H. LAFAYETTE HARMON, Petitioner, v. REPUBLIC OF LIBERIA, Respondent.

PETITION FOR WRIT OF MANDAMUS.

Argued January 13, 14, 1938. Decided February 4, 1938.

1. A motion to vacate or open a judgment should not be granted unless it is shown that the judgment is unjust as to the moving party.

2. A motion to vacate or set aside a judgment is addressed to the sound legal discretion of the trial court on the particular facts of the case.

3. A judgment must be vacated or set aside where new evidence is discovered or new facts occur after the judgment or too late to be presented on the trial, but the party must show that he was ignorant of such evidence and could not have discovered it in time to adduce it at the trial.

4. All courts of record have inherent power to vacate or set aside their judgment or orders during the term at which rendered.

5. A writ of mandamus will issue to compel a trial judge to vacate a judgment and award a new trial if he committed error in refusing to hear and determine a motion for a new trial.

The petitioner was tried and convicted for the crime of receiving stolen goods in the Circuit Court of the First Judicial Circuit, Montserrado County. Pending an appeal from that judgment, petitioner moved for a new trial in the court below on the basis of newly discovered evidence. The trial judge denied the motion, and petitioner petitioned the Justice of the Supreme Court presiding in chambers for a writ of mandamus to compel the trial judge to award him a new trial. The petition was denied because of lack of jurisdiction, but was sent forward to be determined by the full bench. Petition granted.

P. Gbe Wolo and H. Lafayette Harmon for petitioner. The Revenue Solicitor for appellee.

MR. JUSTICE RUSSELL delivered the opinion of the Court.

At the February term, 1937, for the Circuit Court, First Judicial Circuit, Montserrado County, H. Lafayette Harmon, the petitioner in these mandamus proceedings, was tried and convicted for the crime of receiving stolen goods, and on the 9th day of March, 1937, the trial judge rendered final judgment against him in words as follows, to wit:

“It is hereby adjudged, that in consequence of the fact that the above named defendant has placed it beyond his power to make restitution of the diamond by smuggling it, which has caused it to be forfeited to the Republic of Liberia he shall pay its value proved at the trial, which is two hundred and fiftyfour dollars and forty cents ($254.40) and shall be imprisoned in the common jail of Montserrado County for a term of three calendar months, and it is so ordered.”

From this judgment of the court below, he excepted and on the 19th day of March, 1937, tendered his bill of exceptions and appeal bond which were approved by the trial judge, completing his appeal.

Pending the hearing of the aforesaid appeal, and about two days after rendition of final judgment in the case, one Katie Green arrived in the City of Monrovia from Gbarnga District No. 1, Liberian Hinterland, and made a statement in the hearing of divers persons that the diamond answered to the description of the one alleged to have been stolen and was the property of one Zachariah Jackson and was in her possession up to and including the month of December, 1936. She stated other facts in connection with said diamond, which if true, would show that a different judgment ought to have been rendered, or that the judgment as it stands should not be enforced. See petition or application for mandamus.

This statement above referred to came to the hearing of the petitioner in these proceedings and he filed a motion in the court below immediately upon coming into possession of this new evidence of Katie Green which in his opinion would have operated in his favor and would result in vacation of the final judgment rendered against him as aforesaid and a new trial awarded him in the premises, based on the ground of newly discovered cogent facts. The relevant portion of said motion reads as follows :

“Because it has come to the knowledge of the defendant since the trial of said case, as well as rendition of final judgment at this present term of court, that the diamond stone, the fruit of crime alleged to have been stolen from one Zachariah Jackson by Henry Bell, and received by the defendant knowing the same to have been stolen, has been discovered to be in the possession of one Charles Green the brother of one Katie Green, who states that the diamond answering in full description of the one alleged to have been stolen was in her possession and was given to her by the aforesaid Zachariah Jackson, and it was in her possession up to and including the month of December A.D. 1936, at which time she took seriously ill at a place called Gbarnga No. 1 District, Liberian Hinterland, she made a will bequeathing the proceeds of said diamond to her relatives. Her brother Charles Green coming into possession of this will and believing that she Katie Green would die, fraudulently got possession of her trunk and personal effects, broke open the trunk containing the diamond and took it away.

