Fish v. Weatherwax

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 *217 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.( a ) (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.( b )

(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 *217-1 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 *217-2 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,) express *217-3 iy 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 *217-4 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.)

*217-5 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 *217-6 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. *217-7 177.) 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 *217-8 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 *217-9 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 *217-10 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 *217-11 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 o f 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 au *217-12 thority 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,) *217-13 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 direct *217-14 ed 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 *217-15 •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, *217-16 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 *217-17 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. *217-18 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- *217-19 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

*217-20 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 *217-21 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 re cords — (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. *217-22 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 *217-23 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 admit an appeal in regard to poor rates, 4 T. R. 488, nor to commissioners of bankruptcy to certify the bankrupt’s conformity to the act, 7 East, 92 ; in both eases, the officers having a discretion. Nor does it lie to compel justices to come to a particular decision, nor to make an ordbr of maintenance, nor to grant a license. (3 Black. Comm. 110, note.) More- recently', in Rex v. Justices of Droon, (1 Chitty’s R. 34,) the court refused to compel a quarter sessions to enter continuances, saying, “ Our powers are great, but they are not unlimited ; they are bounded by some lines of demarcation j we are not aware that we have power to interfere with the court below in'the way suggested.” Again, in Ex parte Morgan, (2 Chitty, 250,) a mandamus was denied to compel a court of inferior jurisdiction to grant a new trial in a cause before it, where alleged injustice had been done to one of the parties) the court remarking, “ We may command an inferior court to give judgment in. *217-24 a matter fit and proper for its cognizance, but we cannot interfere to regulate its practice, because every inferior court is the proper judge of its own practice.” In the case of The King v. The Justices of Middlesex, (4 Barn. & Ald. 300,) Abbott, Ch. J. says : “ There is not an instance can be cited where the court has granted a mandamus to justices to compel them to come to any particular decision.”

In all the state courts of this country where the question has been agitated, except in New York, the same distinction as to the proper functions of a mandamus seems to have been rigidly observed. In Pennsylvania, (Commonwealth v. Judges of Com. Pleas of Philadelphia County, 3 Binney, 273,) it was decided that a mandamus would not lie to the judges of the common pleas, to reinstate an appeal which they had dismissed, because a mandamus cannot go to an inferior court compelling them to make a particular decision, but merely to decide. In Griffith v. Cochran, (5 Binney, 103,) Tilghman, Ch. J. says: “ The principles which govern the court in issuing writs of mandamus, are well understood. AYhere a ministerial act is to be done, and there is no other speoific remedy, a mandamus will be granted to do the act which is required. But where complaints are against a person who acts in a judicial or deliberative capacity, he may be ordered by mandamus to proceed to do his duty, by deciding and acting according to the best of his judgment; but the court will not direct him in what manner to proceed.” And so rigidly was this distinction adhered to by the same court, that in Commonwealth, Ex rel. Breckenridge, v. Judges of C. P. of Cumberland County, ( 1 Serg. & Rawle, 187 ,) it refused a mandamus to compel a court of common pleas- to proceed to examine a person applying to be admitted as an attorney, notwithstanding the supreme court was satisfied that he came within the rule of the common pleas. Their refusal was put on the ground that the admission of an attorney is not a ministerial but a judicial act, and therefore not the subject of the writ of mandamus.

In New-Jersey the same distinction was recognized. In Seving v. Inhabitants of Alloways Creek, (5 Halstead, 58,) where a mandamus was refused, on the principle, that “ to officers a writ of mandamus may go to direct them how to proceed, and what to do; but a mandamus to a court only to direct them to proceed according to law, and not how to proceed.”

So in Kentucky, in The County Court of Warren v. Daniel, ( 2 Bibb, 573 ,) it was decided that “ a mandamus is a proper remedy to compel an inferior court to adjudicate upon a subject within its jurisdiction, where it neglects or refuses to do so ; but where it has adjudicated, a mandamus will not lie for the purpose of revising or correcting its decision.

And in Massachusetts, (Chase v. Blackstone Canal Co. 2 Pick. 244 ,) the court say: “ This writ lies either to compel the performance of ministerial acts, or is addressed to subordinate judicial tribunals, requiring them to exercise their functions, and render some judgment in cases before them, when otherwise there would be a failure of justice from delay or refusal to act. But where a subordinate tribunal has acted in a judicial capacity, upon a question properly submitted to its judgment, a mandamus will not be granted to compel it to reverse its decision.

*217-25 Analogous decisions may be found in the courts of New Hampshire, Virginia, and Ohio, and probably have been made in several other states, inas. much as we find at an early day an express decision on this point, made by that court whose opinion has rarely failed to be of controlling authority for the state courts upon any important general principle. The decision to which I refer, is reported in United States v. Lawrence, ( 2 Dallas, 42 ,) where it was sought to compel a district judge to issue a warrant to arrest an alleged deserter from the French naval service, under a treaty stipulation, and in which it was the clear and unanimous decision of the court, that the district judge having acted judicially in deciding that the evidence was not sufficient to authorize his issuing a warrant,- the supreme court, however it might differ in opinion from the judge as to the sufficiency of the proof,had no power to compel him to decide according to the dictates of any judgment but his own. And the court there, as well as in the subsequent case, Life Fire Insurance Co. of N. Y. v. Adams, ( 9 Peters, 602 ,) recognizes the principle contended for by the counsel in the first cited case, that a mandamus is founded on the idea of a default, as where an inferior court will not proceed to judgment, or a ministerial officer will not do an act which he ought to do ; but is never issued to a judge who had proceeded to give judgment according to the best of his abilities. And in the case last cited, Chief Justice Marshall says : “ On a mandamus a superior court will never direct in what manner the discretion of an inferior court shall be exercised, but will, in a proper case, require the inferior court to decide.”

In tire cases of Wilson v. Supervisors of Albany, (12 Johns. R. 416,) and Ex parte Nelson, (1 Cowen, 423,) the court refused the writ, on the ground that Where a discretion is vested in any inferior jurisdiction, and that discretion has been exercised, a mandamus will not be granted, because the court cannot control, and ought not to coerce that discretion. The cases Ex parte Bacon & Lyon, (6 Cowen, 392,) and Ex parte Benson, (7 id. 363,) are on the same principle, as is also that of Hull v. Supervisors of Albany, (19 Johns. R. 259,) in which the principle is definitely and accurately stated by the court, that “ where the inferior court has discretion,, and proceeds to exercise it, this court has no jurisdiction to control that discretion by writ of mandamus. But if subordinate public agents refuse to act or to entertain the question for their discretion in cases where the law enjoins upon them to do the act required, this court may enforce obedience to the law by mandamus, where no other legal remedy exists.” (Per Tracy Senator in Judges of the Oneida Common Pleas v. The People, 18 Wend. 79, 92, 95, 96 .) This doctrine was subsequently considered by the supreme court of the State of New York, in the case of The People v. The Judges of Dutchess C. P. ( 20 Wend. 658, 660, 661 ,) and the general principle re-affirmed Mr. Justice Bronson observing: In Chase v. The Blackstone Canal Co., ( 10 Pick. 244 ,) the court refused to issue a mandamus to an inferior tribunal which had acted in a judicial capacity upon a question properly before it. They said, the writ lies either to compel the performance of ministerial acts, or is addressed to subordinate judicial tribunals, requiring them to exercise their functions and render some judgment in cases before them, when otherwise there would be a failure of *217-26 justice from a delay or refusal to act. But when the act to be done is judicial or discretionary, this court will not direct what decision shall be made. And they referred with approbation to the case of The U. S. v. Lawrence, ( 3 Dall. 42 ,) where it was held by the supreme court of the U. S. that they could not interpose by mandamus to compel a district judge to decide according to the dictates of any judgment but his own. In the case of Strong, petitioner, &c. ( 20 Pick. 484 ,) Morton, J. said, this high judicial writ not only lies to ministerial, but to judicial officers. In the former case, it contains a mandate to do a specific act, but in the latter, only to adjudicate — to exercise a discretion upon a particular subject. In Ex parte Hoyt, ( 13 Peters, 279 .) the district court had made an order in relation to the 'custody of certain goods which had been seized by the collector, and the supreme court refused a mandamus to compel the district court to vacate its order. Mr. Justice Story, who delivered the opinion, said, the application was not warranted by the principles and usages of law — that it was 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 order in its stead. He added, it has been repeatedly declared by this court that it will not, by mandamus, direct a judge what judgment to enter in a suit, but will only require him to proceed to render judgment. The same learned court made a similar decision in Ex parte Whitney, ( 13 Peters, 404 .) They said, 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.” In the case of The King v. The Justices of Monmouthshire, (7 Dowl. & Ryl. 334,) the court of sessions had quashed an appeal, and a motion for a mandamus was denied by the king’s bench. Abbott, C. J. said, “ where the sessions forbear to give any judgment at all, this court will interpose- to compel them to go on and pronounce judgment; but where they have actually given judgment, even under a mistake of law, this court has never yet interposed to disturb their decision.” He added, “ if we were to grant this application, we should be opening a door to continued litigation and enormous expense, in every case where the propriety of the decision of the sessions might be questioned, either on the ground of mistake in law or fact. There seems to be no authority for such a proceeding, and as our predecessors have not recognized its propriety, we are certainly not disposed to take a step which is so pregnant with mischievous consequences.” And Bayley, J. said, “ the sessions having decided the case, and quashed the order, we are not at liberty to consider whether they have done right or wrong.” In Rex v. Justices of Wilts, (2 Chitty’s R. 257,) there was a motion for a mandamus to dismiss an appeal, on the ground that the sessions had decided wrongly ; but the application was refused ; and when the court was pressed with the argument that the party had no other remedy, it was answered by Bayley, J., that “ there are many cases in which there is no other remedy against the sessions, where we should not interfere.” The King v. The Justices of Cambridgeshire, (1 D. & R. 325,) proceeded on the same principle. In Squire v. Gale, (1 Halst. 156,) the supreme court of N. J. held, that a mandamus would lie to an inferior court to command *217-27 them to proceed to judgment, but not to command them to proceed to any particular judgment. (Roberts v. Holsworth, 5 Halst. 57; Hawkins v. Bennett, 7 Halst. 179, and The County Court of Warren v. Daniel , 2 Bibb R. 573, are to the same effect.” See also Gray v. Bridge, 11 Pick. 189 ; Morse, petitioner, 18 id. 443 . Life Ins. Co. v. Adams, 9 Peters, 573 . Anon. 9 Wend. 472 . Unless it is clearly shown that such discretion has been abused. Commissioners v. Lynah, 2 McCord, 170 . Sed. see The People v. The Judges of Dutchess C. P. cited supra. The marginal note to Blunt v. Greenwood, 1 Cowen, 15, and the opinion of Mr. Justice Sutherland, in The People v. The Superior Court of New York, 5 Wend. 114 , are questioned by Senator Tracy, in the opinion above referred to and shaken by The People v. The Judges of Dutchess Co. cited supra.)

