2 Johns. Cas. 215 | N.Y. Sup. Ct. | 1801
delivered the opinion of the court. There may he a judgment, for the insufficiency of the declaration or plea, as the case may be, against the party, though there may be a verdict for him. If the party for whom a verdict is found, will not move for judgment, the other party may pray for judgment against himself; but the entry on the record will still be as if the judgment had been on the prayer of the party for whom the judgment was found. And where a party prays to have judgment rendered against him, to the intent, that he may bring a writ of error, he is entitled to have it so rendered against him, as matter of right.
Where the verdict is for the plaintiff, if the defendant, in stead of letting the plaintiff take a judgment for himself, prays only that the court, omitting to render judgment, shall, as their final act in the cause, say to the parties, that they may go without any further day given to them to appear again; and if the plaintiff, when the court have declared their opinion against him, does not pray judgment against himself, the judgment, *in such case, is said to be arrested, as distinguished from the case where it is rendered : for, according to the ordinary, though, perhaps, improper sense of the expression, a judgment is said to be arrested, when the court, by an interlocutory act, award a new trial, or repleader, or other further proceedings ; and where the party for whom the verdict was given, must still so further proceed, until there shall finally be a judgment in the cause, and then, on a writ of error, he may have judgment on the verdict, if entitled to it, and the judgment of the court, in awarding the further proceedings, and of consequence the proceedings themselves, be reversed. The arresting of judgment, however, in the present case, is the final act of the court; and the question is, whether it is such a judgment, as that a writ of error will lie upon it.
In some cases, where a judgment is rendered against the plaintiff, it will be a bar to an another action for the same cause, and his only remedy is, by a writ of error, to have the judgment reversed ; but if the remedy, where the judgment is arrested, is also by writ of error, then the law, to be consistent with itself, must make an arrest of judgment a bar to a new action, in the same cases where the rendering of judgment is a bar. But as the arrest of judgment is not, by law, a bar in any case, the inference must be, that a writ of error will not lie on it.
That this is the law, is further evident, from the form of the entry where the judgment is arrested, and the form of the court of errors. In the first case the entry is, “ omitting the rendering of judgment,” &c. in the latter case, the writ of error states, “ that in rendering judgment, manifest error,” &c.
If, then, the plaintiff has no remedy by a writ of error, he must have it by a writ of mandamus ; though, strictly speaking, he is not entitled to his rule, before he has prayed the court below to render judgment against *himself, for until then there is no default in the judge of the inferior court; yet as this case is new, and to prevent
Rule granted accordingly.(
(а) See infra note (5),
(b) The editor trusts that he will be excused in submitting to the profession a collection of cases upon the law of mandamus, broader and fuller than is required to elucidate the decision in the principal case. In the progress of legal science almost every branch of jurisprudence has become the subject of a distinct modern treatise, and it is somewhat singular therefore that this should have been neglected, since the Courts and the Bar are daily occupied in its consideration. The intention of the editor has been, in some degree, to supply the neglect of others, though it might not be done with any thing like that completeness which is desirable, and the result is submitted to the use and to the judgment of the profession.
1. In the administration of political affairs and in the proper government of subordinate officers and tribunals, it is necessary that some power should exist to compel them to those acts which public justice demands. And whatever may be the wisdom with which specific remedies, the instruments of that power, are devised, many cases must arise to which they cannot be applied, and in which “ a failure of justice and defect of police ” must be the consequence. The necessity therefore has become apparent of establishing some general residuary remedy to be used upon all occasions where the law has bestowed no other, and where in justice there ought to be one. (See per Lord Mansfield in Rex v. Baker, 3 Burr. 1274.) This remedy is called the Writ of Mandamus and it is liberally interposed for the benefit of the citizen and the advancement of justice ; “ the value of the matter or the degree of its importance to the public police is not scrupulously weighed; if there be a right and no other specific remedy, it will not be denied: in fact, where there is a right to execute an office, perform a service, or exercise a franchise, more especially if it be a matter of public concern, or attended with profit, and a pelson is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, the court will interpose by mandamus upon reasons of justice as the writ expresses — Nos A.B. debitam et festinam justitiam in hac parte fieri volentes, ut est justum; and upon reasons of public policy, to preserve peace, order, and good government.” (Rex v. Baker, 3 Burr. 1267. Per Lord Mansfield, ibid. 1266.) By means of this suppletory remedy inferior officers and tribunals are forced to perform their duties, and corporations are
§ 2. No definition of mandamus has been given which is on the whole, more satisfactory than that of Sir William Blaekstone. It substantially describes this writ as in general, a command Issuing in the name of the sovereign authority from a superior court and directed to any person, corporation or inferior court of judicature, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified which appertains to their office and duty. (3 Black. Comm. 110. See Bouvier’s Law Dict, tit. Mandamus.)
