the property of A. J. Mowry," it has the effect to render the instrument a contract, and not a promissory note. No one can tell from the reading of this instrument whether the payment therein mentioned is certain and unconditional or not. This condition seems to provide, as before said, an option in the purchaser. It may be said that this could not have been the intent of the parties to the instrument, that the purchaser should have the use of the property for one year free of charge; but it may also be said, on the other hand, that the maker could not have intended that, if he failed to pay on or before the day therein named, he should lose the property, and also have the payment of the whole sum enforced against him. The instrument is uncertain, and capable of two constructions as to its terms. The court erred in calling it a promissory note. The plaintiff having recovered in the court below upon this instrument, it being admitted in evidence under the common counts and a notice as a negotiable promissory note, against objection and exception, the judgment of the Court below must be reversed, and a new trial granted. The other Justices concurred. Jessie SMITH v. John O. SMITH, Appt. (......Mich.................) 1. Published words charging a wife with deserting her husband in his sickness are libelous per se. 2. Defamatory words in a notice forbidding all persons from trusting or harboring a wife on the husband's account are evidence of malice and not privileged. 3. Communications or publications which are qualifiedly privileged upon proper occasions are not privileged when made by per sons actuated by malice. 4. It is no excuse or defense for publishing a libelous notice forbidding credit to a woman on her husband's account, that defendant caused it | Where words taken by themselves do not necessarily import crime, yet, where it is alleged in the innuendo that the defendant meant by words that the act was maliciously done, they will, after verdict, be taken to have been intended to import such a charge. Townshend, Libel & Slander, p. 107, note 1, § 173 and citations; Kennedy v. Gifford, 19 Wend. 296; Goodrich v. Woolcott, 3 Cow. 231. The words of this notice were actionable per se. Townshend, Libel & Slander, SS 177, 178. See Massuere v. Dickens, 70 Wis. 83; Churchill v. Hunt, 1 Chitty, 480; State v. Atkins, 42 Vt. 252; 1 Starkie, Slander & Libel, 150. The paying for publishing a libel has been held to be a ratification of the libelous article. Schenck v. Schenck, 20 N. J. L. 208. As respects publication of a libel, not only the publisher, but all who in any wise aid or are concerned in the production of the writing, are liable as publishers. All are principals. Townshend, Libel & Slander, p. 157 and note, $117. Publication is the gist of the action. The defendant is liable for his own acts alone in an action of slander or libel. It is no excuse that one is simply repeating what another has told him. That is to say, it is no bar to an action against A, that plaintiff has recovered a judgment against B for uttering or publishing the same libel or slander. Thompson v. Bowers, 1 Doug. (Mich.) 327 and cases cited. No one can excuse his concurrence in a wrongful act merely on the ground that, in what he did, he acted as the agent for another. Townshend, Libel & Slander, p. 117, note 1. Champlin, J., delivered the opinion of the court: This is an action for libel, alleging that defendant composed and published, or caused to be composed and published, in a certain newspaper, a notice signed by Henry O. Smith, as follows: Notice. My wife, Mrs. Henry O. Smith, to be published and paid for it by direction of the deserted me in my sickness, and has informed husband, who was his son. me I could get another woman, for she had quit. I forbid all persons from harboring or trusting her on my account. (January 25, 1889.) RROR to the Eaton County Circuit Court, tion brought to recover damages for the alleged publication of a libel. Affirmed. The facts sufficiently appear in the opinion. Mr. John M. Corbin, with Mr. Thomas A. Wilson, for defendant, appellant. Mr. Philip T. Van Zile, with Mr. H. S. Maynard, for plaintiff, appellee: The questions of good faith, belief in the truth of the statement, and the existence of actual malice are facts to be determined by the jury, where the question of privilege is raised. Bacon v. Mich. Cent. R. Co. 