After advisement, the following opinions were delivered :
By the Chancellor.
The first and second points of the plaintiffs in error, which relate to matters of form merely, and which were never before the court below in such a manner as to enable that court to pass upon the questions attempted to be raised thereon here, were properly disposed of upon the argument, and are therefore not entitled to further consideration.
[85] The next question is, whether the court below was right in supposing that it appeared from the return of the plaintiffs in error that the title to land did not come in question upon the trial of the cause before the common pleas. That the plaintiff in that suit did in fact give in evidence her title to the premises, where the logs were cut, as tenant thereof in dower, is beyond all dispute. The deed to her husband was not the title, if any, which was in question there, as both parties claimed under the same title in that respect; the plaintiff, as tenant in dower of the lands embraced in the deed, and the defendant as a purchaser of the logs from the son, who was one of the heirs at law of the husband. All that was necessary to enable her to establish a right to the logs was to show her husband in possession at the time of his death, and that this particular part of the property had been assigned to her for her dower, by her son and the other heirs, previous to the time when the logs were cut. The only use of the deed was to show the extent of her husband’s constructive possession, arising from his actual possession of a part of the premises under that deed. (Jackson v. Vermilyea, 6 Cowen’s R., 677.) This deed, therefore, was not evidence of the plaintiff’s title; but it was a link in the chain, to show the husband’s seizin or possession, for the purpose of connecting the assignment of the dower with such possession of the lands; as the only question which could be material was, whether he died in possession of the land, and that the same was assigned to her by the heirs, as and for her dower. And having showed his possession, by the proof of actual possession of a part of the premises, under this deed for the whole, the plaintiff proved a perfect' title to the lands upon which the logs were cut, in herself for life, as tenant in dower, not only as against her son, but also as against the defendant who claimed the logs under him, by showing the assignment of these premises to her, as and for her dower, by the son and other heirs of the husband.
[86] [87] In the case of Hubbell v. Rochester, (8 Cowen’s R. 115,) which was an action for cutting timber upon a lot wholly wild and uncultivated, I thought it my duty to certify that the title to the land came in question, as there was no actual possession of any part of the lot; and because the only possible way in which the plaintiff could recover for the cutting the timber thereon, was by showing a regular title to himself from the original patentee, so as to show himself in possession in contemplation of law, from the fact that he was the owner of the land. Whether it was possible in the present case for the plaintiff in the suit in the common pleas to show the logs to be hers, in any other way than by showing the possession of the husband and the assignment of dower to herself, so as to give her the benefit of a constructive possession by virtue of her legal right, is a question which I am not prepared to answer from the facts stated in this return. If she could not, then it is certain her title to .the land was in question, according to my decision at the'circuit, in the case of Hubbell v. Rochester, and which was after-[49] wards confirmed by the supreme court. Proof of her possession of the part of the fourteen acre lot which was inclosed, did not prove her in the constructive possession of the wild and uncultivated part of the same lot, without showing that her entry upon the part of the lot of which she was in actual possession was under claim or color of title which extended to the whole. In Buck v. Aikin, (1 Wendell, 466,) the supreme court very correctly decided that where a party was in possession of a part of a lot, without showing he was in under a claim of title which extended to the whole, he was not to be deemed construetively in possession of the wild and uninclosed part of the same lot, so as to entitle him presumptively to the timber cut there. This decision was also in accordance with the provisions of the Revised Statutes on the subject of the constructive possession of lands. (2 R. S. 294, § 10, 11.) If in the present case the widow was in the actual possession of the inclosed part of the lot, a constructive possession could have been shown to the residue of the lot by showing her entry under a claim to the whole, founded upon the written conveyance to her husband for the lot in his lifetime, and the subsequent assignment of the whole lot to her by the heirs as a part of her dower in the lands of which she died possessed. This, perhaps, would not be considered as a dispute about the title, but merely a question of possession ; as the regularity or legality of the assignment would not be drawn in question. But if the son was in possession of the inclosed part of the lot, or if it was doubtful whether he or his mother were in possession, the legality of her title under the assignment to the whole lot must come in question, to enable her to prove a possession of the part of it where the logs were cut, by operation of law, arising from her legal ownership as the tenant in dower. It might have been urged, perhaps, that she did not show a legal title to the lot as tenant in dower, if a written assignment thereof was necessary, as the assignment in this case was by parol merely. But the rule of the common law on the subject appears to be, that neither a written assignment or actual livery of seizin is necessary to give the widow the title to her dower lands, where there has been an actual assignment of her dower by the heirs of the husband, or other tenants of the freehold, by agreement with her; that as she comes into her estate as tenant in dower, not by any title derived through the assignment, but by virtue of her marriage and the seizin and death of the husband, a parol assignment of dower is sufficient, as the only object of the assignment is to ascertain the part of the land upon which she is to enter under the title cast upon her by the death of the husband. (Co. Litt. 35, a. Rowe v. Power, 5 Bos. & Pul. R. 34. Park on Dower, 269.)