§ 3. Let us now briefly consider where the authority to issue a mandamus is reposed. By the common law this writ was esteemed one of the flowers of the King’s Bench, (per Doddridge, J. in Audley v. Jay, Poph. 176,) and pe* culiar to that tribunal, because of the general superintendence which it exercised over all inferior jurisdictions and persons. The king originally sat there in person and aided in the administration of the law. According to the theory of the English constitution the king is the fountain of justice, and where the laws did not afford a remedy and enable the individual to obtain his right, by the regular forms of judicial proceedings, the prerogative powers of the sovereign were brought in aid of the ordinary judicial powers of the court, and the mandamus was issued in his name to enforce the execution of the law. And although the sovereign has long since ceased to sit there, yet he is still present in construction of law so far as to enable the court to exercise its prerogative powers in his name ; and hence its power to issue the writ of mandamus. It is therefore, evident, that by the principles of the common law, this power would not be incident to any court which did not possess the general superintending power of the Court of King’s Bench, (sed vid. Vern. 175,) ia
It is obvious from the fact that the governments of the United States and those of the several states are distinct, that the one can exercise no authority
§ 4. The writ of mandamus has been termed a prerogative writ, because regularly it issues only in cases relating to the public and to the government, (Bac. Ab. tit. Mandamus A.) but perhaps a better reason why it was so called is to be found in the fact that it issued by the special power, pre-eminence, or privilege which the king exeroised over and beyond other persons, and above the ordinary course of the common law in right of his regal dignity. (See Jac. Law Dic. tit. Prerogative ; 1 Black. Comm. 239 ; Rex v. Barker, 1 Wm. Black. 352.) And inasmuch as this writ was theoretically extended to the subject by the prerogative of the sovereign, in the proper exercise of which he could not be controlled, it was of necessity discretionary in its character and liable to be granted or refused as he might see fit. Nor has this theory been changed in its application to the judicial system of our own country, but such discretion resides in those tribunals that issue this writ, in the same manner that it did in the king or the court of King’s Bench where be was constructively present. It is true that mandamus has been called a writ of right, (Bac. Ab. tit. Mandamus A. id. intro, id. D.) but this was long since questioned ; (per Ashburst, J. in Rex v. Commrs. of Excise, 2 T. R. 381, 385 ;) and.it is now well settled that the writ is discretionary, and that this discretion will not be exercised unless some just or useful purpose may be answered thereby. (Ex parte Fleming, 4 Hill, 582, 583, 584. Van Rensselaer v. Sheriff of Albany, 1 Cowen, 501, 512. Corporation v. Paulding, 4 Martin, N. S. 189. Rex v. Clear, 4 Barn. & Cresw. 899. Rex v. Mayor, &c. of Totness, 5 Dowl. & Ry. 481. Rex v. Griffiths, 5 Barn. & Ald. 731, per Bailey, J.) But although it is discretionary in the court to grant or refuse this remedy, yet this discretion is not merely arbitrary and capricious, but on the contrary is regulated by certain rules and principles of law, (which we shall hereafter consider,) in order that every citizen who can show clearly to the satisfaction of the court that be has such a right as the law ought to protect and vindicate, without any other specific remedy of which he can legally avail himself, may be legally entitled to the aid of this process. (See per Brevard, J. in The State v. Bruce, Con. Rep. S. Ca. 165, 176.)
§ 5. We have seen that the courts exercise their discretion in granting this writ, and that it is not from hence to be inferred that this discretion is arbitrary in its character and irrespective of general rules of law, which have been dictated by experience and incorporated into our system of judicature. On the contrary, we shall find that a number of leading principles in regard to the granting of mandamus, have received the sanction of the common law and are therefore uniformly to be regarded. And
I. It may be generally stated that a mandamus is granted only to enforce a public right or a public duty. (Bac. Ab. tit. Mandamus C. Com. Dig. tit. Mandamus A. 3 Black. Comm. 110. 1 Chitt. Geni. Pr. 789.)
§ 6. Upon the principle that the act sought to be commanded is not of a public character, a mandamus will be refused to compel an admission to an office or service of a private nature. Clerk to a dean and chapter has been decided to be of this character; “ his office being only to enter leases granted, &e., and therefore he hath no more to do with the public than the bailiff of a manor.” (Comb. 133.) So has proctor in the spiritual court, (3 Mod. 335; Bac. Ab. tit. Mandamus C.) surgeon to a hospital, (Comb. 41; 7 Mod. 118, S. P.;) master of the Lord Mayor’s water house, (Vent. 143 ;) clerk, of the Butchers fcompany, (6 Mod. 18; 2 Ld. Raym. 959, 1004 ;) and approver of guns to the Gunsmiths Company, (6 Mod. 82 ; 2 Ld. Raym. 989 ; Comb. 347 ; though these cases have been questioned ; Bac. Ab. tit. Mandamus C.) The office of vestry clerk has also been adjudged within this rule in Rex v. Churchwardens of Croyden, (5 T. R. 713,) where Lord Kenyon remarks, “ This office is merely of a private nature ; and if a mandamus were to be granted to restore to the office of vestry clerk, I should soon expect to hear of an application for a mandamus to restore to the office of a toll-gate keeper of a turnpike road.” (See also State ex rel Gruber v. Champlin, Same v. Hunt et al. 2 Bailey R. 220 ; Bac. Ab.tit. Mandamus C. 1.)
§ 7. II. The right or duty in respect of which the remedy by mandamus is sought, must be of a legal character. (See the opinion of Yeates, J. in Commw. v. Rosseter, 2 Binney, 262; State v. Bruce, Const. R. S. Ca. 165, 175.) The established rule of law is that there ought, in all cases, tobe a specific legal right as well as the want of a specific legal remedy. (Id.) Upon this principle the court of King’s Bench refused a motion to direct this writ to Dr. Bettesworth, commanding him to grant administration to Smith of the goods of his deceased son durante minore (state of his grandson. And they observed, “ When we grant mandamus it is to oblige the judge to do right to the party who sues the writ; but as there is no law which says to whom these administrations during minority shall be granted, there is no law to be put in execution.” (Smith’s case, 2 Strange, 292. See Rex v. Bettesworth, id. 956.) And the same court held that this writ would not lie to the Archbishop of Canterbury, to issue his fiat to the proper officer for the admission of a doctor of civil law, a graduate of Cambridge, as an advocate of the court of arches, because no such right or duty exists. (Rex v. Archbishop of Canterbury, 8 East, 213.)
§ 8. III. The right or duty must be perfect and not inchoate. (The People v. The Trustees of Brooklyn, 1 Wend. 318.)
§ 9. IV. It is a rule of general application (though not without exceptions to which we shall hereafter allude) that where there is any other specific remedy for the party complaining, the writ of mandamus will not lie. If therefore an appeal or writ of error can be brought for the purpose of deciding the question presented upon the application for mandamus, the court will leave the party to that remedy. (Carthew, 16 ; Prohurst’s case, Andr.
