¶1Burnett, J., and Field, J., concurring.
¶2The refusal of the sheriff to execute the writ seems to be based on the hypothesis that the verdict of the jury was equivalent to a finding that the Merced Mining Company were in the lawful possession of the premises at the time of the trial.
¶3The verdict is conclusive that the plaintiff was peaceably in actual possession of the premises at the time of the entry, that unlawful and forcible entry on his possession was made by defendants Clark and Yandewater, and that the Merced Mining Company did not participate in the trespass. The peaceable and actual possession of the plaintiff is incompatible with the lawful possession of another, and the verdict is conclusive against the possession of the Merced Mining Company.
¶4The question then arises, whether, under the writ, the sheriff is authorized to dispossess parties who are strangers to the proceeding.
¶5The object of the Statute concerning Forcible Entries, is to afford parties, whose possession is disturbed by force and violence, a summary remedy.
¶6This object would be entirely defeated if a defendant, after judgment, could, by transferring the possession to a stranger, prevent the execution of the writ.
¶7“ If it were once permitted for a defendant, against whom there was a judgment on a forcible entry and detainer, to put in a third person, or for a third person to enter afterwards, with a view of again putting a plaintiff’s title to the rack, such third person might again, in his turn, after judgment against him, put another in possession, or permit him to enter; so that there might be prosecutions without end, and the object of regaining possession by the plaintiff would be as far off as at the commencement of his first remedy to regain his possession, to the utter subversion of all justice.” (State v. Gilbert, 2 Bay, 355.)
¶8The second reason assigned for the refusal is frivolous, and requires no notice at our hands.
¶9There being no error in the record, the judgment is affirmed.
¶10On petition for re-hearing, Terry, C. J., delivered the following opinion—Field, J., concurring.
¶11An application is made for a re-hearing in this cause—one of the grounds being that the defendant had no opportunity to be heard before the decision of the Court was rendered.
¶12In the record, there is a stipulation signed by the attorneys of record, for both parties, agreeing that “ the cause be submit*215ted for decision to the Supreme Court, on written argument, within ten days from the date, and that if either party fails to file said argument within said time, that the Court may proceed to decide the case immediately on the record and brief of either party that may be then on file.”
¶13This stipulation was dated September 15th, 1858, was filed in this Court on the 19th, and the decision of the Court was rendered ten days afterwards.
¶14The nature of the case, it being a proceeding against a public officer, to compel the performance of an official duty, the anxiety of the parties to obtain a speedy decision, and the fact that it was represented to the Court that the public peace would be endangered by delay, were, by the Court, deemed sufficient reasons for taking up the record out of its order on the calendar.
¶15If the appellant has not been fully heard, the fault lies with himself, as he had fourteen days between the date of the stipulation and the decision of the case in which to file a brief, or to apply for an extension of time.
¶16The conclusion of the Court was arrived at after proper deliberation, was unanimous, and the argument of the counsel, in his application for a re-hearing, has failed to raise a doubt as to its correctness.
¶17The only point made in the petition which was decided in the opinion is: that plaintiff’s remedy was by action on the sheriff’s bond, and not by mandamus.
¶18This objection is not well taken; the statute provides that a mandamus may issue “ to any inferior tribunal, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station,” and shall issue in all cases when there is not a plain, speedy, and adequate remedy in the ordinary course of law.
¶19How, the execution of final process is specially enjoined by law on defendant as a duty resulting from his office of sheriff, and in our opinion the plaintiff in this case has no plain, speedy, or adequate remedy in ordinary course of law. It is true, he might sue defendant on his bond for the damages resulting from the non-performance of his duty, but the possession of the property which has been adjudged to him can only be obtained by the present process, and is the only adequate remedy.
¶20To supersede the remedy bj mandamus, a party must not only have a specific adequate legal remedy, but one competent to afford relief upon the very subject-matter of his application.
¶21Heither a remedy by criminal prosecution, (2 B. & A., 646,) nor by action on the case for neglect of duty, will supersede that by mandamus, since it can not compel a specific act to be done, and is, therefore, not equally convenient, beneficial, and effectual. (23 Wend., 461.)
¶22Re-hearing denied.