It will be seen from this statement of the case, that the question whether the title of the widow to the premises was material to be shown on the trial in the common pleas, was a quesdon of fact, rather than a question of law arising from undisputed facts; for it does not distinctly appear whether it was possible for the plaintiff to have proved her title to the logs, to the satisfaction of the jury, in any other way than by showing her title to the land. The character of her two main witnesses, it appears, was impeached, or attempted t.o be impeached; and as the general issue in the cause put her whole right to the logs in question in issue, she was bound to prove that right by legal evidence, although the defendant said nothing about her right to the land; unless he affirmatively admitted her title before she had been compelled to establish it by the legal evidence. It appears to me, therefore, that there was no question of law involved in the decision of the court of common pleas; and that whatever authority the supreme court may have to correct errors of this kind in mere matters of law, it was the intention of the legislature to make the court before whom the cause was tried, the sole judges whether the title to lands came in question, if the decision thereof depended upon disputed facts. The statute directs that the judge or judges of the court before whom the cause is tried, shall, upon application of either party, either before or after verdict rendered, cause an entry to be made in the minutes of the court, [50] specifying that such title came in question; which entry, or the certificate of the judges who tried the cause, shall be the only evidence received by the taxing officer of the fact. The conclusions which the judges draw upon the trial, when all the circumstances are fresh in their recollection, are certainly more to be relied on, as to a disputed fact, than any which can. be drawn by others from a detailed-state of the evidence and the arguments and exceptions of counsel, when incorporated into the written return to a mandamus.'
[88] [89] From the conclusion at which I have arrived upon the third point of the plaintiffs in -error, it is not necessary to the decisions of this case that I should examine the question of jurisdiction, raised by the fourth point; and I should, prefer to delay a decision thereon until it could be more fully argued, on one side at least, than was done in the present cause. I must be permitted to say, however, that the mode of proceeding by mandamus, under the present statutory provisions on the subject, is a very inappropriate remedy to correct mere errors of judgment, either as to law or fact, in courts of general common law jurisdiction. The proceeding, according to the statute, is neither in form or substance a controversy between the parties in the court of common pleas ; it purports to be, and is in feet a suit against the judges of that court, by one of the parties, to compel the defendants to reverse an erroneous decision which they may have made in perfect good faith; and to compel them to pay to the plaintiff, or relator, all the damages or costs he may have sustained in consequence of such erroneous proceeding, if it turns out that the supreme court or this court, upon a writ of error, thinks they have erred in judgment. And in the present record, although there is not the smallest room for doubt that the plaintiffs in error, in their judicial capacity, acted in perfect good faith in deciding what they at least supposed was consistent both with law and fact, they are charged with a little rising of fifty dollars costs, because, in the opinion of the supreme court, they happened to decide wrong. It is true the legislature has amended the statute which made it absolutely necessary for the supreme court to give judgment for costs against the parties to whom a peremptory mandamus was directed, and has left such costs in the discretion of that court. But the defendants in such cases, the judges of the inferior courts, are still liable to the relator for all damages he may sustain by reason of their neglect to comply with the alternative mandamus, although they may have returned facts thereon which they supposed were sufficient to justify them in point of law, for not reversing their former decision. And they are also liable to the costs of a writ of error to this court, if the supreme court decides in their favor, and this court happens to differ with the supreme court on the question presented by the return. Without intending to express any opinion whatever upon the general question of jurisdiction, 'therefore, I shall vote for a reversal of the judgment of the supreme court, because I am not perfectly satisfied that the title to land did not-necessarily come in question upon the trial in the court of common pleas. And at all events that it was a question of fact in this case, upon which the decision of the plaintiffs in error, when acting judicially, under the positive directions of a statute, should have been considered as conclusive.
