Supervisors of St. Joseph vs. Coffenbury.

It was a voluntary bond, given to the proper guardians of the interests of the county, to secure the faithful discharge of official duties by the financial officer of the county; and upon principles of public policy, as well as by adjudged cases, it is a valid obligation.

In 2 Ld. Raym. 1459, it was held that, though an executor is not obliged to give bail in error, yet the court may well take it; and if he will voluntarily enter into such a recogniz ance, it shall bind him.

In the case of the United States v. Tingey, 5 Pet. [358*] 115, it was *held, that a voluntary bond taken by anthority of the proper officers of the treasury department, to whom the disbursement of public moneys is entrusted, to secure fidelity in the official duties of a receiver or agent for disbursing of public moneys, is a binding contract between him and his sureties and the United States; although such bond may not be prescribed or required by any positive law. The right to take such a bond is an incident to the duties belonging to such a department; and the United States being authorized in a political capacity to take it, there is no objec tion to its validity in a moral or legal sense. In 7 Conn. 543, it was held that a bond given by a town collector, for the faithful performance of his duty, without any provision of law requiring it, was a valid bond. The court say: "The collector is not required to give a bond, nor are the selectmen authorized to take such bond. There is, indeed, no law directing that a bond shall be taken in such a case. It is not illegal in its nature, nor founded upon any illegal consideration. A collector is an authorized agent to collect moneys due the town. What forbids, then, the giving or taking a bond to secure the town?"

The same doctrine was held in Pennsylvania in regard to prothonotary's bond. 6 Bin. 292.

It must be certified to the circuit court for the county of St. Joseph, as the opinion of this court, that the bond is valid; that it was properly given to the supervisors of the county of

The People vs. Judge of Wayne County Court.

St. Joseph, and that an action may be brought thereon by the board of supervisors of such county.

Certified accordingly.

*THE PEOPLE ex rel. BROWER and DELANY VS. THE [359*] JUDGE OF WAYNE COUNTY COURT.

An order made by a county court, dismissing an appeal, is a judgment that may be reviewed by the circuit court, within the meaning of the 67th section of the act to consolidate the laws in relation to county courts, and for other purposes. Sess. L. 1849, p. 288.

NOTE. Mandamus only issues where there is a clear legal right, and no other remedy, People v. Judges of Branch Cir. Ct., 1 Doug. 319; People v. Judge of Wayne Cir., 19 Mich. 296; People v. State Ins. Co., 19 id. 392; will not lie to direct the circuit court in what manner to decide a judicial question, 1 Doug. 319; 4 Mich. 187; 16 id. 204; 17 id. 67; nor where proceedings may be amended, People v. Judges of Calhoun Cir. Ct., 1 Doug. 417; applies to correct a decision on a motion to strike from the files, People v. Judges of Washtenaw Cir. Ct., id. 434; and to set aside an irregular judgn.ent, People v. Bacon, 18 Mich. 247; to compel township board to allow a liquidated demand, Marathon v. Oregon, 8 id. 372; not to compel an unnecessary order to be made by circuit judge, People v. Judges of Wayne, 14 id, 33; nor protect a purchaser who has not paid, People etc. v. Wayne etc., 19 id. 296; history and nature of the writ expounded, McBride v. Grand Rapids, 32 id. 360; will not be denied because an equitable remedy exists, La Grange v. State Treasurer, 24 id. 468; does not lie to review judicial errors, Mabley v. Superior Court Judge of Detroit, 32 id. 190; but may, where lower court assumes irregularly to decide a question not before it, Wiley v. Allegan Circuit Judge, 29 id. 487; but not to correct an abuse of his authority relative to signing a bill of exceptions, Faust v. Calhoun, C. J., 30 id. 266; Harbaugh v. Wayne, C. J., 32 id. 259. - Does not lie where party has an appeal or writ of error, Pfeiffer v. Taylor, 19 Wis. 566; but may issue to compel circuit court to allow change of venue where the act is ministerial, Brownell v. McArthur, 13 id. 407; see, also, 19 id. 621; 3 id. 809; 5 id. 339; 7 id. 693; 3 id. 783; 13 id. 380; 14 id. 156; 16 id. 333; will issue to compel inferior court to proceed in proper cases, 19 id. 531; not from supreme court where circuit court has jurisdiction unless proper case shown, Oshkosh v. Haben, 22 id. 101.

-See 55 Ill. 15; 63 id. 394; 66 id. 339; 56 id. 365; 57 id. 307; 60 id. 413; 61 id. 115; 66 id. 59.

The People vs. Judge of Wayne County Court

A mandamus will be allowed to set an inferior court in motion, but no for the purpose of requiring it to come to any particular conclusion, or of retracing its steps where it has already acted, and this irrespective of the question, whether the party has or has not another remedy.

