§ 13,) expressiy conferred upon the Supreme Court of the United States, to issue writs of mandamus in eases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States, but no similar provision was adoped in reference to the Circuit Courts.

It might have been questionable, perhaps, had not this power been explicitly bestowed by statute, whether the former court would have been entitled to exercise it in those cases where it has only appellate jurisdiction, because a mandamus is an original and not an appellate process ; (Daniel v. County Court, 1 Bibb. 496; Morgan v. Register, Hardin, 609 ; Daniel v. Warren County Court, Hardin, 610, n.; Commw. v.

Commissioners of Lancaster, 6 Binney, 5 ;) but the latter court has original .cognizance concurrent with the courts of the several states of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds $500 and the United States are plaintiffs or petitioners; or an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state.

They have also jurisdiction in all cases in law or equity arising under the revenue laws of the United States, for which other provisions are not already made by law. (Acts of 24th Sept. 1789, § 11; id. 2d March, 1833, § 2.) Incidentally to this jurisdiction they have received power to issue all writs necessary for its exercise and agreeable to the principles and usages of law, (Act of 1789, § 14,) and in this general power the writ of mandamus is included.

But when this writ is not necessary to the exercise of their jurisdiction it is forbidden, because the reason fails upon which the power to issue it depends. (Mc Intire v. Wood, 7 Cranch, 504. McCluny v. Silliman, 6 Wheaton, 349. Smith v. Jackson, Paine C. C. R. 453.) It is obvious from the fact that the governments of the United States and those of the several states are distinct, that the one can exercise no authority over the inferior tribunals, officers, or persons of the other.

And therefore a state court cannot issue a mandamus to an officer of the United States, as a register of the land office, to compel him to perform any act. (McCluny v. Silliman, 6 Wheaton, 598, 604.) § 4. The writ of mandamus has been termed a prerogative writ, because regularly it issues only in cases relating to the public and to the government, (Bac. Ab. tit.

Mandamus A.) but perhaps a better reason why it was so called is to be found in the fact that it issued by the special power, pre-eminence, or privilege which the king exeroised over and beyond other persons, and above the ordinary course of the common law in right of his regal dignity. (See Jac. Law Dic. tit. Prerogative ; 1 Black. Comm. 239 ; Rex v. Barker, 1 Wm.

Black. 352.) And inasmuch as this writ was theoretically extended to the subject by the prerogative of the sovereign, in the proper exercise of which he could not be controlled, it was of necessity discretionary in its character and liable to be granted or refused as he might see fit. Nor has this theory been changed in its application to the judicial system of our own country, but such discretion resides in those tribunals that issue this writ, in the same manner that it did in the king or the court of King’s Bench where be was constructively present.

It is true that mandamus has been called a writ of right, (Bac. Ab. tit. Mandamus A. id. intro, id. D.) but this was long since questioned ; (per Ashburst, J. in Rex v. Commrs. of Excise, 2 T. R. 381, 385 ;) and.it is now well settled that the writ is discretionary, and that this discretion will not be exercised unless some just or useful purpose may be answered thereby. (Ex parte Fleming, 4 Hill, 582, 583, 584. Van Rensselaer v. Sheriff of Albany, 1 Cowen, 501, 512. Corporation v. Paulding, 4 Martin, N. S. 189. Rex v. Clear, 4 Barn. & Cresw. 899. Rex v. Mayor, &c. of Totness, 5 Dowl. & Ry. 481. Rex v.

Griffiths, 5 Barn. & Ald. 731, per Bailey, J.) But although it is discretionary in the court to grant or refuse this remedy, yet this discretion is not merely arbitrary and capricious, but on the contrary is regulated by certain rules and principles of law, (which we shall hereafter consider,) in order that every citizen who can show clearly to the satisfaction of the court that be has such a right as the law ought to protect and vindicate, without any other specific remedy of which he can legally avail himself, may be legally entitled to the aid of this process. (See per Brevard, J. in The State v. Bruce, Con.

Rep. S. Ca. 165, 176.) § 5. We have seen that the courts exercise their discretion in granting this writ, and that it is not from hence to be inferred that this discretion is arbitrary in its character and irrespective of general rules of law, which have been dictated by experience and incorporated into our system of judicature. On the contrary, we shall find that a number of leading principles in regard to the granting of mandamus, have received the sanction of the common law and are therefore uniformly to be regarded. And I.

It may be generally stated that a mandamus is granted only to enforce a public right or a public duty. (Bac. Ab. tit. Mandamus C. Com. Dig. tit. Mandamus A. 3 Black. Comm. 110. 1 Chitt. Geni. Pr. 789.) In the first place, such a right or duty must depend upon the public character of the person sought to be commanded., If he be a mere private person owing no peculiar duty to the public, the writ will not lie. Therefore, where a mandamus issued commanding a party who was alleged to have custody of certain books, papers and proceedings, relating to a court of requests, (under a local act, 47 Geo.

III. sess. 2, eh. 1,) or to the office of the clerk thereof, to deliver them up to a party who claimed to hold them as having been elected clerk to the court, it was held that the mandamus was bad, as not showing that the detainer was other than by a private individual. (The Queen v. Hopkins et al, 1 Queen’s Bench R. 161.) And again, in the second place, such a right or duty must depend upon the public character of the act sought to be enforced. This remedy therefore does not extend to any right or duty simply of a private nature and totally unconnected with any of the purposes of public government.

Thus, for example, where an application was made for a rule nisi for a mandamus to a private trading corporation, to compel them to permit a transfer to the assignees of a bankrupt of some shares of capital stock which stood in his name, and which had been refused, the court said, “We are not aware of any instances of a mandamus like the present having ever been granted, and if we were to grant this,'we should be called upon to interfere in all eases of dispute between the members of private corporations. This company, though carried on under a royal charter, is a mere private partnership.

But the writ of mandamus is a high prerogative writ, and is confined to cases of a public nature, the rule therefore must be refused.” (Rex v. The London Assurance Co. 5 Barn. & Ald. 899 ; 1 Dowl. & Ry. 510.) And, accordingly, where a mandamus was asked to the Bank of England to compel the directors of that corporation to produce their accounts for the purpose of declaring a dividend of the profits, Abbott, C. J. said, “ It is, in effect, an application on the behalf of one of several partners, to compel his co-partners to produce the account of profit and loss, and to divide their profits, if any there be.

The examination of the accounts of a trading company may be effectually entered into in the Court of Chancery, but this court is a very unfit tribunal for such a subject. A mere trading corporation differs materially from those which are intrusted with the government of cities and towns, and therefore have important public duties to perform.

No instance has been cited in which the court has granted a mandamus to a corporation like the present, and I think we ought not now to establish the precedent.” And Bayley, J. said, “ The court never grant this writ except for public purposes, and to compel the performance of public duties. This is an application at the instance of one of several partners in a trading company to compel his co-partners to divide their profits ; but that is a mere private purpose and presents a fit subject for inquiry on the other side of the hail.

There js no instance in which the court have granted a mandamus to a trading corporation ; and that being so, I think that we should not now grant it for the first time.” (Rex v. Bank of England, 2 Barn. & Ald. 620.) , The language of tile court is to the same effect in the Matter of Morris Shepley et al. v. The Mechanics’ Bank, 10 Johns. R. 485. (See also Rex v. Bank of Eng land, Doug. 524 ; Van Rennselaer v. Sheriff of Albany, 1 Cowen, 501, 512 ; Anon. 2 Ld. Raym. 485 ; Rex v. Merchant Tailors Co. 2 Barn. & Ald. 115.) § 6.