55 Mich. 229. The publication of the notice in question cannot be held to be privileged because at the time of the publication by the defendant, to his knowledge, it was false. Whittemore v. Weiss, 33 Mich. 353; Bronson v. Bruce, 59 Mich. 467. Henry O. Smith. Eaton Rapids, Dec. 27, 1883. The declaration contains two counts-one alleging that the defendant composed and published, and the other that he caused to be composed and published, the libel set out. The plea was the general issue. The first question raised is whether this notice contains libelous matter per se. We think it does. It charges her with deserting her husband in his sickness. If this charge be true, Mrs. Smith was guilty of the basest ingratitude, and of conduct deserving the contempt of all right minded people. The words which follow show that the charge made was intended to be understood in a sense derogatory to the plaintiff. The next question to be considered is, Was the publication of the notice privileged? A qualified privilege exists in cases where some communication is necessary and proper in the protection of a person's interest, but this privilege may be lost if the extent of its publication be excessive. The rule is thus stated in Odgers, on Slander and Libel, 225. relation to the publication of the notice he was actuated by malice towards the plaintiff. The court also instructed the jury that the burden of proof was upon the part of the plaintiff to prove by a preponderance of evidence that "So with an advertisement inserted in a the defendant caused this notice to be published newspaper defamatory of the plaintiff, if such knowing it to be false. The jury having readvertisement be necessary to protect the de- turned a general verdict of guilty under this fendant's interest, or if advertising was the charge, as well as the special verdict above that only way of effecting defendant's object, and he was actuated by malice, does away entiresuch object is a lawful one, then the circum-ly with the defense of privilege. stances excuse the extensive publication. But if it was not necessary to advertise at all, or if the defendant's object could have been equally well effected by an advertisement which did not contain the words defamatory of the plaintiff, then the extent given to the announcement is evidence of malice to go to the jury." If a wife leave her husband's home without cause or provocation, and he is willing to suit ably supply her with necessaries, or with money to purchase them, he cannot be held liable, on the basis of a presumption of authority, or of an implied agency, for goods purchased by her on his credit. Notice to the public would not be necessary in such a case. It is only when be has permitted her to trade upon his credit that notice to tradesmen is necessary to protect the husband's interests. In such case a notice to the public not to give her credit upon his account would be justifiable, and would be to that extent privileged. But he would not be justified in inserting in such notice words which were defamatory of the wife; and, if he does so, such defamatory words are evidence of malice. There is another rule which applies to communications or publications which are upon proper occasions qualifiedly privileged; and that rule is that, if the matter charged as libelous be false, and the publication malicious, it is not privileged. In this case the facts were submitted to the jury, and they have found that defendant did not have reasonable and probable cause to believe that said notice signed by his son was substantially true, and that in what he did in It is also urged by counsel in behalf of defendant that, as the testimony shows the notice was written by the husband of the plaintiff, and sent by him to be published in the paper, the plaintiff is not entitled to recover, for the reason that a married woman could not bring an action of slander or libel against her husband at the common law; and the statutes of this State that give a married woman the same right to sue and be sued in relation to her own property have not gone so far as to allow a married woman to sue her husband in an action of tort for libel; in a suit brought against her husband she would not be allowed to testify; and that the defendant stands in privity with the husband, who is now deceased; that the husband's defense would be his defense. We are not prepared