The opinion of the court was delivered, by
Lowrie, O. J.We do not inquire into the duty of the justice, concerning the disposition of his docket, when his official term has expired, because that question is not properly raised. No such form of proceeding as this is authorized by any Act of Assembly, or by any usage of legal practice, and therefore we have no rules to govern it. There is a regular and well-known remedy to compel public officers to do their whole duty, and that is by mandamus, and therefore there is no need for inventing a new remedy, and we cannot sanction this one. Sometimes even mandamus is not proper, because the legislature has imposed penalties as the means of enforcing the duty; we do not inquire here whether that is the case here or not. To sanction such a practice as this would be to admit a principle that if carried out would break down all regular practice and all settled law relative to remedies, and leave it all to the mere will or caprice of lawyers, or to the mere arbitrariness of courts. There must be laws of practice as well as laws of general conduct, otherwise all judgment will be mere caprice, and not the application of settled rules to all cases that may arise.
Decree reversed, and proceedings quashed at the costs of the petitioner, and record remitted.