#### Crise Ex Parte.

Upon an application for mandamus to the Auditor to compel him to issue his warrant for the damages assessed under the statute in favor of the owner, upon whose land the Swamp land Commissioners have located a levee, it must show not only a regular inquisition and assessment of damages, as prescribed by tho statute, but also that the levee had been built, was in process of construction, or was under contract.

Application for mandamus to the Auditor, filed during a vacancy in the office of Judge of the Fifth Judicial Circuit; denied, after the election’and commission of the judge: upon motions to vacate the order denying the writ and for leave to amend the petition, the court was divided — Mr. Justice Soott, against permitting the amendment to be made; Mr. Chief Justice English in favor of it.

*Petition for writ of Mandamus.*

Soott and WatkiNS, for tbe petitioner.

Mr. Justice Soott

delivered tbe opinion of tbe Court.

On tbe 12th day of February, 1855, upon tbe suggestion tbat there was *then*no judge of tbe Fifth Judicial Circuit in commission : tbe truth of which this court knew from the Governor’s proclamation to tbat effect, and for fixing that same day for tbe election of tbat functionary, tbe petitioner was allowed to file an application, in this court, for a rule upon tbe Auditor of tbe State, to show cause why a mandamus should not be sent to him, to issue bis warrant in favor of tbe petitioner for swamp land scrip, to tbe amount of $1558, in pursuance of an inquisition taken by tbe sheriff of White county, under authority of tbe Swamp Land Commissioners, and tbe verdict thereon rendered, and returned into tbe office of tbe cleric of tbe Circuit Court of White county.

On tbe 26th day of tbe same month of February, this court refused tbe petitioner’s application, upon no ground touching tbe *194merits of his claim for relief, but upon that-, that be bad not alleged, in bis petition, in addition to bis other allegations, either that the levee in question had been built, was in process of construction, or was under contract.

Before this last mentioned day, however, the present acting judge of the Fifth Judicial Circuit, had been commissioned and qualified.

And the petitioner now submits his several motions for the reconsideration of the opinion of this court, touching the aforesaid refusal, for the vacation of the judgment of refusal, and for leave to amend his original petition, so as to make it conform to the views of the court indicated. With regard to that, for re-consideration, although by reason of a temporary absence from the bench, I did not participate with my brother judges in the refusal of the application, yet I have found no sufficient reason to feel clear that the legal ground, upon which they placed it, ought to be departed from. Indeed, in view of the vast door that would be opened otherwise for exhausting the swamp land grant in advance of actual reclamation or practical commencement therefor, at which latter time only real injury to the landed proprietors would begin, there are weighty considerations persuasive to persist in occupying that ground.

As to the other motions, addressed as they are to the sound discretion of this court, although I doubt not but that abundant analogous precedents in courts of regular original jurisdiction, may be found going to their support, yet I am of opinion for their refusal. Because, like considerations with those which make it the duty of this court, so to exert its revisory power of superintending control, as to conflict with its ordinary appellate power, as regulated by law, as little as may be practicably consistent witli tlie stern demands of justice in prevention of irreparable mischief, obviously inculcate that such of the powers of superintending control, as are of the nature of original j urisdiction, should be exerted only to a like restrictive extent to prevent a failure of justice from accidental causes. Else the result would be, that *195beyond tbis, tbe courts of ordinary original jurisdiction would be improperly diminished of their rightful jurisdiction. *Carnall vs. Crawford Co.,*6 *Eng.*617, 618. Indeed, there are additional reasons which would authorize even greater strictness in the latter than in the former class of cases; since in every case where this court should exert powers of original jurisdiction, the losing party would be necessarily diminished of the ordinary right of such a party to have the judgment against him revised'in an appellate court. See *Allis Ex parte, 7 Eng. Rep.*108, 9 *and*116.

During the period when the accidental cause existed, which would have authorized this court to have granted the petitioner the relief sought, he made, nor offered to make, any such *prima facie*case, as, in the opinion of this court, entitled him to relief. And now when he offers to make such a case, as I think he does, that accidental cause no longer exists.

In the exercise of a sound discretion, to which these motions are addressed, I the more readily assume the position taken, because it in no way delays the petitioner of his ordinary remedy, since when ho made his original application here, the fall term of the Pulaski court, where he can rightfully seek relief, had already been closed; and, consequently, although the temporary vacancy in the judgship of the Fifth Judicial Circuit, had not occurred, yet until the spring term following, which is now not far off, he could not have been heard. Indeed, so far from being delayed, or in being otherwise injured by this course, he is benefited in so far as this court may have enlightened him, as to allegations in any petition he may present to the proper court. The motion, in my opinion, should be refused.

Mr. Chief Justice ENGLISH: I agree with brother Scott, that the amendment which the petitioner proposes to make to the allegations of his petition, would, if allowed to be made, entitle him to an alternative writ of mandamus against the Auditor; but am inclined to dissent from so much of his opinion as places the refusal to allow the amendment to be made, on the ground, that *196tbis court bas lost jurisdiction, of tbe matter by tbe election and qualification of tbe circuit judge since tbe application was made for tbe writ in tbe first instance. It seems to me, that tbe court, having rightfully obtained jurisdiction of tbe cause in tbe out-set, might well retain it for all tbe purposes of tbe application, and that tbe application to permit tbe amendment, is addressed simply to tbe discretion of tbe court. Under tbe circumstances of tbis case, I should be inclined, on tbe score of discretion, to allow tbe amendment; but, on tbis point, tbe court being divided, and one of tbe judges absent, tbe amendment cannot be allowed, nor tbe writ ordered.

Mr. Justice Soott was absent when tbe mandamus was refused; and Mr. Justice Maleer when tbe motions were disposed of.