By Senator Tracy.
My mind was principally interested on the argument of this case, by the question whether the decision of the court of common pleas that the title to lands came in question on the trial of the cause, is not such a judicial decision by a court of competent jurisdiction for the purpose, that the supreme court could not, in the exercise of its legitimate functions, review it by a writ of mandamus. As the conclusion to which I have arrived on this point makes it unnecessary to decide or discuss the other points of the case, I shall cenfine my present remarks wholly to it.
[90] Before entering into an examination of the nature and objects of the writ of mandamus, I will premise that I fully concur in the decisions made in the early history of the supreme court, and which since have been frequently reiterated, " [51] that the constitution intends to confer upon it general supervisory powers over the inferior judicial tribunals of the state, and that its powers and jurisdiction in all cases not manifestly differing by reason of laws or institutions peculiar to the two countries, resemble and fully equal the powers and jurisdiction of the English court of King’s bench. I concur, likewise, in the views expressed by Mr. Justice Kent, (2 Caines' Cas. in Error, 319,) that all courts witliin the several counties have from the first foundation of our judicial system been regarded bylaw and by practice as inferior courts, which may be compelled to duty by a mandamus, and restrained from usurpation by prohibition. I am, indeed, ready to admit the present justness of what was said by the supreme court, (1 Johns. Cas.,) that “ our courts of common pleas still retain almost every characteristic of inferior courts.” But while I admit these views of the nature and character of our courts of common pleas to be correct, I shall endeavor to maintain that it has been always held, both in this country and England, that though courts may be in their general character inferior and subordinate, yet that they all possess some judicial powers which both for reason and general convenience must be regarded absolute ; at least so far that the exercise of these powers cannot fitly be made a subject of review by other tribunals. Accurately to prescribe these powers and to define their limits with certainty nnd precision, is an undertaking which, if in its nature it be accomplishable, is not within the scope of my present purpose to attempt. It will be sufficient for this case if I succeed in making it as clear to others as it appears to me, that the decision of the court of common pleas, which the supreme court by its mandamus has ordered to be reversed, was made in the exercise of a power which policy advises, necessity demands, and the law contemplates should be absolutely discretionary.
[91] The Revised Statutes, (2d vol. p. 613, § 3,) among the cases where the plaintiff recovering damages shall recover full costs without regard to the amount of damages that may have been recovered, gives that in which the title to lands or tenements shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause. Now whether the title to lands or tenements did come in question on the trial of a cause, is a matter of fact, the decision of which must necessarily be confined to some tribunal, and from the nature of the question it would seem to be properly confined only to that tribunal before which the trial was had. But it is said that the question whether the title to lands necessarily came in question, may be one of law as well as of fact, and if the absolute decision of it be left to a court of common pleas, a case may occur where rank injustice has been done by an erroneous decision, of which the party is remediless, unless a review of it can he obtained by mandamus. Without stopping to ascertain whether the true intention of the statute be, that the title to lands must have come into question necessarily on the trial, to entitle the plaintiff to full costs, and conceding what it would be difficult to show, that if such be the case, the question would not then be one wholly of fact, it seems to me not at all to follow, that therefore a mandamus would lie to review the decision of the court.
