reasons.

but this is an exception to the general rule that can hardly be supported, in principle, or by any very satisfactory Cases can be found in which it is held, or seems to be held, that certiorari is proper where, and because, the act complained of is not judicial, thus reversing the general rule on the subject. This is held on the ground that not being a judicial act no appeal would lie, and therefore certiorari must be allowed.

If the act is ministerial it makes no difference that it was performed by a judicial officer.2

The writ can not be used to contest the legal existence of a corporation.3

While the issuance of the writ is within the discretion of the court the discretion is a legal and not an arbitrary one, and may be reviewed by writ of error or appeal.*

One of the most usual statutory limitations upon the power of the courts to issue the writ is as to the time when it may issue. This is a limitation that the legislature may enforce. But this is subject, as in other cases, to the power of the courts to relieve a party from a failure to act in time, resulting from the fraud or other wrongful

ing of public highways; though, according to some of the authorities, the laying out of streets and highways is the mere exercise of municipal or corporate power without the semblance of judicial decision.

"These instances are sufficient to show that the writ of certiorari has long been used in this state to test the validity of the acts of corporations and of special tribunals not judicial in their character.

"In the case of The State v. The Corporation of New Brunswick, the eminent counsel of the city did not question the right of a corporator, by writ of certiorari, to remove and try the validity of a by-law of a corporation. They insisted that the court ought not to award the writ on the prayer of an individual, without showing that he is or may be affected by the operation of the by-law, and is therefore entitled to question its validity. But the court held that a sufficient ground for the allowance of the writ was shown, the court being informed that a question as to the validity of the law was intended to be brought before them for adjudication, and that the prosecutor had been injured by the law." City of Camden v. Mulford, 26 N. J. Law, 49, 54.

1 Champion v. Board of County Commissioners, 5 Dak. 416; 41 N. W. Rep. 739.

'People v. Bush, 40 Cal. 344.

3 State v. Brown, 31 N. J. Law, 355.

Welch v. County Court, 29 W. Va. 63; 1 S. E. Rep. 337.

act of his adversary, or from mistake, accident or excusable neglect. And it has been held that such a statute is not a limitation upon the discretionary and inherent power of the court to relieve a party through the writ.'

The right to the writ may be lost by unreasonable delay in asking for it independently of any statutory limitation.2 The writ operates as a supersedeas and suspends all proceedings in the lower court or other tribunal.3

In the absence of some provision of law expressly authorizing it the writ can not be issued by a judge at chambers, but must be issued by the court in term time.

The usual judgment where the proceedings are found to be without authority is, that the proceedings be quashed or annulled; and the court has jurisdiction to annul a part of the judgment of the lower court where it is found to be void, and such invalid portion of the judgment is so disconnected with that which is found to be valid that they are not interdependent.5

87. BILLS, AND WRITS, OF REVIEW.-A bill of review, in a court of equity, is similar to a writ of error in a court of law, and may be brought for error of law, appearing upon the face of the record.

1 Matter of Lantis, 9 Mich. 324; 80 Am. Dec. 85.

Smith v. Superior Court, 97 Cal. 348; 32 Pac. Rep. 322.

3 Hunt .

Lambertville, 46 N. J. Law, 59.

State v. Black, 34 S. Car. 194; 13 S. E. Rep. 361.

'Shafer v. Hogue, 70 Wis. 392; 35 N. W. Rep. 928.

6 Story's Eq. Pl., secs. 403-411; 2 Am. & Eng. Enc. of Law, 262, 264; 1 Black on Judg., sec. 301; Whiting v. Bank of the United States, 13 Pet. 6; Barton's Suit in Equity, 154; Foster's Fed. Prac., sec. 354, p. 518.

"There are but two cases in which a bill of review is permitted to be brought, and these two cases are settled and declared by the first of the ordinances in chancery of Lord-Chancellor Bacon, respecting bills of review, which ordinances have never since been departed from. It is as follows: 'No decree shall be reversed, altered or explained, being nceo under the great seal, but upon bill of review. And no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree, without further examination of matters in fact, or some new matter, which hath arisen in time after the decree, and not any new proof, which might have been used, when the decree was made. Nevertheless, upon new proof, that is come to light after the

Where the writ is for error of law, the question must be determined by the record, as in the case of a writ of error, and the evidence can not be resorted to.1·

The bill lies also upon the discovery of new matter.2 Such bills are allowed only where the decree is enrolled,3 and therefore can not be resorted to until after final decree.1

The appropriate remedy for the review of decrees not enrolled was by bill in the nature of a bill of review,5 and its office was to bring before the court new matter discovered since the publication in the original cause."

There are also bills for the impeachment of decrees for fraud."

This proceeding by bill of review, or by bill in the nature of a bill of review, has fallen into disuse in most of the state s,having been superseded, very generally, by other remedies provided by statute. In some of the states the writ of error has been extended so as to be available to review decrees in equity as well as judgments at law.

Under the codes of many of the states the writ of certiorari is made applicable to all civil actions, which include what would have been suits in equity under the former practice.

In some of the states the writ of review is provided for

decree was made, which could not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court, and not otherwise.' So that, from this ordinance, a bill of review may be brought, first, for error of law; secondly, upon discovery of new matter." Story's Eq. Pl., sec. 404.