§ 24. IX. It is the remedy to compel a judicial officer to sign or amend a bill of exceptions or settle a case, according to the facts. (Delevan v. Boardman & White, 5 Wend. 132 . See-also note, id. The People v. The Judges of Washington, 1 Caines, 511 ; Sikes v. Ransom, and the other eases cited infra.) But it is necessary that the bill or case should state the facts correctly, (State of Ohio v. G. Todd, et al. 4 Ohio R. 351. The People v. Judges of Westchester, supra p. 118,) and also that it should be tendered in time. Under the former practice in New York, a bill of exceptions should, regularly have been tendered at the trial, or at least during the continuance of the term, and the court could not be compelled to seal it at a subsequent term. Where, therefore, a bill was tendered to a court of common pleas in January term, and application was made in June term to amend it, and the court refused, a motion for mandamus was denied, though the power to compel an amendment was conceded. (Sikes v. Ransom, 6 Johns. 279 .) So this remedy was denied. And where on the return to an alternative mandamus, commanding the judges of a court of common pleas to sign and seal a bill of exceptions, or show cause, &c. it appeared, that the bill of exceptions was not tendered to the judges at the trial, but was presented to them individually, at different times, after the court had adjourned for the term, this court refused to grant a peremptory mandamus, because the facts on which a bill of exceptions is taken must be reduced to writing at the time, and presented distinctly to the court, during the trial, or at least, during the continuance of the term. (Midberry v. Collins et al. Overseers &c. 9 Johns. 345 .)

§ 25. III. It is the remedy to compel an inferior court to grant the usual legal process to enforce a judgment. Thus, in New-Jersey, where a justice of the peace entered a judgment against a defendant and afterwards made a conditional order that the judgment should be opened upon the payment of costs by the defendant on a certain day, and notwithstanding the defendant neglected to pay the costs on the day prescribed, the justice refused to issue execution after being requested by the plaintiff so to do, a mandamus was granted to compel him to perform this duty; (Terhune v. Barcalow, 6 Halst. 38. See Laud v. Abrahams, 3 Greene, 22 .)

*217-28 § 26. IV. It is the remedy to compel an inferior court of appellate jurisdiction to do those acts which the law requires it to perform, in order to render an appeal effective. Therefore, where in New Jersey an appeal was taken from the judgment of a justice to the common pleas, and the appeal bond had been delivered ; The justice, either from the want of an opportunity or forgetfulness, as he himself states, did not send up the proceedings, &e. to the court on the first day of the term. The appellant perceiving that the justice had not sent up the proceedings as was required of him by law, went to the house of the justice and procured from him the transcript, appeal bond, &e. and brought them into court during the term, but after the first day, when they were duly filed. The next following term the court dismissed the appeal, and assigned the following reason for so doing: — That the transcript of the justice was not filed on the first day of the court next after the judgment was given by the justice below. The court ordered a mandamus because the act requiring the appeal papers to be sent on or before the first day of term is only directory to the justice, not to the court. (The State v. The Judges of Bergen, 2 Pennington’s R. 2d ed. 541 ;) And in the same state, where a court of common pleas dismissed an appeal for want of the necessary affidavit; the affidavit which bad been made and which in other respects was sufficient, having been written on the back of the appeal bond, the court granted a mandamus observing: “The court of common pleas, no doubt, dismissed the appeal in this case, in consequence of what was said by this court, in Freas v. Jones, (3 Green’s R. 20;) but on one or two occasions, since that case was decided, we have expressed an opinion, that the objection ought to be to the bond,, and not to the affidavit. The party by putting his affidavit on the bond, has in effect deprived his adversary of the benefit of it: for the court of common pleas cannot deliver the bond to the appellee, for prosecution, without delivering with it, the affidavit also,'which ought not to be done. If the objection had in this case, been made to the bond, the appellant might immediately have substituted a new one; but another affidavit would have come too late. Let a mandamus therefore issue, as prayed for.” (Robbins v. Bonnet, 1 Harrison, 234. See also Freas v. Jones, 3 Green, 20 ; Carman v. Smick, 2 id. 117.) And in the same state where an appeal bond without a seal was accepted and returned by the justice, and the common pleas dismissed the appeal for want of a valid appeal bond, and refused to permit the appellant to put in a new bond, the supreme court granted a mandamus, because, by the statute (Harr. Comp. 5) “the Court may permit the appellant to substitute a new appeal bond in the place of the appeal bond filed and sent up by the justice,” and the ends of justice as well as the rule of law, require that it should receive a liberal construction. (Garrabrant v. McCloud, 3 Green R. 462.) But a mandamus will not be granted to restore an appeal which has been dismissed because there was no subscribing witness to the appeal bond, unless the appellant and his surety had offered instanter to re-execute the bond in the preseneo of one or more witnesses or to substitute a new bond; (Thorpe v. Keeler, 3 Harrison, 251. The case of Rockafeller v. Rhea, 7 Halst. 180, is noticed and questioned in this case.) And a peremptory mandamus was ordered to a court of common pleas, command *217-29 ing them to reinstate an appeal dismissed for want of prosecution at a special term after trial demanded (Ten Eyck v. Farlee, 1 Harrison, 269. See also Bowlsby v. Johnston, 1 Green, 350 ; Laird v. Abrahams , 3 id. 433 ; Adams v. Mathis, 3 Harr. 310 ; The People v. The Judges of Niagara Common Pleas, 1 Howard Sp. T. Rep. 196.)

§ 27. V. It is the remedy to compel such a tribunal to grant or vacate an order for a new.trial where there is no discretion to do otherwise.

Thus, if the testimony in a case were clear, explicit and uncontradieted, and yet a verdict against it, the superior tribunal would compel the inferior to set aside the verdict; or if the inferior court should deny to a party the benefit of an established rule of practice, not depending at all upon circumstances, a mandamus would be granted. (Per Sutherland J. in The People v. The Superior Court, 5 Wend. 114 .) The granting or refusing of a new trial is not a matter of discretion, where, on an application for such trial on the ground of newly discovered evidence, it clearly appears that, with ordinary diligence, the evidence might have been produced at the former trial; or where the newly discovered evidence consists merely of additional facts and circumstances going to establish the same points principally controverted when the trial was had, or of additional witnesses to the same facts and circumstances : and where a court of subordinate jurisdiction grants a new trial in a case where those objections exist, a mandamus will be awarded, directing the rule granting a new trial to be vacated. (The People v. The Superior Court, ut sup. S. G. 10 Wend. 285 . See also Commrs. v. Lynah, 2 McCord, 170 .) In the ease of The People v. Niagara Common Pleas, ( 12 Wend. 246 ;) it was held that when a court of common pleas set aside a report of referees on the merits, and erred in so doing, a mandamus lay to correct the error.