It is not to be doubted that the use of the mandamus has been extended in modern times beyond the limits which in the early ages of our judicial history, were assigned to it, nor that this extended use has been on the whole of decided public benefit. But after carefully reviewing this subject, I am constraint! to conclude that the supreme court of this state has in some instances inappropriately applied it, and there is reason for believing that the anxious pursuit of individual right, which has always distinguished that tribunal, is disposing it to apply the remedial aids of this writ, to an extent which, however it may promote the justice of particular cases, tends in some degree to disturb that distribution of judicial powers which our legal institutions contemplate and require.
[92] The mandamus being in its nature what is termed, a prerogative writ, issuing [52] only from the tribunal which represented judicially the king himself, was extended originally to matters rather of general and public concernment, than to such as affected only the rights of a particular subject: as to cases of some breach of the peace, disobedience of a law, or neglect of official duty; and, therefore, we are to construe rather as an extension than as a restraint of its Original uses, what is given by Comyn, tit. Mandamus, A., where he says, “ the court of king’s bench has power by mandamus to correct all extra-judicial errors which tend to the breach of the peace, oppression of 'the subject and other misgovernance.” But long subsequently to Comyn, we find the court of king’s bench, (3 Burr., 1267,) remarking, that “ within the last century, it has been liberally interposed for the benefit of the subject and the advancement of justice.” This remark, however, is to be qualified by the contemporaneous observation of Lord Mansfield, which he frequently repeated, “ that it was a very beneficial writ, but that the best mode of preserving it, was to be sparing in the use of it.” The good sense of this observation is sufficiently illustrated by the fact, that before this time, “ the liberal interposition of it,” had led to such uncertainty and confusion, in regard to its application, as to induce the remark, (4 Bacon’s Ab., Mandamus, C.,) “ that the cases in the books on this head are so unsettled and contradictory, that it is hardly possible to fix on any general rule whereby to determine in what instances the court of king’s bench having a superintendency over all inferior courts and magistrates, will grant a mandamus or not.”
[93] The uncertainty, however, here referred to, as to the granting the writ by the. king’s bench, will be found, on examination, to arise from the character of the persons to whom the writ was to be directed and the objects sought to be accomplished, and not from the nature of the acts complained of. The broad distinction between a direction to an inferior tribunal to act, and direction to it how to act, seems to have been at all times well observed. Thus, we find it given in Bacon, that a mandamus will lie to compel a judgment to be rendered, but not what judgment to render; to justices to receive and proceed upon a complaint, but not what decision to make; to compel the ordinary to grant letters testamentary, but not to what person. It has therefore been held not to lie to the sessions to compel them to admit an appeal in regard to poor rates, (4 T. R., 488,) nor to commissioners of bankruptcy to certify the bankrupt’s conformity to the act, (7 East, 92;) in both cases, the officers having a discretion. Nor does it lie to compel justices to cometo a particular decision, nor to make an order of maintenance, nor to grant a license. (3 Black. Comm., 110, note.) More recently, Rex v. Justices of Droon, (1 Chitty’s R., 34,) the court refused to compel a quarter sessions to enter continuances, saying, “ Our powers are great, but they are not unlimited; they are bounded by some lines of demarcation; we are not aware that we have power to interfere with the court below in the way suggested.” Again, Exparte Morgan, (2 Chitty, 250,) a mandamus was denied to compel a court of inferior jurisdiction to grant a new trial in a cause before it, where alleged injustice had been done to one of the parties, the court remarking, “We may command an inferior court to give judgment in a matter fit and proper for its cognizance, but we cannot interfere to regulate its practice, because every inferior court is the proper judge of its -own practice.” In the case of The King v. The Justices of Middlesex, (4 Barn. & Ald. 300,) Abbott, Ch. J. says: “ There is not an instance can be cited where the court has granted a mandamus to justices to compel them to come to any particular decision.”
