EDGAR MITCHELL AND SONS DISTILLERY, Petitioner, v. P. EDWARD NELSON, Sheriff for Montserrado County, Respondent.

PETITION FOR WRIT OF MANDAMUS. Argued March 28, 1973. Decided April 26, 1973. 1. A sheriff who releases a person held in body attachment, especially a nonresident of Liberia, who has not posted a bail bond or its money equivalent, has violated his duty. 2. But he will not be held personally liable therefor when the release was requested in writing by a Justice of the Supreme Court presiding in chambers. 3. Any person claiming he is being illegally detained by the sheriff under a writ of body attachment can bring proceedings in habeas corpus against the sheriff. 4. It is error for a Justice of the Supreme Court to issue any order which in any manner affects proceedings pending in a lower court without a petition duly verified and filed by one of the parties, requesting intervention and alleging proper grounds. 5. Though the Constitution guarantees a remedy for every injury, it does not intend the commission of a wrong to redress another wrong. 6. Mandamus will not issue when the relief sought would be unavailing should the petition be granted. 7. Mandamus will not issue to compel performance beyond the territorial limits of Liberia. 8. Mandamus is one of five remedial writs which a Justice in chambers may order issued; it commands performance of a legitimate duty imposed by law, performance of which must have been neglected or refused by a public officer responsible for such performance. In an action of damages, the plaintiff obtained a writ of body attachment against two representatives of the defendant corporation. A Justice of the Supreme Court in chambers addressed a note to the sheriff on the writ of body attachment, requesting him to release the two men arrested until the following morning when all parties were to appear before the Justice. The next day the two representatives filed a petition for a writ of prohibition in the chambers of the Justice, who granted the alternative writ and issued an order staying further proceedings in the lower court. The succeeding Justice heard the 67 68 LIBERIAN LAW REPORTS matter in chambers and denied the petition, no appeal being taken from the ruling. While the prohibition proceeding was pending, the plaintiff in the action of damages applied for a writ of mandamus against the sheriff to compel him to produce the persons arrested and seeking to hold him liable as surety. The representatives, however, had already left Liberia. The Justice submitted the petition to the full bench for its consideration. The Supreme Court acknowledged the correctness of petitioner’s position, but denied the application since issuance of a writ of mandamus would be unavailing because the persons had left Liberia. Samuel Pelham 0. Natty B. Davis and Joseph Williamson for petitioner. for respondent. MR. CHIEF JUSTICE PIERRE delivered the opinion of the Court. In the discretion of the Justice in chambers any of the five remedial writs may issue to affect proceedings pending or concluded in the subordinate courts of record. But on no account should any of these writs issue unless a written petition duly verified has been filed praying for such issuance. As a court of record, the Supreme Court cannot take official recognition of any matters brought to it on verbal requests, and it is improper for counsel or parties to seek relief under any of the remedial writs except upon written petitions filed in the office of the Clerk of the Supreme Court. A Justice’s discretion to grant or refuse to grant a remedial writ cannot be questioned, even though his decision in the matter after the hearing may be appealed to the Court en banc. Proper grounds having been shown to him in the petition, he may order the Clerk to either issue the alternative writ, or reject the petition, either course LIBERIAN LAW REPORTS 69 being left to his sound discretion. The exercise of this discretion should be seriously considered, with due regard to the great hurt to the Court and/or injustice to the parties which could be done, occasioned by the abuse of his discretion. The functions of these five writs vary according to the particular writ, for whereas in prohibition the writ forbids the doing of an act not yet done, and in certiorari it issues to examine alleged prejudicial errors committed against one of the parties during pendency of the cause and in quo warranto it questions usurpation of authority or functions of office, and in error it inquires into the legality of a judgment already rendered, mandamus is peculiar in that it commands performance of a legitimate duty imposed by law, performance of which must have been neglected or refused by some officer or agent responsible for such performance.. In this instant case the writ has been applied for to compel the sheriff for Montserrado County to produce the bodies of two persons held by him under a writ of body attachment, or show the bond upon which he released them from custody in keeping with the law. This case has come up to us from chambers unheard and involves two remedial writs, prohibition applied for in the chamber of Mr. Justice Horace on February t, 1973, by the defendants in an action of damages, and mandamus applied for in the chambers of Mr. Justice Azango on February 16, 1973, by the plaintiff in the aforesaid action of damages. I might mention in passing that petitions for both writs arise from the same action of damages by way of a writ of body attachment brought by Edgar Mitchell and Sons, a Liberian company of Monrovia, against Glass Export Company Limited, a Czechoslovakian concern with which Mitchell and Sons did business. According to the record on January 31, 1973, Edgar Mitchell and Sons filed in the Sixth Judicial Circuit 70 LIBERIAN