
    *Parker, Register, v. Anderson.
    January Term, 1856,
    Richmond.
    Mandamus — When It Lies. — A writ of mandamus lies against any violation of a legal right orto enforce any duty imposed by law, and for which no adequate remedy has been provided.
    In October, 1851, a petition was filed in the clerk’s office of the Circuit Court, of Henrico county by Henry Anderson, setting forth that on the 24th day of September, 1847, he purchased from the Commonwealth of Virginia, a land office treasury warrant (No. 16,736) and shortly thereafter, to wit: on the 6th day of October, 1847, he deposited the same with Wm. Clopton, surveyor of the county of Henrico, and directed him to enter on land in the county of Henrico, which was described in the petition, (embracing what is called the old magazine) ; that he went with the surveyor on the land so designated ; that the warrant was entered, and subsequently, to wit: on the 11th day of July, 1849, it was re-entered; that the said lands were and are now waste and unappropriated ; that the said surveyor made a survey of the said lands, and that a plat and certificate of survey made by the surveyor were on the 18th day of December, 1850, deposited with Stafford H. Parker, Register of the Land Office of Virginia; that the said plat and certificate of survey had remained in the Register’s office six months, when on the 18th day of June, 1851, he applied at the said Register’s office for a grant of the said lands, according to the statute; that he paid the said Register $2 50, office fees, for recording plat and certificate of survey and recording grant, and for performing all other duties towards perfecting the same; that he demanded of said Register to endorse on the grant (in the form prescribed *by law) that he (the said Anderson) had title to a grant for the said lands, and the said Register refused to make such endorsement, though no party had asserted, in the legal form, any demand to the said lands, and though he was entitled to the grant. He therefore prayed that a writ of mandamus might be granted him to compel the said Register to make such endorsement as is above stated on the said grant.
    On this petition a rule was granted against the Register, requiring him to show cause why a mandamus, as prayed for, should not issue.
    The rule was continued from time to time until the 24th day of December, 1851, when the Register made his return, in which he stated that he was inhibited from issuing a patent for the lands in the petition mentioned by the 10th section of ch. 41 of the Acts of the Legislature for 1851, (Sess. Acts 1850-1, ch. 41, § 10, p. 33;) that, as he had been informed and believed, the said lands were not waste and unappropriated ; that they were granted by, and afterwards escheated to the Commonwealth ; that during the war of the Revolution they were appropriated for the purpose of a magazine of military stores and provisions, and so continued to be till after the war of 1812; that they had been recently and were now used as a quarry for stone for t}ie public works of the Commonwealth.
    The act referred to by the Register in his return, was passed on the 31st day of March, 1851, and the 10th section (intended as an addition to § 38, ch. 112 of the Code) is as follows:
    “No grant issued by the Register, either in consequence of any survey already made, or which may hereafter be made, shall be valid or effectual in law to pass anj" estate or interest in any lands,'unappropriated or belonging to the Commonwealth, which embrace the old magazine at Westham, or any stone quarry now worked by the State, or any lands which are within a mile of said magazine or any such quarry, or to pass any estate or interest in lands which are a common under chapter *sixty-two of the Code; but every grant for any such lands shall be absolutely void. The said magazine and every such stone quarry, and the lands of the Commonwealth, adjacent to or in their neighborhood, shall be under the control of the Governor, who may make such regulations concerning the same as he may deem best for the interests of the State.”
    The court adjudged the return of the Register insufficient, and a mandamus nisi issued, requiring him to make a sufficient return. To this writ the following return was made by the Register: “This respondent showeth that he hath been advised by the Attorney-General that the questions mentioned in this cause are new and difficult, and materially affecting the rights of the Commonwealth, and the proper discharge, by this respondent, of the duties of his office. While this respondent will, under all circumstances, respectfully and cheerfully submit to the decrees of this court, yet he respectfully asks, that time may be allowed to obtain the judgment of the Court of Appeals on the questions arising in this record. ’ ’
    The cause came on to be heard on these proceedings, and on the 30th day of December, 1851, the court decided that the Register had failed to show sufficient cause why the endorsement, prayed for in the petition, should not be made on the grant, and thereupon ordered that a peremptory mandamus issue against him, commanding him to make such endorsement without delay.
    ■ From this judgment the Register appealed to this court.
    The Attorney-General, for the appellant.
    John Robertson, for the appellee.
    
      
      Mandamus. — See the principal case cited in footnote to Milliner v. Harrison, 32 Gratt. 422.
    
   TYLER, J.,

after stating the facts, delivered the opinion of the court, as follows:

Several questions have been discussed in this case, but one of which I deem it necessary to notice, because the decision of one is sufficient to dispose of the case. *A writ of mandamus lies in consequence of the violation of some legal right or duty imposed by law, and for which no adequate remedy has been provided. In this case, the law imposes, first, no such duty on the Register as the mandamus required him to perform; and, secondly, its non-performance violated no right of the petitioner. If the petitioner had a right in this case to demand a grant, he had no right to require the endorsement prayed for, because the law had, previous to the accrual of his right to demand a grant, dispensed with the ceremony of making the endorsement prayed for in the petition, and commanded by the mandamus to be made. This change in the law was made in the Code of 1849, which took effect the 1st of July, 1850, and the plat and certificate of survey was not filed in the Land Office until the 18th of December, 1850; and until (the expiration of six months thereafter, the petitioner had no right to demand a grant. At that time the law provided, not that the Register should make the endorsement commanded by the mandamus, but that the Register should deliver the grant to the Governor to be executed. See Code of 1849, ch. 112, g 48, p. 486. So that, while the law, previous to the Code, imposed the duty on the Register to endorse on the grant that the party had title to the same, at the time the right of the petitioner accrued to demand a grant, the mode of proceeding, in conveying the Commonwealth’s title to land, had been changed. But still this change in the mode of conveyance did not affect or interfere in the slightest degree with any right of the petitioner, because the grant, without the endorsement, passed the Commonwealth’s title to the grantee as effectually as with the endorsement, and the error manifest on the face of the proceeding is only to be accounted for on the supposition that the change in the law had been overlooked. It is said, however, that the real object of the petitioner was to compel the issuing of the grant; and-that may be so. ■ But that is not the act complained of, nor the duty Commanded by the mandamus to be ^performed. The court below commanded the Register to do an act, not imposed as a duty by law, and his refusal to do it, has in no way affected any right of the petitioner.

The judgment is therefore reversed and annulled, with costs to the appellee, the writ of mandamus quashed, and this court, proceeding to pronounce such judgment as the court below should have pronounced, it is adjudged that the petition be dismissed with costs.

But this judgment is to be without prejudice to any other proceeding the defendant may be advised to take under the law as it now is, in the prosecution of his right to have a grant — as to which right this court gives no opinion.  