“That the foregoing are facts of which the defendant had no knowledge until after the trial and rendition of final judgment. That the evidence of Katie Green, if heard, would throw a clear and different light on the whole case and submitted as witnesses to the court to prove these facts the names of Katie Green, Mason (a native woman) and Margaret Minor, and the Last Will and Testament of Katie Green.

“That a complaint and representations of these facts had been made to the County Attorney for Montserrado County by Katie Green, but which up to the time he had neglected to investigate.”

For the reasons given above, the defendant prayed the trial judge, in the exercise of sound discretion and administration of justice, to vacate the judgment rendered against him and award him a new trial.

The records of the lower court show that this motion of the defendant, now petitioner, was denied by the trial judge without either entertaining or inquiring into the facts, stating as his ground that the defendant, having excepted to the final judgment and announced an appeal, which was granted, “the court had no further jurisdiction to consider a motion for a new trial, because of newly discovered evidence.” To this ruling the defendant excepted and petitioned the presiding Justice of our chamber at that time for a writ of mandamus to compel the trial judge to award him a new trial in the case because of the newly discovered evidence.

At the call of the application for mandamus for hearing by the presiding Justice in chambers, the prosecution filed resistance in which he raised the plea of jurisdiction. See Resistance. After arguments pro et con the presiding Justice gave the following ruling, to wit:

“Whilst we must unequivocally admit that there are statutes passed by the National Legislature of this Republic empowering the Justices of the Supreme Court of this Republic, to issue all the remedial writs that are in use in other countries, yet we are powerless to grant this petition, because count sixth of the said petition is embodied in the bill of exceptions of the appellant in the above-named case, and now Petitioner in these proceedings for the consideration of this court in banco at its November Term A.D. 1937.

“I am therefore of opinion, that a Justice of this court sitting in Chambers has no jurisdiction to hear and determine said count six of the Petition. The Petition is therefore sent forward to the full Bench to be heard and determined by it at its November Term A.D. 1937; and it is so ordered.”

It is this ruling that brings this application for mandamus before the full bench of this Court of last resort for final adjudication.

We will observe in passing that the procedure prayed for in the application of the petitioner is foreign to our practice in this jurisdiction although it is in use in other countries; and therefore an opinion in the premises requires a good deal of time and careful research for this Court to arrive at a definite conclusion on this important point.

We have no statute law treating on the subject of new trial for newly discovered evidence after final judgment, and we will assure to any that this is the first of the cases of this category in the judicial history of this country. But our lawmakers were wise and displayed vision when they inserted in our statutes that “the Statute laws of Liberia enacted by the Legislature, and the general principles of the common law, are the laws by which the people of this nation have consented to be governed.”

“Thus far it is true, but on an examination of the act of the Legislature adopting a civil and criminal code, we will discover whether or not the laws of this Re-public do not embrace more than what is comprehended in the idea intended to be conveyed by that proposition. In an act to amend an act entitled ‘An act defining certain crimes, and relating to the punishment of crimes,’ we have the provisions for the codes referred to thus set forth at large :-

“. . . That so much of the seventh section of an act entitled, An Act defining certain crimes and relating to the punishment of crimes, as reads “Such parts of the common law set forth in Blackstone’s Commentaries as may be applicable to the situation of the people, except as changed by the laws now in force, and such as may hereafter be enacted, shall be the civil code of laws for the Republic,” be so altered and amended as to read that “Blackstone’s Commentaries, as revised and modified by Chitty or Wendell, and the works referred to as the sources of municipal or common law in Kent’s Commentaries on American Law, volume first, shall be the civil and criminal code of laws for the Republic of Liberia, except such parts as may be changed by the laws now in force, and such as may hereafter be enacted. . . .” ‘ Lib. Stat. Bk. 2, pages 72-3.” Roberts v. Roberts, [1878] LRSC 11; 1 L.L.R. 107, III (1878).