Upon the principle that the act sought to be commanded is not of a public character, a mandamus will be refused to compel an admission to an office or service of a private nature. Clerk to a dean and

chapter has been decided to be of this character; “ his office being only to enter leases granted, &e., and therefore he hath no more to do with the public than the bailiff of a manor.” (Comb. 133.) So has proctor in the spiritual court, (3 Mod. 335; Bac. Ab. tit. Mandamus C.) surgeon to a hospital, (Comb. 41; 7 Mod. 118, S. P.;) master of the Lord Mayor’s water house, (Vent. 143 ;) clerk, of the Butchers fcompany, (6 Mod. 18; 2 Ld. Raym. 959, 1004 ;) and approver of guns to the Gunsmiths Company, (6 Mod. 82 ; 2 Ld. Raym. 989 ; Comb. 347 ; though these cases have been questioned ; Bac. Ab. tit.

Mandamus C.) The office of vestry clerk has also been adjudged within this rule in Rex v. Churchwardens of Croyden, (5 T. R. 713,) where Lord Kenyon remarks, “ This office is merely of a private nature ; and if a mandamus were to be granted to restore to the office of vestry clerk, I should soon expect to hear of an application for a mandamus to restore to the office of a toll-gate keeper of a turnpike road.” (See also State ex rel Gruber v. Champlin, Same v. Hunt et al. 2 Bailey R. 220 ; Bac. Ab.tit. Mandamus C. 1.) § 7. II.

The right or duty in respect of which the remedy by mandamus is sought, must be of a legal character. (See the opinion of Yeates, J. in Commw. v. Rosseter, 2 Binney, 262; State v. Bruce, Const. R. S. Ca. 165, 175.) The established rule of law is that there ought, in all cases, tobe a specific legal right as well as the want of a specific legal remedy. (Id.) Upon this principle the court of King’s Bench refused a motion to direct this writ to Dr. Bettesworth, commanding him to grant administration to Smith of the goods of his deceased son durante minore (state of his grandson.

And they observed, “ When we grant mandamus it is to oblige the judge to do right to the party who sues the writ; but as there is no law which says to whom these administrations during minority shall be granted, there is no law to be put in execution.” (Smith’s case, 2 Strange, 292. See Rex v. Bettesworth, id. 956.) And the same court held that this writ would not lie to the Archbishop of Canterbury, to issue his fiat to the proper officer for the admission of a doctor of civil law, a graduate of Cambridge, as an advocate of the court of arches, because no such right or duty exists. (Rex v.

Archbishop of Canterbury, 8 East, 213.) § 8. III. The right or duty must be perfect and not inchoate. (The People v. The Trustees of Brooklyn, 1 Wend. 318.) § 9. IV. It is a rule of general application (though not without exceptions to which we shall hereafter allude) that where there is any other specific remedy for the party complaining, the writ of mandamus will not lie.

If therefore an appeal or writ of error can be brought for the purpose of deciding the question presented upon the application for mandamus, the court will leave the party to that remedy. (Carthew, 16 ; Prohurst’s case, Andr. 177.) And the reason of this is clear, for notwithstanding any opinion expressed upon the mandamus, the case might still be brought before the court upon a writ of error.

The effect therefore of this mode of interposition would be to retard decisions upon questions which were not final in the court below, so that the same cause might come many times before the superior court before there would be a final judgment. (Per Marshall, C. J. in Bank of Columbia v. Sweeny, cited infra. See Rex v. Lincoln’s Inn, 4 Barn. & Cresw. 855 ; Rex v.

Street, 8 Mod. 98 ; 2 Chitty, 255.) In accordance with this principle, where a district judge had decided that the custody of goods proceeded against after a seizure by the collector of the port of New T ork, was in the marshal of the district, after process had issued by order of the court against the goods, and a mandamus was asked, of the Supreme Court of the United States, to show that such custody was to continue in the collector of the port, it was denied. Story, J. who delivered the opinion of the court observing, “We are of opinion that this is, in no just sense, a case for a writ of mandamus.

This court has authority given to it by the thirteenth

section of the judiciary act of 1789, ch. 20, to issue writs of mandamus in cases warranted by the principles and usages of law to any courts appointed under the authority of the United States. The present application is not warranted by any such principles and usages of law. It is neither more nor less than an application for an order to reverse the solemn judgment of the district judge, in a matter clearly within the jurisdiction of the court, and to substitute another in its stead. Now a writ of mandamus is not a proper process to correct an erroneous judgment or decree rendered in an inferior court.

That is properly matter which is examinable upon a writ of error or an appeal, (as the case may require,) to the proper appellate tribunal.

Neither can this court issue the writ upon the ground that it is necessary for the exercise of its own appellate jurisdiction ; for the proper appellate jurisdiction, if any in this case, is direct and immediate to the Circuit Court for the southern district of New York.” (Ex parte Jesse Hoyt, 13 Peters, 279, 290.) So where a mandamus was moved to be directed to the Circuit Court for the County of Washington, commanding them to strike off a plea which they had permitted the defendant to put in, and to compel him to enter another plea which the plaintiff’s counsel deemed the proper plea, under the provisions of

an act of the Legislature of Maryland, upon which the proceedings were founded, incorporating the Bank of Columbia, the motion was denied. Chief Justice Marshall remarking, “ We think this is not a proper case for a mandamus. It does not differ in principle, from any other case in which the party should plead a defective plea, and the plaintiff should demur to it; in which case, there is no doubt that the revising power of this court could be exercised only by a writ of error.” (The Bank of Columbia v.

Sweeny, 1 Peters, 567, 569.) So where a mandamus to the Circuit Court of the eastern district of Louisiana was moved, the petition stating “ that a bill in equity is now pending in the said circuit court, in which the petitioner is plaintiff, against Richard Relf and others, defendants ; that it is understood to be the settled determination of the district judge not to suffer chancery practice to prevail in the circuit court; that her right to proceed'in her suit has been denied, until she shall cause copies of her bill'iri the French language to be served upon the defendants or some of them, and until she shall file documents, which are not made exhibits in the cause ; and then that all further proceedings in the cause shall be in conformity with the existing practice of the court, which existing practice is understood to mean the practice prevailing in the court in civil cases generally, in disregard of the rules established by the Supreme Court te be observed in chancery oases;” the motion was. denied the court observing: “ That it is the duty of the Circuit Court to proceed in this suit according to the rules prescribed by the Supreme Court for proceedings in equity causes at the February term thereof, a. n. 1822, can admit of no doubt.

That the proceedings of the district'judge, and the orders made by him in the cause, which are complained of, are not in conformity with those rules, and with chancery practice, can admit of as.little doubt. But the question before us is not as to» the regularity and propriety of those proceedings, but whether the case before us is one in which a mandamus ought to issue. And we are of opinion that it is not such a case.

The district judge is proceeding in the cause, however irregular that proceeding may be deemed; and the appropriate redress, if any, is to be’ obtained by an appeal after the final decree shall be had in the cause. A writ of mandamus is not the' appropriate remedy for any orders which may be made in a cause by a judge in the exercise of his authority, although they may seem to bear harshly or oppressively upon the party.

The remedy in such eases must be sought in some other form.” (Ex parte Myra Clark Whitney, 13 Peters, 404, 407, 408.) In accordance with these principles it has been held that where, on a replevin bond to prosecute a suit in replevin in another state, the'plaintiff took judgment for the penalty, nominal damages and costs, and the defendant paid the nominal damages and costs, and applied to a subordinate court for an order that satisfaction be entered, this court refused a mandamus to compel the entry of satisfaction j (Ex parte Livingston v.

Superior Court of New York, 10 Wend. 545 ;) and where a court of common pleas gave judgment for damages only, it was held that this remedy would not lie to compel them to give judgment for the costs likewise; (Jansen v. Damson, 2 Johns. Cas. 72 ;) nor will it lie to compel a subordinate court in which an action is pending, to set aside a report of referees on the ground that it is contrary to law ; (The People v. The Superior Court of New York, 18 Wend. 675 ;) nor to dismiss an appeal alleged to be improperly entered and sustained; (Jones v.