In all the state courts.of this country where the question has been agitated, except in our own state, the same distinction as to the proper functions of a mandamus seems to have been rigidly observed. In Pennsylvania, (Commonwealth v. Judges of Com. Pleas of Philadelphia County, 3 Binney, 273,) it was decided that a mandamus would not lie to the judges of the common pleas, to reinstate an appeal which they had dismissed, because a mandamus cannot go to an inferior court compelling them to make a particular decision, but merely to decide. [53] In Griffith v. Cochran, (5 Binney, 103,) Tilghman, Ch. J. says “The principles which govern the court in issuing writs of mandamus, are well understood. Where a ministerial act is to be done, and there is no other specific remedy, a mandamus will be granted to do the act which is required. But where complaints are against a person who acts in a judicial or deliberative capacity, he may be ordered by mandamus to proceed to do his duty, by deciding and acting according to the best of his judgment; but the court will not direct him in what manner to proceed.” And so rigidly was this distinction adhered to by the same court, that in Commonwealth, ex. rel. Breckenridge, v. Judges of C. P. of Cumberland County, (1 Serg. & Rawle, 187,) it refused a mandamus to compel a court of common pleas to proceed to examine a person applying to be admitted as an attorney, notwithstanding the supreme court was satisfied that he came within the rule of the common pleas. Their refusal was put on the ground that the admission of an attorney is not a ministerial but a judicial act, and therefore not the subject of the writ of mandamus.
[94] In New-Jersey the same distinction has been recognized. Seving v. Inhabitants of Alloway’s Creek, (5 Halstead, 58,) where a mandamus was refused, on the principle, that “ to officers a writ of mandamus may go to direct them how to proceed, and what to do; but a mandamus to a court only to direct them to proceed according to law, and not how to proceed.”
So in Kentucky, (The County Court of Warren v. Daniel, 2 Bibb, 573,) it was decided that “ a mandamus is a proper remedy to compel an inferior court to adjudicate upon a subject within its jurisdiction, where it neglects or refuses to do so ; but where it has adjudicated, a mandamus will not lie for the purpose of revising or correcting its decision.
And in Massachusetts, (Chase v. Blackstone Canal Co., 2 Pick. 244,) the court say : “ This writ lies either to compel the performance of ministerial acts, or is addressed to subordinate judicial tribunals, requiring them to exercise their functions, and render some judgment in cases before them, when otherwise there would be a failure of justice from delay or refusal to act. But where a subordinate tribunal has acted in a judicial capacity, upon a question properly submitted to its judgment, a mandamus will not be granted to compel it to reverse its decision.
[95] Analogous decisions may be found in the courts of New Hampshire, Virginia and Ohio, and probably have been made in several other states, inasmuch as we find at an early day an express decision on this point, made by that court, whose opinion has rarely failed to be of controlling authority for the state courts upon any important general principle. The decision to which I refer, is reported in United States v. Lawrence, (2 Dallas, 42,) where it was sought to compel a district judge to issue a warrant to arrest an alleged deserter from the French naval service, under a treaty stipulation, and in which it was the clear and unanimous decision of the court, that the district judge having acted judicially in deciding that the evidence was not sufficient to authorize his issuing a warrant, the supreme court, however it might differ in opinion from the judge as to the sufficiency of the proof, had no power to compel him to decide according to the dictates of any judgment but his own. And the court there, as well as in the subsequent case, Life & Fire Insurance Co. of N. T. v. Adams (9 Peters, 602), recognizes the principle contended for by the counsel in the first cited case, that a mandamus is founded on the idea of a default, as where an inferior court will not proceed to judgment, or a ministerial officer will not do an act which he ought to do ; but is never issued to a judge who had proceeded to give judgment according to the best of his abilities. And in the case last cited, Chief Justice Marshall says : “ On a mandamus a superior court will never, direct in what manner the discretion of an inferior court shall be exercised, but will, in a proper case, require the inferior court to decide.”