§ 28. VI. This remedy has been employed to compel a court of inferior jurisdiction to admit or restore an attorney, but it is doubtful whether it can properly be extended to this purpose. Thus it has been allowed to restore one to an attorney’s place in an inferior court; because his is an office concerning the public justice ; and he is compellable to be an attorney for any man ; and has a freehold in his place; (Bac. Ab. tit. mandamus C. Lev. 75 Sid. 152 Keb. 549;) and accordingly in Hurst’s case, one was restored to an attorney’s place of the Court of Canterbury, and in Collins’ ease, one was restored to an attorney’s place, of the liberty of St. Martin’s le Grand. So a mandamus was granted to the Mayor of Reading, for an attorney of B. R. who was prohibited to practice in an inferior court of Reading ; (Bac. Ab. tit. mandamus C. Vent. 11 Sid. 410, Mod. 23.) In the case of The People v. The Justices of Delaware, ( 1 Johns. Cas. 181 ,) the supreme court directed the restoration of an attorney who had been removed from his office by a court of common pleas, but it is not by any means to be inferred from this case that the supreme court intended to assert a general power to interfere by mandamus with the discretion of inferior courts in the selection and control of their attornies, for the court say: “ By the act of the legislature of this state, if a court of common pleas remove an attorney from office, he cannot be admitted to practice here, although he should also be an attorney of this court. If, *217-30 therefore, we could not revise the proceedings of the courts of common pleas in this respect, they might disqualify any attorney of this court, and however unjust it might be, it would not be in our power to afford relief. This would indirectly give them the power of superintending aud controlling the officers of this court.” It is upon this view that Senator Tracy in his able opinion in the case of The Judges of the Oneida Common Pleas v. The People, reconciles this decision with the general principles above considered. If is supposed that the correct rule upon this subject is laid down in the case of The Commonwealth ex rel. Breckenridge v. The Judges of Common Pleas of Cumberland Co. (1. Serg. & Rawle, 87.) A mandamus was there refused to compel a court of common pleas to proceed to examine a person applying to be admitted as an attorney, notwithstanding the supreme court was satisfied that he came within the rule of the common pleas. Their refusal was put upon the ground that the admission of an attorney is not a ministerial but a judicial act, and therefore (as we have before seen) not the subject of this writ. It is perhaps worthy of remark, that this question was raised in the Supreme Court of the United States, in Ex parte Burr, ( 9 Wheaton, 529 ,) where the authorities from Bacon’s Abridgment and the case of The People v. The Justices of Delaware were cited in the argument of Mr. Emmet. Chief Justice Marshall declined giving a decision upon this point, although he expressed an opinion that the court would not interfere unless the conduct of the inferior tribunal was “ irregular or flagrantly improper.” But it has been adjudged that no mandamus lies to restore a proctor of Doctor’s Commons, admitting that no appeal lay from the Dean of the Arches, to the Archbishop as visiter; because this is an ecclesiastical office and a matter properly and only cognizable in that court; and that the temporal courts are not to inter-meddle or inquire into their sentence, or into the proceedings in any matters whereof they have a proper jurisdiction, but are to give credit thereunto ; although it was urged that if a mandamus did not lie in this case, the party would be without remedy, for that no assize would lie of this office ; and though an action on the case might lie, yet it might be defective, because the jury might not well compute the damages in proportion to the loss of a man’s livelihood ; besides it was urged that a mandamus ouglit to lie in this case, as well as for an attorney of an inferior court, because this is an office of a more public concern; (Bac. Ab. tit. Mandamus C. Carth. 169, 170, 3 Lev. 309, 3 Mod. 333, Skin. 290, pl. 1, Lee’s case Show, 217, 251, 261, S. C. by the name of The King v. Oxenden, 3 Mod. 332, 3 Salk. 230, pl. 4 Holt, 435, pl. 1.) And the court say in 3 Mod. 333, that a proctor is not an officer properly speaking; it is only an employment in that court which acts by different rules from the King’s Bench. Nor will a mandamus 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 : for he has no specific legal right to such admission; (Rex v. Archbishop of Canterbury, 8 East, 213. See further Rex v. Doctor Ward, 2 Strange, 893. Fitzgibb. 123, pl. 8, 194, pl. 7, Barnard, K. B. 254, 294, 380, 411. The King v. Dr. Bettesworth, Str. 159, Andr. 21, Barnard, K. B. 40. See 2 Str. 1082, Andr. 20, 185, S. P.) See infra. § 37, tit. office.

*217-31 § 29. VII. In conclusion it may be generally stated under the rules we have before considered, that this writ lies to an inferior court or judicial officer to compel the performance of any duty, whether ministerial or judicial; so that there shall not be a failure of substantial justice. (Chase v. Blackstone Canal, 10 Pick. 244 ; Commonwealth v. Hampden, 2 id. 414 ; Springfield v. Hampden, 4 id. 68; Jackson v. Randall, 7 Mass. 340 .) As to compel a court of sessions to enter the verdict of a jury in the assessment of damages, (Commonwealth v. The Justices of the Sessions of Middlesex, 9 Mass. 388 ; Commonwealth v. The Justices &c. of Norfolk, 5 id. 435 ;) or to proceed in the trial of an indictment; (In the matter of James Turner, 5 Ohio R. 542,) or, in Massachusetts, to erect or provide a house of correction under the stat. 1787, e. 54. § 1.; (Commonwealth v. The Justices &c. of Hampden, 2 Pick. 414 ;) or to proceed to review and settle damages, as in the following ease:— By the sixth section of the charter of the New Jersey Railroad and Transportation Company, the owner of any land taken by the company, who may feel himself aggrieved by the decision of the commissioners appointed to assess the damages in his ease, may appeal to the next court of common pleas of the county in which the land is situated ; and the said court, in a summary way, either with or without a jury, is to review and settle the amount of damages. A mandamus was directed to be issued, where the common pleas ordered all proceedings on the appeal to be stayed until a certiorari between (he parties should be decided in the supreme court. (Budd v. New Jersey Railroad Company, 2 Green, 468;) or to compel a court of common pleas to enter or vacate an order where the justice of the case manifestly requires it, and there is no discretion as where on a demurrer to a declaration for the cause that the caption of the declaration was of a day anterior to the accruing of the cause of action, a court gf common pleas gave judgment for the plaintiff, and also allowed him to amend his declaration so as to cure the defect, and at the same time refused leave to the defendant to plead to the amended declaration, a mandamus was awarded directing the common pleas either to vacate as much of their order as gave the plaintiff leave to amend, or so much thereof as refused the defendant leave to plead. (The People v. The New York C.P. 18 Wend. 534 .) And upon this principle it has been decided that a rule to show cause will be 'granted to a court of common pleas, why a mandamus should not issue to compel them to permit a plaint to be filed, nunc pro tunc after a writ of error had been brought to the supreme court, and the want of such plaint assigned for error. (The People v. Judges of Westchester, Ca. C. 55. See further, Matter of Highway, 3 Harrison, 291; Blunt v. Greenwood, 1 Cowen, 15 ; Also Ex parte Bostwick, 1 Cowen, 143 ; 1 Chit. Genl. Prac. 795, 796; 1 Grah. Prac. 3d ed. See further upon the general application of mandamus to inferior courts ; People ex rel. Griffin v. The Judges of the Jefferson Comm. Pleas, 2 Howard Sp. T. R. 59. In re Thomas W. Cook, id. 109 ; Ex parte Ostrander, 1 Denio. 679; Rex v. Hewes, 3 Adolph. & Ellis, 725 ; Porter v. Harris, 4 Call, 485 ; Jared v. Hill , 1 Blackford, 155 ; Johnson v. Randall, 7 Mass. R. 340 ; Barnet v. Warren, Circuit Court Hardin, 172; Saunders v. Nelson, id. 17; Blake v. Boggs, 1 Mis. 116 ; Kerr v. Rector, id. 117 ; Brown v. Crippin, 1 H. & M. 173.)

*217-32

Of Mandamus to Inferior Officers. .

§ 30. As we have already seen, the common law confided to the Court of King’s Bench a general supervision over all inferior persons and jurisdictions, and this power, subject to certain local and unimportant modifications, has passed into the hands of the superior judicial tribunals of this country. All men hold their situations as officers, upon the terms of having their conduct examined, and measured by that standard which the law has established. (Mckim v. Odone, 3 Bland, 407 .) It is not necessary that inferior officers should occupy a judicial station in order to be subject to the writ of mandamus. They are amenable to the command of this writ upon a different ground, because the courts which issue it, are made the “general guardians of the rights of all men (Rex v. Bishop of Chester, 1 Wils. 206 ; Regina v. Mayor of Leeds, 11 A. & E. 512, 3 Steph. N. P. 2292;) or, as it is said in Bacon, Ab. (tit. mandamus.) after Lord Coke, (11 Co. 98, 4 Inst. 71,) “ the court of King’s bench holding a superintendeney over all inferior courts and magistrates may by the plenitude of its power, correct not only errors in judicial proceedings, but- also extra judicial errors and misdemeanors tending to the breach of the peace, oppression of the subject to the raising of faction, controversy, debate, or any manner of misgovernment; so that no retort or injury whether public or private, can be committed, but what may be reformed and punished according to the due course of law.” Wherever, therefore, any ministerial duty is imposed by the law, the writ of mandamus will lie to all classes of public officers, under those general regulations as to its application, which we have heretofore considered.