Allen, 1 Green, 97 ;) for in all these cases the party has an adequate remedy by writ of error or some proceeding in that nature. (The principle under consideration is also maintained in The People v. The Judges of Ulster, Coleman C. 117; Ex parte Koon et al. 1 Denio, 644; Fuller v. The Oneida Common Fleas, 21 Wend. 20 ; Ex parte Nelson, 1 Cowen, 417 ; Ex parte Bostwick, id. 143 ; and in The State v. Mitchell, Ordinary, Const. Rep. S.

C. 703; which was an application for a mandamus to be directed to the defendant, to compel him to grant letters of administration to certain persons, and was denied upon the ground that a remedy by appeal was provided by statute. See also Chase v. The Blackstone Canal Co. 10 Pickering, 244; Gaines etal. v. Relf et al. 15 Peters, 9,16 ; Warren County Court v. Daniel, 2 Bibb, 573 ; Ex parte Nelson, 1 Cowen, 423. Consult also upon this subject 1 Graham’s Prac. 3d ed. 316, et seq. § 10.

It is, however, within the power of an inferior tribunal to prevent a party from availing himself of a writ of error by refusing to give judgment, and in that case the remedy by mandamus may be pursued ; for otherwise he would have no redress. (Ex parte Bostwick, 1 Cowen, 143, 144.) Thus if a subordinate court set aside a report of referees because it conceives that upon the facts found by the referees, the law is against the plaintiff in whose favor the report is made, and if, after the intimation of such opinion, the court refuse upon the application of the plaintiff to render judgment against him, so that he may bring error, it seems that a mandamus would be ordered requiring the prayer of the plaintiff to be granted. (The People v.

The Superior Court of New York, 19 Wend. 68; Rex v. Gray’s Inn, Dougl. 524 ; Rex v. Lincoln’s Inn, 4 Barn. & Cresw. 855.) § 11. Upon the same general principle if the party aggrieved have a remedy by action to maintain his right, a mandamus will not issue; or if it have been issued it will be quashed. Where, therefore, this writ had been granted, commanding a party who was alleged to have custody of certain books, papers, and proceedings relating to a court of requests, (under a local act, 47 Geo.

III. sess. 2, ch. 1,) or to the office of the clerk thereof, to deliver them up to a party who claimed to hold them as having been elected clerk to the court; Patteson, J. objected upon the argument that the party in whose legal custody they had been might maintain trover. (Regina v. Hopkins et al. 1 Q.

B. 161, 168.) And where an alternative mandamus had been issued to compel the trustees of Brooklyn, to procure the report of commissioners of estimate and assessment, appointed in relation to the opening of Adams Street, to be filed with the clerk of the common pleas of Kings, to the end that the same might be confirmed by the court, or to show cause why, &c., Savage, Ch. J. said: “ If the relators have a right to the amount assessed in their favor, by virtue of the assessment alone, then an action lies.” (The People v.

The Corporation of Brooklyn, 1 Wend. 318, 325.) Accordingly where a mandamus was moved to compel the supervisors of the city and county of New York, to audit and allow the salary of an associate judge of the general sessions, it was denied because an adequate remedy by action existed under the statute of May 14th, 1840. (Ex parte Lynch, 2 Hill, 45, 47.

See also Ex parte Lynch, id. 46, n. a.) So it was denied where one was moved to the company of an incorporated bank, commanding them to permit certain shares in the capital stock, standing in the name of Kip on the books of the company, to be transferred on the books, Kip having become insolvent and duly assigned all his estate ; because when a corporation improperly refuses to transfer stock the party injured has an ample remedy by action. (Shipley v. The Mechanics Bank, 10 Johns. 484. Ex parte The Firemens Ins. Co. 6 Hill, 243. Kortright v. Buffalo Commercial Bank, 20 Wend. 91. 22 id. 348, S.

C. in error, See also Rex v. Bank of England, Doug. 524; Rex v. The London Assurance Co. 5 Barn. & Ald. 899.) And for the same reason one moved to compel the clerk of the parish to give the petitioner a certificate of his having become a member of the parish, in order that he might file it with the clerk of the religious society which he wished to, leave; (Oakes, Petitioner, §c. v. Hill, 8 Pick. 47;) and one to oblige the trustees of an incorporated church to restore the prosecutor to the possession of a pew to which he claimed title, (Commw. v. Rosseter, 2 Binney, 360,) were refused.

And where a recovery in an action for a tort had been assigned ; and the nominal plaintiff had acknowledged satisfaction of record, but the court in which the suit was prosecuted refused to vacate the entry of satisfaction : the S. C. denied a mandamus directing a vacatur; holding that the proper remedy was by action against such plaintiff. (The People v. Tioga, C. P. 19 Wend. 73. See generally upon this subject, People ex rel. Meritt v. Lawrence, 6 Hill, 244; The Same ex rel. Hodgkinson v. Stevens, 5 id. 616, 629 ; Ex parte Braudlacht, 2 id.367, 369 ; Comm, of the Poor of St. Paul’s Parish v.

Lynch, 2 McCord, 170 ; Rex v. The Free Fishers, &c. of Whitstable, 7 East, 353 ; Rex v. Archbishop of Canterbury, 8 East, 219 ; Rex v. Severn & Wye Company, 2 Barn. & Ald. 646; Rex v. Margate Co. 3 id. 224 ; Rex v. Haythorne, 5 Barn. & Cresw. 422, 429 ; Rex v. Stamforth Canal Co. 1 Maule & Selw. 32; Rex v. Street, 8 Mod. 98; 2 Chitt. Rep. 255.) § 12.

A few other oases will now be- stated for the purpose of illustrating the broad application of the rule under consideration. “ Though a mandamus to admit to an office gives no title, yet it will not be granted, when there is an officer de facto, though that officer be in under a peremptory mandamus obtained by collusion, and claim under the same election with the applicant; for the remedy is to try the title of the officer de facto on an information in the nature of a quo warranto, on which if judgment of ouster go against the the defendant, a mandamus may be granted with less inconveniency to the corporation ; nor will it be granted to admit to office the candidate therefor, on account of improper votes having been received for one who was declared elected, had accepted the office, and made the requisite declaration.” Angel & Ames on Corp. 3d ed. 639.

A mandamus to a mayor to admit one to the office of recorder was refused because there was a recorder de facto, and it was therefore a decisive answer to the application that there was another remedy by an information in the nature of a quo warranto, by which the title of the officer in possession could be tried. (Rex v. Mayor of Colchester, 2 Term R. 259.) So one was refused to a treasurer of a county to compel him to reinburse constables’ money expended by them, for conveying and maintaining rogues and other idle and disorderly persons, under the act of 17 Geo.

II. because the quarter sessions had jurisdiction in the matter. (Rex v. Earle, 2 Burr. 1197.) So of one to a bishop to compel him to license a curate of an augmented curacy where there was a cross nomination, for the party had a specific legal remedy by quare impedit. (Rex v. Bishop of Chester, 1 T. R. 396. See Rex v. Turner, T. Jones, 215. “ If quare impedit does lie, mandamus does not.” Per Lord Mansfield in Powel v. Milbank, id. 399, 401, n. d ; which overrules Clarke v. The Bishop of Sarum, 2 Str. 1082; Andr. 20, 185, and the cases there cited. See also Rex v. Marquis of Stafford, 3 T.

