People ex rel. Cahoon and Kelsey, agt. Dodge.

HAND, Justice. A mandamus is the proper remedy to compel inferior tribunals to act, though not to direct them how to act where they have discretion (Judges of Oneida Com. Pleas vs. The People, 18 Wend., 92).

Where a question of fact is tried by the court," its decision shall be given in writing, and filed with the clerk, within twenty days after the court at which the trial took place" (Code, § 267). In cases tried at the circuit, clearly this is only directory. It would be intolerable if the cause had to be retried, because the judge, perhaps from sickness or pressure of business, or other cause, had not filed the decision within twenty days. But it is said that in cases in the County Court a different rule applies. That it is like the case of a justice of the peace taking time to give judgment after the case has been submitted to him for that purpose.

It is true, that by the late revision of the constitution, the Courts of Common Pleas were abolished, and the present County Court is in no sense a continuation of that court; the new court, by the terms of the constitution retains none of the powers of the old court, except jurisdiction in cases arising in justices' courts (Const. VI, 14); and that was conferred on the old court by statute, and was not common law jurisdiction. But the judiciary act gave to the new court all the powers and jurisdiction of the old Court of Common Pleas, as fully and amply as could be done, consistently with the provisions of the constitution and of that act (Laws of 1847, chap. 180, § 36). Indeed, it was the aim of that act, to transfer all the powers and duties of the old Court for the Correction of Errors, to the Court of Appeals; of the old Court of Chancery and of the Supreme Court, to the new Supreme Court; and to give to the County Courts the same general powers in all cases where they had jurisdiction of the subject matter as had been before possessed by the Courts of Common Pleas (§§ 8, 16, 36). The County Court has not the same general jurisdiction as was possessed by the Court of Common Pleas, for the constitution has limited it; but the judiciary act, as we have seen, where it has jurisdiction, has given to it, particularly in all

People ex rel. Cahoon and Kelsey agt. Dodge.

matters of practice, the same broad discretion before possessed by that court. Every lawyer knows what were the almost unlimited powers of that court in mere civil actions, both in this country and in England (2 R. S. 208; Colonial Laws of N. Y. 2 R. L. App. No. 5; 2 Paine & Duer's Pr. 718; Preface to 8 Coke Rep. 17 Wend. 484).

I am not prepared to say, that, without the judiciary act, these county courts would be considered on a footing with the justices' courts on jurisdictional questions, particularly in cases arising in the latter courts, as jurisdiction is expressly conferred by the constitution in such cases. And certainly the judiciary act puts them on very different ground. In this view, I am clear, that Judge Dodge did not lose authority to file or even make his decision by the delay in this case. I had some doubt whether a mandamus could go, as he might still have the matter under advisement; in which case there should be no interference. it is stated that a decision has been made, and is not filed merely because of his doubts of the power now to do so, and this is rather to obtain the opinion of the court, an alternative mandamus may be issued. If the decision has been made, filing it is a mere ministerial act.

But as

The cause has been argued without reference to the effect of § 267 upon suits in which there had been an appeal before the Code (§§ 461, 469, 29, 30, 31, 32, chap. 5, of tit. 11, and § 2 of the supplementary act). I shall therefore not examine that question now. If § 267 does not apply, of course there is no limitation as to time. Motion granted.

Rogers agt. Wing.

SUPREME COURT.

ROGERS agt. WING.

On application and on payment of all damages and costs, as a matter of right, a party is entitled to a new trial in an action of ejectment. (See Cooke vs. Passage, How. Pr. R. 360.)

Warren Special Term, August 1850. Application by the defendant for a new trial in ejectment, the judgment having been paid, pursuant to statute (2 R. S. 309). The action was commenced before the Code.

H. R. WING, in person, for the Motion.

E. H. ROSEKRANS, for Plaintiff, insisted that it was clear from the opinion of the court, given on a motion for a new trial, that the defendant had no defence; and that it was discretionary with the court whether a new trial should be granted; “shall” meaning "may," in such cases (§37).