§ 10. It is, however, within the power of an inferior tribunal to prevent a party from availing himself of a writ of error by refusing to give judgment, and in that case the remedy by mandamus may be pursued ; for otherwise he would have no redress. (Ex parte Bostwick, 1 Cowen, 143, 144.) Thus if a subordinate court set aside a report of referees because it conceives that upon the facts found by the referees, the law is against the plaintiff in whose favor the report is made, and if, after the intimation of such opinion, the court refuse upon the application of the plaintiff to render judgment against him, so that he may bring error, it seems that a mandamus would be ordered requiring the prayer of the plaintiff to be granted. (The People v. The Superior Court of New York, 19 Wend. 68; Rex v. Gray’s Inn, Dougl. 524 ; Rex v. Lincoln’s Inn, 4 Barn. & Cresw. 855.)
§ 11. Upon the same general principle if the party aggrieved have a remedy by action to maintain his right, a mandamus will not issue; or if it have been issued it will be quashed. Where, therefore, this writ had been granted, commanding a party who was alleged to have custody of certain books, papers, and proceedings relating to a court of requests, (under a local act, 47 Geo. III. sess. 2, ch. 1,) or to the office of the clerk thereof, to deliver them up to a party who claimed to hold them as having been elected clerk to the court; Patteson, J. objected upon the argument that the party in whose legal custody they had been might maintain trover. (Regina v. Hopkins et al. 1 Q. B. 161, 168.) And where an alternative mandamus had been issued to compel the trustees of Brooklyn, to procure the report of commissioners of estimate and assessment, appointed in relation to the opening of Adams Street, to be filed with the clerk of the common pleas of Kings, to the end that the same might be confirmed by the court, or to show cause why, &c., Savage, Ch. J. said: “ If the relators have a right to the amount assessed in their favor, by virtue of the assessment alone, then an action lies.” (The People v. The Corporation of Brooklyn, 1 Wend. 318, 325.) Accordingly where a mandamus was moved to compel the supervisors of the city and county of New York, to audit and allow the salary of an associate judge of the general sessions, it was denied because an adequate remedy by action existed under the statute of May 14th, 1840. (Ex parte Lynch, 2 Hill, 45, 47. See also Ex parte Lynch, id. 46, n. a.) So it was denied where one was moved to the company of an incorporated bank, commanding them to permit certain shares in the capital stock, standing in the name of Kip on the books of the company, to be transferred on the books, Kip having become insolvent and duly assigned all his estate ; because when a corporation improperly refuses to transfer stock the party injured has an ample remedy by action. (Shipley v. The Mechanics Bank, 10 Johns. 484. Ex parte The Firemens Ins. Co. 6 Hill, 243. Kortright v. Buffalo Commercial Bank, 20 Wend. 91. 22 id. 348, S. C. in error, See also Rex v. Bank of England, Doug. 524; Rex v. The London Assurance Co. 5 Barn. & Ald. 899.) And for the same reason
§ 12. A few other oases will now be- stated for the purpose of illustrating the broad application of the rule under consideration. “ Though a mandamus to admit to an office gives no title, yet it will not be granted, when there is an officer de facto, though that officer be in under a peremptory mandamus obtained by collusion, and claim under the same election with the applicant; for the remedy is to try the title of the officer de facto on an information in the nature of a quo warranto, on which if judgment of ouster go against the the defendant, a mandamus may be granted with less inconveniency to the corporation ; nor will it be granted to admit to office the candidate therefor, on account of improper votes having been received for one who was declared elected, had accepted the office, and made the requisite declaration.” Angel & Ames on Corp. 3d ed. 639. A mandamus to a mayor to admit one to the office of recorder was refused because there was a recorder de facto, and it was therefore a decisive answer to the application that there was another remedy by an information in the nature of a quo warranto, by which the title of the officer in possession could be tried. (Rex v. Mayor of Colchester, 2 Term R. 259.) So one was refused to a treasurer of a county to compel him to reinburse constables’ money expended by them, for conveying and maintaining rogues and other idle and disorderly persons, under the act of 17 Geo. II. because the quarter sessions had jurisdiction in the matter. (Rex v. Earle, 2 Burr. 1197.) So of one to a bishop to compel him to license a curate of an augmented curacy where there was a cross nomination, for the party had a specific legal remedy by quare impedit. (Rex v. Bishop of Chester, 1 T. R. 396. See Rex v. Turner, T. Jones, 215. “ If quare impedit does lie, mandamus does not.” Per Lord Mansfield in Powel v. Milbank, id. 399, 401, n. d ; which overrules Clarke v. The Bishop of Sarum, 2 Str. 1082; Andr. 20, 185, and the cases there cited. See also Rex v. Marquis of Stafford, 3 T. R. 646.) Upon this principle, and for the reason that the ecclesiastical tribunals could
§ 13. It has been before remarked that the general rule under consideration is not without exceptions. These arise from the nature of the remedy which is required to exclude the application of the writ of mandamus. Such a remedy must be adequate, specific, legal; (per Lee arg. in Marbury v. Madison, 1 Cranch, 137, 152; King v. Bishop of Chester, 1 T. R. 404, per Buller, J.;) and competent to afford relief to the applicant therefor upon the very subject matter of his application. Therefore it has been said, that though the party have another legal specific remedy, yet if it be obsolete ; (per Buller, J. 1 T. R. 404, in Rex v. The Bishop of Chester, Bac. Ab. tit. Mandamus, intro.; The State v. Holliday, 3 Halst. 205 ; see however per Nelson, J. 10 Wend. 396. in The People v. The Mayor of New York;) or extremely tedious (per Yeates, J. in Commw. v. Rosseter, 2 Binney, 262 ; sed vide 10 Wend. 396;) this writ will lie, since in such case it is inadequate to do justice. And upon the same general principle it has been held that neither a remedy by criminal prosecution ; (per Abbott, Ch. J. in Rex v. Severn Wye Railway Co. 2 Barn. & Ald. 646 ; Rex v. Commissioners of Dean Enclosure, 2 Maule &. Selw. 80, 81 ; Cases of Mag. 88 ; The People v. The Mayor, &c. of New York, 10 Wend. 393, 396 ; The State v. Holliday, 3 Halst. 205; Bac. Ab. tit. Mandamus, intro.; 1 Chit. Genl. Pr. 791, n. m ;) nor by an action on the case for neglect of duty ; (Ex parte Lynch, 2 Hill, 45 ; per Bronson, J. in McCullough v. The Mayor, &c. of Brooklyn, 23 Wend. 461;) will supersede that by mandamus, since it cannot compel a specific act to be done, and is therefore not equally convenient, beneficial and effectual. (See Bac. Ab. tit. Mandamus C.; 4 Mod. 281 ; Comb. 244; Knipe and Edwin, Ld. Raym. 159, 163, 338, 561, 958. 989, 1004 ; 10 Mod. J 46 ; 12 Mod. 609, 666; Fitzgib. 123, 194.) Nor will a remedy in equity prevent the granting of a mandamus, though it may and should influence the court in the exercise of the discretion which they possess, in granting the writ under the facts and circumstances of the particular case. (The People v. The Mayor, &c. of New York, 10 Wend. 393, 397. The State v. Holliday, 3 Halst. 205. Bac. Ab. tit. Mandamus, intro. But see The King v. The Company of Free Fishers, &c. of Whitstable, 7 East, 353, per Laurence, J.)