LAW REPORTS Court an action ‘of damages by way of a writ of body attachment against Messrs. J. Travnik and V. Kurel, representatives of Glass Export Company, Limited. These two representatives were in Monrovia at the time for discussion with Mr. Mitchell, and the writ of body attachment was served upon them, and they were taken into custody by the sheriff for Montserrado County. It appears that in the absence of a bail bond, they were detained by the sheriff. There is no showing in the record that any steps were ever taken to secure a bond for their release, which was their right under our Civil Procedure Law, Rev. Code r :7.46. However, the representatives were released without a bond from the custody of the sheriff while the writ of body attachment still stood, after having been served and returned, and while the Sixth Judicial Circuit Court still had jurisdiction. The Civil Procedure Law is explicit on the provisional remedy of arrest in civil cases. “An order for arrest as a provisional remedy may be granted only where the plaintiff has demanded, and where there is reasonable ground for believing that he would be entitled to “(a) A judgment requiring payment of a sum of money, failure to satisfy which through execution will subject the judgment debtor to imprisonment under section 44.71 (2) ; “(b) A judgment requiring payment of a sum of money failure to pay which may be punishable as a contempt under section 44.71(3) ; or “(c) A judgment requiring the performance of an act, neglect or refusal to perform which would be punishable by the court as a contempt under section 44.7 1 (4) ; “and where the defendant is not a resident of the Republic or is about to depart therefrom, by reason of LIBERIAN LAW REPORTS 71 which nonresidence or departure there is danger thit such judgment will be rendered ineffectual.” Rev. Code :7.41. If for no other reason, therefore, than that these representatives were nonresidents of Liberia who could have left the country at any time, as indeed they did after filing a petition for prohibition, they should have been required to file a bond in keeping with Rev. Code 1 :7.43. Especially since the action of damages is still pending in the circuit court. On February 1, 1973, the day after their release from custody, they filed a petition in the chambers of the Supreme Court for a writ of prohibition. Mr. Justice Horace granted the alternative writ and a stay order issued out of the office of the clerk. Because Mr. Justice Horace left chambers before he could hear and determine the several issues raised in the petition, Mr. Justice Azango heard the matter and dismissed the petition as unmeritorious. From this ruling petitioners have not appealed. But while the prohibition proceedings were still pending, the plaintiff in the suit for damages applied for mandamus against the sheriff for Montserrado County, as aforesaid. The sheriff filed returns, contending he had been ordered to release the defendants by the Justice in chambers and that the defendants thereafter sought a writ of prohibition, which prevented him from proceeding further. It is worthy of note that this count of the returns has emphasized the fact that release of the persons arrested was effected the day before prohibition proceedings were instituted and filed. However, this is said in passing. Mr. Justice Azango decided he would not hear the application for a writ of mandamus, since it required that he pass upon an action taken by his colleague, Mr. Justice Horace. Therefore, he has sent it forward to be heard by the Court sitting en banc. It might be neces- 72 LIBERIAN LAW REPORTS sary to the proper determination of this case that we quote the document, which the returns claim is a “note of authority” written on the face of the “writ of body attachment.” “Sheriff’s Office, Temple of Justice, Monrovia, Liberia. “Attention: “The Superintendent of Prison, “You are hereby commanded to receive into your custody for safekeeping the bodies of J. Travnik and V. Kurel, defendants held by attachment until the first day of February, 1973, when they will be sent for to appear before the Court. (Emphasis supplied.) And for so doing this shall be your warrant. “Issued this 31st day of January, 1973. “P. EDWARD NELSON II, Sheriff, Montserrado County.” In the absence of any indication as to how the Sixth Judicial Circuit Court could have lost jurisdiction over the defendants held under the writ of attachment which it had issued, we must conclude that “the court” referred to in the above quoted commitment was the court out of which the writ had been issued, and of which the sheriff is the ministerial officer. We would like to observe in passing that it does not appear the commitment had been issued by the clerk of court, as is the practice in this jurisdiction. A valid commitment must be issued by the clerk of court upon orders of the judge. However, if this could be regarded as an irregularity on the Sheriff’s part, the unanswerable question of where could the sheriff keep the two men held under a writ of body attachment other than in prison, might very well offset the sheriff’s error. The law defining the duties of the sheriff states that [he] shall “have charge of all prisoners and bring them before the court LIBERIAN LAW REPORTS 73 at each term, and take charge of all bail bonds, and cancel and surrender the same upon the order of the court.” Rev. Code 17:15.2. However, if for any reason these persons held might have wanted to contend that they were being illegally detained on the sheriff’s commitment, they had access to proper redress in habeas corpus proceedings against the sheriff. In the lower left-hand corner of the commitment signed by the sheriff, a note has been written. “Mr. Sheriff : “Please release the persons herein committed