
    HILL BEACHY v. B. F. LAMKIN.
    OíitceR. —Proceedings against an officer for neglect of duty, being a personal default, will by no means involve bis successor.
    Costs. — In no event could this court render judgment against the territory for costs, there being no mode of enforcing it, or process by which it could be made .effective.
    FROM the first judicial district, Nez Perce county.
    Suit instituted April 12, 1864, to compel defendant, as territorial auditor, to audit an account against the territory, and to number the same four and a half (4J), in order to get payment in advance of other accounts already audited and numbered. After some interlocutory motions and proceedings, the following order was made by the presiding judge, on May 2, 1864;
    
      On bearing tbe above cause, it is ordered tbat a mandamus issue to tbe said B. F. Lamkin to audit tbe claim of said Beacby and number it four and one balf (4J). And tbe said cause is hereby remanded to tbe supreme court, and tbe clerk will send all the papers in this case to tbe clerk of tbe supreme court. And tbe auditor, tbe said B. F. Lamkin, is hereby authorized to audit tbe claim of E. E. Gray, and tbe costs of this suit against tbe territory. This is, however, in no way to conflict with any payment heretofore made by tbe treasurer, but to take precedence of all tbe claims allowed and not paid prior to tbe issue of tbe alternative mandamus. ALECK. 0. SMITH,
    Judge First Judicial District.
    Upon this order tbe transcript comes into this court. Whereupon tbe following stipulation was entered into by tbe parties subscribing tbe same:
    June 2, 1866. Now on this day comes H. B. Lane, controller of Idaho territory, and successor to B. F. Lamkin, former auditor of said territory, and tbe said H. B. Lane representing tbe said officer, and Hill Beacby by A. Heed, bis attorney, and hereby stipulate and agree tbat tbe appeal heretofore taken in tbe above-entitled action be dismissed, at tbe costs of tbe said territory of Idaho.
    H. B. LANE,
    Territorial Controller.
    HILL BEACHY,
    Per A. Heed, Attorney.
   McBbide, C. J.,

delivered tbe opinion of tbe court,

Kelly, J., and Smith, J., concurring.

This action was brought to compel tbe defendant by mandamus to perform an official act which plaintiff alleges be bad failed and neglected to do. Tbe case was determined by tbe district court of tbe first judicial district, in favor of tbe plaintiff, and tbe judge thereafter, upon bis own motion, ordered bis clerk to transmit tbe papers and record to this court.

Tbe plaintiff Beacby, and one H. B. Lane, who claims to be tbe successor in office of the defendant, now move by a stipulation on file to dismiss the case from the calendar and for judgment against the people of the territory for costs.

This motion must be denied. The case is not in this court at the instance of the parties, and while the court would, on an intimation that the merits of the case were no longer in issue, probably dismiss it, the parties have not, as in other cases brought here on their own motion, the right to have it dismissed. But the objection to the motion is conclusive in another point of issue.

Mr. Lane, even if he were the successor in office of Mr. Lamkin, would not be a proper party to this record. The proceeding was against Lamkin for neglect of duty, and, being a personal default, would by no means involve his successor. Lamkin was proceeded against for a personal failure to perform a duty charged as required by law. Mr. Lane, who has been guilty of no such neglect of duty, could not be made responsible for the faults, however grievous, of his predecessor. In no event could this court render a judgment against the territory for costs. We have no means of enforcing it, there being no process by which it could be made effective.

If the territory is liable for costs, the account must be presented in the usual way and the liability discharged as all others are. An execution could not issue, and the judgment would be entirely nugatory and void.

Motion denied.  