to decide that a married woman in this State may not maintain an action of libel against her husband. This, however, is not such a case; nor is it any excuse or defense for this defendant to show that his son, who was plaintiff's husband, indicted the libel, and directed defendant to publish it. The testimony is uncontradicted that defendant caused it to be published, and paid for its publication. The special verdict, which was given in response to questions submitted to the jury, appears to have been supported by testimony introduced in the cause, and is consistent with the general verdict rendered, and we discover no error in the record which warrants us in setting it aside. The judgment is affirmed. WEST VIRGINIA SUPREME COURT OF APPEALS. A. B. FLEMING, Petitioner, Hon. F. A. GUTHRIE, Judge, etc. v. (....W. Va.....) *1. A court of equity has no jurisdiction *Head notes by SNYDER, P. See Goff v. Wilson and Carr v. Wilson, cases following this, and arising out of the same election proceeding. NOTE.-Departments of government distinct and independent. Each department of the government ought to do what is right within its own sphere, and presume that the other departments will do the same. No department should ever cease to perform its functions for fear that some other department might render its acts nugatory, or for fear that its acts might in some manner affect the conduct or status of some other department. Martin v. Ingham, 38 Kan. 641. to enjoin the secretary of state from delivering to the speaker of the house of delegates the sealed returns of an election for governor, properly transmitted to him; and such injunction, if granted, will be treated as a nullity. 2. This court will not award a writ of prohibition against a circuit court to prohibit it from proceeding by mandamus to compel the secretary of state to deliver such returns, on the petition of a party, who alleges no other grounds For the purpose of passing laws the Legislature is supreme, and other departments must obey. For the purpose of construing the laws and of determining controversies, the courts are supreme, and the other departments must obey. For the purpose of ultimately enforcing the laws, the executive department is supreme, and the other departments must obey. Martin v. Ingham, 38 Kan. 641. The distinction between a legislative and a judicial act is that the former establishes a rule regulating and governing in matters or transactions oc curring after its passage, while the latter determines rights and obligations of any kind, whether in regard to persons or property, concerning matters or transactions which already exist and have transpired before the judicial power is invoked to pass upon them. Smith v. Strother, 68 Cal. 194. The constitutional restraint as to conferring judicial power upon other than judicial officers does not prohibit the Legislature from intrusting large discretionary powers to executive, administrative and ministerial officers in matters pertaining to the duties of their respective offices. State v. Johnson, 3 West. Rep. 694, 105 Ind. 463; People v. Court of Com. Pleas, 43 Barb. 278. When the Constitution confides to a legislative body the power to judge of the election and qualification of its own members, the exercise of that power belongs exclusively to the body to which it is committed, and is not the subject of review in the courts, or by any other body. Robertson v. State, 7 West. Rep. 492, 504, 509, 109 Ind. 79. See note to Titusville Iron Works v. Keystone Oil Co. 1 L. R. A. 361. Refusal of judiciary to coerce co-ordinate departments. The court has refused to interfere by mandamus to coerce the performance of a public duty, upon the ground of the necessary independence of the three co-ordinate departments of the government, and the necessity of limiting each department to its appropriate sphere of action. Mauran v. Smith, 8 R. I. 192; State v. Warmoth, 22 La. Ann. 1; People v. Bissell, 19 Ill. 229; People v. Yates, 40 Ill. 126. And see People v. Hatch, 33 Ill. 9; High, Legal Rem. §§ 122-126. In Texas the general doctrine exempting the chief executive officer of the State from control by mandamus is extended to other state officers whose functions partake in some degree of an executive nature. Bledsoe v. International R. Co. 40 Tex. 537; Chalk v. Darden, 47 Tex. 438; Galveston, B. & C. N. G. R. Co. v. Gross, 47 