MOTION for a mandamus.
Bishop, for the relators.

Goodwin, for the respondent.

By the Court, MUNDY, J. From the answer of the judge of Wayne county court to the rule to show cause why a mandamus should not issue, it appears that the relators, Brower and Delany, had appealed to the county court from a judgment of a justice of the peace, rendered against them in favor of Elston, for the use of Dalrymple, and that the county court dismissed the appeal for the want of a recognizance.

Upon these facts, this court is asked for a mandamus to compel the judge of the county court to undo what he has done, to reinstate the cause in this court, to permit the relators to file an amended recognizance, and to proceed to the trial of the cause.

It is a well settled rule, already recognized in several cases in this court, that a mandamus does not lie when the party has another and an adequate remedy. By section 67 of the act of 1849, to consolidate the laws in relation to county courts, and for other purposes, it is provided that, "in all cases of judgment rendered by such court, in any civil suit, either party thinking himself aggrieved or injured by such judgment, or by any opinion or direction of the court, may remove the cause by bill of exceptions, certiorari or writ of

error, into the circuit court for the same county in [360*] which such judgment was rendered." It is said that an order dismissing an appeal is not a judgment within the meaning of this section.

In Massachusetts, an appeal was given by the statute from any judgment of the common pleas to the supreme court. Under this law, it has been repeatedly decided by the supreme

The People vs. Judge of Wayne County Court.

court of that state, that any order of the common pleas which determined the cause in that court was a judgment within the meaning of the law, from which an appeal lay.

In Bemis v. Faxon, 2 Mass. 141, it was decided that a motion granted in arrest of judgment in the common pleas, came within the statute. In Tappen v. Bruen, 5 Mass. 194, the writ had been issued against Matthias Bruen and James Bruen, and the common pleas dismissed the action for want of service of process upon James. The supreme court said, "that as an appeal only lay from the final decision of the common pleas, it has been doubted, as the appeal in terms is given to the party aggrieved at the judgment, whether an appeal lies from an order of that court, finally determining the action there. If this provision is to extend only to judgments technically considered, the party would be without remedy, if he had no day in court given him by an order to arrest the judgment, or to stay all proceedings in any action, which certainly could not be the intent of the legislature."

In Wood v. Ross, 11 Mass. 271, the court, after referring to the previous adjudications, and affirming the doctrine that an appeal lay under their statute from any order calculated to terminate the suit, such as an order to stay all proceedings, say: "otherwise the court of common pleas, by refusing to enter a regular judgment, might oust this court of its appellate jurisdiction, given for the security of the citizen."

The order of dismissal by the county court put an end to this cause in that court; and unless such order be considered a judgment which may be reviewed upon certiorari in the circuit court, such order would, it appears to me, be final and conclusive upon the parties, and, in the language of the Massachusetts cases, the party aggrieved would be without remedy. The party, then, whose appeal has been dismissed by the county court, being provided with a remedy by the statute, I might stop here with the answer this affords to the present application. But the right of the party to a peremptory mandamus having been placed upon the ground of the inadequacy of the remedy by certiorari, and *the [361*]

The People vs. Judge of Wayne County Court.

question having been fully argued, I think it well for this court to express its opinion upon what I consider to be the well established rule of this court in the exercise of its authority, by mandamus, over inferior judicial tribunals; and that is, that it will compel them to proceed, to act, but never direct them how to act, and this irrespective of the question whether the party has another remedy or not.

In the case the United States v. Lawrence, 3 Dall. 42, it was determined by the supreme court of the United States, clearly and unanimously, after full argument, that, although they might command an inferior judge to proceed to judgment, yet they had no power to compel him to decide according to the dictates of any judgment but his own. In Fx parte Hoyt, 13 Pet. 290, the supreme court say: "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 only require him to proceed to judgment."

The same principle is laid down in Massachusetts, 10 Pick. 244; 20 id. 495. The case of The People ex rel. Doughty, v. The Judges of Duchess, C. P., 20 Wend. 658, is analagous to the one now before us. The common pleas had dismissed an appeal from the judgment of a justice, upon the ground of a want of jurisdiction, the affidavit and appeal bond reciting a judgment as rendered by the justice on the eleventh day of March, whereas the return of the justice showed a judgment rendered on the twelfth day of that month. The alternative writ required the judges of the common pleas to vacate the rule quashing the appeal, and to deny the motion to quash the appeal, or to show cause, etc. BRONSON, J. delivering the opinion of the court said: "This presents an important question in relation to the appropriate office of the writ of mandamus. The court of common pleas, acting within the scope of its jurisdiction, has heard and decided a matter properly brought be fore it for adjudication, and the question is, whether we can by mandamus require that court to undo what it has done, on the ground that the decision was erroneous. I am of opinion that we possess no such power. I shall not stop to inquire whether