TIONS. of sub Provision is made to compel the attendance of witnesses ARBITRAbefore the arbitrators and for a confirmation, correction or Consequenvacating of the award by rule of court. If confirmed, a judg-mission. ment is to be entered up and docketed as in other cases, and with the same form and effect. Execution may be had on it and it may be removed, as may be also the order vacating an award, by a writ of error. If the judgment requires a party to perform any act other than the payment of money, it is to be enforced by rule of court and process of contempt.76 OF INFORMATIONS IN THE NATURE OF A QUO WARRANTO. in nature of ranto. Origin of. These informations grew out of the old writ of quo warranto, Informations which was in the nature of a writ of right, and lay for the king quo waragainst any one who claimed or usurped any office, franchise or liberty, to inquire by what authority he supported his claim, in order to determine the right. It lay also in case of the nonuser or mis-user of a franchise. The delays attending this process occasioned its disuse, and the information, although in the nature of a criminal proceeding was substituted in its place for the trial of the civil right." gulations. The revised statutes, by which informations in the nature of Statutory requo warranto are particularly regulated, provide that they 66 filed; into office, may be filed in the supreme court of this state, either in term By whom time or vacation, by the attorney general, against individuals, upon his own relation or upon the relation of any private party, and without applying to such court for leave, in either of the following cases: 1 When any person shall usurp, intrude into for intrusion or unlawfully hold or exercise, any public office, civil or military, or any franchise, within this state; or any office in any corporation created by the authority of this state: 2. When- forfeitute of ever any public officer, civil or military, shall have done or suffered any act which, by the provisions of law, shall work a or assuming forfeiture of his office: 3. Where any association or number poration. 76 Ib. P. 3. Ch. 8. T. 14. s. 6. 77 Bl. Com. 262. 10. 11. 14. 16. 18. 20. offioe, to be a cor TIONS IN OF QUO WAR INFORMA- of persons, shall act, within this state, as a corporation withTHE NATURE out being legally incorporated.78" The process upon the information is a capias ad respondendum which is served and returned as in personal actions.79 RANTO. L Also against It is further provided that " An information in the nature corporations, of a quo warranto may also be filed by the attorney general upon his own relation, on leave granted, against any corporate and for what body whenever such corporation shall, 1. offend against any causes. of the provisions of the act or acts, creating, altering or renewing such corporation: or, 2. violate the provisions of any law by which such corporation shall have forfeited its charter by misuser: or, 3. whenever it shall have forfeited its privileges and franchises by non-user: or, 4. whenever it shall have done or omitted any acts which amount to a surrender of its corporate rights, privileges and franchises: or, 5. whenever it shall exercise any franchise or privilege not conferred upon it by law : And it shall be the duty of the attorney general to file such information, in every instance in which he shall have good reason to believe that the same can be established by proof." 9780 MANDAMUS. Mandamus. The writ of mandamus, which is called a prerogative writ, Issues from issues out of the supreme court, directed to persons, officers, court; its corporations or inferior courts of judicature commanding them the supreme character, and objects. in the name of the people to do some specific act, appertaining to their office, character or situation, agreeably to right and justice.81 The object of the writ is not to supersede legal remedies, but only to supply the defect of them, the only proper ground of the writ being a defect of justice. It affords a proper remedy, in cases where the party has a legal right, but has not any other means of compelling a specific performance, and it 78 2 R. St. 581. P. 3. Ch. 9. T. 2. s. 28. 792 R. St. 582. s. 29. 80 2 R. St. 583. s. 39. 