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MANDAMUS. missioners of highways to make a road laid out by law;19 to

Not granted

to control

cretion of

officers.

compel canal commisioners to appraise damages occasioned by a canal, according to the directions of the statute,20 and to pay the amount of the damages appraised.21

The rule that a mandamus will not be granted to controul the legal dis- the discretion with which officers are invested, is applied not only to inferior courts, but to other bodies,22 such as the supervisors of counties; and if supervisors proceed to act and exercise their discretion, the court will not interfere with it; but if they refuse to act when required by law, the court will compel them by mandamus.2

It is wholly
of a public

A mandamus is granted only for public persons, and to character. compel the performance of public duties. Hence the court will not grant it to a trading corporation, at the instance of one of its members, to compel them to produce their accounts, for the purpose of declaring a dividend of the profits.24

Damages

and costs re

By the provisions of our statutes, a party may not only obtain covered. by mandamus, the specific relief sought; but may also recover damages and costs.25

PROHIBITION.

Prohibition.

the supreme
court;

The writ of prohibition, which is also called a prerogative Issues from writ, issues out of the supreme court, commanding the court and party to whom it is directed, to desist and refrain from ifs character, any further proceedings in the suit or matter specified therein, until the next term of the supreme court; and further order; and then to show cause why they should not be absolutely

19 4 Cow. Rep. 544.

20 6 Cow. Rep. 518.

21 7 Cow. Rep. 526.

23 12 John. Rep. 414. 19 Ib.

259.

24

42 Barn. & Ald. Rep. 602. see

22 5 Binney Rep. 87. 6 Ib. 456. also 1 Cow. Rep. 512.

5 Ib. 536.

25 2 R. St. 587. P. 3. Ch. 9. T.

2. s. 57.

restrained from any further proceedings, in such suit or PROHIBITION matter.26

26

The object of this writ is to keep courts within their proper and objects. jurisdiction; and in England, it issues out of the superior courts of common law, to restrain inferior courts, whether such courts be temporal, ecclesiastical, maritime, military, &c. upon a suggestion that the cognizance of the matter belongs not to such courts.27 In this state, where there has never been any great contest between its courts, respecting jurisdiction, and where conflicts of jurisdiction do not seem to be incident to their organization, there never has been, and probably never will be, much use for this writ.

Little used.

OF PROCEEDIngs for the ADMEASUREMENT OF DOWER.

ment of

for,

It is provided by statute,28 that "Any widow who shall not Admeasurehave had her dower assigned to her, within forty days after dower. the decease of her husband, may apply, by petition, for the Application admeasurement of her dower, to the supreme court; or to the court of common pleas of the county in which the lands subject to dower lie; or to the surrogate of the same county; specifying therein, the lands to which she claims dower."

ings there

Upon this petition, the court, after hearing the parties, or- and proceedders the widow's dower to be admeasured; and appoints com- upon. missioners for the purpose, who having made admeasurement, report the same to the court; and the widow may after thirty days from the confirmation of the report, unless appealed from, or if appealed from and affirmed, bring an action of ejectment to recover possession of the lands admeasured to her, in which action her right to dower may be controverted;29 but the admeasurement is binding and conclusive, as to the location and extent of the widow's right of dower.

26 2 R. St. 587. P. 3. Ch. 9. T.

2. s. 61.

27 Bac. Abr. "Prohibition."

28 2 R. St. 488. P. 3. Ch. 8. T. 7. s. 1.

29 Ib. P. 3. Ch. 8. T. 7.

WRITS OF
ERROR.

OF WRITS OF ERROR.

acter

and use,

A writ of error, upon any final judgment or determination, in all civil cases, is a writ of right; and issues of course out of the court in which it is returnable, in vacation as well as Their char- term, subject to the regulations prescribed by law. It is an original writ; and lies where a party is aggrieved by any error in the foundation, proceeding, judgment or execution of a suit, in a court of record, and is in the nature of a commisand when sion to the judges of the same, or a superior court, by which they are authorized to examine the record, upon which judgment was given, and on such examination to reverse or affirm the same according to law.32

they lie.

