amendment as would make an entirely new case.29 It has been held that an amendment cannot be allowed after the reversal by the Supreme Court of an order granting the writ, when pending the writ of error the judgment has become dormant by the lapse of time under the State statute. The writ of mandamus may direct the performance of a series of acts by different persons." It seems that certiorari and mandamus cannot be joined in one writ."

32

33

30

Where the duty sought to be enforced is one neglected by a public corporation or a court, and not the purely personal default of a public officer, the death, resignation, or expiration of the term of office of the officer against whom the proceedings are directed will not abate them, and the writ may be issued or enforced against his successor.34 When the writ or application is based upon the personal default of a public officer, the proceedings abate upon his death or his retirement from office; and in such a case, if the application is granted, costs will be awarded to the relator, although the public officer acted in good faith under an erroneous view of the law.36

35

It is no defense to an application for a mandamus to compel the levy of a tax that, since the suit in which was entered the judgment sought to be enforced, a State court has enjoined the levy." Evidence that a special tax has been levied to pay the relator's claim, and that all claims except those of the same class have been granted, is irrelevant to an application for a mandamus to compel the issue of bonds to liquidate his judgment.38

29 People v. Colorado Cent. R. Co., Thompson v. U. S., 103 U. S. 480, 484, 42 Fed. R. 638, 644. 485. The writ may be addressed to 30 Brockway v. Oswego, 40 Fed. R. the officers and to their successors in 612. office whom it will bind. Hicks v. Cleveland (C. C. A.), 106 Fed. R. 459. 35 Secretary v. McGarrahan, 9 Wall. 298; U. S. v. Boutwell, 17 Wall. 604;

31 Labette County Com'rs v. U. S., 112 U. S. 217; Hicks v. Cleveland (C. C. A.), 106 Fed. R. 459.

32 Fairbanks v. Amoskeag Nat. Thompson v. U. S., 103 U. S. 480, 484. Bank, 30 Fed. R. 602.

33 Commissioners v. Sellew, 99 U.S. 624; Thompson v. U. S., 103 U. S. 480, 485; Hollon Parker, Petitioner, 131 U.S. 221.

34 Secretary v. McGarrahan, 9 Wall. 298; U. S. v. Boutwell, 17 Wall. 604;

36 U. S. v. Schurz, 102 U. S. 407. 37 Riggs v. Johnson County, 6 Wall. 166.

38 U. S. ex rel. Fisher v. Board of Liquidation, etc. of New Orleans, 60 Fed. R. 387.

Disobedience to the writ is punished by attachment for contempt.39 Directions in the writ for the performance of acts not authorized by law are void," and disobedience thereto is consequently not punishable." Upon a writ of error to the order granting a mandamus to enforce a judgment, no question adjudicated in that judgment can be questioned," unless "where application is made to collect judgments by process not contained in themselves, and requiring, to be sustained, reference to the alleged cause of action upon which they are founded;"43 but it is competent to show that the judgment is void.“ alternative writ of mandamus commanding certain designated officials and "such persons as may be elected to fill vacancies in the board of revision and assessment" to do certain acts was held bad on demurrer, as showing that some against whom it was directed had no notice and were not ascertained.45 The proceedings should be reviewed by a writ of error, not by appeal. 46

An

§ 365. Writs of certiorari.—The writ of certiorari is a writ issued from a superior to an inferior court, ordering the latter to certify to the former certain proceedings before it. At common law, the writ was issued for two purposes: as an appellate proceeding for the re-examination of some action of an inferior tribunal; and as auxiliary process to enable a court to obtain further information in respect to some matter already before it for adjudication. The writ can be issued from a Federal court other than the Supreme Court only for the latter purpose.3 The Supreme Court has no original jurisdiction to issue a writ

39 Commissioners v. Sellew, 99 U. S. 624; U. S. v. Lee County, 2 Biss. 77. 40 U. S. v. Sup'rs of Labette County, 7 Fed. R. 318; President v. Mayor, etc. of Elizabeth, 40 Fed. R. 799: People v. Colorado Cent. R. Co., 42 Fed. R. 638, 644.

41 U. S. v. Sup'rs of Labette County, 7 Fed. R. 318; President v. Mayor,

etc. of Elizabeth, 40 Fed. R. 799; People v. Colorado Cent. R. Co., 42 Fed. R. 638, 644.

44 Moore v. Edgefield, 32 Fed. R.

498.

45 U. S. v. City of Elizabeth, 42 Fed. R. 45.

46 Muhlenberg County v. Dyer (C. C. A.), 65 Fed. R. 634.

§ 365. 1 U. S. v. Young, 94 U. S. 258, 259. See Harris v. Barber, 129 U. S. 366, 369.

2 U. S. v. Young, 94 U. S. 258, 259. 3 U. S. R. S., § 716; U. S. v. Young, 94 U. S. 258, 260; Ex parte Van Orden,

42 Harshman v. Knox County, 122 3 Blatchf. 166; In re Martin, 5 Blatchf.

U. S. 306.

43 Brownsville v. Loague, 129 U. S.

493, 505.

