Opinion of the Court.

According to section 1 of an act to establish the writ of mandamus, it is a high prerogative writ and therefore it can only be resorted to in the absence of an ordinary remedy for the purpose of obtaining the performance of some act therein specified, appertaining to the office or duty of the *119person, corporation or authority to whom or to which it is directed.

The application of Müllenhoff & Korber does not specify or determine what act or acts the Humacao Court is required to perform forthwith, for said court is ordered to proceed in accordance with the Mortgage Law and the regulations for the execution thereof, by admitting and allowing the full prosecution of the foreclosure proceedings instituted or that might he instituted by them, against the estate “Ingenio” and its appurtenances; and in view of the general character of this prayer the peremptory writ of mandamus applied for, ordering an act or acts, the execution whereof cannot' be absolute but is subordinate to the proceedings instituted by Müllenhoff & Korber, cannot be issued.

According to.section 14 of an act to secure the effectiveness of judgments, any of the parties may in the course of the proceedings, make allegations in relation to the effectiveness of judgments, which must be heard and determined separately in the manner provided for by said section; and it is therefore obvious that Müllenhoff & Korber may object to the order made by the Humacao Court, on May 21, 1902, and although at the present time they cannot do so, owing to the question of jurisdiction under consideration, immediately upon decision of this question they will be in a position to prosecute such claims as may be deemed by them proper before the court declared to be of competent jurisdiction. It is hereby held that the writ of mandamus applied for by the firm of Müllenhoff & Kdrber, does not lie.

dissenting.

The undersigned dissents from the opinion rendered by the majority of the court, because from the record it appears that an action was instituted for the performance of an obligation which evidently consisted in the doing of a thing, and in spite of this, the remedy provided to enjoin the *121performance or execution of an apt was demanded and inconsistently allowed, when, for an obligation such as the one claimed, the effectiveness of the judgment to be rendered is fully secured should the action prosecuted prove successful, by the remedy provided in Rule (C) of section 2 of the act passed by the Legislative Assembly of this Island and approved March 1, 1902. Thus, with the least conflict possible, the true harmony that should exist between this act and the Mortgage Law which guarantees the territorial credit is preserved. For these reasons the undersigned is of the opinion that the writ of mandamus applied for should issue and would confine the cautionary measure to Rule (C) of said section 2 of the above mentioned act, whereby the rights of the parties would be fully preserved without prejudice to anyone.