until tomorrow morning, February 1, 1973, when all parties will appear before me at my chambers at 9 A.M. “S. RAYMOND HORACE, Assoc. Justice, presiding in chambers, January 31, 1973.” These are the facts as they appear in the record, and as the documents found in the files of the two cases show. In the circumstances, it is very unfortunate that the Justice in chambers should have ordered the release of the representatives, apparently on a verbal request, since there is nothing in the record to show why the release should have been ordered at the time that it was, except for the reason, we presume, that the Justice acted on the premise that the sheriff had no authority to issue a commitment. It is error for a Justice of the Supreme Court to interfere in a matter pending before a subordinate court, without a written petition filed by one of the parties requesting intervention and alleging proper grounds. The Supreme Court and a Justice thereof have jurisdiction over only those classes of cases designated by law : (1) original jurisdiction over cases in which counties, ambassadors, or public ministers and consuls are parties; (2) appellate jurisdiction over all other cases, except those arising out of any one of the five remedial writs, in which latter cases 74 LIBERIAN LAW REPORTS a written petition duly verified must have been filed in the office of the clerk of the Supreme Court, for attention by the Justice in chambers. If a Justice of the Supreme Court issues any orders which in any manner affect the proceedings in a subordinate court otherwise than as permitted under one of the headings stated above, his act is palpable error. Constitution, Art. IV, Section 2nd ; Rev. Code I :16.22; Rule XIII, Parts 12 and 13, Revised Rules of the Supreme Court (1972). In the instant case, not only is there no indication that on January 31, a petition had been filed for issuance of an order to stop proceedings already begun in the Sixth Judicial Circuit Court in the attachment proceedings, but there is no citation shown to have been issued on January 31, 1973, to the parties respondent, as the law requires should have been done. “When a petition for a writ of mandamus or prohibition is made to a justice of the Supreme Court, such justice shall issue or cause the clerk to issue a citation to the parties named as respondents. If the urgency of the situation warrants, the justice may issue in lieu of a citation an alternative write requiring the respondents (a) to do an act or to refrain from pursuing a judicial action or proceeding specified therein until a hearing has been held on the writ, and (b) to show cause, on the date fixed therein, why a peremptory writ should not issue.” Rev. Code I :16.22 (I). When the Justice in chambers wrote to the sheriff to release the two defendants held under a writ of body attachment, no petition had then been filed, either in the Supreme Court clerk’s office, or in the office of the Justice presiding in chambers, to have warranted a stay of proceedings in the circuit court. The law is specific on this point. Rule XIII, Part 1, supra, addresses itself to the need of a filed application. LIBERIAN LAW REPORTS 75 “Application for any of the remedial writs shall be addressed to the chambers of the Justice presiding in chambers, and shall be filed in the clerk’s office.” We interpret “application for any of the remedial writs” to mean a written application addressed to the Justice in chambers. Part 2 of that rule requires that, “Upon the application of a party by petition duly verified according to law and the rules of this Court, for a remedial or common law writ, the Justice in chambers shall issue an alternative writ, and if temporary relief shall be deemed necessary, it shall be provided for in such writ.” We would also like to observe that according to the practice in this jurisdiction, all applications or petitions for the Supreme Court to intervene in matters pending before the subordinate courts of record must be in writing and must be verified to make them valid for consideration by the Justice in chambers. Likewise, all orders growing out of such petitions for remedial writs to stay proceedings in the subordinate courts, must be channelled through the clerk’s office, under seal of the Supreme Court, except in cases of great emergency when a Justice might himself issue an order; but even in such rare cases, a written petition must have been filed in his chambers to warrant such issuance. There is no legal authority either under our laws, or in the practice of the Supreme Court of Liberia, for oral applications to be made for remedial writs to stay proceedings in subordinate courts of record. Our law requires that in body attachment proceedings the defendant must be arrested and held in the custody of the sheriff until he files a bond for his release, or, until he can deposit a sum of money or other valuables sufficient to cover the amount sued for, which must have been specified in the writ. Rev. Code r :7.46. A release of a defendant held under body attachment, who has not filed a bond or deposited with the sheriff a sum sufficient 76 LIBERIAN LAW REPORTS to cover the amount sued for, is in violation of this statute. And in every such case the plaintiff is prejudiced by such release of the defendant, in the absence of the safeguards of the filing of the bond or deposit of the money by the said defendant. The law states that should the defendant escape from the custody of the sheriff, or if the sheriff fails to file a bond or deposit money or other valuables given him as security, the sheriff is liable until he can recapture the defendant so escaped before being finally charged as surety, or upon allowance of the bail given by him. “Liability of sheriff on bail bond. If the sheriff