In 23 Cyclopedia of Law and Procedure under the subject “Judgments” and the heading “Right to Relief” it is said:

“A motion to vacate or open a judgment should not be granted unless it is shown that the judgment is unjust, as to the moving party, as it stands, or that he is actually or prospectively injured or prejudiced by it, that he will be benefited by the granting of the relief asked, and that the motion can be granted without material injustice or injury to the opposing party or prejudicial to the intervening rights of third persons. Further, to entitle himself to this relief, the moving party must show a sufficient reason, why he did not assert and enforce his rights at the proper time and in the regular manner, and that his own conduct throughout has been free from fraud or any turpitude, and he must free himself from all the imputation of negligence or laches for the judgment will not be disturbed if it appears to have been entered as a result of his own heedlessness, sloth or lack of diligence in protecting his own interests.”

Under “Discretion of Court” it says:

“A motion to vacate or set aside a judgment is ad-dressed to the sound legal discretion of the trial court on the particular facts of the case. And consequently its determination will not be disturbed on appeal unless it is plain that its discretion has been abused. At the same time the court should act upon a sound legal and impartial discretion, not arbitrarily nor from mere caprice, and while the court should be inclined to grant the relief asked rather than to deny it, and doubts should be resolved in favor of the application, still it is an abuse of discretion, and therefore reversible error, to open or vacate a judgment where the moving party shows absolutely no legal ground therefor, or offers no excuse for his own negligence or default; and on the other hand, if he shows himself plainly and justly entitled to the relief demanded, the court must grant the application and has no discretion to refuse it. When a party moving to vacate or open a judgment brings his case within the statute, if the application is based on a statute, and shows himself to be free from any negligence or wrong conduct, and it appears that he has acted in due season and is clearly and plainly entitled to the relief asked, the application must be granted as a matter of right, and the court has no discretion to refuse it. Under no circumstances will the court be justified in refusing to receive and hear a motion to vacate the judgment; its discretion is to be exercised on the facts as developed on a hearing, not in advance of it.” 23 Cyc. of Law and Procedure 894-7.

“A judgment may be vacated or set aside where new evidence is discovered or new facts occur, after the judgment, or too late to have been presented on the trial, which show that a different judgment should have been rendered, or that the judgment as it stands should not be enforced, provided the party also shows that he was ignorant of such evidence and could not have discovered it in time to adduce it at the trial, by the exercise of due diligence, and that it is material and such as to affect the decision of the issue and not merely cumulative or additional to that which was introduced at the trial.” 23 Cyc. of Law and Procedure 929, sec. 10.

“All courts of record have inherent power to vacate or set aside their judgments or orders during the term at which rendered. This is power of daily exercise by the courts, and its existence within proper limitations of time and propriety cannot be questioned; it is based upon the substantial principles of right and wrong, to be exercised for the prevention of error and injury, and for the furtherance of justice. Not only may a court set aside a judgment on application therefor, but in proper cases it may take such action on its own motion. This power to vacate a judgment exists independently of any statute and has its foundation in the common law.” 15 R.C.L. 688, § 140.

“It is no bar to a demand for a new trial on the ground of newly discovered evidence that an appeal has been taken from the judgment rendered in the case, or that such judgment has been collected upon execution after affirmance by the appellate court. If, however, the satisfaction of a judgment is voluntary, it is a bar to a new trial. In a criminal case it has been held that the right of a defendant to make a motion for a new trial, within the time provided by law, is not forfeited by the fact that sentence had been pronounced upon him prior to the making of such motion.” 20 R.C.L. 225, § 11.