§ 31. I. The writ of mandamus will not lie to control the discretion of an Inferior officer, for otherwise superior tribunals would draw to themselves all matters of judgment, and officers would in reality have none at all.

Wherever a discretionary power is vested in officers, and they have exercised that discretion, the court ought not to interfere, because they cannot control, and ought not to coerce that discretion. In John Giles’s case, 2 Str. 881, a mandamus was moved for, to certain justices to grant him a license to keep an ale house ; it was opposed, on the ground that it was discretionary in the justices, and the court refused it, saying, there never was an instance of such a mandamus. (Per Spencer J. in Wilson v. Supervisors of Albany, 12 Johns. 414, 416 . See Commissioners of the Poor &c. v. Lynah, 2 McCord, 170 .) Therefore, where a mandamus was applied for to compel the supervisors of Oneida, to audit and allow a bill for a surgical operation on a transient pauper, and it was shown in answer to the rule, to show cause that the supervisors had acted on the subject matter, and audited the bill at ¡jj¡5: — The court denied the application on the ground that the board of supervisors had a discretion by statute which the court could not control. (Hull v. Supervisors of Oneida, 19 Johns. 259.) And where the supervisors of a county passed upon the account of a constable for removing paupers and disallowed part, and this writ was moved commanding them to audit and allow the ac *217-33 count of the relator. Spencer, J. observes: “ By the 9th section of the act for the relief and settlement of the poor, (1 R. L. 282,) any constable con* veying a pauper from one town to another, is to receive so much money for his services as the supervisors of the county shall judge he reasonably deserves to have, to be raised, &c” “In the present case, whatever may be thought of the reasonableness of the allowance of the supervisors to the applicant, he has no legal right to any particular sum. He has no right to any money for the services performed, but such as the supervisors shall, in their discretion, judge him entitled to.” “ Certainly not to allow any specific sum ; that would be lakmg upon ourselves a discretion which the legislature have vested in the supervisors ; we could only command them to examine the applicant’s accounts, and, in the words of the statute, allow him, for his services, such sum as they shall judge he reasonably deserves to have ; and this has been already done.” The case of Ex parte Farrington, (2 Cowen, 407,) was similar. It was an application for a rule commanding the supervisors of Delaware county, to show cause why a mandamus should not issue commanding them to audit and allow an account presented by Farrington for services as a constable. And the supreme court denied the application on the ground that the “ amount of the allowance to constable or other person, for serving subpoenas in criminal cases, is a matter of discretion, in the board of supervisors, with which this court will not interfere ;” and that the supervisors had not refused to act. Upon the same general principle where commissioners were appointed by an act of the legislature to lay out a road, on the most direct and eligible route, commencing at or near a certain village, and the road was laid out, commencing at the distance of sixty rods from the village, in a field where there was no road with which the new road could be connected, and the route, instead of being the most direct and eligible, was, as expressed by the court, strikingly injudicious; yet, notwithstanding these facts, the court awarded a peremptory mandamus to the commissioners of highways of a town through which the road was laid, to proceed forthwith to open and work the road as laid out by the state commissioners. (The People ex rel. Case v. Collins, et al. 19 Wend. 56 And the supreme court further decided that where the discharge of a duty created by act of the legislature is confided to a special commission, and the duty.is in its nature judicial, this court will not collaterally review the doings of the commissioners, and hold as void the final determination made by them in the exercise of their discretion or judgment. Mr. Justice Cowen, who delivered the opinion of tlie court, considered this principle as applicable to the decisions of all “courts, special tribunals, commissioners and magistrates to whom judicial powers are delegated ; such decisions and determinations can be reviewed only by certiorari or writ of error, if no other mode of appeal is given by the statutes creating such courts, &e.” In Chase v. The Blackstone Canal Co. ( 10 Pick. 244 ,) the petitioners whose land was injured by a canal, having applied for a jury and obtained a verdict for greater damages than had been allowed him by commis. sioners appointed under the statute authorizing the construction'of the canal, moved the county commissioners for costs, but the motion was overruled, and lie thereupon applied to this court for a mandamus to compel the county com *217-34 missioners to allow him costs, the court, without inquiring into the correctness of the decision, refused to issue a mandamus, because the county commissioners acted in a judicial capacity upon a question properly submitted to their judgment. And in Anon. (2 Pennington, 576,) an application was made for a mandamus, to two justices of the peace, and two overseers of the poor, to compel them to make a certificate for the manumission of a slave. The application was made on the part of the executor, to enable him to comply with the will of his testator. The facts disclosed by the affidavits read, were, that application had been made to the justices and overseers of the poor, who had met, heard the application, and decided against it, by refusing to make the certificate. Upon this state of facts, the court refused the mandamus, saying: “ All we can do, is to compel the justices and overseers of the poor, to proceed to the examination of the slave, and to exercise the discretion vested in them by law : it appears that they have done that already.” So where the county court, in Virginia, rejected an application for opening a new road, on a regular hearing, it was held, that a mandamus could not be awarded, by the circuit court, to compel the county court to open the road. (Jones v. Strafford Justices, 1 Leigh. 584.) Nor will this writ lie to compel county commissioners to‘ accept the report of a committee appointed by said commissioners pursuant to the laws of Maine, (Proprietors of Kennebec Toll Bridge Petitioners, 2 Fairfield, 263,) nor to compel the restoration of his office to a professor in the college of William & Mary, in Virginia, (Bracker v. William & Mary College, 3 Call, 573 ;) nor to compel-an ordinary to grant letters of administration to a particular person. (The State v. Mitchell, Const. Rep. S. Ca. 703, 706. Another ground, however, was considered in deciding this case, viz : that there was a remedy by appeal.) So it has been held in South Carolina, that no mandamus lies to the managers of elections to compel them to declare a candidate elected, because their decision upon questions of election is final and conclusive. (Grier v. Schackleford, Const. Rep. So. Ca. 642. See also The State v. Bruce, 1 id. 165, where the question is very fully considered ) So where an act of the legislature provides that the county commissioners shall draw an order for the amount of a schoolmaster’s bill for educating poor children, if they approve thereof the court cannot compel them by this writ to draw an order; (Comm. v. The County Comm’rs, 5 Binney, 536.) Nor will this writ lie to compel the board of property to issue patents for donation lands, if they have deliberated and decided upon the subject, because by the act of the legislature, they are invested with judicial power in that respect; (Comm. v. Cochran, 6 Binney, 456 ;) nor to compel the guardians of the poor to continue in office three of the old managers, (Respublica v. Guardians &c. 1 Yeates, 476 . See also the general principle under consideration, stated and illustrated in Griffith v. Cochran, 5 Binney, 87, and Comm. v. The Judges of Common Pleas, 3 Binney, 275.) Nor will mandamus lie to compel commissioners of bankruptcy to give a bankrupt a certificate of conformity, (Respublica v. Clarkson, l Yeates, 46. See also note to Ex parte King, 7 East 91.) An application was made for a mandamus to compel the commissioners to certify the bankrupt’s conformity to the acts, to the Lord Chancellor. But the court were of the, opinion that the legislature had vested a discretion hr the *217-35 commissioners to judge of the bankrupt’s conformity or non-conformity, with which discretion they would not interfere, and therefore refused the writ. A mandamus will not lie to the benchers of an inn of court to compel them to cal! a sludent to the bar, (Rex v. Gray’s Inn, Benchers of, Doug. 353 ;) nor to compel them to admit an individual to be a member of the society,.for the purpose of qualifying himself to become a barrister, (Rex v. Lincoln’s Inn, Benchers of, 4 B. & C. 855 7 D. &R. 351 ;) nor to the principal and ancients of Barnard’s Inn to admit an attorney into the society, (Rex v. Barnard’s Inn (Principal and Ancients of), 5 A. & E. 17. See also Rex v. Street, 8 Mod. 98, 99 ;) nor to a judge of assize to compel him to grant a warrant of restitution, where an indictment for forcible entry and detainer had been found by the grand jury under the stat. 8 Henr. vi. ch. 9, and an application was made to him for such a warrant, because it is in his discretion whether he will grant it or not. (The Queen v. Harland, et al. 8 Adolph. & Ell. 826.) Upon this general principle,.if a corporation have power by their charter to have a town clerk who shall continue durante bene plácito of the Mayor and Aldermen ; by this they have an arbitrary power of turning him out át pleasure, and need not at the return of a mandamus assign any reasonable cause for their conduct herein. (Bac. Ab. tit. mandamus C. Vent. 77, Sid. 461, Lev. 291. Dighton v. Mayor of Stratford upon Avon, Raym. 188 S. C. See further The People v. The President and Trustees of the Village of Brooklyn, 1 Wend. 318 . The People v. Tracy, 1 Denio, 617, 619 .)