allows the person who has been arrested to escape or if he fails to deposit as required by section 63.1 any money or other valuables given him as security for the bail bond, he shall be liable as bail surety. The sheriff shall be discharged from such liability upon the allowance of bail given by him, or upon recapture of the defendant at any time before he is finally charged as such surety.” Rev. Code i :7.48. In this case, the persons arrested did not escape from the sheriff, but were ordered released by the Justice presiding in chambers of the Supreme Court, without any provisions having been previously made for protecting the rights of the plaintiff by requiring the filing of a bond or the deposit of a sum sufficient to indemnify the plaintiff against loss. In such circumstances can the sheriff be held responsible for release of the persons held, which was in plain violation of the statute and to the prejudice of the plaintiff? We do not think the sheriff could have disobeyed the written order of the Justice in chambers to release the persons without incurring his displeasure. So, while we feel that the position taken by the plaintiff in the petition for mandamus is justified, we find it difficult to order enforcement of section 718, supra. In these embarrassing circumstances, and as much as it pains us to do so, we have to deny the petition for mandamus. LIBERIAN LAW REPORTS 77 In Ghoussalny v. Nelson, zo LLR 591, 613 (1972), petitioner requested an order to compel the sheriff to enforce a mandate which the President had forbidden him to enfore under penalty. This Court addressed itself to a similar point. “In this case, which is peculiar in nature, it is not that the Sheriff neglected or refused to perform legal duties imposed upon him but that he was directed .. . by the Chief Executive not to enforce a court’s mandate.” Consequently, the petition for mandamus was quashed and the peremptory writ sought was denied. The sheriff was also absolved from any blame growing out of his failure to carry out his duty in respect to the enforcement of the mandate. We take the same view in respect to the circumstances appearing in this case. In both cases the sheriff had either to obey orders from his superior for him to violate the rights of a party litigant, or face the displeasure of such superior official–in the Ghoussalny case, the President, and in this case, the Justice presiding in chambers. In these circumstances we must absolve the sheriff from being answerable for the release without bond of the persons held under attachment by him. During argument before us, counsel for respondent took the view that the Court was responsible for any injury done to the plaintiff in attachment and, therefore, the petition to compel redress against the sheriff could not stand, but should be dismissed. Petitioner’s counsel argued that the act of the Justice presiding in chambers is the responsibility of the Court. He, therefore, implored the bench to find some way to redress the serious injury their client had sustained by release without bond of the persons held in attachment. We certainly wish there were some way by which we could undo what has already been done, with respect to the release of the defendants. But, what can the Court 78 LIBERIAN LAW REPORTS do in the circumstances, where there are no bondsmen, and where the defendants have already eft the country? We feel strongly that the petitioner in mandamus is entitled to redress,, but the Court cannot violate law or perform the impossible to afford that redress. The Constitution guarantees a remedy for every injury, Art. I, Section 6th, but the Constitution does not intend the commission of a wrong to redress another wrong, for this is what would happen should we order enforcement of section 7.48, supra, against the sheriff. It was error, as we have said before, for the Justice in chambers to have ordered the sheriff to release the persons held by him under a writ of body attachment without a petition being submitted for remedial process and while the Circuit Court still had jurisdiction. It was also error for them to have been released without requiring them to post a bond. There is no way in which we can avoid the merited condemnation of both parties for the commission of these errors. The writ of mandamus will not issue where the relief sought would be unavailing should the petition be granted. Count three of the petition for mandamus states that the representatives left Liberia after having been released from custody, thereby rendering it impossible for them to be produced by the sheriff, or to have them file a bond to indemnify the plaintiff against loss as our law requires and as the petition for mandamus has requested. We have said before that it is our opinion that the sheriff cannot be held responsible for having released the defendants. Therefore, to grant the petition for mandamus would be a useless exercise, since it would neither be of any advantage to the petitioner, nor could granting it restore the status quo disturbed by release of the defendants. Mandamus cannot issue to compel performance beyond the territorial limits of the issuing State. The representatives having left the country after their release, a writ of LIBERIAN LAW REPORTS 79 mandamus issued in Liberia cannot compel performance by the sheriff of his duties in connection with these persons now residing in a foreign country. In view of the foregoing, we have no alternative but to dismiss the petition, and deny the peremptory writ of mandamus. We have to disallow costs in this case, because although we have refused issuance of the writ, the need for applying for it was brought about by act of the Court, and such acts should not prejudice the rights of parties. It is so ordered. Petition denied.