Says Mr. Cooley defining a writ of mandamus as:

“A command issuing in the king’s name from the court of king’s bench, and directed to any person, corporation, or inferior court of judicature within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king’s bench has previously determined, or at least supposes, to be consonant to right and justice. It is a high prerogative writ, of a most extensively remedial nature; and may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission or restitution to an office : but it issues in all cases where the party hath a right to have any thing done, and hath no other specified means of compelling its performance. A mandamus therefore lies to compel the admission or restoration of the party applying to any office or franchise of a public nature, whether spiritual or temporal ; to academical degrees; to the use of a meeting-house, etc. : it lies for the production, inspection, or delivery of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal; to compel the holding of a court; and for an infinite number of other purposes, which it is impossible to recite minutely. But at present we are more particularly to remark, that it issues to the judges of any inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed. For it is the peculiar business of the court of king’s bench to superintend all inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them: and this not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice.” z Cooley’s Blackstone, *108

This description of a writ of mandamus given by Mr. Cooley is also supported in a generic term by our statutes. 2 Rev. Stat. 259, § 1397.

We feel no hesitancy therefore in saying that it was gross error for the trial judge to refuse to hear and determine the defendant’s motion for new trial for reasons therein contained.

In view of the foregoing facts and the laws supporting this case, we are therefore of opinion that the petition of the petitioner for a writ of mandamus be granted and the writ ordered issued and it is so ordered.

Petition granted.

MR. CHIEF JUSTICE GRIMES dissenting.

This case in which appellant has been charged with the offense of receiving stolen goods is unique in more features than one. It was first of all brought to the attention of the Supreme Court by a petition for a writ of mandamus to compel the judge of the court below to cause the deposition of one Zachariah A. Jackson, an important witness for the prosecution, to be taken; and said matter was disposed of by this Court on the 2nd day of October, 1936.

Secondly, by an application for a writ of prohibition to prevent His Honor Judge Nete-Sie Brownell from adjudicating certain charges laid in a petition filed by the said H. Lafayette. Harmon, in which petition it was alleged that said judge was about to hear and determine certain issues petitioner had raised against the regularity of the finding of two indictments against him, one of which was for smuggling, and the other for receiving stolen goods; and also of holding the law officers of the Republic in contempt of court, a résumé of which appears in the opinion[1936] LRSC 30; , 5 L.L.R. 300, 4 New Ann. Ser.

Although the case of receiving stolen goods has been regularly tried, the appellant convicted and sentenced as rehearsed in the majority opinion, and the case regularly appealed to this Court for review, my colleagues have seen fit to give an opinion granting a second mandamus tantamount to allowing a new trial upon one only of twelve counts in a bill of exceptions pending before us for review, although the other eleven counts have not yet been submitted for our consideration.

In my opinion the procedure is wrong, and the precedent about to be set extremely dangerous. The arguments made by counsel at the bar to which I carefully listened, as well as by those of my colleagues in chambers whose views and mine are not in accord, have strengthened rather than weakened my original conviction that the proceedings for mandamus in this case should have been regarded as ancillary to the regular appeal, and the two considered and disposed of simultaneously.

In the first place, ever since the case of Cooper v. McGill & Bros., decided by this Court in 1878, one of the rules to which we have tenaciously held has been not to “review cases by piecemeal.” [1878] LRSC 3; 1 L.L.R. 93, 94. Never has the wisdom of the said rule been more clearly demonstrated, in my opinion, than in this case. Adhering to the rule invariably followed in some jurisdictions, and tacitly adopted in this, not to look into a record until the case shall have been actually called up, we still have before us from the records of the former case of mandamus and from the application for writ of prohibition above referred to, sufficient data to cause us to approach warily what appears to be a ruse to have us focus our principal attention on a point in the case which might, upon duly considering the bill of exceptions as a whole, turn out to be of far less importance than some of the other issues brought up in the record now before this Court for review.

For example, the testimony which the petition in the present mandamus proceedings seeks to have incorporated in the record, and which they contend is based upon newly discovered evidence, tends, if their rehearsals in their petition are correct, to prove that the diamond alleged to have been stolen by Bell, judgment against whom has already been affirmed by this Court, and received by the present appellant knowing same to have been stolen, was never stolen; hence that said diamond never left the Republic, but was given by the private prosecutor, now deceased, to one Katie Green, and remained in the hinterland of Liberia. On the other hand from the pleadings and exhibits before us in the case of prohibition, decided by this Court on the 22nd of December, 1936, it was made clear that the diamond, the subject of prosecution in the cases of smuggling and of receiving stolen goods, respectively, was by the said H. Lafayette Harmon, appellant, given to one of the witnesses, W. S. Murdock, Manager, of Messrs. Cavalla River Company, Ltd., on board the SS. Apapa and that said diamond had actually been carried to England and returned to Liberia through the interposition of the Attorney General of Liberia. (See application for writ of prohibition, counts 1, 2 and 3, and the exhibit filed and made a part of count 2, same being a statement made at the Department of Justice on the 8th of August, 1936, by W. S. Murdock.)