21 3 Bl. Com. 110. is the absence or want of a specific legal remedy which gives MANDAMUS. the court jurisdiction.82 which it lies. The most usual case in which this writ is resorted to, is to Cases in compel courts of common pleas and courts of sessions to do some act belonging to their duty in order to prevent a delay or denial of justice; and it has been allowed to compel them to seal or amend a bill of exceptions; to give judgment where they have undertaken to grant new trials, not possessing the power to do it ; to compel a court of common pleas to give judgment, in order that a writ of error may be brought;85 or to restore an attorney whom they have removed from office;86 to compel them to permit a plaint to be filed nunc pro tunc, where the want of such plaint is assigned for error.87 In a case where a judgment had been acquiesced in for a year the court refused a mandamus ;104 and in another case where the court would have allowed a mandamus if applied for in time, it was refused after a lapse of five years.105 to control le tion of a But it is well established by frequent decisions, that a Not granted mandamus will not be granted to control or coerce the dis- gal discre cretion of a subordinate tribunal;88 as where a court of court. common pleas refuses to grant a new trial upon the merits, a mandamus will never be allowed; although in supposable cases of absurd and unreasonable verdicts, a mandamus might be granted.89 But it is the duty of the supreme court to review the decisions of subordinate tribunals when properly brought up, and if they have erred in the application of legal 83 3 T. R. 652. 2 Ib. 385. 1 Cow. Rep. 423. 2 Ib. 444. 1 Wend. Rep. 318. 10. John. Rep. 484. 8 East's Rep. 219. 3 Bl. Com. 110. 33 1 Caines' Rep. 511. 2 John. Cas. 118. Colman Cas. 135. 6 John. Rep. 279. 84 1 John. Cas. 179. 2 Caines' Cas. in Er. 319. 3 John. Rep. 371. 85 2 John. Cas. 215. 86 1 John. Cas. 181. 87 Colman, 55. 104 2 Wend. Rep. 264. 105 2 Wend. Rep. 256. MANDAMUS. principles to the cases before them, they will be compelled to correct their errors. Thus it was held90 that if a court of common pleas, on a motion for a new trial, improperly rejected the affidavits of jurors, this being a question not of discretion but of law, a mandamus would be granted. The setting aside a default upon the merits, has also been held to be a matter of discretion with the common pleas, and a mandamus to compel them refused.91 So it was refused to compel them to open a default which had been obtained through the forgetfulness of the attorney, the court observing that the common pleas had their own rules of practice, and that the application of them in this case was matter of discretion.92 For the like reasons, it was refused to compel the common pleas to vacate an order allowing the rules for interlocutory judgment and assessment of damages to be entered nunc pro tunc after judgment upon assessment of damages.98 Where a court of common pleas, on setting aside a ca. sa. which had been issued and served after execution had been superseded by bail in error, required the party to stipulate that he would not bring trespass for false imprisonment, the requiring the stipulation was held to be in the discretion of the court below and not to be interfered with by a mandamus.94 A mandamus to compel a court of common pleas to set aside a report of referees upon the merits, will not be granted, as it is a matter resting in their discretion.95 Mandamus will not lie where the party has a remedy by writ of error:96 nor will it be granted to compel an inferior court to punish for a contempt, unless the civil rights of an individual are implicated in the proceeding;97 and the court have refused to interfere by mandamus 90 1 Wendel. Rep. 299. 91 6 Cow. Rep. 393. 927 Cow. Rep. 363. 937 Cow. Rep. 523. See also 1 Wend. Rep. 73. 94 3 Cow. Rep. 59. see also Ib. 371. 95 2 Cow. Rep. 458. 96 2 John. Cas. 72. 1 Cow. Rep. 143. 417. 423. 97 4 Cow. Rep. 49. with the mere chamber business of a judge of the common MANDAMUS, pleas.98 6 where It would not be possible to enumerate the cases in which Cases relief is afforded by mandamus. It has been allowed to allowed. restore persons removed from office without cause; as a mayor, bailiff," alderman,100 burgess,1 jurat, common council man,3 recorder, town clerk, or sergeant, and it lies as well to admit as to restore a person to office : it has been allowed to grant the probate of a will to an executor; to grant administration to the husband of the wife's estate;9 to compel the warden of a college to affix the college seal to an answer in chancery;10 to nominate overseers of the poor;11 to appoint surveyors of highways;12 to sign and allow a poor's rate ;13 to admit a copyholder to his estate :14 a mandamus has been granted to compel a clerk to record a deed duly acknowledged and certified;15 to compel the supervisors of a county to allow the account of the clerk of the county for expenses and services required by law;16 to compel a sheriff to give a deed of lands;17 to compel the overseers of the poor and supervisors of one of several towns which had been divided by statute, to make an apportionment of the money and poor of such towns, according to the terms of the statute;18 to compel the com |