Delavan v. Boardman & White

5 Wend. 132

Opinion

By the Court,

Savage, C. J.

The practice of the court in cases like the present is in the first instance to refer back the bill of exceptions or case to the judge who has settled it, that he may have an opportunity to review it. Take a rule accordingly.

*

That the cour* possess the power of granting a mandamus in a case like the present, was determined in Sikes v. Ransom, 6 Johns. R. 279, on an op. plication for such writ to a court of common pleas, to amend a hill of exceptions according to the truth of the case. In Thurston v. Stafford, 3 Salk. 155, it was held that a bill of exceptions would lie at a trial at bar as well as at nisi pi ins, for it is said the words of the statute are, that the justices shall sign it, which word justices being in the plural number, cannot be well understood of any other justices than those of the courts at Westminster. So that it seems that this writ might have issued to this court before trials at bar were abolished, and may now issue to either of its judges when holding a circuit; and if so, there can be no doubt that it may properly be directed to a circuit judge. The form of the writ is to be found in the Register, 1S2, a; it is called a mandatory writ, “a sort of prerogative writit. is always in the alternative quad si ita est to seal the bill of exceptions ; and if it be returned quad non ita est, it is sufficient, and the party is put to his action for a false return. In Sikes v. Ransom, it appears to be admitted that the practice in England had been for the writ to issue from chancery; but it is said 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.