The record further shows that sometime after the taking of the depositions of the said Zachariah A. Jackson, said Jackson died. Now it is an elementary principle of law, recently reiterated by this Court in the case Logan v. Republic, [1924] LRSC 6; 2 L.L.R. 472 (1924), that a witness can only be impeached if a foundation therefor shall have been laid, and that this can only be done in a specific and not at all in a general manner.

How then can the deceased witness, Zachariah A. Jackson, be now interrogated on any statement of Katie Green so as to lay the foundation for showing that he was mistaken as to the size, weight, or valuation of the diamond as, it may be inferred from the petition for mandamus now before us, is the object of said petitioner? Moreover, the court below had some precedent for the position it took in refusing to reopen the case after final judgment; for in two cases this Court had already condemned any such procedure. The first of these was in the case Potter v. Stevenson, I L.L.R. 53, decided in 1871 when this Court said:

“It is not the right of the court granting an appeal to revoke its own order, but all irregularities committed by the party taking an appeal should be determined by the court appealed to.”

The second is the case of Montgomery v. Zeiser, L.L.R. 437 (1905), the relevant portion of which reads :

“We mention one more of the irregularities attending the trial below. On the ninth day of January, 1903, the court rendered final judgment, thus putting an end to the suit unless an appeal was taken. Now jurisdiction could not be resumed without an order from a higher court. Yet, on the eleventh, two days after the rendition of the final judgment, the court reopened the case, examined witnesses and rendered a judgment, although in conformity with the previous judgment.

“For these errors and illegalities attending the trial of this case below, and with a view that justice be done to the litigants, this case is hereby remanded to the court from which it came, for trial de novo, costs to follow, until its final settlement. And the clerk of this court is hereby directed to issue and cause to be served on the judge of the Court of Quarter Sessions, Grand Bassa County, a mandate after the usual form, informing him of this decision.”

Notwithstanding the premises I am in accord with the views of the majority of my brethren that some way should be found to meet the case of one who, through no negligence on his part, obtains information after a verdict and judgment that will throw light upon his case, and might lead the court to a different conclusion than that it had already reached. But we must not forget that the power of making laws is not vested in the judiciary. Our function is only to interpret the laws in existence.

Nevertheless, here was a splendid opportunity afforded us to have considered the question presented in the application for mandamus as a part of the whole case, especially as the point was incorporated in the bill of exceptions duly approved by the trial judge. And had that course been followed I believe I would have been quite willing to have given my vote to appellant’s having this opportunity to bring to the attention of the trial court the additional evidence he seeks to adduce.

But, in my opinion, even then under no circumstances could such a decision be legally reached by mandamus proceedings as the majority of my colleagues have virtually decided.

It may not be amiss here to observe that the function of a writ of mandamus has undergone a very important change. According to Spelling:

“It was at first in England (and is to-day in literal sense) a word of command, expressive of despotic will. Instead of commanding obedience to the law as it existed, it contained the law from which there was no appeal. Therefore, when originally employed by Kings Edward II. and III., it was not merely declaratory of duty under existing law, but of the law itself ; it was the creation of both law and duty. It did not issue from the court of chancery, as matter of common right, like other common writs, but was the exclusive prerogative of the crown.

“In this country, and under our form of government, the sovereign will is not exercised upon occasion to meet emergencies. The people crystallize their will into laws for the equal government of all, in advance of cases which arise for their application, and the writ of mandamus does not issue directly from the sovereign, either in fact or theory, except in the sense that by pre-existing law all process runs in the name of the state. The same may be said of England at present. A private individual can apply for the writ only where he has some private or particular interest to be subserved, or some particular right to be protected by the aid of this process, independent of that which he holds with the public at large.” 2 Spelling, Injunctions and other Extraordinary Remedies 1169, § 1365.