R. 646.) Upon this principle, and for the reason that the ecclesiastical tribunals could dispose of the subject, a mandamus was refused to try the right to bury in a churchyard in an iron coffin, though this mode was new, peculiar, and perhaps questionable in its propriety. (Rex v. Coleridge, 2 Barn. & Ald. 806 ) But (in regard to offices) though an office be full, still if quo warranto does not lie, a mandamus will be granted upon the principle that the party shall not be without a remedy. (Rex v. Barker, 3 Burr. 1265. Rex v. Colchester, cited supra. People v. The Corporation of New York, 3 Johns. Cas. 79.

The People v. Stevens, 5 Hill, 616. Commonwealth v. The Commissioners of Philadelphia, 5 Rawle, 75. Angel & Ames on Corp. 3d ed.639.) § 13. It has been before remarked that the general rule under consideration is not without exceptions. These arise from the nature of the remedy which is required to exclude the application of the writ of mandamus. Such a remedy must be adequate, specific, legal; (per Lee arg. in Marbury v. Madison, 1 Cranch, 137, 152; King v. Bishop of Chester, 1 T. R. 404, per Buller, J.;) and competent to afford relief to the applicant therefor upon the very subject matter of his application.

Therefore it has been said, that though the party have another legal specific remedy, yet if it be obsolete ; (per Buller, J. 1 T. R. 404, in Rex v. The Bishop of Chester, Bac. Ab. tit. Mandamus, intro.; The State v. Holliday, 3 Halst. 205 ; see however per Nelson, J. 10 Wend. 396. in The People v. The Mayor of New York;) or extremely tedious (per Yeates, J. in Commw. v. Rosseter, 2 Binney, 262 ; sed vide 10 Wend. 396;) this writ will lie, since in such case it is inadequate to do justice. And upon the same general principle it has been held that neither a remedy by criminal prosecution ; (per Abbott, Ch.

J. in Rex v. Severn Wye Railway Co. 2 Barn. & Ald. 646 ; Rex v. Commissioners of Dean Enclosure, 2 Maule &. Selw. 80, 81 ; Cases of Mag. 88 ; The People v. The Mayor, &c. of New York, 10 Wend. 393, 396 ; The State v. Holliday, 3 Halst. 205; Bac. Ab. tit. Mandamus, intro.; 1 Chit. Genl. Pr. 791, n. m ;) nor by an action on the case for neglect of duty ; (Ex parte Lynch, 2 Hill, 45 ; per Bronson, J. in McCullough v. The Mayor, &c. of Brooklyn, 23 Wend. 461;) will supersede that by mandamus, since it cannot compel a specific act to be done, and is therefore not equally convenient, beneficial and effectual. (See Bac.

Ab. tit. Mandamus C.; 4 Mod. 281 ; Comb. 244; Knipe and Edwin, Ld. Raym. 159, 163, 338, 561, 958. 989, 1004 ; 10 Mod. J 46 ; 12 Mod. 609, 666; Fitzgib. 123, 194.) Nor will a remedy in equity prevent the granting of a mandamus, though it may and should influence the court in the exercise of the discretion which they possess, in granting the writ under the facts and circumstances of the particular case. (The People v. The Mayor, &c. of New York, 10 Wend. 393, 397. The State v. Holliday, 3 Halst. 205. Bac. Ab. tit. Mandamus, intro. But see The King v.

The Company of Free Fishers, &c. of Whitstable, 7 East, 353, per Laurence, J.) § 14. V. The right or duty in respect of which the ivrit of mandamus is prosecuted must be positive and not resting merely in discretion. It is obvious that this writ can not lie to compel a subordinate officer or tribunal to do

an act which he lias a discretion to refuse. Nor, where an authority to determine or give judgment is lodged in either, can it be employed to direct the particular judgment or determination which shall be pronounced, though, as we shall presently see, it is a competent remedy to oblige such officer or tribunal to pronounce some judgment and thus discharge the duty appertaining to his station. (The People v. Collins, 19 Wend. 56. The People v. The Superior Court of the City of New York, 5 Wend. 114. Elkins v. Athearn, 2 Denio, 192. Ex parte Koon, 1 Denio, 644. Ex parte Wilson, 1 Cowen, 417. The People v.

The President and Trustees of Brooklyn, I Wend. 318. Hull v. The Supervisors of Oneida, 19 Johns. 259. Ex parte Benson, 7 Cowen, 363. In the matter of Gilbert, 3 Cowen, 59. Ex parte Coster, 7 Cowen, 523. The People v. The Columbia Common Pleas, 1 Wend. 297. Ex parte Bacon, 6 Cowen, 392. Ex parte Bailey, 2 Cowen, 479. Ex parte Chamberlain, 4 Cowen, 49. The People v. The Superior Court, &c. 10 Wend. 285. Ex parte Brown, 5 Cowen, 31. The People v. The Supervisors of Albany, 12 Johns. 414. Grier v. Shackelford, 2 Tr. Con. Rep, 642. Commre. of Poor, &c. ats. Lynch, 2 McCord, 170. State v. Gruber, 2 Bailey, 20.

Griffith v. Cochran, 5 Binney, 87,103. Commw. v. Judges of Comm. Pleas, 3 Binney, 275. Commw. v. Cochran, 6 Binney, 456. Commw. v. The County Commrs, &c. 5 Binney, 536. Commw. v. The Judges of the Common Pleas, 1 Serg. & Rawle, 187. Commw. v. Cochran, 1 Serg. & Rawle, 473. Wells v. Starkhouse, 2 Harrison, 355. Blanchard’s case, 3 Green, 22. Vanderveer v. Conover, 1 Harrison, 271. Roberts v. Holsworth, 5 Halst. 57. Squire v. Gale, 1 Halst. 157. Chase v. The Blackstone Canal, 10 Pick. 244, Gray v. Bridge 11 Pick. 189. Morse, petitioner, 18 Pick. 443. See also Truesdell v. Wheeler, 2 Aiken, 369; Frisbie v.

Justices, 2 Vir. Cas. 92.) What is meant by the discretion of inferior officers or tribunals, will be best ascertained by adverting to a few of the cases in which that language has been used. In the case of The People, ex rel. Wilson v. The Supervisors of Albany, (12 Johns. 414,) the relator Wilson was a constable, and in that character had removed certain paupers from the city of Albany to the adjoining towns ; for which services he presented an account of $102 to the supervisors. They examined the account, and allowed $28 thereof, and disallowed the rest, on the ground that it was extravagant and unreasonable.

The court refused an application for a mandamus to the supervisors, on the ground that the constable had no legal right to any particular sum, the act under which the services were performed having declared that he. should be paid such sum as the supervisors of the county should judge reasonable ; and it was asked, if a mandamus should be granted, what would be its command ? certainly not to allow any specific sum ; that would be assuming a discretion which the legislature had vested in the supervisors.

The superior tribunal could only command them to examine (he account, and, in the language of the statute, allow such sum as they should judge reasonable. In Giles’ Case, (2 Strange, 881,) a mandamus was asked to certain justices to grant him a license to keep an ale-house. Tile court refused it on the ground that the justices had a discretion to grant or refuse a license to whom they pleased, and observed that such an application was never made befoie. (Salk. 45.

I Burr. 556.) In Ex parte Bacon Lyon, & Cowen, 392,) the court below had set aside a regular default, and let the defendant in to plead on payment of costs. The plaintiff moved the court above for a mandamus to the common pleas to vacate that rule. It was observed that “ the common pleas must be their own judges, upon the circumstances before them, whether they will set aside a default. The granting or refusing of such an application is governed by no fixed principles.

No positive rule of law has been violated by the court below, nor can we fix bounds to their discretion upon the subject.” In Ex parte Benson, (7 Cowen, 363) a motion had been made against the relator in the court below and taken by default, his attorney being absent. The court refused to open the default, and an application was made to this court for a mandamus. The mandamus was refused, on the ground that it was a mere matter of discretion with the court whether they would open the rule or not; that so far as the rules of practice in inferior courts rest in discretion and violate no rules of law, the S.