§ 14. V. The right or duty in respect of which the ivrit of mandamus is prosecuted must be positive and not resting merely in discretion.
It is obvious that this writ can not lie to compel a subordinate officer or tribunal to do an act which he lias a discretion to refuse. Nor, where an au
What is meant by the discretion of inferior officers or tribunals, will be best ascertained by adverting to a few of the cases in which that language has been used. In the case of The People, ex rel. Wilson v. The Supervisors of Albany, (12 Johns. 414,) the relator Wilson was a constable, and in that character had removed certain paupers from the city of Albany to the adjoining towns ; for which services he presented an account of $102 to the supervisors. They examined the account, and allowed $28 thereof, and disallowed the rest, on the ground that it was extravagant and unreasonable. The court refused an application for a mandamus to the supervisors, on the ground that the constable had no legal right to any particular sum, the act under which the services were performed having declared that he. should be paid such sum as the supervisors of the county should judge reasonable ; and it was asked, if a mandamus should be granted, what would be its command ? certainly not to allow any specific sum ; that would be assuming a discretion which the legislature had vested in the supervisors. The superior tribunal could only command them to examine (he account, and, in the language of the statute, allow such sum as they should judge reasonable. In Giles’ Case, (2 Strange, 881,) a mandamus was asked to certain justices to grant him a license to keep an ale-house. Tile court refused it on the ground that the justices had a discretion to grant or refuse a license to whom they pleased, and observed that such an application was never made befoie. (Salk. 45. I Burr. 556.) In Ex parte Bacon Lyon, & Cowen, 392,)
§ 15. VI. A mandamus will not be issued unless the party against whom it is sought has refused to perform his duty, or by some act equivalent to a refusal manifested such an intention.
Upon this principle where by an act establishing a canal company, it was provided, that certain landholders might call upon them by notice, as direct
§ 16. VII. Nor will this writ be granted where the party applying has slept upon his rights. (See 1 Chitt. Geni. Prac. 791 ; 1 Grah. Prac. 3d ed. 324.)
Therefore where a plaintiff in a suit which had been carried up by appeal to the Delaware Common Pleas was nonsuited, and five years afterwards application was made to the common pleas to quash the appeal for a defect in the appeal bond, which was refused, the court said, that although the bond" was palpably bad, and were the proceedings still pendente- lite in the common pleas, an alternative mandamus would be awarded, yet after the lapse of five years subsequent to the final decision of the cause they deemed it inexpedient to interfere. (The People ex rel. Phelps v. Delaware Common Pleas, 2 Wend. 256.) And upon the same principle where allotments were set out under an inclosure act to a party claiming them, and possession given in or about 1817, and there was no road to them, nor any access but through allotments made or land sold under the act to other persons, on motion, twelve
Mandamus to Inferior Tribunals and Judicial Officers.
§ 17. We have already seen that the writ of mandamus will not be extended to those cases where the right or duty sought to be enforced depends upon the discretion of the person against whom it is demanded. We have also seen that the discretion is one which is in its nature controlled by no fixed legal principles, (§ 14,) for it is obvious, that so far as such principles exist, inferior courts and judicial officers are bound to regard them. Let us now examine some of the cases in detail where this principle has been applied. And I. It is clear that the regulation of the mere practice of the courts ought,
§ 18. II. Upon the same principle courts.possess a general power to supervise the course of pleading, in accordance however with the rules of law upon that subject. And, therefore, where a mandamus was sought to be directed to the common pleas of Cumberland, to compel them to receive the defendant’s plea of justification ; and the defendant stated, as the ground of his application, that an action of trespass had been commenced against him, to which he had pleaded — 1. The general issue ; and — 2. A justification. That the plaintiff’s attorney declined replying to the plea of justification, but gave notice to the defendant’s attorney, that he would apply to the court of common pleas to strike out the said plea ; which, upon motion, the court ordered accordingly. Kirkpatrick C. J. observed, “frojn time immemorial, courts have stricken false pleas and frivolous counts from the record. It is right and proper that they should possess the power, in order to prevent their records from being unnecessarily encumbered. But I am satisfied that a mandamus would not lie to compel the court to receive a plea, even if they were wrong in rejecting it. (Anon. 2 Halst. 160, 161,) and the supreme court of the United States have decided that they will not exercise any control over the proceedings of an inferior court of the United States in allowing or refusing to allow amendments in the pleadings in cases depending in those courts. (Ex parte Martha Bradstreet, 7 Peters, 634.)
§ 19. III. By the peculiar constitution of many subordinate tribunals they exercise the right to decide applications for new trials. And although such applications have been supposed to be addressed to the discretion of the court (Per Ashurst, J. in Edmonson v. Muchall, 2 T. R. 4. See however Per Marcy, J. in Herrick v. Stover, 5 Wend. 580, 587;) yet it is plain that the increasing certainty of our system of jurisprudence must continually limit that discretion by fixed principles of law. ’ So far as these principles extend the writ of mandamus is a proper remedy under the general rules we have considered. But within the circle of their discretion inferior tribunals and judicial officers are at liberty to decide as they see fit. Therefore, if a jury should return a verdict against the weight of evidence, the writ of mandamus would not lie to control the discretion of the subordinate court to grant or refuse a new trial on that ground. No principle of law is strictly speaking applicable. The question is whether certain evidence proves certain facts. If on this question the court draw different conclusions from that drawn by the jury, a new trial should be granted. (Per Savage, Ch. J. in The People v.