Let us now further compare its early employment, and the established limitations placed upon its control of inferior courts as set out in the work by Spelling above quoted, sections 1388-1390:

“One of the well-established uses of the writ is in the exercise of jurisdiction by superior over inferior courts. This forms one of the most salutary features of general jurisdiction of the courts, though it is closely guarded and sparingly exercised. This jurisdiction is most frequently invoked to set inferior courts in motion, and to compel them to act where action has either been refused or delayed. The writ of procedendo ad judicium was the earliest remedy for the refusal or neglect of justice on the part of the courts. It was an original writ issuing out of chancery to the judges of any subordinate court, commanding them in the King’s name to proceed to judgment, but without specifying any particular judgment. In case of disobedience or of neglect on the part of the judges to whom it was addressed, or refusal by them to act, they were liable to punishment for contempt.

“The boundaries of the jurisdiction in this employment of the remedy are of ancient establishment, and so firmly fixed upon both authority and principle that attempts are now seldom made to invade the domain of immunity which they circumscribe. The first and most important of the limitations has been variously expressed, but may be reduced to a plain statement, to the effect that mandamus is not a proper remedy to control or direct the decisions of inferior courts in matters wherein they have judicial cognizance and discretion. It is immaterial whether the inferior court has acted properly or improperly in the exercise of a discretionary power, where the discretion has been in fact exercised ; if it has not been grossly abused, it cannot be questioned in a mandamus proceeding. So far as the writ affects the action of inferior courts, its use is not to be extended to compel the rendition of a particular judgment, in accordance with the views of a higher court; nor is it the province of the writ to prescribe the parties for whom judgment shall be rendered. This would, in effect, introduce the supervisory power of the appellate court into a cause still pending in the inferior tribunal, peremptorily deciding the case, and compelling the inferior court to give judgment in accordance with the opinion of the higher tribunal.

“The two rules that mandamus will not issue to coerce in matters reviewable by appeal or writ of error, and that it will be refused when the party may obtain redress, in an action regularly prosecuted, are based upon substantially the same grounds, to wit : Mandamus being an extraordinary remedial process should never be employed where the party seeking it may obtain redress in the ordinary course of judicial proceedings in the one case by original action, and in the other by employing the means afforded by law for the correction of errors after a suit has been already instituted.” One of the most outstanding points of difference between a writ of mandamus and the other extraordinary remedies is that said writ should be issued by the supervisory tribunal only to direct the inferior tribunal to perform ministerial duties, and not judicial functions. According to 18 R.C.L. on the subject, pp. 297 et seq., § 230:

“Not only is it a general rule that mandamus cannot be used to control judicial discretion, but the view is also very generally entertained that although the writ may be used to correct the errors of courts when in the exercise of more ministerial functions, it is not appropriate to review the action of a tribunal in any matter involving the examination of evidence and the decision of questions of law and fact, since such a duty is not ministerial. In other words, mandamus is not the proper remedy by which to correct or reverse erroneous rulings of inferior tribunals, whether interlocutory or final, that being the office of a writ of error or an appeal, which mandamus will not be allowed to supplant in accordance with the general principle that where relief may be obtained through the ordinary channels of the law the writ is not an appropriate remedy, and the case is not changed because the appropriate remedy may involve an inconvenient delay, although it has been stated that if the slowness of the ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented, the rule does not apply, and the writ will be granted. It has also been held that a writ of mandamus ought not to be used to correct orders made by a judge in the exercise of his authority, even though such orders may seem to bear harshly or oppressively on the party complaining. The remedy by appeal must be substantially adequate in order to prevent relief by mandamus, though it has been held that mandamus cannot be used to take the place of an appeal or writ of error, even though no appeal or writ of error is given by law.”