1 Whiting v. Bank of the United States, 13 Pet. 6; Barton's Suit in Eq. 154.

2 Story's Eq. Pl., sec. 412; 2 Am. & Eng. Enc. of Law, 266.

3 Story's Eq. Pl., sec. 412; Whiting v. Bank of the United States, 13 Pet. 6.

Story's Eq. Pl., sec. 408a; 2 Am. & Eng. Enc. of Law, 263; 1 Black on Judg., sec. 301.

5 Story's Eq. Pl., sec. 412; Whiting v. Bank of the United States, 13 Pet. 6; Foster's Fed. Prac., sec. 353, p. 517.

6 Story's Eq. Pl., secs. 364, 425.

'Story's Eq. Pl., sec. 426; Barton's Suit in Eq. 157.

8 Ante, sec. 85.

and becomes a statutory remedy to be governed by the provisions of the statutes creating them and regulating their use, and under some of these statutes parol proof may be heard to establish the ground of objection to the judgment in some cases.2

In some of the states the writ of certiorari is denominated a writ of review, and is so called in the decided cases; and is confined to the question of the jurisdiction of the court and the validity of the judgment, and does not extend to mere errors or irregularities, or to matters appearing on the face of the record, and not to questions of fact; and is confined to cases in which no speedy and adequate remedy by appeal or otherwise can be had."

The jurisdiction in proceedings by certiorari has been considered." What is said on that subject is applicable to the writ of review, as it exists in those states in which it is made to take the place of the former writ, or is treated as the same writ by another name.

Again, in some of the states an action by complaint is provided for by which errors of law and the discovery of material new matter may be made the grounds of complaint, and by which a judgment or decree, without distinction as to its being legal or equitable, may be re

1 Quinn v. Brennan, 148 Mass. 562; 20 N. E. Rep. 184; Sylvester v. Hubley, 157 Mass. 306; 32 N. E. Rep. 166; McNamara v. Carr, 84 Me. 299; 24 Atl. Rep. 856; Skillings v. Massachusetts Ben. Assn., 155 Mass. 581; 30 N. E. Rep. 367; Riley v. Hale, 146 Mass. 465; 16 N. E. Rep. 276. McNamara v. Carr, 84 Me. 299; 24 Atl. Rep. 856.

3 Saunders v. Sioux City Nursery, etc., Co., 6 Utah, 431; 24 Pac. Rep. 532; Kearns v. Follansby, 15 Or. 596; 16 Pac. Rep. 478; Reagan v. Justices Court, 75 Cal. 253; 17 Pac. Rep. 195; Union County v. Slocum, 16 Or. 237; 17 Pac. Rep. 876.

Ante, sec. 86; Saunders v. Sioux City Nursery, etc., Co., 6 Utah, 431 ; 24 Pac. Rep. 532.

Barton v. City of La Grande, 17 Or. 577; 22 Pac. Rep. 111.

6 Ante, sec. 86; Ramsey v. Pettingill, 14 Or. 207; 12 Pac. Rep. 439; Rogers v. Hayes, 32 Pac. Rep. 259; Barton v. City of La Grande, 17 Or. 577; 22 Pac. Rep. 111.

7 Ante, sec. 86.

viewed,' which conforms very nearly to the equitable bill of review.

A distinction is made between newly discovered evidence and the discovery of material new matter, it being held that the former is not ground for review under the statute.2

A newly enacted statute affecting the rights of the parties is not new matter within the meaning of the law.3 It is held that a decree of divorce can not be reviewed by this statutory proceeding.*

5

Where the complaint is based upon errors of law, so much of the record as will fully exhibit the error complained of must be set out, and it must appear that proper exceptions to the rulings complained of were taken; and if the error has been waived by failure to except, or otherwise, the review can not be had. The error must be such that the cause would be reversed on appeal.'

The action thus provided for differs from an action to annul a judgment, and is in all material respects the same as a writ of error as respects the ground upon which it may be maintained.8

'Nealis v. Dicks, 72 Ind. 374; Hill v. Roach, 72 Ind. 57; Floyd Co. Agr. Ass'n. v. Tompkins, 23 Ind. 348; Evansville, etc., R. R. Co. v. Maddux, 33 N. E. Rep. 345.

Roush v. Layton, 51 Ind. 106; Hall v. Palmer, 18 Ind. 5; Nelson v. Johnson, 18 Ind. 329.

5 Goar v. Cravens, 57 Ind. 365; Stevens v. City of Logansport, 76 Ind. 498; Cain v. Goda, 84 Ind. 209; McDade v. McDade, 29 Ind. 340; Davidson v. King, 51 Ind. 224; Evansville, etc., R. R. Co. v. Maddux, 33 N. E. Rep. 345.

Richardson v. Howk, 45 Ind. 451; Collins v. Rose, 59 Ind. 33.

Rice v. Turner, 72 Ind. 559; Evansville, etc., R. R. Co. v. Maddux, 33 N. E. Rep. 345.

* Willman v. Willman, 57 Ind. 500; Cain v. Goda, 84 Ind. 209; Nealis v. Dicks, 72 Ind. 374.

"Properly considered, a proceeding to review a judgment presupposes the existence of a valid and subsisting judgment, which may, on the hearing, be affirmed, reversed, or modified, either in whole or in part, as the justice of the case may require, and is prosecuted on the theory that there is such a valid and subsisting judgment which ought to be