C. would not interfere with them. In Ex parte Baily, (2 Cowen, 479,; a motion was made in the court below for a new trial on various grounds, and among others that the verdict of the jury was against the weight of evidence. The motion was refused, and upon an application for a mandamus, the supreme court observe, “ that though in extreme cases we might interfere, and control inferior courts upon questions of fact, presented in the form of a motion for a new trial, yet it is a remedy which should be used very sparingly.

A contrary course would draw before that court an examination of those questions which address themselves merely to the discretion of the inferior court. We "should be perpetually appealed to for the adjustment of rights undefined by law. This would result in an endless conflict of opinion upon questions, which must from their very nature be finally determined by the court below, because they cannot be reached by the rules of law ; and although we may think the inferior court erred, yet we will not interfere.

Extreme cases may be supposed, which form exceptions to this doctrine ; as where an action is brought on a promissory note, the execution of which is proved beyond all doubt, and yet the jury find against it, should the court below refuse a new trial, we might interfere : but in ordinary cases it would be improper; for even where a verdict is plainly against law, yet a new trial may in many cases properly be denied, as if the controversy be very trifling in its nature or insignificant in amount.

These cases sufficiently indicate the nature of the discretion, the exercise of which by inferior tribunals or officers this court will not undertake to regulate or coerce. It is that discretion which' is not and cannot be governed by any fixed principles or rules.” (Per Sutherland, J. in The People v. The Superior Court of New York, 5 Wend. 114, 123, 124.) We shall hereafter examine the application of this rule to particular cases when we come to consider in detail how far the remedy by mandamus may be extended to control inferior officers and tribunals. § 15. VI.

A mandamus will not be issued unless the party against whom it is sought has refused to perform his duty, or by some act equivalent to a refusal manifested such an intention. Upon this principle where by

an act establishing a canal company, it was provided, that certain landholders might call upon them by notice, as directed iu the act, to execute certain works, communicating with the company’s canal and railways ; and that, if the company should refuse for six months after such request, the applicants might themselves perform the works in the same manner as the company might have done them.

An application being made to the company under this clause, they answered that they would do-the works themselves; but they delayed proceeding, and, on remonstrance, gave as a reason, that the proposed operation would interfere with the property of other parties, who were likely, if so disturbed, to bring an action. The company offered nevertheless to proceed if indemnified. The applicants, in answer, stated that they considered the excuse insufficient, and did not understand how they could be expected to indemnify. Six months had at this time elapsed since the original application.

The works not being done, a mandamus was applied for. It was held that the writ could not issue, it not appearing from the above facts that, after the consent given by the company to execute the works, there had been any express demand and refusal of performance, or any conduct on the company’s part equivalent to such refusal. (The King v.

The Co. of the Brecknock and Abergavenny Canal Nav. 3 Adol. & Ellis, 217. 4 Nev. & Man. 871, 1 Har. & Woll. 279.) And where by statute, incorporating a canal company, the affairs of the company were to be managed by a committee, who were authorized to appoint a clerk for better carrying into execution the purposes of the act. The committee were required to enter in books an account of their disbursements, receipts, and transactions, and the books were to be open at all seasonable times to the inspection of the proprietors.

A proprietor applied to the clerk for an inspection of the books which were under his charge. The clerk said he would refer the demand to the committee. The proprietor attended the committee, and there repeated his request; and the chairman said they would take time to consider it. Ten days afterwards the proprietor applied again to the clerk, who refused the inspection. On motion for a mandamus to the company to allow inspection of the books ; it was held that there had been no sufficient refusal by the committee to warrant the application. (The King v.

Proprietors of the Wills and Berks Canal Nav. 3 Adol. & Ellis, 477. § 16. VII. Nor will this writ be granted where the party applying has slept upon his rights. (See 1 Chitt. Geni. Prac. 791 ; 1 Grah.

Prac. 3d ed. 324.) Therefore where a plaintiff in a suit which had been carried up by appeal to the Delaware Common Pleas was nonsuited, and five years afterwards application was made to the common pleas to quash the appeal for a defect in the appeal bond, which was refused, the court said, that although the bond" was palpably bad, and were the proceedings still pendente- lite in the common pleas, an alternative mandamus would be awarded, yet after the lapse of five years subsequent to the final decision of the cause they deemed it inexpedient to interfere. (The People ex rel. Phelps v.

Delaware Common Pleas, 2 Wend. 256.) And upon the same principle where allotments were set out under an inclosure act to a party claiming them, and possession given in or about 1817, and there was no road to them, nor any access but through allotments made or land sold under the act to other persons, on motion, twelve •years afterwards (viz. in 1829,) for a mandamus to the commissioners (who had not yet published their awa'rd) to set out an occupation road to the first mentioned allotments, the court held that the application came too late : and ■Bailey, J. mentioned a case, (The King v.

The Stainforth and Keadley Canal Company, 1 M. & S. 32,) where a motion was made in 1813, for a mandamus, directing the commissioners under a canal act to cause a jury to be summoned and compensation assessed for lands taken in 1799, and the court said the application came too late. (Rex v. Commissioners of Cockermouth Inclosure Act, 1 Bar. & Adol. 378, 380.) And where the relator recovered a judgment before a justice against a constable and his sureties, the former having made himself liable in relation to an execution issued on a judgment in favor of the relator against J. Knox, S. Scutt and J. Stark.

The defendants appealed. On the trial of the cause in the common pleas, in February, 1828, it was discovered that the justice, in stating the demand of the plaintiff, had stated that the action before him was brought on a judgment against J. Knox and S. Scutt, omitting the name of J. Stark.

The common pleas permitted the plaintiff to withdraw a juror, and the plaintiff on the next day applied for a rule that the justice amend his return, which the court refused, and directed the defendant’s attorney to empannel a jury, on the ground that they had erred in allowing the plaintiff to withdraw a juror without the consent of the defendants. A jury was empannelled, who, under the directions of the court, found a verdict for the defendants.

The plaintiff excepted to the opinions of the court, and brought a writ of error; but being advised that a mandamus and not a writ of error was the proper remedy, he accordingly applied fora mandamus, directing the common pleas to set aside the verdict and judgment rendered thereon, and to grant the rule for an amendment of the return of the justice. The court denied the motion observing, “ here has been a delay of a year since the happening of the errors complained of, and the fact of the party’s having been advised that his remedy was by writ of error, furnishes no excuse.

This court will not by mandamus disturb proceedings in which parties have so long acquiesced.” (The People ex rel. Beach v. Seneca Common Pleas, 2 Wend. 264. See also The Queen v. The Company of Proprietors of the Canal Navigation from Leeds to Liverpool, 11 Adol. & Ellis, 316. See also The People ex rel. Oelrichs v. The Superior Court of the City of New York, 10. Wend. 285 ; The People v. The Supervisors of the County of Ulster, 16 Johns. 59.) Mandamus to Inferior Tribunals and Judicial Officers. § 17.

We have already seen that the writ of mandamus will not be extended to those cases where the right or duty sought to be enforced depends upon the discretion of the person against whom it is demanded. We have also seen that the discretion is one which is in its nature controlled by no fixed legal principles, (§ 14,) for it is obvious, that so far as such principles exist, inferior courts and judicial officers are bound to regard them. Let us now examine some of the cases in detail where this principle has been applied. And I.

It is clear that the regulation of the mere practice of the courts ought, in a great degree, to depend upon their own discretion, because it is the means to obtain for the party that substantial justice which he seeks, and therefore requires to he varied according to the circumstances of particular cases. To establish an inflexible code of procedure to which the rights of the suitor should bend upon all occasions, would be no wiser than to stretch the man to fit the bedstead instead of lengthening the bedstead to fit the man.

