
    Joshua Chase et al. versus The Blackstone Canal Company.
    Where a subordinate tribunal have acted m a judicial capacity upon a question properly submitted to their judgment, this Court will not issue a mandamus commanding them to reverse their decision.
    Thus, where a party, whose land was injured by a canal, having applied for a jury and obtained a verdict for greater damages than had been allowed him by commissioners appointed under the statute authorizing the construction of the canal, moved the county commissioners for costs, but the motion was overruled, and he thereupon applied to this Court for a mandamus to compel the county commissioners to allow him costs, the Court, without inquiring into the correctness of the decision, refused to issue a mandamus.
    The petitioners represent, that they are owners of certain land in Millbury ; that the respondents, by virtue of their act of incorporation, have located and constructed a reservoir to the Blackstone canal, by reason of which the petitioners’ land was overflowed with vyater and rendered good for nothing ; that certain commissioners, appointed pursuant to the act, had made an estimate of the damages sustained by the petitioners, with which they were dissatisfied, and upon their application to the county commissioners, a jury was empannelled to estimate the damages; thát the jury awarded to the petitioners a larger sum than the one awarded by the commissioners, and the verdict was returned to the county commissioners and was by them accepted and affirmed ; and that the petitioners, at the time of the acceptance and affirmation of the verdict, moved the county commissioners, in writing, to allow them their legal costs in the suit, but that the motion was overruled ; wherefore the petitioners pray this Court to issue a writ of mandamus to the county commissioners, ordering them to allow and tax for the petitioners their costs in the suit and to enter up judgment therefor.
    The act incorporating the Blackstone Canal Company (St. 1822, c. 27,) provides in § 8, that damages shall be estimated, in the first place, by certain commissioners, and if either party is dissatisfied with their estimate, then by a jury, and that if the party injured in his estate shall apply for the jury and shall fail to obtain increased damages, he shall be liable for all legal costs arising after the entering of such application for a jury, and that if the corporation shall apply for a jury and shall fail to obtain a diminution of damages, it shall in like manner be liable for costs ; but no provision is made for costs in case the party injured shall obtain increased damages, or the corporation a diminution of damages.
    
      Hoar and Livermore contended that the petitioners were entitled to costs, by virtue of the clause in St. 1784, c. 28, § 9, that “ in all actions the party prevailing shall be entitled to his legal costs against the other.”
    
      Oct. l‘M
    
    
      J. Davis and C. Allen, contra,
    
    said the Court have no power to issue a mandamus in this case, the refusal to allow costs being a judicial or discretionary act. The petitioners should have applied for a writ of certiorari. Waldron v. Lee, 5 Pick. 327 ; Com. Big. Mandamus, A; Rex v. Abp. Canterbury, 8 East, 213 ; Jansen v. Davison, 2 Johns. Cas. 72 ; Commonwealth v. Cochran, 5 Binn. 87 ; United States v. Lawrence, 3 Dalias, 42 ; Commonwealth v. Judges of Common Pleas, 3 Binn. 275 ; Commonwealth v. County Commissioners, 5 Binn. 537 ; 2 Esp. N. P. Dig. 668.
    The decision of the county commissioners was correct. At common law parties are not entitled to costs, and the statute of 1784, c. 28, § 9, does not apply to the present case. Commonwealth v. Carpenter, 3 Mass. R. 268.
    Hoar, in reply, said that certiorari perhaps might lie, but the effect of it would be to quash the whole proceedings, so that the petitioners would not only fail to obtain costs, but would also lose the damages. He asserted that the allowance of costs was not a matter subject to the discretion of the county commissioners, but a matter of right.
    
      July lo3l
   Per Curiam.

This is a petition to this Court for a writ of mandamus to the county commissioners for this county, requiring them to award costs for the petitioners in the case specially set forth in their petition. It appears from the petition itself, that they made a motion to the commissioners for costs, and the motion was disallowed. The effect of the petition therefore is in nature of an appeal, and the purpose is to require the commissioners to reverse their decision upon the question of costs. Without expressing any opinion whether the petitioners were entitled to costs as a matter of right, or whether the commissioners had a discretionary authority to grant costs, or under the circumstances of the case ought to have granted them, we are clearly of opinion that the writ of mandamus ought not to issue. This writ lies either to compel the performance of ministerial acts, or is addressed to subordinate judicial tribunals, requiring them to exercise their functions and render some judgment in cases before them, when otherwise there would be a failure of justice from a delay or refusal to act. But when the act to be done is judicial or discretionary, this Court will not direct what decision shall be made. This point has been distinctly decided in an early case in the Supreme Court of the United States. United States v. Lawrence, 3 Dallas, 42. There it was held that the court had no power to require a judge to decide according to the dictates of any judgment but his own ; that as the district judge, in the case before him, in refusing to issue a warrant, had acted in a judicial capacity, they could not interfere to control or reverse bis decision. In the case before us, the county commissioners, as the successors of the court of sessions, having acted in a judicial capacity, upon a question properly submitted to their judgment, it is not a proper case for a writ of mandamus.

Petitioners take nothing. 
      
       The intimation in the above case, “ that where a court is imperatively required to allow costs, as incident to a judgment, a mandamus will in no case be granted, requiring such court to allow and tax them,” has since been qualified in the case of Morse, Petitioner, 18 Pick. 445 to 447. See also Rice v. County Comm. of Middlesex, 13 Pick. 227, 228; People v. Superior Court of City of N. York, 10 Wendell, 285; People v. Superior Court of City of N. York, 5 Wendell, 114; Ex parte Bacon, 6 Co wen, 392; Louisiana College v. Treasurer, 2 Louisiana R. 394.
     