The following, in continuation of the quotation above, is important, and in accord with the decisions of our own Supreme Court hereinbefore quoted :

“The judgment of an inferior court on a motion to amend its original judgment in a cause can no more be reviewed by mandamus than that which was originally entered in the cause; and hence, a refusal to entertain a motion to open an original judgment for the purpose of taxing costs cannot be reached by mandamus. Least of all can a writ of mandamus be granted to review a ruling or interlocutory order made in the progress of a cause. Where a court has discretion to grant or refuse a supersedeas its discretion cannot be controlled by a writ of mandmus.” Id., § 231.

In the case Ex parte Jesse Hoyt, reported in [1839] USSC 16; 13 Peters 279, to L.Ed. 161, Mr. Justice Story, speaking for the Supreme Court of the United States of America, said :

“The present motion is for a mandamus to compel him to vacate the order denying the original motion of the collector.

“We are of opinion that this is in no just sense, a case for a writ of mandamus. This Court has authority given to it . . . to issue writs of mandamus in cases warranted by the principles and usages of law to any Courts appointed under the authority of the United States. The present application is not warranted by any such principles and usages of law. It is neither more nor less than an application for an order to reverse the solemn judgment of the district judge, in a matter clearly within the jurisdiction of the Court, and to substitute another judgment in its stead. Now a writ of mandamus is not a proper process to correct an erroneous judgment or decree rendered in an inferior Court. This is properly matter which is examinable upon a writ of error or an appeal, (as the case may require,) to the proper appellate tribunal. Neither can this Court issue the writ upon the ground that it is necessary for the exercise of its own appellate jurisdiction; for the proper appellate jurisdiction, if any in this case, is direct and immediate to the Circuit Court for the southern district of New York. 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 will require him to proceed to render judgment.”

The same position was reiterated by Chief Justice Taney, speaking for the Supreme Court of the United States of America in the case Ex parte Secombe, reported in 19 Howard 9, 15 L.Ed. 565-6, where the learned Chief Justice said :

“It is not necessary to inquire whether this decision of the Territorial court can be reviewed here in any other form of proceeding. But the court are of opinion that he is not entitled to a remedy by mandamus. Undoubtedly the judgment of an inferior court may be reversed in a superior one which possesses appellate power over it, and a mandate be issued, commanding it to carry into execution the judgment of the appellate tribunal. But it cannot be reviewed and reversed in this form of proceeding, however erroneous it may be or supposed to be. And we are not aware of any case where a mandamus has issued to an inferior tribunal, commanding it to reverse or annul its decision, where the decision was in its nature a judicial act, and within the scope of its jurisdiction and discretion.”

Again in the case In re James Pollitz, Mr. Chief Justice Fuller, speaking for the second term of the Supreme Court of the United States of America, said :

“The application to this court is for the issue of the writ of mandamus directing the Circuit Court to reverse its decision, although in its nature a judicial act and within the scope of its jurisdiction and discretion. “But mandamus cannot be issued to compel the court below to decide a matter before it in a particular way or to review its judicial action had in the exercise of legitimate jurisdiction, nor can the writ be used to perform the office of an appeal or writ of error.

“If the ruling of the Circuit Court was erroneous, as is contended, but which we do not intimate, it may be reviewed after final decree on appeal or error.” 206 U.S. 323, 331, 333, 51 L.Ed. 1081.

If any weight is to be given to such eminent authority as that I have cited, and the deductions I have made therefrom are correct, it follows that the office and functions of the writ of mandamus have been erroneously applied in the present case, and that error is considerably enhanced by the fact, which cannot be too often reiterated nor too strongly emphasized, that the same relief sought by these mandamus proceedings could have been as effectually given upon consideration of the appeal, since exception was taken to the judge’s refusal to reopen the case and hear the testimony now made the subject of the application for mandamus, and the said exception has been made the 12th count in the bill of exceptions.

I have therefore refused to attach my signature to the order granting the writ of mandamus in this case, and am now placing on record these reasons for dissenting from the majority opinion of this Court, in which dissent Mr. Justice Grigsby has requested me to say he fully concurs.