Those parts of the practice which are' committed to the discretion of the court, are necessarily exempt from the supervision of any other tribunal, and for this reason the writ of mandamus will not lie to compel that discretion to be exercised in any particular manner.

Therefore, where a mandamus was moved to compel a court of common pleas to open a rule granted by default, on the ground that the attorney forgot to appear, the supreme court refused the motion, saying “ whether the common pleas would open the rule or not, upon the facts disclosed, rested entirely in their discretion ; with which we liave nothing to do. The question is not, whether we would have listened to the application, in a like ease, upon our rules of practice.

The court below liave their own rules ; and so far as they rest in discretion, and violate no rule of law, we uniformly refuse to interfere with them. (Vid.

Ex parte Bacon, 6 Cowen, 392.) Granting this motion, would be a precedent for reviewing the whole non-ennmerated business of every court of common pleas in the state.” (Ex parte Benson, 7 Cowen, 363, 364.) And in a case where judgment had been entered in the common pleas on an assessment of damages by the clerk, though the rules for interlocutory judgment and assessment had been omitted, and the court afterwards aJJowed both the omitted rules to be entered nunc pro tunc, the supreme court denied a mandamus, directing them to vacate their order to enter such rules, upon the ground that the question below was a mere point of practice with which they could not interfere. (Ex parte Coster, 7 Cowen, 523.) And where a court of common pleas had set aside a regular judgment by default against the defendant, a mandamus commanding them to vacate that rule was refused.

And the court said “ the common pleas must be their own judges, upon the circumstances before them, ’whether they will set aside a default upon the merits. This is so much a matter of discretion, that we will not interfere by mandamus. The granting or refusal of such an application, is governed by no fixed principles. No positive rule of law has been violated by the court below ; nor can we fix bounds to their discretion upon this subject.” (Ex parte Bacon and Lyon, 3 Cowen, 392, 393. See People ex rel. Legg v. Onondaga Common Pleas, 8 Wend. 509; Vanderveer v. Conover, 1 Harrison, 271; Thomas v.

Creditors, id. 272; Gray v. Bridge, 11 Pick. 189, 192 ; Commissioners v. Lynch, 2 McCord, 170) Upon this principle a mandamus will not be granted to control the mere chamber business of the judges of an inferior court, as for instance, where this writ was moved to a judge of common pleas to command him to vacate certain orders which had been made, discharging a defendant upon common bail, it was denied. (Ex parte Brown, 5 Cowen, 31, 32. Rex v.

Justices of Essex, 2 Chitty, 385 ;) nor to compel a court of common pleas to vacate a rule, allowing a second execution where the first was issued by mistake for an amount less than the judgment; (The People v. The Chautauque Common Pleas, 1 Wend. 73. See also Anon. 2 Halst. 160;) nor where such a court had set aside a ca. sa. for irregularity and required the party against whom it issued, to stipulate that he would not bring false imprisonment, will mandamus lie to compel them to vacate the condition. (In the matter of Gilbert, 3 Cowen, 59. See also The People v.

The Montgomery Common Pleas, 18 Wend. 633 ; People ex rel. Hashrouck v. Ulster Common Pleas, 18 Wend. 628 ; Ex parte Nelson, 1 Cowen, 417 ; Wells v. Stackhouse, 1 Harrison, 355 ; Vandervere v. Conover, id. 234.) § 18. II. Upon the same principle courts.possess a general power to supervise the course of pleading, in accordance however with the rules of law upon that subject.

And, therefore, where a mandamus was sought to be directed to the common pleas of Cumberland, to compel them to receive the defendant’s plea of justification ; and the defendant stated, as the ground of his application, that an action of trespass had been commenced against him, to which he had pleaded — 1. The general issue ; and — 2. A justification. That the plaintiff’s attorney declined replying to the plea of justification, but gave notice to the defendant’s attorney, that he would apply to the court of common pleas to strike out the said plea ; which, upon motion, the court ordered accordingly.

Kirkpatrick C. J. observed, “frojn time immemorial, courts have stricken false pleas and frivolous counts from the record. It is right and proper that they should possess the power, in order to prevent their records from being unnecessarily encumbered.

But I am satisfied that a mandamus would not lie to compel the court to receive a plea, even if they were wrong in rejecting it. (Anon. 2 Halst. 160, 161,) and the supreme court of the United States have decided that they will not exercise any control over the proceedings of an inferior court of the United States in allowing or refusing to allow amendments in the pleadings in cases depending in those courts. (Ex parte Martha Bradstreet, 7 Peters, 634.) § 19. III. By the peculiar constitution of many subordinate tribunals they exercise the right to decide applications for new trials.

And although such applications have been supposed to be addressed to the discretion of the court (Per Ashurst, J. in Edmonson v. Muchall, 2 T. R. 4. See however Per Marcy, J. in Herrick v. Stover, 5 Wend. 580, 587;) yet it is plain that the increasing certainty of our system of jurisprudence must continually limit that discretion by fixed principles of law. ’ So far as these principles extend the writ of mandamus is a proper remedy under the general rules we have considered. But within the circle of their discretion inferior tribunals and judicial officers are at liberty to decide as they see fit.

Therefore, if a jury should return a verdict against the weight of evidence, the writ of mandamus would not lie to control the discretion of the subordinate court to grant or refuse a new trial on that ground. No principle of law is strictly speaking applicable. The question is whether certain evidence proves certain facts. If on this question the court draw different conclusions from that drawn by the jury, a new trial should be granted. (Per Savage, Ch. J. in The People v.

The Superior Court, 10 Wend. 285, 290.) Nor can this writ be employed where a subordinate court sets aside a report of referees, and orders a rehearing because dissatisfied with the finding of the referees upon the facts, or because in the opinion of the court the justice of the case requires a fuller hearing. (The People, ex rel. Robinson v. The Superior Court, 19 Wend. 68. See also Truesdell v.

Wheeler, 2 Aik. 369 ; also Petition of Farwell, 2 New Hamp. 123,) nor (in Massachusetts,) where a court of common pleas grant or refuse a new trial, pursuant to the Stat. of 1820, ch. 79, by which it is provided (in § 7,) that this court in certain cases, shall have power to grant a new trial “for any cause for which, by the common law, a new trial may .now be granted, or when, upon due examination, it shall appear to said court that justice has not been done between the parties,” because “ the legislature intended to vest a discretion in the court of common pleas in this respect,” (Gray v.

Bridge, 11 Pick. 189, 192) In Ex parte Bailey (2 Cowen,479) the verdict of the jury was against the weight of evidence, and the Court of common pleas, on motion, refused a new trial, yet a mandamus commanding them to grant a new trial was refused by the supreme court, who observed ; “ As to the remedy by mandamus, it may be proper to remark, that though in extreme cases we might interfere, and control the court below upon questions of fact presented in the form of a motion for a new trial, yet it is a remedy which should be used very sparingly.

A contrary course would draw before this court, whenever one of the parties should bo dissatisfied with the decision of the common pleas, an examination of those questions which address themselves merely to the discretion of that court. We should be perpetually appealed to for the adjustment of rights undefined by law. This would result in an endless conflict of opinion upon questions which must from their very nature be finally determined by the court below, because they cannot be reached by the rules of law; and although we may think the inferior jurisdiction has erred, yet we will not interfere.

It is true, that extreme cases may be supposed, which would form an exception to this doctrine. Where an action is brought on a promissory note, the execution of which is proved beyond all doubt, and yet the jury find against it, should the Court below refuse a new trial, we might interfere ; but it would be' improper to do this, in ordinary cases.” And in The People v. The Superior Court (cited supra) Savage, Ch. Justice, says: “There is no principle of law, strictly speaking, applicable. The question is whether certain evidence proves certain facts.