Tex. 428, overruling Houston & G. N. R. Co. v. Kuechler, 38 Tex. 382. So in Louisiana the writ has been denied when it was sought to compel the secretary of state to promulgate as a law an Act of the Legislature, upon the ground that the correction of such abuses should be sought at the hands of the legislative and executive departments, State v. Deslonde, 27 La. Ann. 71. So it will not lie to the comptroller of the State for the delivery of state bonds voted by the Legislature in aid of a railway company. Bledsoe v. International R. Co. 40 Tex. 537. In Illinois mandamus will not go to a secretary of state, to require him to certify an enrolled Act of the Legislature to be a law, and that it had be The petition and facts will be found in the opinion of the court. and Brown & Jackson for petitioner. Snyder, P., delivered the opinion of the court: On January 10, 1889, A. B. Fleming presented his petition to this court, in which he alleges that on January 9, 1889, he exhibited his bill in equity to A. N. Campbell, a circuit judge of this State, and obtained from him an injunction restraining Henry S. Walker, Secretary of State, from laying before the Legislature of the State the certificate of the Commissioners of the County Court of Kanawha County, purporting to ascertain the result of the general come so by the failure of the governor to return the same with his objections within the time fixed by law. People v. Hatch, 33 Ill. 9. In Minnesota the courts have denied relief by mandamus against the state officers, including the secretary of state, these offices being branches of the executive department of the government, and as such exempt from judicial interference or control. State v. Dike, 20 Minn. 363; State v. Whitcomb, 28 Minn. 50. The exemption of such officers from coercion by the courts is not a mere personal privilege which the incumbent of the office may waive at his pleasure, but is a restriction imposed for the public good. State v. Dike, 20 Minn. 363. In Wisconsin the courts may entertain such jurisdiction, in cases of purely ministerial acts, of duties whose performance has been allotted by law to the officer in question. State v. Doyle, 40 Wis. 175; State v. Warner, 55 Wis. 271. In England there is no conflict of authority; mandamus will not go against the servants of the Crown. Reg. v. Lords Comrs. L. R. 7 Q. B. 387, disaffirming Rex v. Lords Comrs. 4 Ad. & El. 286. see Rex v. Lords Comrs. 4 Ad. & El. 984. Mandamus as a remedy. And Under the American system mandamus has been assimilated to the nature of an ordinary remedy. Ky. v. Dennison, 65 U. S. 24 How. 66 (16 L. ed. 717); High, Legal Rem. § 5. It is in no sense a creative remedy, and is only used to compel persons to act where it is their plain duty to act without its agency (People v. Gilmer, 10 Ill. 242; People v. Hatch, 33 Ill. 140; Lowe v. Phelps, 14 Bush, 642; Tyler v. Taylor, 29 Gratt. 765; Milliner v. Harrison, 32 Gratt. 422. See also People v. Crotty, 93 Ill. 180); and will not go to command the performance of an act which would be unauthorized or unlawful in the absence of the writ. Johnson v. Lucås, 11 Humph. 306; Cook v. Candee, 52 Ala. 109; State v. Covington Co. 57 Ala. 240; Polk v. Winett, 37 Iowa, 34; State v. Lewis, 35 N. J. L. 377; State v. Ricord, 35 N. J. L. 396; High, Extr. Legal Rem. §§ 5-7. Courts will not compel parties to perform acts which would subject them to punishment, or which would put them in conflict with the order or writ of another court; nor will the court, in such cases, to which application is made for a mandamus, inquire into the propriety of the injunction. Ohio & I. R. Co. v. Wyandot Co. 7 Ohio St. 278; State v. Kispert, 21 Wis. 387; Ex parte Fleming, 4 Hill, 581. And see People v. Warfield, 20 Ill. 160. See, contra, State v. Dubuclet, 26 La. Ann. 127. It is used only in extraordinary cases, and where the usual and ordinary modes of proceeding and forms of remedy are powerless to afford redress to election held in said county on November 6, | turnable at 9 o'clock A. M. on January 10, 1889, 1888, for the office of governor of this State; commanding said Walker, secretary as aforethat after said injunction had been perfected said, to forthwith deliver said certificate to the and served upon said Walker, Nathan Goff, speaker of the house of delegates of the Legiswho was also a defendant to said bill of injunc- lature; that