§20. IV. In general every court must be the sole judge whether a contempt has been committed against it or not, and the exercise of its judgment is not liable to be controlled by the interposition of the writ of mandamus. (See 4 Black. Comm. 286, also, Staundf. P. C. 73 b.) But if the civil rights of an individual become implicated, this remedy may be pursued. Therefore, upon a motion for a mandamus to the justices of the general sessions of the peace of the county of Oneida, commanding them to attach and punish John Garter, for non-attendance in that court as a witness: — Chamberlain had been indicted for an assault and battery, which was tried at the February term of that court, 1825 : — He subpoenaed Garter to attend as a witness in Iris behalf; he neglected to appear, and was attached; but was discharged by the court, upon his answering, to the interrogatories, that no fees had been tendered to him. The Court said they had looked into this subject, and thought the distinction lay between misdemeanor and felony; that in the former case the defendant must tender his witnesses their fees, as in civil cases ; but that in prosecutions for felonies they were eompelable to attend without fees. They should have denied this motion at once, on the ground that it sought for a mandamus to compel an inferior court to punish for a contempt, had the matter rested there; for every court must be the sole judge whether a contempt has been committed against it or not; but as the private rights of an individual were also implicated, they had for that reason looked into the merits. (Ex parte Chamberlain, 4 Cowen, 49.)
§21. V. Many other instances might be found where the writ of mandamus will not He to inferior courts and judicial officers, because the latter have a discretion beyond the control of the superior tribunal. It is, however, hardly possible to classify them, since the question as to whether such discretion exists, must more or less depend upon the peculiar constitution of the tribunal. When the rules of law are explicit, it must of course abide by them ; but there is a very large class of cases, in which, from the necessity of the ease, discretion must be exercised. A few of these are here presented, and others will hereafter be mentioned. Mandamus will not lie to compel a county court to accept the report of auditors, (Truesdell v. Wheeler, 2 Aik 369;) nor is it the proper remedy where a magistrate rejects a report of referees, though for insufficient reasons. (Petition of Farwell, 2 New Hamp. 123. See also Robinson v. The Superior Court, 19 Wend. 68, cited supra § 19 ; The People, Ex rel. Fuller v. Oneida Common Pleas, 21 Wend. 20.) Where property is seized under the process of a court, as the property of the defendant, and a stranger, alleging that the property is his, applies by motion to have it restored to him, which motion the court refuses to hear, a mandamus will not lie to such court to hear the motion. (Price v. Shelby Circuit Court, Hardin, 254;) and upon a motion for a mandamus to the district
§22. Again: The court will not grant a mandamus commanding justices to do an act which may render them liable to an action ; (Rex v. Buckinghamshire, Justices of, 1 B. & C. 485. Rex v. Greame, 3 A. & E. 615. Rex v. Morgan, ibid. 616. n.;) and under that principle, a writ was refused to compel a magistrate to enforce a conviction, when it was doubtful whether such conviction was good in consequence of the evidence not having been stated ; (Rex v. Broderip, 5 B. &. C. 239. 7 D. & R. 861;) nor to do that which may occasion costs for which they have no means for reimbursement; (In re Lodge, 2 A. & E. 123 ;) but the court will put justices in motion in cases where they ought to act. (Rex v. Barker, 6 ibid. 388.) Neither will a mandamus be granted Ao compel a magistrate to enforce a conviction for the plaintiff, where he
§ 23. Let ns now consider some of the cases in which the remedy by mandamus is applicable to inferior tribunals and judicial officers. And undterthegeneral rules we have above considered.
I. It is the remedy to compel a discretion to be exercised or a judgment to be given.
Thus in an old ease (Rex v. Tod, 1 Strange, 530;) justices of the' peace had a jurisdiction given them by statute to receive an information in some cases and make their determination upon a seizure of brandy. Upon inlormation exhibited by the officer of the customs, the fact appeared not to warrant the seizure, but the justice in favor of the officer refused to dismiss, the information, so that the owners might have their brandy again, and a mandamus was granted to compel him to determine the matter. (See Bac. Ab. tit. mandamus D.) And where a court of inferior jurisdiction not possessing the power to grant new trials, (as for instance — a court of common pleas in New York, where neither of the judges is a counsellor at law, under the stat. 1 Laws of New York, 395, Haight v. Turner, 2 Johns. 371 ;) a court of sessions (The People v. The Justices of Chenango, 1 Johns. Cas. 180;) or a justices court, (Forman v. Murphy, 2 Pennington, 2d ed. 747;) nevertheless undertakes to do so this writ will lie to compel a judgment. (See also Fish v. Weatherwax, supra p. 215. The People v. Stone, 9 Wend. 182. Horne v. Barney, 19 Johns. 247. Berry v. Callet, 1 Halst. 179.)
A distinction is however to be observed between compelling a judgment to be given or a discretion to be exercised and compelling a particular act to be done by the officer or tribunal who possesses that discretion — the distinction between a direction to act and a direction how to act; (Per Tracy, Senator, 18 Wend. 92.) “ Thus, we find it given in Bacon, that a mandamus will lie to compel a judgment to be rendered, but not what judgment to-render ; to justices to receive and proceed upon a complaint, but not what decision to make ; to compel the ordinary to grant letters testamentary, but not to what person. It has therefore been held not to lie to the sessions to compel them to admit an appeal in regard to poor rates, 4 T. R. 488, nor to commissioners of bankruptcy to certify the bankrupt’s conformity to the act, 7 East, 92 ; in both eases, the officers having a discretion. Nor does it lie to compel justices to come to a particular decision, nor to make an ordbr of maintenance, nor to grant a license. (3 Black. Comm. 110, note.) More- recently', in Rex v. Justices of Droon, (1 Chitty’s R. 34,) the court refused to compel a quarter sessions to enter continuances, saying, “ Our powers are great, but they are not unlimited ; they are bounded by some lines of demarcation j we are not aware that we have power to interfere with the court below in'the way suggested.” Again, in Ex parte Morgan, (2 Chitty, 250,) a mandamus was denied to compel a court of inferior jurisdiction to grant a new trial in a cause before it, where alleged injustice had been done to one of the parties) the court remarking, “ We may command an inferior court to give judgment in.
