gal imprisonment on such execution;" but that it did not extend to a case of damages against one (an officer) who was not a party to the original suit, and did not hold nor claim to hold the debtor in custody or under his control, at the time of suing out the audita querela.

This writ has fallen almost entirely into disuse. It is a clumsy remedy at best, though there may be cases in which it is absolutely necessary to employ it. It will never lie, where the party has had an opportunity to take advantage of the matter that discharged him, and had neglected it. See the cases above cited.

It is not the proper remedy where the plaintiff, in an action of trover, took an execution for the alleged value of the property without any inquiry or assessment of damages. A writ of error would probably lie in such case. Hadlock v. Clement, 12 N. H. 68. If a levy on land be nugatory and void, a writ of audita querela is not the proper remedy, (Bryant v. Johnson, 24 Maine, 304,) where two executions were issued, and one of them wrongfully, and levied on land.

It may be sued out and served like an original writ of attachment or summons, and be made returnable to the Court in which the judgment was rendered. If the plaintiff is imprisoned on the execution or process complained of, the Court in which the suit is pending may enlarge him, on giving bond, conditioned to surrender himself within thirty days after final judgment on the audita querela, or payment of the execution within that time. Rev. Stat. c. 112, § 1-9.

See the forms in the Appendix.

CHAPTER XXXIII.

WRITS OF CERTIORARI, MANDAMUS AND PROHIbition.

THE Supreme Judicial Court is expressly authorized to issue these several writs by the eighty-first chapter and 5th section of the Revised Statutes. They all run from the highest to all inferior tribunals, where there is no other or better remedy, and their general object is to correct the errors of such inferior Courts. Thus a writ of certiorari is issued to quash the proceedings of any Court of limited jurisdiction, where a substantial and fatal error has been committed; the writ of mandamus is issued to compel such Court to perform some act, which they have neglected or refused to perform; the writ of prohibition, to restrain it from performing or completing an act, without legal authority. The character of the process is therefore to compel some inferior authority to act, or to cease from acting, and where the thing has been done, to annul the act for substantial error.

We proceed to consider, therefore, the cases in which these several remedies may be properly employed.

1. A mandamus is a somewhat common writ in the Courts of the United States, but is not of frequent use in the State Courts. It is issued generally to the county commissioners, to compel them to perform the duties required of them by law; as for instance, to estimate the damages, caused by laying out or constructing a railroad, (Carpenter v. Bristol, 21 Pick.

258); or to summon a jury, Ib.; or to give a certificate of election to a person duly elected to office, (Strong's case, 20 lb. 484); to draw an order on the county treasury for the payment of damages, which have been awarded, (Harrington v. Berkshire, 22 Ib. 263); but it does not lie to any tribunal which is authorized by statute to exercise its discretion in any matter, to correct its judgment. Gray v. Bridge, 11 Ib. 189. It does not lie to compel admission or restoration to an office, unless it be holden for a longer term than one year. Howard v. Gage, 6 M. R.

462.

The petition for a mandamus should set forth the facts upon which it is founded, and conclude with a prayer that the writ may be issued. Upon this petition it is competent for the Court to refuse to issue it, without notice to other parties interested; but if an apparent case is made out for the interposition of the Court, a rule to show cause, returnable generally at the same term, is issued, directed to the proper tribunal, and on the return day, cause is shown by such tribunal, in the nature somewhat of an answer to a bill in equity, which should set forth the facts upon which the respondents rely for not performing the act. Springfield v. Hampden, 10 Pick. 59; Kimball v. Morris, 2 Met. 573. The petition may be presented in any county, but it must be made returnable in the county in which the case should be tried, according to the general requisitions of the statutes in civil cases. Taylor v. Henry, 2 Pick. 397.

2. Writs of prohibition are very rarely resorted to in our practice. The Supreme Court have declared that they will only issue them to inferior tribunals, where they have clearly exceeded their jurisdiction.

Washburn v. Phillips, 2 Met. 296. The Statute of 1347, c. 37, will doubtless cause a more frequent exercise of this power. It provides for the issue of a writ of injunction, (which is, in this case, properly a writ of prohibition,) to any city or town which shall have voted to appropriate any money for other purposes than those authorized by law. It may be issued either in term time, or by a single Judge in vacation.

The course of proceeding in such cases is similar to that on petitions for a mandamus; except that a temporary writ of prohibition will be issued in the first instance, which may be dissolved on the coming in of the answer.

3. A writ of certiorari is a writ issuing from a Superior Court, directed to an inferior Court, commanding them to certify and return their records of a cause. It is the appropriate remedy for the correction of errors, committed by inferior Courts, who either have no common law jurisdiction, or whose proceedings, in the particular cases, are not according to the course of the common law; for in these cases a writ of error will not lie. Commonwealth v. Ellis, 11 M. R. 462; 15 Pick. 234. Power is given to the Supreme Court to issue this writ by the Revised Statutes, c. 81, § 5. The only regulations made upon this subject in the Revised Statutes are, that they shall be issued from, and be made returnable to the Supreme Court, according to the practice heretofore established; that it is limited to six years next after the proceeding complained of, and that the Court may award costs to either party, c. 112, § 21-24.

It lies, therefore, in the following cases, viz: In all proceedings before the Court of County Commissioners in laying out highways, (Freetown v. Bristol, 9 Pick.

46; Commonwealth v. Coombs, 2 M. R. 489); so of the Mayor and Aldermen of the city of Boston in laying out and altering streets. Stone v. Boston, 2 Met. 220; Hancock v. Boston, 1 Ib. 122. For the same reasons it would seem to follow that it is a proper remedy if the proceedings of the selectmen of towns in laying out town ways are irregular, and so of private ways. The question seems never to have arisen. So in certain cases where damages are assessed by the county commissioners, or in other proceedings in the location and construction of railroads. By referring to the chapter on appeals, it will be seen, that in some cases an appeal is the proper remedy. Certiorari is the proper remedy on proceedings in the Common Pleas on complaints for flowage, (Commonwealth v. Ellis, 11 M. R. 46; Lowell v. Spring, 6 lb. 399); but the remedy by exceptions, &c., when exceptions are proper, is the most frequent. So to quash proceedings before a Justice of the Peace on complaints for neglect of military duty, (Pratt v. Hall, 4 Ib. 239; Cousins v. Cousins, 23 Pick. 208); but the party may appeal if the forfeiture adjudged exceed ten dollars, c. 12, § 112. It has been held, that this is the proper remedy to remove the proceedings in the Common Pleas upon a complaint against one as the father of a bastard child. Gile v. Moore, 2 Pick. 386; Commonwealth v. Moore, 3 lb. 194. So it is said to be the proper remedy, in a case before a Justice, for not giving half the road to the vehicle of another person, (Clark v. Commonwealth, 4 Ib. 125); and annul the proceedings of the Mayor and Aldermen of Boston in licensing a ferry. Fay, ex parte, 15 Ib. 243. So on a complaint to the county commis30