said Walker has no personal intertion, without any notice to petitioner, applied est in said injunction or mandamus proceedings, to F. A. Guthrie, Judge of the Circuit Court and that petitioner is the real and only opposof Kanawha County, in term, for a writ of ing party in interest against the said Goff in mandamus to compel said Henry S. Walker, any of said matters. secretary as aforesaid, to do what he had been enjoined from doing by said bill; that Judge Guthrie being fully advised of the existence of said injunction, announced from the bench that he would ignore and treat as naught said injunction, and thereupon he did ignore said injunction and awarded a mandamus nisi, re the party aggrieved, and where without its aid there would be a failure of justice. Com. v. Mitchell, 2 Penr. & W. 517. And see Com. v. Allegheny County, 16 Serg. & R. 317; Com. v. Phila. Co. 1 Whart. 1. Purpose of writ purely mandatory. A mandamus cannot properly be made to do either a prohibitory or reviewing duty; its purpose is purely mandatory. Re Abrams v. Hempstead Town Auditors, 45 Hun, 272, 10 N. Y. S. R. 378. Mandamus cannot be converted into a writ of error. State v. Wright, 4 Nev. 119; People v. Weston, 28 Cal. 639; People v. Judges of Dutchess Com. Pleas, 20 Wend. 658; High Extr. Legal Rem. § 191. Even though the judgment is plainly erroneous, the subordinate court having passed upon the question pending before it, its decision, if erroneous, is a judicial error, which it is not the province of a mandamus to correct. Judges of Oneida Com. Pleas v. People, 18 Wend. 79; Cariaga v. Dryden, 29 Cal. 307: Ex parte Whitney, 38 U. S. 13 Pet. 404 (10 L. ed. 221); Warren County Ct. v. Daniel, 2 Bibb, 573; Stout v. Hopping, 17 N. J. L. 471; Reg. v. Blanshard, 13 Ad. & E. N. S. 318; Foster v. Redfield, 50 Vt. 285; Ex parte Koon, 1 Denio, 644; Ex parte Ostrander, 1 Denio, 679; Elkins v. Athearn, 2 Denio, 191. It is final and conclusive, and its correctness will not be questioned by mandamus. Ex parte Newman, 81 U. S. 14 Wall. 152 (20 L. ed. 877); State v. Wright, 4 Nev. 119; People v. Weston, 28 Cal. 639; People v. Judges of Dutchess Com. Pleas, 20 Wend. 658. But see People v. Wayne County Circuit Judge, 19 Mich. 296. The petitioner prayed for a rule against said Guthrie, Judge, etc., and said Goff, to show cause why a writ of prohibition should not issue prohibiting said Guthrie, Judge, from holding for naught and setting aside said injunction, and prohibiting him and the said Goff from proceeding in said mandamus case without no Tex. 263; Dunklin Co. v. Dunklin Co. Dist. Ct. 23 Mo. 449; Potter v. Todd, 73 Mo. 101; Williams v. Judge of Cooper Ct. Com. Pleas, 27 Mo. 225; Blecker v. St. Louis Law Comr. 30 Mo. 111. See, contra, Hall v. Audrain County Ct. 27 Mo. 329; Rex v. Yorkshire Justices, 5 Barn. & Ad. 667. Mandamus and injunction distinguished. Mandamus is a positive or remedial process, while injunction is a negative or preventive one. People v. Inspectors & Agent of State Prison, 4 Mich. 187; Atty-Gen. v. New Jersey R. & Transp. Co. 3 N. J. Eq. 136; Washington University v. Green, 1 Md. Ch. 97; Sherman v. Clark, 4 Nev. 138; Blakemore v. Glamorganshire Canal Nav. Co. 1 Myl. & K. 154; Crawford v. Carson, 35 Ark. 565. It cannot take the place of an injunction, and will not be employed to restrain or prevent an improper interference with the rights of relators. Legg v. Annapolis, 42 Md. 203. When it appears by the record that the respondent is already enjoined in the same court from performing the act sought, and that the injunction suit will determine the question involved, a mandamus will not be granted. People v. Hake, 81 Ill. 540. Issue of writ in discretion of court. Where mandamus is asked against public officers to compel the performance of an alleged public duty, its issue is a matter of judicial discretion. People v. Police Comrs. 