m

HAND, Justice. The court has no discretion. The statute is imperative that a party, on application and payment of all the costs and damages recovered, shall have a second trial (2 R. S 309 §37; 2 Paine & Duer's Pr. 517; Gra. Pr. 676; Shaw v. McMaren, 2 Hill, 417). "May" and "shall or may,” and “shall and may," sometimes, are imperative, and sometimes discretionary (see Malcolm v. Rogers, 5 Cow. 193; Mayor of New York v. Furze, 3 Hill, 612; Rex. v. Com. Flockwood Inclosure, 2 Chit. R. 251; Hudd v. Ravenor 2 B. & B. 664; King v. Bailiffs of Eyre, 4 B. & Ald. 271; Smith on Stat. 724; Dwarr. on Stat. 712; 1 Pet. U. S. R. 64). But here it is "shall," and confers a right upon the party. The Code has made no change in this part of the practice (5 Wend. 101). Even in suits commenced under it. For, although the action of "ejectment" is not retained by that name, in actions for land, these provisions of the Revised Statutes apply. They are not inconsistent with the Code (§§ 455, 471; Cooke v. Passage, 4 How. Pr. R. 360). Motion granted.

Burrows agt. Miller & Miller.

SUPREME COURT.

BURROWS agt. MILLER & MILLER.

10184175

A plea, to an action upon a promissory note, of the pendency of a suit for the same cause of action in a circuit court of another state, is bad. Such a plea was never allowed under the former rules of pleading; and although section 144 and 147 of the Code, taken in their literal sense, might appear to be broad enough to overturn this rule, evidently the intention of those sections was merely to affect the form of asserting a defence, not to alter the nature of it.

New York Special Term, January, 1850. To a complaint on a promissory note, the defendants pleaded the pendency of a suit for the same cause in one of the circuit courts of the State of Indiana; to which the plaintiff demurred.

BARNARD, for Plaintiff, cited Browne vs. Joy (9 J. R. 221); Walch vs. Durkin (12 J. R. 99).

DANA, contra, cited Code of Procedure, §§ 144, 147; Embree vs. Hanna (5 J. R. 101); Wheeler vs. Raymond (8 Cow. 311).

EDMONDS, Justice. It is conceded that this plea is not good unless the Code has altered the former rule. Section 144 allows the defendant to demur to the complaint when it appears on the face thereof that there is another action pending between the same parties for the same cause of action and § 147 allows the objection to be taken by answer when it does not appear on the face of the complaint.

This language, it is true, is broad enough, taken in its literal sense, to overturn the former rule, and it is insisted that under it, we ought rather to adopt the rule which allows a foreign attachment to be pleaded in bar, than that which forbids a foreign suit to be thus pleaded.

The distinction between the cases is, however, very plain, and rests upon this idea, that it is payment or satisfaction alone under the foreign proceedings which is regarded in our courts. Hence actual payment under those proceedings may be pleaded in bar here; or, if too late for that, may be made available on an audita

Burrows agt. Miller and Miller.

querella; and this upon the principle that though the creditor may pursue several remedies until he shall obtain satisfaction, the debtor shall be protected against being obliged to pay twice. Therefore it is, that a foreign attachment has been allowed to be pleaded, because the debtor's property having already been seized in satisfaction, he might be obliged to pay twice. Thus in all the cases in this state where the foreign attachment was allowed to be pleaded, it appeared that the debtor's property had actually been seized under it (Embree vs. Hanna, 5 J. R. 101; Wheeler vs. Raymond, 8 Cow. 311), and it may be questioned whether a plea of a foreign attachment would be good unless it should contain an averment that something had been seized under it. (See the form of such a plea, 2 H. Pl. 362; 5 Taunt. 234, n; 2 Chitty R. 338, n (b); 17 J. R. 284, and 1 Brod. & Bing. 490).

Hence a foreign attachment is likened to the case of a suit in a foreign court carried to judgment and execution and satisfaction thereon, and therefore it is that both may be pleaded in a suit pending.

It has, however never been held that a mere pendency of a suit in a foreign tribunal can be available to stay a suit for the same cause of action pending here, and unless the legislature have expressly made it so, I see no good reason why the rule should be changed.

It is evidently the intention of the sections of the Code to which I am referred, not to enlarge a defence or create a remedy, but merely to direct the mode in which defences or objections already available by law, may be taken advantage of, the nature of those defences or objections being left unaltered.

And the language of the third paragraph of § 144 and of § 147, must be taken to mean that a defence of another action pending, when available as then established by law, may be set up by demurrer when it shall appear on the face of the complaint and by answer when they do not.

To allow the argument put forth for the defendants and give to these sections, which were intended merely to affect the form. of asserting a defence, the power of altering the nature of such