Sikes v. Ransom — 6 Johns. 279

Majority

p. 279

Sikes against Ransom.

ALBANY,

August, 1810.

Headnote

This court will grant a mandamus directed to the judges of a court of common pleas, commanding them to seal ,a bill of exceptions,' or to amend it according to the truth of the case» Regularly, a bill of exceptions ought tobe-tendered, at the trial, and the court is not bound to seal it, at the subse\vhere of tendered8 tcTá mli application was mil(]e ;n Jane term to a-court refused; eda motLffor, a mandamv^.

THIS was an application to the court, for a mandamus to the judges of the Otsego common pleas, to amend a bill of exceptions, according to the truth of the case.

The application is entirely new; and it becomes a question whether this court can interfere when a court below refuses to seal a bill of exceptions. The books do not furnish much light on this subject. The practice, in England, under the statute of Westm. 2. (of which ours is a copy) seems to be, to apply to the court of chancery, for a writ grounded upon the statute. The form of the writ is to be found in the Register; (182. a.) and Lord Redesdale, in the-case of Lessee of Lawlor v. Murray, (1 Sch. and Lefroy, 75.) calls it a mandatory writ, “ a sort of prerogative writthat the iudo-es - " „ . jo to whom it is directed, must obey the writ, by sealing the exceptions, or make a special return to the king in chaneery. The writ, after reciting the complaint, commands the judges si ita est, tunc sigilla vestra, £s?c. et hoc sub periculo quod incumbit nullatenus omitlatis. What that perilis, within the purview of the writ, does not distinctly

p. 280

appear; though the books speak of an actionoñ the statute, at the instance of the party aggrieved. (Show. P. C. 117.) In the Rioter's case, (1 Vern. 175.)" a precedent was produced, where, in a like case, such a mandatory writ had issued out of chancery, to the judge of the sheriff’s court in London. But, though no instance appears, of such a writ issuing out of the. K. B. when an inferior court refused to seal a bill of exceptions, there is no case denying to that court the power to award the writ. It is, in effect, a vyrit of mandamus, and it is so termed in the books. (Bac. Abr. tit. Mandamus, E.) A mandamus is "aprerogative writ. It ought to be used where the law has established no specific remedy; and whére, in justice and good government,'there ought to be one, Why cannot the writ in question issue from this court? We have- the general superintendance of all inferior courts; and- are bqund to enforce obedience to the statutes, and to oblige subordinate courts and magistrates to do those legal acts which- it is their duty- to do. " The mandamus, as was observed in the case of The King v. Baker, (3 Burr. 1263.) has, within the last century^ been liberally interposed, for the benefit of the subject, and the advancement of justice. There is no reason why the awarding of this particular writ does not fall within the jurisdiction of this court, or why it should be exclusively confined to the court of chancery. It would he equally in the alternative, quod si itq est, to seal the bill of exceptions ; and if it be returned quod non ita est, the answer would be sufficient; arid the patty, if aggrieved, ‘ would be put to his action for a false return. If com- ’ plaint should be made against this court, or bné'óf its - judges, ' for refusing to seal a bill of exceptions, then the : writ must, - ex necessitate, come from chancery, if-any •' where; but in no other case can it be indispensable.1 -i

1 "Brit, though the court are of opinion that theyhave1 jurisdiction in this cáse; yet there does not appearAo'-b.e sufficient ground disclosed to justify their1 iijtCr;ferejice=

p. 281

The bill was tendered and sealed at the last January term of the Otsego common pleas ; and, at the last June term, the judges were asked to amend the bill, according to a statement of facts presented. Some of the judges recollected the facts ; some of them did not. Regularly, a bill of exceptions ought to be tendered at the trial, though the'practice is, to allow the counsel to tender it afterwards. (1 Bos. & Pull. 32.) But according to the decision in Wright v. Sharp, (1 Salk. 288.) the courts are not bound to seal a bill of exceptions tendered at the succeeding term of the court; for, as Lord Holt observed, “ if this practice should prevail, the judge Would be in a strange condition. He forgets the exception, and refuses to sign the bill, so an action must be brought.” The counsel should have attended to the bill, and have seen that it was correct, at the January term. It would be a dangerous precedent to take compulsory measures against the judges, and make them answer, at their peril, to a statement of facts tendered to them at a subsequent term.

The motion is, therefore, denied.

.Motion denied.