9 Cent. Rep. 728, 107 N. Y. 235. At common law, and also under the statute, the relator in mandamus must show a clear and indubitable right to the relief demanded, and that defendant is under a legal obligation to do the act required. People v. Madison Co. (Ill.) 15 West. Rep. 186. A reason for refusing the writ is that, notwithstanding any opinion expressed by the superior court upon the proceedings in mandamus, the same question might again recur upon the final judgment in the case on writ of error. Bank of Columbia v. Sweeny, 26 U. S. 1 Pet. 567 (7 L. ed. 265). Nor will it be granted to reverse the decisions of inferior courts, upon matters properly within their judicial cognizance. Bank of Columbia v. Sweeny, 26 U. S. 1 Pet. 567 (7 L. ed. 265); Ex parte Hoyt, 38 U. S. 13 Pet. 279 (10 L. ed. 161); Ex parte Whitney, 28 U. S. 13 Pet. 404 (10 L. ed. 221; Ex parte DeGroot, 73 U. S. 6 Wall. 497 (18 L. ed. 887); Ex parte Newman, 81 U. S. 14 Wall. 152 (20 L. ed. 877); Ex parte Schwab, 98 U. S. 240 (25 L. ed. 105); Ex parte Perry, 102 U. S. 183 (26 L. ed. 43); Ex parte Des Moines & M. R. Co. 103 U. S. 794 (26 L. ed. 461); Ex parte Hendree, 49 Ala. 360; Ex parte Gilmer, 64 Ala. 234; Ex parte Graves, 61 Ala. 381; Ex parte Schmidt, 62 Ala. 252; Ex parte Brown, 58 Ala. 536; Ex parte South & N. Ala. R. Co. 65 Ala. 599; Judges of Oneida Com. Pleas v. People, 18 Wend. 79, overruling People v. Superior Ct. of N. Y. 5 Wend. 114; People v. Judges of Dutchess Com. Pleas, 20 Wend. 658; Ex parte Koon, 1 Denio, 644; Ex parte Ostrander, Id. 679; Elkins v. Athearn, 2 Denio, 191; People v. Weston, 28 Cal. 639; Cariaga v. Dryden, 29 Cal. 307; Lewis v. Barclay, 35 Cal. 213; Jones v. Justices of Stafford, 1 In determining the extent to which courts may Leigh, 584; People v. Pratt, 28 Cal. 166; People v. interfere by mandamus with the heads of the execMoore, 29 Cal. 427; State v. Kenosha Circuit Judge, utive department the test to be applied is whether 3 Wis. 809; Warren County Ct. v. Daniel, 2 Bibh, 573; the duty is of an executive or a political nature, State v. Wright, 4 Nev. 119; Stout v. Hopping, 17 N. requiring the exercise of official judgment, or J. L. 471; Rex v. Frieston, 5 Barn. & Ad. 597; Reg. v. whether it is ministerial in its nature, and specificBlanshard, 13 Ad. & E. N. S. 318; Little v. Morris, 10 ally and peremptorily required of the officer. An additional reason is found in the principle that a writ of mandamus confers no authority, and only issues to compel a party to perform an act which is his plain duty without the writ. Nor will the writ go to direct a court to proceed with the trial of a cause which has been enjoined. People v. Gilmer, 10 Ill. 242; People v. Muskegon County Circuit Jndge, 40 Mich. 63. How far courts will interfere. tice to petitioner or opportunity for him to appear and defend his interests therein. The rule was awarded as prayed for returnable on January 11, 1889, at which time the respondents appeared and moved the court to quash the rule. On the motion of the petitioner, his petition was so amended as to show that the injunction bill averred that a writ of certiorari had been sued out of the Circuit Court of Kanawha County by petitioner against the county commissioners of said county to supervise and correct the action of said commissioners in canvassing the vote for governor at the election of November 6, 1888; that said writ had been sued out on January 4, 1889, and was still pending; Kendall v. U. S. 37 U. S. 12 Pet. 524 (9 L. ed. 1181); Mandamus will lie to compel the performance of duties purely ministerial in their nature, and so clear and specific that no element of discretion is left in their performance; but as to all acts or duties necessarily calling for the exercise of judg- | ment and discretion, on the part of the officer or body at whose hands their performance is required, | mandamus will not lie. High, Extr. Legal Rem. 2d ed. § 30. and that said county commissioners had transmitted said certificate to said Walker, secretary, etc., on December 15, 1888. The motion to quash the rule, after having been argued by counsel for the respective parties, was on January 12, 1889, submitted to this court for its decision. It is contended, by the respondents, that the injunction awarded by Judge Campbell, referred to in the petition, was void, because a court of equity has no jurisdiction to restrain a public officer from performing a plain duty required by the Constitution. On the other hand it is insisted for the petitioner that if any jurisdiction existed for the injunction, the action of the circuit court in the mandamus proceedings is | an office; but where such title has been established by a judgment of the circuit court, and defendant continues in adverse possession of the office, it should issue. Mannix v. State (Ind.), 15 West. Rep. 109. Nor will the writ be granted where there has been no