In all the state courts of this country where the question has been agitated, except in New York, the same distinction as to the proper functions of a mandamus seems to have been rigidly observed. In Pennsylvania, (Commonwealth v. Judges of Com. Pleas of Philadelphia County, 3 Binney, 273,) it was decided that a mandamus would not lie to the judges of the common pleas, to reinstate an appeal which they had dismissed, because a mandamus cannot go to an inferior court compelling them to make a particular decision, but merely to decide. In Griffith v. Cochran, (5 Binney, 103,) Tilghman, Ch. J. says: “ The principles which govern the court in issuing writs of mandamus, are well understood. AYhere a ministerial act is to be done, and there is no other speoific remedy, a mandamus will be granted to do the act which is required. But where complaints are against a person who acts in a judicial or deliberative capacity, he may be ordered by mandamus to proceed to do his duty, by deciding and acting according to the best of his judgment; but the court will not direct him in what manner to proceed.” And so rigidly was this distinction adhered to by the same court, that in Commonwealth, Ex rel. Breckenridge, v. Judges of C. P. of Cumberland County, (1 Serg. & Rawle, 187,) it refused a mandamus to compel a court of common pleas- to proceed to examine a person applying to be admitted as an attorney, notwithstanding the supreme court was satisfied that he came within the rule of the common pleas. Their refusal was put on the ground that the admission of an attorney is not a ministerial but a judicial act, and therefore not the subject of the writ of mandamus.
In New-Jersey the same distinction was recognized. In Seving v. Inhabitants of Alloways Creek, (5 Halstead, 58,) where a mandamus was refused, on the principle, that “ to officers a writ of mandamus may go to direct them how to proceed, and what to do; but a mandamus to a court only to direct them to proceed according to law, and not how to proceed.”
So in Kentucky, in The County Court of Warren v. Daniel, (2 Bibb, 573,) it was decided that “ a mandamus is a proper remedy to compel an inferior court to adjudicate upon a subject within its jurisdiction, where it neglects or refuses to do so ; but where it has adjudicated, a mandamus will not lie for the purpose of revising or correcting its decision.
And in Massachusetts, (Chase v. Blackstone Canal Co. 2 Pick. 244,) the court say: “ 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 delay or refusal to act. But where a subordinate tribunal has acted in a judicial capacity, upon a question properly submitted to its judgment, a mandamus will not be granted to compel it to reverse its decision.
In tire cases of Wilson v. Supervisors of Albany, (12 Johns. R. 416,) and Ex parte Nelson, (1 Cowen, 423,) the court refused the writ, on the ground that Where a discretion is vested in any inferior jurisdiction, and that discretion has been exercised, a mandamus will not be granted, because the court cannot control, and ought not to coerce that discretion. The cases Ex parte Bacon & Lyon, (6 Cowen, 392,) and Ex parte Benson, (7 id. 363,) are on the same principle, as is also that of Hull v. Supervisors of Albany, (19 Johns. R. 259,) in which the principle is definitely and accurately stated by the court, that “ where the inferior court has discretion,, and proceeds to exercise it, this court has no jurisdiction to control that discretion by writ of mandamus. But if subordinate public agents refuse to act or to entertain the question for their discretion in cases where the law enjoins upon them to do the act required, this court may enforce obedience to the law by mandamus, where no other legal remedy exists.” (Per Tracy Senator in Judges of the Oneida Common Pleas v. The People, 18 Wend. 79, 92, 95, 96.) This doctrine was subsequently considered by the supreme court of the State of New York, in the case of The People v. The Judges of Dutchess C. P. (20 Wend. 658, 660, 661,) and the general principle re-affirmed Mr. Justice Bronson observing: In Chase v. The Blackstone Canal Co., (10 Pick. 244,) the court refused to issue a mandamus to an inferior tribunal which had acted in a judicial capacity upon a question properly before it. They said, the 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
§ 24. IX. It is the remedy to compel a judicial officer to sign or amend a bill of exceptions or settle a case, according to the facts. (Delevan v. Boardman & White, 5 Wend. 132. See-also note, id. The People v. The Judges of Washington, 1 Caines, 511; Sikes v. Ransom, and the other eases cited infra.) But it is necessary that the bill or case should state the facts correctly, (State of Ohio v. G. Todd, et al. 4 Ohio R. 351. The People v. Judges of Westchester, supra p. 118,) and also that it should be tendered in time. Under the former practice in New York, a bill of exceptions should, regularly have been tendered at the trial, or at least during the continuance of the term, and the court could not be compelled to seal it at a subsequent term. Where, therefore, a bill was tendered to a court of common pleas in January term, and application was made in June term to amend it, and the court refused, a motion for mandamus was denied, though the power to compel an amendment was conceded. (Sikes v. Ransom, 6 Johns. 279.) So this remedy was denied. And where on the return to an alternative mandamus, commanding the judges of a court of common pleas to sign and seal a bill of exceptions, or show cause, &c. it appeared, that the bill of exceptions was not tendered to the judges at the trial, but was presented to them individually, at different times, after the court had adjourned for the term, this court refused to grant a peremptory mandamus, because the facts on which a bill of exceptions is taken must be reduced to writing at the time, and presented distinctly to the court, during the trial, or at least, during the continuance of the term. (Midberry v. Collins et al. Overseers &c. 9 Johns. 345.)