§ 32. In all those cases where the inferior officer has no discretion but where his obligation to do the act which is sought to be enforced, depends upon the circumstances of the particular case, the superior court will enquire into these, and administer the remedy according to the principles of substantial justice. And it may be laid down as a general rule that the superior tribunal will not compel an officer to do an act which would subject him to an action, or whicHi may occasion costs for which he has no means of reimbursement. Thus in Ex parte Fleming, ( 4 Hill, 581 ,) proceedings had been instituted to compel the satisfaction of a judgment in the manner prescribed by the non-imprisonment act; (LI. 1831, p. 396, §3 et seq.) After a hearing the judge decided that the debtor was guilty of fraud within § 4, sub. 2 and 3, and determined to commit him in default of his compliance with the terms of § 10. The debtor refused to comply, and the judge signed a warrant of commitment, which, however, he refused to deliver, on the ground that he had been served with an injunction from the. district court of the United States, restraining further proceedings. On a motion for a mandamus commanding the judge to deliver the warrant, Cowen, J. who delivered the opinion of the court, remarks: “ It is certainly impossible for me on the case stated, to see expressly that this injunction was properly issued, but it is not my duty to enquire whether it was or not. I am not prepared to deny, that under circumstances, it might have been properly issued ; but if I were,1 it is enough to know that Judge Conckling has power to issue and enforce the process of injunction like any other chancellor. If it has improvidently issued, I am bound to suppose that he will set it aside on motion. * * * Before I should be warranted in com *217-36 pelling a ministerial officer to disregard it, I must be satisfied * * * that the ordering-of the writ was a mere act of usurpation * * * ® “ I am therefore called upon to order the doing of an act by Judge Lawrence which would be in direct violation of a valid injunction, and subject him to punishment accordingly. It is true that courts of law do not hold themselves restrained by injunction from proceeding ; nor should any officer be thus restrained while acting as judge. But no court ought to compel either parties or ministerial officers to put themselves in positive conflict with the order or writ of another'court. The motion was therefore denied.” (Burt v. Mapes, 1 Hill, 649 , 651.) So 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. Therefore, where a chief constable appointed for one. of the divisions of a riding, gave a bond to the clerk of the peace, with condition that he should well and faithfully execute his office ; should pay, apply, and account for all sums of money coming to his hands as chief constable of his division, and should in all other respects, perform and observe all such orders and directions as should be made or given to him in respect of his said office. The justices of the riding having ordered a rate to be levied on the inhabitants according to a certain valuation, the constable collected from his division, and paid over to the treasurer, an undue proportion of rate. The justices in sessions resolved that the bond was forfeited, but that no proceedings should be taken upon it. Application being made to this court on behalf of some of the parties aggrieved, for a mandamus to the justices or clerk of the peace, to put the bond in suit, the court refused a rule to show cause. (In the matter of Lodge, 2 Ad & Ellis, 123 ; Rex v Justices of Buckinghamshire, 3 Nev. & M. 68 ; Rex v. Justices of Somersetshire, 1 Harr. & Woll. 82.)

§ 33. And up on the abstract merits of the application, of which as we have seeu in the last section, the court must judge when there-'is no discretion in the inferior officer it has been held that a mandamus will not lie to compel the trustees of a turnpike road to repair It; (Reg. v. Oxford and Whitney, Road Trustees, 4 Perr. & D. 154;) and in Pennsylvania, that the supreme court will not issue a mandamus to the county commissioners to pay for the valuation of ground taken up by a road, in pursuance of an order of the sessions. (Second Street Road, 1 Y. 155 .) So this writ was refused to/the commissioners of customs to restore tobacco as wrecked goods, and upon which a lower rate of duty had’been tendered. (Rex v. Commrs. of Customs, 1 Nev. & P. 536. 5 Ad. & Ell. 380.i So where a criminal information had been filed against a town clerk for misconduct in his office, in the election of councillors of the borough, the court refused this writ to compel him to produce the voting papers in his custody, which had been used at the election. (Rex v. *217-37 Nichollatts, 5 Adolph, and Ellis, 376.) So the court refused to issue the writ to a board of guardians commanding them to admit to the office of clerk, a party who alleged he had been elected by a majority of good votes; because they would not thus enquire into the title of the voters. (Reg. v. Dolgally Guardians, 3 Nev. & Per. 542.) In Pennsylvania, a mandamus was refused to be allowed to compel the canal company to pay the relators a certain amount of damages, which had been awarded to them in the quarter sessions, on the report of viewers, appointed to assess damages sustained by reason of the Pennsylvania canal, (The Com. v. The Canal Commissioners, 2 P. R. 517 ;) and a mandamus to the commissioners of a county, to draw orders on the county treasurer, was refused, where it appeared by the return to the rule to show cause, that there was no money in the county treasury, applicable to the purpose. (Com. v. The Commissioners of Philadelphia Co. 1 Wh. 1 .) So in Ohio, mandamus will not lie against a county auditor for refusing to audit an assistant appraiser’s account, which has not been finally passed upon by the county commissioners. (Burnett v. The Auditor of Portage County, 12 Ohio R. 54.)

§ 34. Let us now proceed to consider the cases wherein the writ of mandamus has been adjudged to lie to inferior officers. And

I. It lies wherever such officer has a discretion to compel the exercise thereof, though not to determine the particular mode of such exercise. Therefore in The People v. The Supervisors of Albany, ( 12 Johns. 414 , cited supra, § 31) the court say, had the supervisors refused to hear the application of the relator, and to examine and pass on his account a mandamus would have been proper to compel them to do so. The reason of this rule has been mentioned in its application to inferior tribunals and judicial officers, and it is therefore unnecessary to do more than call the attention of the reader to the following cases. (Hull v. The Supervisors of the County of Oneida, 19 Johns. R. 259, 262. Anon. 2 Pennington, ed 1835, 431. Ex parte Farrington, 2 Cowen, 407, 408. In the matter of Bright v. Supervisors of Chenango, 18 Johns. R. 242. Rex v. Barber, 6 Adolph & Ellis, 388. See also Grier v. Schackleford, 2 Tr. Con. Rep. 642. Ex parte Jennings, 6 Cowen, 518; and see other cases infra § 37.)

§ 35. II. Subject to the general rules we have before considered, (§ 5-16) and to the essential consideration that public justice demands the application of the remedy, this writ will lie as Mr. Graham has well expressed it, (Practice, 3d ed. vol. 1. p.319,) wherever “the act required to be performed by a public officer is ministerial in its character, involving a direct duty imposed upon him by law.”

§ 36. There are cases as Mr. Graham observes, (Practice 3d ed. vol. 1. p. 321,) where a private individual acts in a quasi public character, as for instance under the authority and sanction of a public statute, and in these cases a mandamus may be resoited to, to compel him to perform a duty consequent upon that relation. There is no difference in principle between such an individual and a public officer — both have public functions to perform, the neglect *217-38 or misconduct of which would be fraught with mischief to the community. Therefore, where a reference to arbitration had proceeded under the statute, a mandamus was granted, to the arbitrator under it, to appoint an umpire; (The King v. Goodrich, 3 Smith, 388 ; The King v. Inhabitants of Wash brooke, 7 D. & R. 221; Tidd, 9th ed. 844;) though, except in cases of arbitration founded upon some statute, or where the written submission to arbitration has been made a rule of court, under the general arbitration act, the proceedings would be regarded as a mere private transaction between the parties, in respect of which no writ of mandamus could issue. (I Chltt. Gen. Prac. 805.) And a mandamus was granted by Nelson, Ch. J. on behalf of a non-resident, to compel the trustees to appoint referees in pursuance of the statute, in order to contest the validity of the debts presented aud claimed by attaching creditors. (Titus v. Kent, 1 How. Sp. T. Rep. 80.) So where under a canal act, the arbitrators were required to appoint an umpire it was held that mandamus would lie to compel the appointment as therein enjoined. (Rex. v. Goodrich, 3 Smith, R. 388.) A number of cases arranged after the plan of Mr. Chi tty, (1 Genl. Prac. 729 et seq.) which is believed to be the most convenient to the profession, are presented in the next section.

§ 37. Particular Cases of the application of Mandamus to Inferior Courts and Officers.

Accounts. — See County Courts, Overseers, Supervisors.

Admission, — See Commissioner’s Office.

Appraisers. — See Commissioners.

Arbitrators. — See supra. § 36.

Attorney. — See supra. § 28. Infra, tit. Office. In most, if not all of the United States, the right to admit attorneys and counsel is exercised by the courts, and considered a judicial duty.

Baching Warrants. — See Justices.

Bank. — -A board of directors of a bank have no right to pass a resolution excluding one of its members from an inspection of Us books, although they believe him to be hostile to the interest of the institution ; and it was accordingly held in this case, where the cashier of a bank had refused to permit a director to inspect the discount book, that a mandamus lay, commanding the cashier to submit the book to bis inspection, although the conduct of the cashier had been approved by a resolution of the board. It was also held that the mandamus might properly be directed to the cashier, and need not be'directed to the board ; the court, however, intimating that as notice had been given to the directors, there would be no impropriety in directing the'writ to them as well as to the cashier. (The People ex rel. Muir v. Throop, 12 Wend. 183 .) See infra. Corporation. Supra. § 5, Authorities there cited.

Éanhrupis. — See Commissioners.

Barrister. — See infra, tit. Office.