303; Fowler v. Lindsey, 3 Dall. 411.

of certiorari to examine the proceedings of a military commission. A Circuit Court of the United States cannot thus bring before it the proceedings before a commissioner which it is not authorized to correct. A Circuit Court cannot by certiorari remove a cause from a District Court of the United States before final judgment; but by entering his appearance and pleading in the Circuit Court without objection, a party waives his right to object subsequently to such a proceeding. Any court of the United States may issue a writ of certiorari as ancillary to a writ of habeas corpus. A Circuit Court has power to issue the writ of certiorari to a State Court requiring the latter to make return of the record in a suit which has been removed from the latter to the former. In case of the removal of a civil suit or criminal prosecution against an officer of the United States under section 643 of the Revised Statutes, the clerk of the Circuit Court must issue the writ for the same purpose. If the record sent up on appeal or writ of error is incomplete, it may be corrected by certiorari.10 It has been said that proceedings that have taken place since the appeal or writ of error cannot be thus removed," but the Supreme Court has thus reviewed proceedings to punish a person for contempt in suing out a writ of error and an order forbidding the further prosecution of the writ of error.12 Perhaps, other contempt proceedings may be thus reviewed. An omission to make a finding cannot be thus corrected. The Supreme Court may by order require the Court

4 Ex parte Vallandigham, 1 Wall. 243; In re Videl, 179 U. S. 126. Nor, it seems, when an inferior tribunal has been abolished. Ibid.

and that its address to the United States marshal directing him to make known to the clerk of the State court the removal of the cause, and

5 Ex parte Van Orden, 3 Blatchf. that such court is required to send a 166.

6 Patterson v. U. S., 2 Wheat. 221. 7 Ex parte Burford, 3 Cranch, 448; Ex parte Bollman, 4 Cranch, 75; In re Martin, 5 Blatchf. 303; Ex parte Stupp, 12 Blatchf. 501. See infra, $388.

transcript of its record to the Circuit Court, does not invalidate the writ. Ibid.

10 U. S. v. Gomez, 1 Wall. 690; The Rio Grande, 19 Wall. 178; Field v. Milton, 3 Cranch, 514.

11 U. S. v. Young, 94 U. S. 258;

818 St. at L. 470; 25 St. at L. 433; U. S. v. Adams, 9 Wall. 661. infra, § 390.

9 State v. Sullivan, 50 Fed. R. 593. It has been held that the writ may be issued in vacation by the deputy clerk in the absence of his principal,

12 In re Chetwood, 165 U. S. 443, 453, 462.

13 Ibid.

14 U. S. v. Adams, 9 Wall, 661.

of Claims to find a specific fact.15 An error in a bill of exceptions cannot be thus corrected; 16 although the judge who settled the same may himself do so.17

17

The Supreme Court may order by certiorari or otherwise any case in which the decision of the Circuit Court of Appeals is made final" to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court." 18 Such a certiorari has been granted after the decision of the Circuit Court of Appeals.19 In an extraordinary case, it may issue to review the decision of the lower court upon an appeal from an interlocutory order.20 This was done where one of the judges below was disqualified from sitting in the case.21 "This branch of our jurisdiction should be exercised sparingly, and with great caution." The inquiry upon such an application is "whether the matter is of sufficient importance in itself and sufficiently open to controversy" to justify the writ.23

22

It may be that the Supreme Court of the District of Columbia has power to review by certiorari in a proper case a decision of a quasi-judicial nature made by an executive officer of the United States at Washington.24

26

It seems that certiorari and mandamus cannot be joined in one writ,25 but the petition may pray for these writs in the alternative. Upon a petition for a writ of certiorari or mandamus, and a motion thereon argued on a notice, where the right to a writ of certiorari was doubtful, the Supreme Court

15 U. S. v. Adams, 9 Wall. 661.

16 Stimpson v. Westchester R. Co., 3 How. 553. But see Morgan v. Curtenius, 19 How. 8.

17 Stimpson v. Westchester R. Co., 3 How. 553; infra, § 377.

18 26 St. at L., §6, p. 828. See infra, chapter on Writs of Error and Appeals.

21 Amer. Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372. 22 Lau Ow Bew, Petitioner, 141 U. S. 583, 589, per Fuller, C. J. 23 Lau Ow Bew, Petitioner, 141 U. S. 583, 587, per Fuller, C. J.

24 Alexandria C. R. & Br. Co. v. District of Columbia, 5 Mackey (D. C.), 376; Wood v. District of Co

19 Lau Ow Bew, Petitioner, 141 lumbia, 6 Mackey (D. C.), 142; Foster U. S. 583, per Fuller, C. J. & Abbott on the Federal Income Tax, 238.

20 Amer. Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 387, 388. But see In re Tampa Suburban R. Co., 168 U. S. 583.

25 Fairbanks v. Amoskeag Nat. Bank, 30 Fed. R. 602.

26 Amer. Const. Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372.

directed the entry of a rule to show cause why the writ should not issue for a single purpose only. The grant of the writ depends on the discretion of the court.28 A preliminary inquiry into a jurisdictional fact may be directed by the court before passing on the application for the writ.29 The return to the writ of certiorari should be by the clerk under his hand and the seal of the court.30 The return need not be signed by the judge.31 "A writ of certiorari, when its object is not to remove a case before trial, or to supply defects in a record, but to bring up, after judgment, the proceedings of an inferior court or tribunal whose procedure is not according to the course of the common law, is in the nature of a writ of error. Although the granting of the writ of certiorari rests in the discretion of the court, yet after the writ has been granted and the record certified in obedience to it, the questions arising upon that record must be determined according to fixed rules of law, and their determination is reviewable on error." 32

§ 366. Writs of habeas corpus in general.- The writ of habeas corpus is a high prerogative writ known to the common law, directing the production of a prisoner before a court or magistrate, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is then termed a writ of habeas corpus ad subjiciendum. There were also by the common law four other writs of habeas corpus: the habeas corpus ad respondendum; ad satisfaciendum; and ad faciendum et recipiendum, which removed a prisoner for debt from an inferior to a superior court for further proceedings in the same or a subsequent action; and the habeas corpus ad prosequendum, testificandum, deliberandum, which removed a prisoner for debt or crime in order to prosecute or testify in another court. The habeas corpus cum causa is used in the re