If on this question the court draw different conclusions from those drawn by the jury, a new trial should be granted ; and where a court has exercised its discretion in such a case, this court will not interfere. There must be something in the ease taking from the court its discretion, to authorize the interference of this court, as in the case put by Mr. Justice Sutherland, where the testimony was clear and explicit, and uncontradicted, and yet a verdict against it, and a refusal to set aside such verdict.

In such case there would be no discretion ; every verdict must be supported by evidence ; where it is n ot, the law gives to the party injured a legal right to have it set aside, and a new trial ordered. Should any court possessing the power refuse to exercise it in such a case, it would be our duty to correct the error by mandamus-In such a ease, where there is no dispute about facts, there is no discretion to exercise.” See Anon. 2 Halst, 160 ; Rex v. Justices of Worcestershire, 1 Chitty, 649; Rex v. Justices of Carnarvon, 4 Barn. & Ald. 86; Rex v. Justices of Monmouthshire, 4 Barn. & Cresw. 844. §20. IV.

In general every court must be the sole judge whether a contempt has been committed against it or not, and the exercise of its judgment is not liable to be controlled by the interposition of the writ of mandamus. (See 4 Black. Comm. 286, also, Staundf. P. C. 73 b.) But if the civil rights of an individual become implicated, this remedy may be pursued.

Therefore, upon a motion for a mandamus to the justices of the general sessions of the peace of the county of Oneida, commanding them to attach and punish John Garter, for non-attendance in that court as a witness: — Chamberlain had been indicted for an assault and battery, which was tried at the February term of that court, 1825 : — He subpoenaed Garter to attend as a witness in Iris behalf; he neglected to appear, and was attached; but was discharged by the court, upon his answering, to the interrogatories, that no fees had been tendered to him.

The Court said they had looked into this subject, and thought the distinction lay between misdemeanor and felony; that in the former case the defendant must tender his witnesses their fees, as in civil cases ; but that in prosecutions for felonies they were eompelable to attend without fees.

They should have denied this motion at once, on the ground that it sought for a mandamus to compel an inferior court to punish for a contempt, had the matter rested there; for every court must be the sole judge whether a contempt has been committed against it or not; but as the private rights of an individual were also implicated, they had for that reason looked into the merits. (Ex parte Chamberlain, 4 Cowen, 49.) §21. V.

Many other instances might be found where the writ of mandamus will not He to inferior courts and judicial officers, because the latter have a discretion beyond the control of the superior tribunal. It is, however, hardly possible to classify them, since the question as to whether such discretion exists, must more or less depend upon the peculiar constitution of the tribunal. When the rules of law are explicit, it must of course abide by them ; but there is a very large class of cases, in which, from the necessity of the ease, discretion must be exercised.

A few of these are here presented, and others will hereafter be mentioned. Mandamus will not lie to compel a county court to accept the report of auditors, (Truesdell v. Wheeler, 2 Aik 369;) nor is it the proper remedy where a magistrate rejects a report of referees, though for insufficient reasons. (Petition of Farwell, 2 New Hamp. 123. See also Robinson v. The Superior Court, 19 Wend. 68, cited supra § 19 ; The People, Ex rel. Fuller v.

Oneida Common Pleas, 21 Wend. 20.) Where property is seized under the process of a court, as the property of the defendant, and a stranger, alleging that the property is his, applies by motion to have it restored to him, which motion the court refuses to hear, a mandamus will not lie to such court to hear the motion. (Price v.

Shelby Circuit Court, Hardin, 254;) and upon a motion for a mandamus to the district judge of the' United States for the southern district of New York to set aside a judgment entered by default on an inquest finding a forfeiture of goods to the United .States, against which an information had been filed for a violation of the revenue laws, it was decided by the U. S.

Supreme Court, that this was not a proper case for its interposition by way of mandamus, because the application to the district court to set aside the default and inquest, was addressed to the discretion of that court. (Ex parte Joseph Roberts, Ex parte George Adshead, 6 Peters, 216.) Where a feigned issue was awarded by a court of common pleas, to try the validity of a senior judgment, the supreme court refused to interfere and direct the order awarding the feigned issue to be vacated. (The People, Ex rel. Hasbrouck v.

Ulster Common Pleas, 18 Wend. 628.) Where, in an action of trover, there was a recovery in a court of common pleas for less than fifty dollars, and the common pleas made an order allowing the plaintiff full costs upon the ground that the title to land had come in question upon the trial of the cause, and the supreme court, upon the coming in of the return to an alternative mandamus, adjudged that the title to land had not come in question upon the trial of the cause, and accordingly awarded a peremptory mandamus to the common pleas, directing a vacatur of the order for full costs ; it was held., in the court for the correction of errors, on a writ of error sued out, that the supreme court had no jurisdiction by mandamus to review the decision of the common pleas. (The Judges of the Oneida Common Pleas v.

The People, Ex rel. Savage, 18 Wend. 79.) Under the seventh

section of the fourth

article of tlie constitution, the judges of the common pleas have a discretion whether ¡they will hear a charge preferred against a justice of the peace ; and the’ supreme court will not interfere with its exercise. (Ex parte Johnson, 3 Cow. 371.) On appeal against a conviction for a trespass under slat. 1 &. 2 Will. 4. c. 32. s. 30. the appellant admitted the trespass, and only offered evidence, that the property in the land was not as laid in the conviction.

The sessions having rejected the evidence, and confirmed the conviction without stating a ease, the court refused to call upon them by mandamus to hear the case, since the mistake, if any, was one of law, which the court could not enter into, the appeal having in fact been heard, and no case sent up. (In re Pratt, 7 A. & E. 27.) The justices in session will not be compelled to rehear an appeal, on the ground, that they had required the appellant to begin his case. (Rex v.

Suffolk, Justices of, 6 M. & S. 57.) And where an appeal was given to sessions within six months after the cause of complaint, and a motion was made there within that time, to enter and respite one, which was denied, the court would not grant a mandamus to the justices to receive it after the six months had elapsed. (Rex v. Derbyshire, Justices of, Nolan, 29.) An order of removal to E. was made, upon an examination stating a hiring in 1813, and a service in E. under such hiring.

On an appeal, upon the ground that there was tto such hiring, the respondents proved a hiring in 1810; upon which the sessions refused to go on with the case, and quashed the order. A mandamus to enter continuances and hear the appeal was refused — (Ex parte Broscley, Inhab. of, 7 A. & E. 423. It was not alleged that the appellant parish was in fact misled) — because the sessions had in fact heard ; and the variance was material under stat. 4 & 5 Will. 4. c. 76. s. 81. (When appellants may give fresh notice of appeal against an order of removdl, vide Regina v. Middlesex, Justices of, 10 Dowl. P.

C. 163.) On an appeal against a borough rate, no notice being proved except as above mentioned, the recorder refused to hear the appeal, or to enter and respite; and a ■mandamus was refused to compel him to hear it, though it was stated on affidavit, that the appellant was a parly aggrieved, and that the omission in the notice arose from oversight. (Rex v. Bond, 6 ibid. 905.) 'The justices will not be ordered to review their decision on an appeal, on the ground, that the conclusion drawn by them was not warranted by the facts proved — (Rex v. Worcestershire, Justices of, 1 Chitt. 649. Rex v.

Carnarvon, Justices of, 4 B. & A. 86) — nor in eases of appeal to give their rea■sons for their judgments at sessions ; nor to make special entries on their records — (Rex v. Devon, Justices of, 1 Chitt. 34) — nor to direct them to enter continuances. (Rex v.-Justices of, ibid. 164. Rex v. Jukes, 8 T. R. 625.) On appeal against an order of removal coming on for trial, the sessions, on ■an alleged defect in the notice of appeal (that the notice had been served on cue only of several parish officers,) dismissed the appeal unheard, confirmed the order, and, (at the instance of the appellants) granted a case.