Boohs and Documents. — The writ issues to compel a removed clerk to deliver up books of a public corporate company; (Rex v. Wildman, 2 Stra. 879 ;) *217-39 and to compel overseers to deliver up parish hooks to their successors, (Rex v. Clapham, 1 Wils. 305, post.) but it was refused to new churchwardens against the old, on the ground that the right might be tried by an issue at law ; (Rex v. Street, Mod. Gas. 98 ; and see Anon: 2 Chit. R. 255;) and in the case of a vestry eleik, he might maintain' trover; (Anon. 2 Chit. R. 255, G. P.810;) nor will it He to compelan attorney and steward to deliver up documents. (Cocks v. Harmer, 6 East, 404.). Though, at the instance of the lord of the manor, or of the judge of a court, a'mandamus might issue to compel the steward or officer to deliver up the court roll, records, and proceeding, because the immediate produdtlon of them might be essential to the public. (Rex v. Ingram, 1 Bla. R. 30 ; Hughes v. Mayre, 3 T. R. 275 ; Corpus Christi College, 6 Taunt. 105, S. C.; Rex v. Erle, 2 Burr. 1197 ; and see Rex v. Hulston, 1 Stra. 621 ; Marshall’s Case, 2 Bla. 912 ; Ex parte Grubb, 5 Taunt. 206. Tidd, 9th ed. 87. See Postmaster General.)

Bridges. — See County Court.

Canal. — See Commissioners.

Chancery. — In Virginia the stat. 1825-6 was intended to prevent unreasonable and causeless delays in chancery suits ; and the 14th section authorizes the court of appeals to award a mandamus to the chancery court, to compel them to hear causes at the first term at which they are prepared for hearing, when no special cause appears for the refusal of the court to hear them ; but does not authorize a mandamus to compel a hearing of a cause, which, for reasons satisfactory, the chancery court continues. (Richardson’s Case, 3 Leigh, 343.)

Churchwardens. — (1 Chitt. Genl. Prac. 793, 802. Rex v. Simpson, Selw. N. P. mandamus 1062, n. 1 ; Anon. 1 Ventr. 115; Anon. 1 Str. 686; Rex v. Wix. 2 Barn. & Adolph. 196; Rex v. Clear, 4 B. & Cresw. 899, 7 D. & R. 393 ; Rex v. Smallpiece, 2 Chitt. R. 288 ; Ledesdon v. Exeter, 1 Chitt. Genl Prac. 802, n. (d) ; Rex v. Woolly, 2 Str. 1259, Burns Just. Poor, 44; Rex v. Canterbury, 1 Bla. R. 667, 4 Burr, 2290.)

Citation. — See Clerks.

Clergymen. — Every endowed minister of any sect or denomination of Christians, who has been wrongfully dispossessed of his pulpit, is entitled to the writ of mandamus to he restored 'to his function, and to the temporal rights with which it is endowed. (Runkel v. Winemiller, 4 H. & McH. 429. See the act of 1828, ch. 78.) The office or function of a minister must be endowed, or a mandamus to restore cannot be granted. Endowment does not necessarily mean that land and tithes must be annexed to the living; but' a stipend, rents, emoluments and advantages of any kind, given and secured to the minister, during the time he shall officiate as minister, is an endowment. (Ibid.) On the application of the Rev. M. R. to be restored to the office of minister of the High Dutch Reformed Christian Church in F. it appeared that according to the mode of electing a minister by the constitution of the church, the congregation applied to the Synod of Pennsylvania for a minister to supply the place of the predecessor of R. who had left the church, that th6 Synod recommended R. who was approved and regularly inducted into the office of minister of the church, and became entitled by contract to *217-40 the emoluments of the office, and remained in possession thereof until forcibly dispossessed by the defendants. According to the proof, the Synod was composed of ministers of the High Dutch Reformed congregation in the U. S. and no person could, by the rules of the church, be appointed as a preacher but one of the Synod, and one who was regularly ordained. Held, that these facts afforded sufficient primal facie evidence that R. was a member of the Synod, and was regularly ordained. And held, that R. was entitled to a mandamus to be restored his office. (Ibid)

Clerks. — The writ lies to a clerk of a court or county to compel him to swear in one who has been appointed commissioner of deeds, and he is not at liberty to refuse on the ground that the person is incapable of holding the office, as that he is a minor or alien, or that the appointment has been iraprovidently made; (People ex rel. Dobbs v. Dean, 3 Wend. 438 .) So mandamus lies to compel a town clerk to deliver the records to his successor in office, if he refuse so to do on the application of his successor, and his showing himself to be clerk. (Taylor v. Henry, 2 Pick. 397 . Commonwealth v. Athearn, 3 Mass. 287 .) So a mandamus was issued from the provincial court to the clerk of a county court, {who had been legally removed from office,) to deliver up the records and sea! of the court to the secretary of the province. (Bordley v. Lloyd, 1 H. & McH. 27 .) So the writ will lie from the superior court, in Georgia, to the clerk of the court of ordinary, compelling him to issue a citation in the usual form to the creditors and kindred of an intestate, to show cause why an applicant for administration, prima facie entitled, should not receive letters of administration. (Ex parte Carnochan, Charlt. 215.) The writ of mandamus is the proper remedy to restore a clerk ousted from his office by the illegal appointment of another person. (Dew v. The Judges of Sweet Springs District Court, 3 Hen. & Munf. 1.) The person occupying the office ought to be made a party to the rule, or to the conditional mandamus, or such rule or mandamus ought to he served upon him, so as to enable him to defend his right before the peremptory mandamus issues. ' But, if it appears from the record that he was apprised of the proceedings and defended his right, it is sufficient. (Ibid.) If the original rule be to show cause wherefore a mandamus shall not issue to admit the clerk, the subsequent rule, or the mandamus founded thereon, may nevertheless be to restore him to the said office ; for such rules may be changed and modified so as to square witn the rights of the parties, and attain the real justice of the case. (Ibid)

College. — See Warden.

Commissioners . — The writ has been held to lie: — to commissioners of bankrupts, as to compel them to issue their warrant for a further examination of the bankrupt, (In re Bromley, 3 D. & C. 310, though not to grant a certificate of conformity. See Ex parte King, 7 East, 92, supra § 31) to canal commissioners as where the waters of the Chitteningo Creek were diverted from a mill and other works, on that creek, to feed the Erie Canal; the mill-owner claimed under a grant from the state, bounded on the margin of the creek; he applied to the canal commissioners to appraise his damages, but they refused on the ground that he had no title to the creek. Held, that a *217-41 mandamus should issue, ordering them to appraise. , (Ex parte Jennings, 6 Cow. 518 .) So it lies to compel the county commissioners to issue their warrant forempannelling a new jury, whore one jury has already been summoned and acted, without being able to agree in locating a highway. (Mendon v. Worcester, 10 Pick. 235 ;) to commissioners of excise, as when it is the duty of an officer of the excise to grant, and he should refuse, a permit to remove wine, the court would compel the delivery of a proper permit. (Rex v. Commissioners of Excise, 2 T. R. 381 ; Rex v. Cooksan, 16 East, 376; Rex v. Commissioners of Liverpool, 2 Maule & S. 223 ;) to commissioners of highways as to compel commissioners of highways in New York to open a road laid out by the judges of the court of common pleas, on an appeal to them from the refusal of such commissioners to lay out the road. (People v. Champion, 16 Johns. 61 ;) so to compel them to lay out or discontinue a road ; (People v. Commissioners of Salem, 1 Cowen, 23;) or to open and work a road ; and it will be granted without regard to the near approach of the expiration of their offices; for when the term of office expires, their successors must obey the command of the writ; (People ex rel. Case v. Collins, 19 Wend. 56 ;) to commissioners of the land tax to compel them to elect a clerk; (Rex v. Commissioners of Westminster, 1 T. R, 146;) or to swear him in and admit him ; (Rex v. Thatcher, 1 Dowl. & Ryl. 426 ;) to commissioners of poor, and the constitutional court of South Carolina may, by writ of mandamus, direct the commissioners of the poor to discharge the duties imposed on them by act of assembly, if they fail so to do ; (Commissioners v. Lynah , 2 M’Cord, 170; See Overseers, Poor;) to commissioners of sewers where they are bound to repair, though the writ would not be granted on the application of the owner of marsh lands who was himself obliged to repair and whose neglect caused an inundation; (Rex v. Commissioners of Sewers, 1 Barn. & Cresw. 477 ; 2 Dowl. & Ryl. 700 ;) to commissioners of taxes, to re-assess the inhabitants upon default made by the collector, it being the duty of the officer and the inhabitants to take-care that the money paid for taxes finds its way into the treasury, (In re Woolton, 6 Price, 103.)

Committee, — A mandamus will be granted, in New Jersey, to compel a township committee to assign a road to the overseers of the highways. (Anonymous, 2 Halst. 192.) But the rule served upon the committee must specify the object required to be done with sufficient particularity. (Ibid.)

Common Pleas. — In New Jersey, a.mandamus will lie to the court of common pleas to make an appointment of surveyors, to vacate a road which has been laid out and recorded, though never opened, where, after a proper application, they have refused to make such appointment. (State v. Judges, 4 Halst. 246.)