§ 25. III. It is the remedy to compel an inferior court to grant the usual legal process to enforce a judgment. Thus, in New-Jersey, where a justice of the peace entered a judgment against a defendant and afterwards made a conditional order that the judgment should be opened upon the payment of costs by the defendant on a certain day, and notwithstanding the defendant neglected to pay the costs on the day prescribed, the justice refused to issue execution after being requested by the plaintiff so to do, a mandamus was granted to compel him to perform this duty; (Terhune v. Barcalow, 6 Halst. 38. See Laud v. Abrahams, 3 Greene, 22.)
§ 27. V. It is the remedy to compel such a tribunal to grant or vacate an order for a new.trial where there is no discretion to do otherwise.
Thus, if the testimony in a case were clear, explicit and uncontradieted, and yet a verdict against it, the superior tribunal would compel the inferior to set aside the verdict; or if the inferior court should deny to a party the benefit of an established rule of practice, not depending at all upon circumstances, a mandamus would be granted. (Per Sutherland J. in The People v. The Superior Court, 5 Wend. 114.) The granting or refusing of a new trial is not a matter of discretion, where, on an application for such trial on the ground of newly discovered evidence, it clearly appears that, with ordinary diligence, the evidence might have been produced at the former trial; or where the newly discovered evidence consists merely of additional facts and circumstances going to establish the same points principally controverted when the trial was had, or of additional witnesses to the same facts and circumstances : and where a court of subordinate jurisdiction grants a new trial in a case where those objections exist, a mandamus will be awarded, directing the rule granting a new trial to be vacated. (The People v. The Superior Court, ut sup. S. G. 10 Wend. 285. See also Commrs. v. Lynah, 2 McCord, 170.) In the ease of The People v. Niagara Common Pleas, (12 Wend. 246 ;) it was held that when a court of common pleas set aside a report of referees on the merits, and erred in so doing, a mandamus lay to correct the error.
§ 28. VI. This remedy has been employed to compel a court of inferior jurisdiction to admit or restore an attorney, but it is doubtful whether it can properly be extended to this purpose. Thus it has been allowed to restore one to an attorney’s place in an inferior court; because his is an office concerning the public justice ; and he is compellable to be an attorney for any man ; and has a freehold in his place; (Bac. Ab. tit. mandamus C. Lev. 75 Sid. 152 Keb. 549;) and accordingly in Hurst’s case, one was restored to an attorney’s place of the Court of Canterbury, and in Collins’ ease, one was restored to an attorney’s place, of the liberty of St. Martin’s le Grand. So a mandamus was granted to the Mayor of Reading, for an attorney of B. R. who was prohibited to practice in an inferior court of Reading ; (Bac. Ab. tit. mandamus C. Vent. 11 Sid. 410, Mod. 23.) In the case of The People v. The Justices of Delaware, (1 Johns. Cas. 181,) the supreme court directed the restoration of an attorney who had been removed from his office by a court of common pleas, but it is not by any means to be inferred from this case that the supreme court intended to assert a general power to interfere by mandamus with the discretion of inferior courts in the selection and control of their attornies, for the court say: “ By the act of the legislature of this state, if a court of common pleas remove an attorney from office, he cannot be admitted to practice here, although he should also be an attorney of this court. If,
§ 30. As we have already seen, the common law confided to the Court of King’s Bench a general supervision over all inferior persons and jurisdictions, and this power, subject to certain local and unimportant modifications, has passed into the hands of the superior judicial tribunals of this country. All men hold their situations as officers, upon the terms of having their conduct examined, and measured by that standard which the law has established. (Mckim v. Odone, 3 Bland, 407.) It is not necessary that inferior officers should occupy a judicial station in order to be subject to the writ of mandamus. They are amenable to the command of this writ upon a different ground, because the courts which issue it, are made the “general guardians of the rights of all men (Rex v. Bishop of Chester, 1 Wils. 206 ; Regina v. Mayor of Leeds, 11 A. & E. 512, 3 Steph. N. P. 2292;) or, as it is said in Bacon, Ab. (tit. mandamus.) after Lord Coke, (11 Co. 98, 4 Inst. 71,) “ the court of King’s bench holding a superintendeney over all inferior courts and magistrates may by the plenitude of its power, correct not only errors in judicial proceedings, but- also extra judicial errors and misdemeanors tending to the breach of the peace, oppression of the subject to the raising of faction, controversy, debate, or any manner of misgovernment; so that no retort or injury whether public or private, can be committed, but what may be reformed and punished according to the due course of law.” Wherever, therefore, any ministerial duty is imposed by the law, the writ of mandamus will lie to all classes of public officers, under those general regulations as to its application, which we have heretofore considered.
§ 31. I. The writ of mandamus will not lie to control the discretion of an Inferior officer, for otherwise superior tribunals would draw to themselves all matters of judgment, and officers would in reality have none at all.