The appellants without bringing up the ease moved for a mandamus to the justices to enter continuances and hear the appeal; but the writ was refused, Lord Denman observing, “ If any thing wrong has been done, the justices have given you the opportunity of setting it right.” (Rex v. Northamptonshire, Justices of, 6 A. & E. 111.) On appeal against an order of removal, the sessions, without going into the appeal, quashed the order, subject to a case on a point •said toiturn upon the construction of stat. 4 & 5 Will. 4. e. 76.

The case not being brought up, the court of Queen’s Bench refused to hear the point discussed on an application by the respondents for a mandamus to enter continuances ■and hear the appeal. (Rex v. Suffolk, Justices of, ibid, 109.) The writ will not be issued to dismiss an appeal at the sessions ; (Rex v. Wilts, Justices of, 2 Chitt. 257 ;) nor to j ustices at sessions requiring them to state a special case. (Peat’s case, 6 Mod. 226. 310) ante, 2312. Where the divisional justices of the city of Dublin refused to grant a certificate pursuant to stat. 55 Geo. 3. c. 104. s. 4. Irish, the court refused a mandamus.

Rex v. Police, Divisional Justices of, Alcock & Napier, Irish, 269. The act 53 Geo. 3. c. 111. Cork Local Act is repealed by stat. 6 & 7 Will. 4. e. 116. Jones v. Hayes, 1 Jebb & Symes, Irish, 656.) A mandamus will not be granted to the chairman of sessions, commanding him to issue warrants for the apprehension of persons against whom a true bill had been found for keeping a gambling house. (Regina v. Middlesex Sessions, Chairman of, cor. Williams J. MS. H. T. January 24, 1842.1 Dowl. P. C. N.

S. 544.) The court will not order magistrates to issue warrants of distress to levy a poor rate on persons who have refused to pay, unless they have been previously summoned by the justices; because, a summons must precede a warrant of distress, which is in the nature of an execution. (Rex v. Benn, 6 T. R. 198.) Neither will justices be enforced to make an order of maintenance on a particular parish; (Rex v. Middlesex, Justices of, 4 B. & A. 298. Rex v. Eye, Corporation of, ibid. 271. Rex v. Truro, Mayor of, 3 ibid. 590;) because magistrates have never been compelled to come to any particular decision. (Rex v.

Cambridgeshire, Justices of, 1 D. & R. 325. Rex v. Norfolk, Justices of, 5 B. & A. 484. Rex v. Monmouthshire, Justices of, 4 B. & C. 844.) The writ will not be issued upon a supposed failure of duty in the justices of the peace to remove a man from a parish, after he had offered security to indemnify the parish. (Regina v. Cory, 3 Salk. 230.) Nor to the justices of sessions to allow an item of charge in the coroner’s account. (Rex v.

Kent, Justices of, 11 East, 229.) Where the inhabitants of a town, not within a hundred, had incurred costs in defending actions brought on stat. 57 Geo. 3. c. 19. s. 38. for damages done by riotous assemblies: — It was held, that mandamus would not lie to two justices of the town to make and levy a rate for paying the costs. (Rex v.

King's Lynn, Justices of, 3 B. & C. 147. 4 D. & R. 778.) Justices will not be compelled to rate a parish within their jurisdiction, in aid of another parish, having exclusive jurisdiction, because it would be requiring them to inquire into that, which they have no means of knowing. (Rex v. Holbeche, 4 T.

R. 778.) A mandamus will not lie to make a new election of a county treasurer, on the ground, that one of the justices who had voted at the election had not taken the qualification oath required by stat. 18 Geo. 2. c. 20.; because the construction to be put upon such statute is, “ that the magistrate shall be only so far disqualified from acting, that he shall be subject to certain penalties if he does act.” (Per Bayley J. in Rex v.

Herefordshire, Justices of, 1 Chitt. 700.) Where magistrates, from a doubt of their jurisdiction, decline giving possession of premises to a landlord pursuant to stat. 11 Geo. 2. c. 19. s. 16, the court will not, unless it be clear, that they have acted incorrectly, compel them to do so. (Ex parte Fulder, 8 Dowl. P.

C. 535.) The court will mot grant a rule nisi for a mandamus to compel justices to issue their warrant to levy expenses for cutting a hedge, pursuant to stat. 5 & 6 Will. 4. c. 50. s. 65, unless it shall appear, that a demand has been made of the expenses from the person sought to be charged, and that the justices were informed of that demand. (Ex parte Whitmarsh, ibid. 431.) As to mandamus to Ecclesiastical Courts and Institutions, Quarter Sessions and Justices and Courts, Eord and Baron — See 3 Stephens Nisi Prius, 2309, 2311, et seq. 2316 et seq.) §22.

Again: The court will not grant a mandamus commanding justices to do

an act which may render them liable to an action ; (Rex v. Buckinghamshire, Justices of, 1 B. & C. 485. Rex v. Greame, 3 A. & E. 615. Rex v. Morgan, ibid. 616. n.;) and under that principle, a writ was refused to compel a magistrate to enforce a conviction, when it was doubtful whether such conviction was good in consequence of the evidence not having been stated ; (Rex v. Broderip, 5 B. &. C. 239. 7 D. & R. 861;) nor to do that which may occasion costs for which they have no means for reimbursement; (In re Lodge, 2 A. & E. 123 ;) but the court will put justices in motion in cases where they ought to act. (Rex v.

Barker, 6 ibid. 388.) Neither will a mandamus be granted Ao compel a magistrate to enforce a conviction for the plaintiff, where he had returned that the defendant was convicted of the penalty before him, and that the conviction was invalid in law. (Rex v. Robinson, 2 Smith,274.) § 23. Let ns now consider some of the cases in which the remedy by mandamus is applicable to inferior tribunals and judicial officers. And undterthegeneral rules we have above considered. I. It is the remedy to compel a discretion to be exercised or a judgment to be given. Thus in an old ease (Rex v.

Tod, 1 Strange, 530;) justices of the' peace had a jurisdiction given them by statute to receive an information in some cases and make their determination upon a seizure of brandy. Upon inlormation exhibited by the officer of the customs, the fact appeared not to warrant the seizure, but the justice in favor of the officer refused to dismiss, the information, so that the owners might have their brandy again, and a mandamus was granted to compel him to determine the matter. (See Bac.

Ab. tit. mandamus D.) And where a court of inferior jurisdiction not possessing the power to grant new trials, (as for instance — a court of common pleas in New York, where neither of the judges is a counsellor at law, under the stat. 1 Laws of New York, 395, Haight v. Turner, 2 Johns. 371 ;) a court of sessions (The People v. The Justices of Chenango, 1 Johns. Cas. 180;) or a justices court, (Forman v. Murphy, 2 Pennington, 2d ed. 747;) nevertheless undertakes to do so this writ will lie to compel a judgment. (See also Fish v. Weatherwax, supra p. 215. The People v. Stone, 9 Wend. 182. Horne v.

Barney, 19 Johns. 247. Berry v.

Callet, 1 Halst. 179.) A distinction is however to be observed between compelling a judgment to be given or a discretion to be exercised and compelling a particular act to be done by the officer or tribunal who possesses that discretion — the distinction between a direction to act and a direction how to act; (Per Tracy, Senator, 18 Wend. 92.) “ Thus, we find it given in Bacon, that a mandamus will lie to compel a judgment to be rendered, but not what judgment to-render ; to justices to receive and proceed upon a complaint, but not what decision to make ; to compel the ordinary to grant letters testamentary, but not to what person.

It has therefore been held not to lie to the sessions to compel them to adm

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