actual vacancy in the office, and the present incumbent is rightfully in possession. Rose v. Knox Co. 50 Maine, 243; State v. Whittemore, 11 Neb. 175. Mandamus does not lie ordinarily; the determination of the question of title to a disputed office upon proceedings in mandamus would be to determine the rights of the de facto incumbent in a proceeding to which he is not a party. St. Louis County Court v. Sparks, 10 Mo. 118; Com. v. PerIt will not be awarded to compel an act by a pub-kins, 7 Pa. 42; People v. Forquer, 1 Ill. 68; People v. lic officer, in regard to which he may exercise his New York, 3 Johns. Cas. 79; People v. Detroit, 18 judgment or discretion. People v. Troy, 78 N. Y. Mich. 338. 33; Howland v. Eldredge, 43 N. Y. 457; San Mateo Co. v. Maloney, 71 Cal. 205; People v. Chapin, 4 Cent. Rep. 183, 103 N. Y. 635. Mandamus will not issue upon the petition of a private citizen to compel a public officer to act in a public matter. Mitchell v. Boardman, 4 New Eng. Rep. 764, 79 Maine, 469. Will not issue, where issuance would be useless. Mandamus will not issue when the thing commanded by it would be an idle and useless ceremony | (Mitchell v. Boardman, 4 New Eng. Rep. 764, 79 Maine, 469); or would prove unavailing. Woodbury v. Piscataquis Co. 40 Maine, 304. Where the granting of the writ would have the effect of admitting a second person to an office already filled by another, both claiming to be duly entitled thereto, resort must still be had to further proceedings to test the disputed title. Rex v. Colchester, 2 T. R. 280. So it will be withheld where the applicant has not shown himself to be duly elected, and the only effect of interfering would be to declare the election void. State v. Judge of Ninth Judicial Circuit, 13 Ala. 805. Prohibition and mandamus; writs distinguished. Prohibition is an original remedial writ. Thomas v. Mead, 36 Mo. 232. So, although a statute makes it the duty of the county judge to canvass the returns of the election upon the question of location of a county seat, mandamus will not go to compel such judge to re-bition is negative in its nature. Ibid. ceive returns which he has already passed upon and rejected. Arberry v. Beavers, 6 Tex. 457. Mandamus is an affirmative remedy, while prohi Mandamus lies to compel the secretary of state to deliver the returns of an election for governor and lieutenant-governor to the speaker of the house of representatives. But it appearing that the secretary had already delivered the returns to a person not entitled thereto, the question whether the writ should then issue was reserved for further argument. High, Extr. Legal Rem. § 124 b, citing State v. Hayne, 8 S. C. 367. Where an election, by the terms of a statute, is to be ordered at a certain time, the presumption being that the officers charged with the duty concerning it will perform it at the proper time, an application for a mandamus prior thereto is premature. State v. Coahoma Co. 64 Miss. 358. Title to office cannot be tried by mandamus. The title to an office, as against one actually in possession under color of law, cannot be tried by mandamus. The proper remedy is by quo warranto. French v. Cowan, 4 New Eng. Rep. 688, 79 Maine, 426. A writ of mandate cannot issue to settle title to Another distinguishing feature of the writ is that it is more a preventive than a corrective remedy, and issues only to prevent the commission of a future act, and not to undo an act already performed. State v. Stackhouse, 14 S. C. 417; High, Extr. Legal Rem. 2d ed. 606. No prohibition will issue; even though the final disposition was made after the judge had been served with a rule to show cause why a writ should not issue, and even though similar cases may still be pending in the same court. U.S. v. Hoffman, 71 U. S. 4 Wall. 158 (18 L. ed. 354); Wells, Jur. 502. Under a Code of Civil Procedure declaring the writ of prohibition to be the counterpart of the writ of mandamus, the word "counterpart" is construed only to illustrate the operation of the writ when issued in a proper case, and it does not enlarge or add to the class of cases in which the remedy may be used. Maurer v. Mitchell, 53 Cal. 289. The writ of prohibition agrees with both injunetion and mandamus in this: that, where there is an adequate remedy at law, it is not available. State v. Braun, 31 Wis. 606. Where there is a statutory mode of testing con |