[96] In this state also, notwithstanding the supreme court has, in some cases, I [54] think, carried the remedy by mandamus beyond its appropriate limits, it will be found that the true principles that should determine the use of the writ have been generally observed, and frequently explained and .enforced. The first reported decision which, I believe, appears, is, The People v. Sessions nf Chenango (1 Johns. Cas., 179), where a mandamus was granted to compel a court of sessions to enter judgment on a verdict, on the ground that that court had not power to grant a new trial. This decision rests on the undoubted principle that it is the province of the supreme court to enforce obedience to the statutes, and oblige subordinate courts and magistrates to do those legal acts which it is their duty to do. Upon the same principle rest the decisions of Fish v. Weatherwax (2 Johns. Cas., 215) ; Haight v. Turner (2 Johns. R., 371) ; Sikes v. Ransom (6 id., 279) ; Horne r. Barney (19 id., 247). The principle of the decision in The People v. Justices of Delaware Common Pleas (1 Johns. Cas., 181), is somewhat more doubtful. This is the case where a mandamus was granted to compel the judges of the court of common pleas to restore an attorney whom they had stricken from the roll, and the decision 'is utterly irreconcilable with that before cited from 1 Serg. & Rawle, 187, except it be placed wholly upon one of the grounds stated by the court, “that it was established by a then act of the legislature, that if a court of common pleas remove an attorney from office, he could not be admitted to practice in the supreme court, though he should also be an attorney of that court.” If, therefore, the supreme court could not revise the proceedings of the court of common pleas in that respect, they might disqualify an attorney of that court, and however unjust it might be, there would be no power in the supreme court to affbrd relief.
In the cases of Wilson v. Supervisors of Albany, (12 Johns. R., 416) and Ex parte Nelson (1 Cowen, 423), the court refused the writ, on the ground that where a discretion is vested in any inferior jurisdiction, and that discretion has been exercised, a mandamus will not be granted, because the court cannot control, and ought not to coerce that discretion. The cases, Ex parte Bacon & Lyon (6 Cowen, 392), and Ex parte Benson (7 id., 363), are on the same principle, as is also that of Hull v. Supervisors of Albany (19 Johns. R., 259), in which the principle is definitely and accurately stated by the court, that, “ where the inferior court has discretion, and proceeds to exercise it, this court has no jurisdiction to control that discretion by writ of mandamus. But if subordinate public agents refuse to act or to entertain the question for their discretion in cases where the law enjoins upon them to do the act required, this court may enforce obedience to the law by mandamus, where no other legal remedy exists.”
[97] It is not until the case of the People v. Superior Court of New York (5 Wendell, 114), that a manifest tendency is disclosed to extend jurisdiction by mandamus, over the judicial acts of an inferior court, which was acknowledgedly acting within the scope of its legitimate functions. For although the reporter’s note to Blunt v. Greenwood (1 Cowen, 15), is, that “ a mandamus lies to correct erroneous practice of a court of common pleas in mere matters of discretion this proposition seems not to have been much considered by the court, and the case is scarcely authority for it. Besides, in the same volume (post, 423), the court say, “where a discretion-is vested in any inferior jurisdiction, and that discretion has been exercised, a mandamus will not lie.” And the case ex parte Bailey (2 Cowen, 479), where the court, in refusing a mandamus to compel the court below to grant a new trial, intimate that in extreme cases it might interfere to control inferior courts upon questions of fact, is not to be deemed a direct assertion of such a power. But the case before alluded to (5 Wendell, 114), contains not only the assertion of this great, and, as I am compelled to regard it, novel power, but an elaborate and very ingenious defence of it, by one of the most able judges that has ever adorned the bench of this state.