#### WAYNE TOWNSHIP v. GREEN TOWNSHIP.

Mandamus — -judgment, against township — assessment of tax — practice—singular legislation.

Where there are cross judgments against townships, before a mandamus will issue to compel the assessment of a tax to pay, the township applying will be required first to credit the judgment, with the amount it owes the other township, and proceed only for the balance, as that is all that is due in equity.

The act of 1833, requiring justices and clerks to do the duty of plaintiffs, where a judgment is recovered against a township, is a singular one.

The general action of the Supreme Court is as a county court.

Though a rule, or the incipient steps to a mandamus *may*be taken in any county for cause, the writ must issue in the county where it is intended to operate; an application for a writ in another county is improper.

A rule was granted at the last term of the court, that Green township, in Clinton county, show cause, &c. why a mandamus should not issue to compel them to levy a tax to satisfy the judgment *in the above stated case.*No case was stated above in the rule, and it was supposed the reference was *to the title*of the case in the margin, with the words *ijudgment for thepltf. in C.*P.’ annexed.

*F. Dunlevy,*for Green,

now showed for cause, that Green township, in 1826, recovered a judgment in the Supreme Court, against, Wayne township, for $32 33, which remains unpaid.

Ho relies, also, on the act of the legislature, of January, 1833, since the rule in this case was granted, as rendering it useless to issue the writ prayed for.

*T.*Corwin, contra,

asked to have the rule made absolute.

Wright, J.

The proceedings in this case are very loose and uncertain, and leave it, at best, doubtful if a writ of mandamus should issue. Certainly a writ would be refused for compelling the assessment of a tax to pay so much of the judgment in favor of Wayne, as is equal to the unsatisfied judgment that Green has against Wayne, and Wayne, before obtaining a writ to coerce payment of what is due her, would be compelled first to give credit for what she owes to Green; the balance only is the sum really due, and all that ought to be assessed and collected.

The statute of January, 1833, (31 *O. L.*18) is a very singular one. Why, in cases against townships, the justice or clerk of the court, after judgment should be required to take the place of the plaintiff, and make copies and give notice, to collect the *money*for the plaintiff, it is not easy to conjecture. Why a justice of the peace, or a clerk of the court, should travel at his own expense, to the clerk of the losing township, to deliver the transcript and notice, to collect a debt of a dollar for the creditor, while he is exonerated from the trouble and expense, we cannot divine. The requisition is a novel one; and what induced the legislature to enact it, is not for *293us to say. Probably it" is an instance of hasty and improvident legislation, introduced by some one to meet a particular case. We think, however, although its terms are general, we are not required to give it a retroactive operation, so as to apply it to the case before us.

But, there is a difficulty in the case made, which is not so easily got rid of, although counsel have overlooked it. The application is in *Warren*county, for a mandamus against a township in *Clinton*county. Why is the application made here ? Generally, and for most purposes, the Supreme Court in this state is a county court. We do intend to say that it is altogether so; that in no case will it exercise a general jurisdiction through the state; or,that in a proper case, it may not grant a rule, or take the incipient steps to a mandamus in another county than that in which it is to operate; but, such rule is, in general, to show cause in the county where the writ is to operate, and where alone it must issue, let- it be awarded where it may.

The rule in the case before us has been improvidently entered, and must be discharged.