The object of a writ of error being to correct errors in law, cannot bring again into examination a mere matter of fact which has been passed upon by a jury in the court below; except indirectly in those cases in which the appellate court may award a venire facias de novo: And a writ of error and not an appeal, (as the word is applied to the practice of courts, proceeding according to the course of the civil law) is the only mode of reviewing the decision of a court of record, proceeding according to the course of the common law.3

34

It is said, that whenever a new jurisdiction is created by statute, and the court or judge that exercise this jurisdiction, act as a court or judge of record, according to the course of the common law, a writ of error lies, on their judgments; but when they act in a summary way, or in a new course different from the common law, there a writ of error lies not; but a certiorari.35

30 2 R. St. 591. P. 3. Ch. 9. T. 3. s. 1.

31 Co. Lit. 288. b. 2 Williams Saund. 101 a. to y.

32 2 Bac. Abr. 187. 1 Str. 607. 2 Ld. Raym. 1403. Cas-temp. Hardw. 346.

33 1 Gal. Rep. 14 to 21. 7 Cranch. Rep. 111.

34 1 Gallison 5.

351 Salk. Rep. 144. 263. 3 Ib. 148. 2 Bac. Abr. 456. Co. Lit. 288. b. 3 Bl. Com. 406. 2 Caines' Rep. 182.

ERROR.

As writs of error have their origin in the determination of WRITS OF other legal proceedings, it will be more proper to defer the consideration of the cases in which they lie, the parties to them, and the periods within which they must be brought, until we come to treat of the proceedings in error at the close of this work.

SECTION V.

WHEN ACTIONS ARE TRANSITORY OR LOCAL; AND WHEN THEY

DIE WITH THE PERSON OR SURVIVE.

ry or local.

Transitory or local.] Actions are either local or transitory. Actions, In the former, the remedy must be sought for, and the trial are transitohad, in the county prescribed by law: In the latter, the proceedings are not limited to any county. Local actions, if brought in a city or county court, must be commenced in the courts of the city or county to which they are limited; but if they are brought in the supreme court, their local character does not generally become material until declaration, when it determines the venue. All actions were originally local, but at a very early period they became transitory, except in those cases where there were particular reasons for confining them to a single county.

provisions as

sues.

The revised statutes provide that "all issues of fact joined Statutory in the supreme court, shall be tried at a circuit court or sit- to trial of istings of the supreme court in the proper county," and that "issues of fact joined in such actions, shall be tried in the proper county as follows: 1. Actions for the recovery of any real estate, or for the recovery of possession of real estate, actions for trespass on land, and actions for trespass on the case for injuries to real estate, shall be tried in the county where

36 2 R. St. 409. P. 3. Ch. 7. T. 4. s. 1. 2.

the subject of the action shall be situated: 2. Actions of trespass for injuries to the person; and actions on the case for injuries to the person, or personal property, shall be tried in the county where the cause of action arose: 3. Actions of slander, for libels, and all other actions for wrongs, and upon contracts, shall be tried in the county where the venue shall be laid, unless the court shall deem it necessary for the convenience of parties and their witnesses, or for the purposes of a fair and impartial trial, to order such issues to be tried in some other county; in which case the same shall be tried in the county so designated: And the court shall have power to change the venue in any of the actions specified in this section, when it shall appear that a fair and impartial trial can not be had in the county in which such venue is laid."

Although the necessity imposed by law, of trying actions in the proper county, is the principal characteristic of local actions, yet it would appear that the above statutory provisions were not designed to distinguish the actions to which they apply as local or transitory, according to the usual acceptation of those terms. The intention, no doubt, was simply to direct where issues joined in the supreme court, should be tried.101 If these provisions were to be considered as defining local actions, the consequence would be, that courts would be ousted of their jurisdiction over many causes of action arising out of the state, and the county courts of theirs over those arising out of the county. Actions will therefore be considered as being local or transitory, as they were before the revision, except in cases otherwise specially provided.

When the action could only have arisen in a particular Suits rela- county, it is local. Of this kind are suits relating to real property, viz. ejectment, waste, trespass on lands, and

ting to real property

local.

S7

$8

pl. 29.

101 It would seem, however, that 7 Term Rep. 583. 584. Salk. 290. so far as regards the supreme court the venue must be laid as if the action were local.

37 1 Cowp. R. 176. 1 Bac. Abr. 56. Com. Dig. "Action." (N. 2.)

33 Ib.

39 Ib. 4 Term Rep. 503, 1 Str. Rep. 646.

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