Constable. — (See Rex v. Manchester, 1 Dowl. & R. 454. See County Auditor.)

Corporations. — See infra, § 38, et seq.

■ Counsellor. — See supra, tit. Attorney,

County. — See Commissioners.

County Auditor. — A mandamus it seems is the proper remedy to compel a County Auditor to issue an order for constable’s fees, where he is entitled to *217-42 them by law; (Smith v. The Commissioners of Portage County, 9 Ohio R. 25 ;) but it wil! not lie against this officer, for refusing to audit an assistant appraiser’s aeeount, which has not been finally passed upon by the county commissioners. (Burnett v. The Auditor of Portage County, 12 Ohio R. 54.)

County Court. — Where the county court refuses to draw their warrant on the treasurer of the county, directing him to pay an account which has been allowed by the circuit court to the clerk of said court for office rent, a mandamus is an appropriate remedy to compel them to do so. (Boone v. Todd, 3 Mis. 140 .) So a mandamus lies from the superior court of Virginia to a county court, to compel such court to build a bridge or causeway, according to the section of the act of assembly concerning public roads. (Commonwealth v. Justices, 2 Virg. Cas. 9.) A return to such mandamus, by the justices, that the convenience of the people does not at that time authorize the heavy burden which will be imposed by the erection of such bridges, &c. is insufficient, because it does not directly deny the necessity of the bridges, or aver that the surveyor, or his assistants, could make or maintain the same. (Ibid.) Such return, being insufficient, should not be traversed, because the matter of the return should not be put in issue, and therefore the traverse should not be received. (Commonwealth v. Justices, 2 Virg. Cas. 9.) So where bridges or causeways are necessary within the limits of a county, and the surveyor of the road, with his assistants, cannot make or maintain the same, the superior court of law for such county hath the power to compel the justices, by writ of mandamus, to build or repair such bridge or causeway. (Ibid. 499. Brander v. Chesterfield Judges, 5 Call, 548 .) Where the county court, in Virginia, rejected an application for opening a new road, on a regular hearing, it was heid, that a mandamus eouid not be awarded, by the circuit court, to compel the county court to open the road. (Jones v. Strafford Justices, 1 Leigh, 584 .) Mandamus does not lie for the builder of a public bridge, to compel the county court to levy the proportion of the price of the bridge chargeable upon the county; a specific remedy being given him, by statute, to recover the same by action of debt against the justices refusing to levy it. (Justices v. Munday, 2 Leigh. 165.) The superior court will not grant a mandamus to compel a county court to issue a pluries attachment against the body of a garnishee, who had been taken on the alias, and discharged by a judge of the general court under a habeas corpus. (Jackson v. Justices of Harrison, 1 Virg. Cas. 314.) Mandamus to compel county court to record deed of emancipation. (Manns v. Givens et als. 7 Leigh, 689 .) The circuit court will, by mandamus, compel the county court to settle and allow all claims against the county, and to levy a tax for their liquidation, if it refuse. (Madison Court v. Alexander, Walk. 523.)

Court. — See Inferior Court.

Court Levy. — A mandamus will not issue to compel a levy court to levy a sum of money, after the time prescribed by law for making it has passed. (Ellicott v. The Levy Court, 1 H. & J. 359 .) Cause shown by the justices of the levy court why a mandamus should not issue against them, to levy a sum of money claimed by the sheriff for poundage and other fees, for execu *217-43 ting sundry writs for the use of the justices of the levy court. (Howard v The Levy Court of A. A. County, 1 H. & J. 538 .)

Court of Sessions. — In Massachusetts, a mandamus may be awarded to compel the court of sessions in each county to erect or provide a suitable house of correction. (Commonwealth v. Hampden, 2 Pick. 414 ;) and also to compel the court of sessions, that, improperly and without good cause, rejects the verdict of a jury summoned and empannelled to estimate the damages occasioned to any person by the laying out of a highway, to do right and accept the verdict. (Commonwealth v. Norfolk, 5 Mass. 435 . Commonwealth v. Middlesex, 9 ib. 388.)

Dead, Body. — See Jailer.

Deeds. — See Clerk, Inferior Court, Mayor, Register of Deeds.

Ecclesiastical Court, officers and persons. — A mandamus lies to compel the ecclesiastical judge to grant probate to the executor named in a will ; (Anon. 1 Vent. 335 ; Anon. 1 Stra. 152 ; Dunkin v. Man, Sir T. Raym. 233 ; Offey v. Best, 1 Lev. 186 ; Rex v. Inhabitants of Horsley, 8 East, 408 ;) or letters of administration to the husband of his' wife’s estate, unless the husband has done something to part with his right; (Rex v. Bettesworth, Stra. 891, 1118 ;) and a mandamus for administration to the next of kin may be granted, notwithstanding a suit depending, if bis consanguinity be not denied ; (Rex v. Hay, 4 Burr. 2295 ; Rex v. Dr. Hay, 1 Bla. R. 640.) But when the validity of a will has been contested in the spiritual court, and a suit is still depending there concerning it, the court will not then grant a mandamus to the judge of such court to grant a probate to any particular person. (Rex v. Hay, 4 Burr. 2295 ; Lovegrove v. Bethell, 1 Bla. Rep. 68.) Nor will the court compel the grant of administration durante minore (stale, for the law has not decided who is entitled to such administration, and we have seen that a mandamus only issues to enforce a legal right. (Smyth's case, 2 Stra. 892. See 1 Chitty’s Genl Prac. 806, 799. See in general Selwyn’s N. P. tit. Mandamus, 11 ; Harrison’s Index, Mandamus, 6. Rex v. Chester, 1 T. R. 396. Ante ; but see Clark v. Sarum, 2 Stra. 1082. Rex v. Bloer, 2 Burr. 1043. Rex v. London, 13 East, 420 ; 1 T. R. 331; Rex v. Field, 4 T. R. 125. Rex v. Barker, 3 Burr. 1265; 1 Bla. R. 300, 352, S. C. Rex v. Jotham, 3 T. R. 575. Anon. 2 Chit., R. 254; Rex v. Harris, 3 Burr. 1420; C. G. P. 793. Id. ibid.; Rex v. Warren, Cowp. 379. Rex v. St. James’s, Cowp. 413 ; Rex v. King’s Clere, 2 Lev. 18 ; Ile’s case, 1 Vent. 143 ; Selw. N. P, Mandamus, 11. n. Rex. v. Canterbury, 8 East, 215 ; see other cases as to clerical persons, Impey, Mandamus. 103 to 106.)

Highway. — See Commissioners, Committee, Common Pleas, County Court, Overseers, Selectmen. ' ■

Inferior Court. — Every inferior jurisdiction, whether created by a public or a piivate law, is subject to have its proceedings inspected, either by appeal or by certiorari and mandamus, where such jurisdiction acts judicially ; they will be coerced to perform their duties, and restrained and confined within their proper limits as prescribed by law. (Williamson v. Carnun, 1 G. &. J. 184, per Baltimore County Court.) Therefore where an inferior court of record, in Virginia, improperly refused to admit a deed to be proved and re *217-44 corded, it was held, that it might be compelled to do so by a peremptory" mandamus. (Dawson v. Thurston, 2 H. & M. 132.) It is a matter of right in the defendant, who is a non-resident of a state, and is sued in a state court, to remove the cause to the circuit court of the United States for such state, on complying with the terms prescribed by the act of congress ; and if the inferior court refuse to allow the removal of the cause, it may be compelled by mandamus, emanating from the superior court of the state, not from the circuit court of the United States. (Brown v. Crippin & Wise, 4 Hen. & Munf. 173.) Queerer Whether a mandamus lies from a superior court of chancery to a county court, compelling the justices to hear and determine a cause, when there appears to have been unreasonable delay ? (Webb v. Barbour, 4 Hen. & Munf. 462.) When it is a duty to hold a court for the benefit of suitors, it may be enforced by mandamus, (Rex v. Eastings, 5 Bar. & Ald. 692 ; 1 D. & R. 148 ; Rex v. Havering, 2 D. & R. 176, n.; 5 B. & C. 691 ;) and this even as to the place of holding; (Rex v. Ilchester, 2 D. & R. 727 ; Rex v. Grantham, 1 Wils. 716; and see C. G. P.795, tit. Inferior Courts, &c ;) and the writ may be issued to compel the holding of a copy-hold court, to accept a surrender. (Rex v. Boughey, 1 Bar. & Cres. 565. 1 Chitty’s Geni. Prae. 794, 7.95.)

Jailer. — Where a debtor died in prison, and the jailer refused to deliver the body to his friends for interment, until a claim was paid, the court ordered a peremptory mandamus to issue. (Wakefield bailiff, Ex parte 1 Gale & Dav. 566)

Justices. — If the justices omit from their nomination to the executive for the appointment to the office of sheriff, the name of any particular justice, a mandamus will not lie to compel them to make such nomination; for in the exercise of this discretionary power,they cannot be controlled by the superior couits (Frisbie v. Justices of Wythe, 2 Virg. Cas. 92.) The removal of a justice with his family from his county to another, and remaining out for several years, is neither an abandonment or virtual resignation, or forfeiture of his office, and whether void or only voidable by a judicial proceeding, eventuating in a judgment of amotion, no mandamus ought to issue to invest the applicant with an office not belonging to him if void, or which might be taken from him if voidable. (Chew v. Justices of Spottsylvania, 2 Virg. Cas. 208.) Whether the acceptance of the office of deputy clerk of á county court vacates the office of justice or not, the superior court will not grant a mandamus to compel the county court to admit the applicant to an office not belonging to him if void, or which might be taken from him if voidable. (Amory v. Justices of Gloucester, 2 Virg. Cas. 523.) Mandamus lies from circuit court, to compel justices of the peace to administer the oath of insolvency,, and to order the insolvent’s discharge. (Harrison v. Justices of Norfolk, 2 Leigh, 764 .) A writ of mandamus lies to compel the backing of a warrant in another county, the duty being ministerial and imperative ; (Rex v. Kynaston, 1 East, 117.) See Overseers. (See also 1 Chit. Genl. Prac. 801. Rex v. Sparrow, 2 Stra. 1123 ; Burn’s J. Poor, 24, 25; Rex v. Norwich, 1 Bar. & Adolp. 313 ; what must be sworn, Rex v. Bedfordshire, Cald. 157 ; and Rex v. Peterborough, id. 238. Rex v. Stafford, 1 Stra. 512. Rex v. Wilt *217-45 shire, 1 Wils. 138 ; Rex v. Horton, 1 Term R. 374. Rex v. Salop, 3 B. & Adolp 910.)

Jury — See Commissioners.

Lord and Stewart of a Manor. — To compel an admission to copyhold. See 1 Chitty’s Geni. Frac. 71)4. (Rex v. Robinson , 2 Smith’s Rep. 274; Dick. Sess. 590, 3d edit.; and 3 Geo. 4, c. 23, s. 3, aids defects in form. Rex v. Rennett, 2 T. R. 197; Rex v. Brewsters’ Company, 3 B. & Cres. 172 ; 4 D. & R. 492, S. C.; C. G. P. 351, and 794, note (h). 1 Mad. Ch. Pr. 253, 254; Moor v. Huntingdon, Nels. 12 ; Co. Copyl. sect. 39. King v. Coggan, 6 East, 431; 1 Mad. Ch. Pr. 254. 1 Wm. 4, c. 21, s. 8.)

Magistrate. — In Virginia, a mandamus lies to compel the magistrates, to whom an execution debtor has applied to have the oath of insolvency administered to him, to administersuch oath, andorderthe debtor’s discharge. (Harrison v. Emmerson, 2 Leigh, 764 .)

Mayor. — After a charter election in the city of New York, the inspectors of the sixth ward certified thus: “ We have received returns from the several districts of the said ward, &e., copies of which returns certified by us are hereunto annexed. It is impossible for us to declare what persons were, by the greatest number of votes, elected, by reason of lawless violence committed upon the inspectors of the first district &e. and the dispersion of the ballots before they were’counted,” &c. The ward was composed of four districts, three of which had made regular returns, exhibiting the names of the candidates and the number of votes given for each, and copies of these were annexed to the above certificate; but the first district made no return save a statement of the affair which led to the dispersion of the ballots, giving this as a reason why no return could be made; The returns from the other distrlcts} however, showed an election, and it did not appear that the votes given in the first district could have changed the result. Held, that the persons thus appearing to have been elected officers of the ward, were entitled to qualify as such ; and a mandamus was granted commanding the mayor to administer the oath of office to them. (Ex parte Heath and others, 3 Hill, 42 .) The writ also lies to the mayor of a corporation to admit an apprentice to his freedom, when he has a right by service, although he had broken his covenant not to marry; (Townsend’s case, 1 Lev.’91. See T. Raym. 69 ;) so the writ lies to compel the enrolment of indentures in proper cases but not otherwise. (R ex v. Marshall, 2 T. R. 2.)

Oath. — See Clerk, Commissioners, Magistrate, Overseers.

Office. — In general it may be laid down as a rule, that where a man is refused to be admitted or wrongfully turned out of any office or franchise that concerns the public, or the administration of justice, he may be admitted or restored by mandamus; (Bac. Ab. tit. Mandamus, c. 1. 11 Co. 93; Bagg’s case, 2 Sid. 112. Same rule laid down by Glyn, Ch. J.;) if no other adequate specific legal remedy exist. (See supra., § 13.)

I.. The office must concern the public, (Bac. Ab. tit. Mandamus, C. Bagg’s case, vt sup. Anon. 2 Ld. Raym. 989.)

Therefore a writ of mandamus will not lie to try the title to a mere public employment at the will of the executive, or other public functionary, as the *217-46 captain of the magazine guard ; (State ex rel. Gruber v. Champlin. Same v. Hunt, et al. 2 Bailey 220 ;) nor to restore a professor to his office in the College of William and Mary, in Virginia; (Bracker v. William & Mary College, 3 Call, 573 ;) nor to restore a town clerk whose office is durante bene plácito of the Mayor and Aldermen ; (Bac. Ab. tit. Mandamus, C. I. Vent. 77, Sid. 461, Lev. 291, Raym. 188;) nor to the benchers of one of the inns of court to admit a person as a member or student, nor to call him to the bar so as to enable him to practice as a barrister ; (Rex v. Gray's Inn, Dougl. 353 ; Wooller's case, 4 B. & C. 855 ;) the only mode of relief is by appeal to all the judges. In the case of D. W. Harvey there was such an appeal, but it was unsuccessful; (and see Rex v. Gray's Inn, 1 Dougl. 353 ;) nor to the College of Physicians to examine a party so that he may be admitted a fellow of the college ; (Rex v. College of Physicians, 7 T. R. 282 ;) nor to admit an attorney, that being discretionary in the judge who examines him, and the only remedy is petition to the court. (2 Geo. 2, c. 23, secs. 2 to 6 ; 23 Geo. 2, c. 26, s. 15; 3 Bar. & Adolp 770 ; 10 B. & Cres. 511. See 1 Chitty’s Genl. Prac. 798. Rex v. Farrington, 4 Dowl. & R. 735 ; Giles's case, Stra. 811; Rex v. Nottingham, Say. Rep. 217; Rex v Storrey, 5 Dowl. & R. 308.)

But whenever the office, whether it be temporal, ecclesiastical, or otherwise, is legal and public, or fixed and permanent, by statute, charter, or usage, then this writ lies to swear in, admit, or restore a party entitled to the same. Upon this principle in Maryland, every endowed minister, of any sect or denomination of Christians, who has been wrongfully dispossessed of his pulpit, is entitled to the writ of mandamus, to be restored to his function, and the temporal rights with which it is endowed*. (Runkel v. Winemiller, 4 Har. & M’Hen. 429. Aliter, if the office is not endowed, ib.;) and so in South Carolina, a mandamus will lie to restore to his office an inspector of tobacco, removed by an irregular summary proceeding. (Singleton v. Com missioners, 2 Bay, 105 .) Hence mandamus is the proper remedy to restore a clerk ousted from his office by the illegal appointment of another person. (Den v. Judges, 3 H. & M. 1.) If the original rule was, to show cause why a mandamus should not issue to admit the clerk, the subsequent rule, or the mandamus founded thereon, may nevertheless be, to restore him to said office. (lb.) The person occupying such office ought to be made a party to the rule, or such rule ought to be served upon him, so as to enable him to defend his right, before the peremptory mandamus issues. If, however, it appears from the record that he was apprised of the proceedings, and defended his right, it is sufficient. (Ib.) And a peremptory mandamus will issue to a county commissioner’s court, to compel them to restore a clerk, the cause of whose removal is not stated on their records. (Street v. Gallatin County Commissioners, Breese, 25.) So a mandamus lies to admit or restore a town clerk; (Bac. Ab. tit. Mandamus, C. 1. Noy. 78, Style 457;) mayor, aider-man, burgess, common councilman, freeman or other person, member of a corporation ; (id. 11 Co. 94, 2 Balst. 122, Style, 299, 457, Raym. 12, 431, 437, Vent. 302, Cro. Jac. 450 ;) recorder, (id. Style, 452, Vent. 143, 153, 4 Burr. 1999 ;) clerk of the peace, (id. 4 Mod. 31, Show. 282,12 Mod. 13 ;) or constable (id. 2 Roll. 82. Roll. Abr, 535, Salk. 175. See Strong, petitioner, 20 *217-47 Pick. 484.) In general if the office is acquirable by. purchase, and an oath of office, as well as oaths to government are administered, it will be presumed to be public ; and on that ground a'mandamus was granted to restore a party to the office of clerk or surveyor to the city works ; and this writ was issued to restore the treasurer of the New River Company, for though it was but a private corporation, yet it was created by the king’s letter-patent. (Id.; Anon. 1 Stra. 696, S. P ; Rex v. London, 1 Lev. 123 ; Sid. 169 ; 3 Mod. 334, S. C.; but see the last r

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