Wherever a discretionary power is vested in officers, and they have exercised that discretion, the court ought not to interfere, because they cannot control, and ought not to coerce that discretion. In John Giles’s case, 2 Str. 881, a mandamus was moved for, to certain justices to grant him a license to keep an ale house ; it was opposed, on the ground that it was discretionary in the justices, and the court refused it, saying, there never was an instance of such a mandamus. (Per Spencer J. in Wilson v. Supervisors of Albany, 12 Johns. 414, 416. See Commissioners of the Poor &c. v. Lynah, 2 McCord, 170.) Therefore, where a mandamus was applied for to compel the supervisors of Oneida, to audit and allow a bill for a surgical operation on a transient pauper, and it was shown in answer to the rule, to show cause that the supervisors had acted on the subject matter, and audited the bill at ¡jj¡5: — The court denied the application on the ground that the board of supervisors had a discretion by statute which the court could not control. (Hull v. Supervisors of Oneida, 19 Johns. 259.) And where the supervisors of a county passed upon the account of a constable for removing paupers and disallowed part, and this writ was moved commanding them to audit and allow the ac
§ 32. In all those cases where the inferior officer has no discretion but where his obligation to do the act which is sought to be enforced, depends upon the circumstances of the particular case, the superior court will enquire into these, and administer the remedy according to the principles of substantial justice. And it may be laid down as a general rule that the superior tribunal will not compel an officer to do an act which would subject him to an action, or whicHi may occasion costs for which he has no means of reimbursement. Thus in Ex parte Fleming, (4 Hill, 581,) proceedings had been instituted to compel the satisfaction of a judgment in the manner prescribed by the non-imprisonment act; (LI. 1831, p. 396, §3 et seq.) After a hearing the judge decided that the debtor was guilty of fraud within § 4, sub. 2 and 3, and determined to commit him in default of his compliance with the terms of § 10. The debtor refused to comply, and the judge signed a warrant of commitment, which, however, he refused to deliver, on the ground that he had been served with an injunction from the. district court of the United States, restraining further proceedings. On a motion for a mandamus commanding the judge to deliver the warrant, Cowen, J. who delivered the opinion of the court, remarks: “ It is certainly impossible for me on the case stated, to see expressly that this injunction was properly issued, but it is not my duty to enquire whether it was or not. I am not prepared to deny, that under circumstances, it might have been properly issued ; but if I were,1 it is enough to know that Judge Conckling has power to issue and enforce the process of injunction like any other chancellor. If it has improvidently issued, I am bound to suppose that he will set it aside on motion. * * * Before I should be warranted in com
§ 33. And up on the abstract merits of the application, of which as we have seeu in the last section, the court must judge when there-'is no discretion in the inferior officer it has been held that a mandamus will not lie to compel the trustees of a turnpike road to repair It; (Reg. v. Oxford and Whitney, Road Trustees, 4 Perr. & D. 154;) and in Pennsylvania, that the supreme court will not issue a mandamus to the county commissioners to pay for the valuation of ground taken up by a road, in pursuance of an order of the sessions. (Second Street Road, 1 Y. 155.) So this writ was refused to/the commissioners of customs to restore tobacco as wrecked goods, and upon which a lower rate of duty had’been tendered. (Rex v. Commrs. of Customs, 1 Nev. & P. 536. 5 Ad. & Ell. 380.i So where a criminal information had been filed against a town clerk for misconduct in his office, in the election of councillors of the borough, the court refused this writ to compel him to produce the voting papers in his custody, which had been used at the election. (Rex v.
§ 34. Let us now proceed to consider the cases wherein the writ of mandamus has been adjudged to lie to inferior officers. And
I. It lies wherever such officer has a discretion to compel the exercise thereof, though not to determine the particular mode of such exercise. Therefore in The People v. The Supervisors of Albany, (12 Johns. 414, cited supra, § 31) the court say, had the supervisors refused to hear the application of the relator, and to examine and pass on his account a mandamus would have been proper to compel them to do so. The reason of this rule has been mentioned in its application to inferior tribunals and judicial officers, and it is therefore unnecessary to do more than call the attention of the reader to the following cases. (Hull v. The Supervisors of the County of Oneida, 19 Johns. R. 259, 262. Anon. 2 Pennington, ed 1835, 431. Ex parte Farrington, 2 Cowen, 407, 408. In the matter of Bright v. Supervisors of Chenango, 18 Johns. R. 242. Rex v. Barber, 6 Adolph & Ellis, 388. See also Grier v. Schackleford, 2 Tr. Con. Rep. 642. Ex parte Jennings, 6 Cowen, 518; and see other cases infra § 37.)
§ 35. II. Subject to the general rules we have before considered, (§ 5-16) and to the essential consideration that public justice demands the application of the remedy, this writ will lie as Mr. Graham has well expressed it, (Practice, 3d ed. vol. 1. p.319,) wherever “the act required to be performed by a public officer is ministerial in its character, involving a direct duty imposed upon him by law.”
§ 36. There are cases as Mr. Graham observes, (Practice 3d ed. vol. 1. p. 321,) where a private individual acts in a quasi public character, as for instance under the authority and sanction of a public statute, and in these cases a mandamus may be resoited to, to compel him to perform a duty consequent upon that relation. There is no difference in principle between such an individual and a public officer — both have public functions to perform, the neglect
§ 37. Particular Cases of the application of Mandamus to Inferior Courts and Officers.
Accounts. — See County Courts, Overseers, Supervisors.
Admission, — See Commissioner’s Office.
Appraisers. — See Commissioners.
Arbitrators. — See supra. § 36.
Attorney. — See supra. § 28. Infra, tit. Office. In most, if not all of the United States, the right to admit attorneys and counsel is exercised by the courts, and considered a judicial duty.
Baching Warrants. — See Justices.
Bank. — -A board of directors of a bank have no right to pass a resolution excluding one of its members from an inspection of Us books, although they believe him to be hostile to the interest of the institution ; and it was accordingly held in this case, where the cashier of a bank had refused to permit a director to inspect the discount book, that a mandamus lay, commanding the cashier to submit the book to bis inspection, although the conduct of the cashier had been approved by a resolution of the board. It was also held that the mandamus might properly be directed to the cashier, and need not be'directed to the board ; the court, however, intimating that as notice had been given to the directors, there would be no impropriety in directing the'writ to them as well as to the cashier. (The People ex rel. Muir v. Throop, 12 Wend. 183.) See infra. Corporation. Supra. § 5, Authorities there cited.
Éanhrupis. — See Commissioners.
Barrister. — See infra, tit. Office.
Boohs and Documents. — The writ issues to compel a removed clerk to deliver up books of a public corporate company; (Rex v. Wildman, 2 Stra. 879 ;)
Bridges. — See County Court.
Canal. — See Commissioners.
Chancery. — In Virginia the stat. 1825-6 was intended to prevent unreasonable and causeless delays in chancery suits ; and the 14th section authorizes the court of appeals to award a mandamus to the chancery court, to compel them to hear causes at the first term at which they are prepared for hearing, when no special cause appears for the refusal of the court to hear them ; but does not authorize a mandamus to compel a hearing of a cause, which, for reasons satisfactory, the chancery court continues. (Richardson’s Case, 3 Leigh, 343.)
Churchwardens. — (1 Chitt. Genl. Prac. 793, 802. Rex v. Simpson, Selw. N. P. mandamus 1062, n. 1 ; Anon. 1 Ventr. 115; Anon. 1 Str. 686; Rex v. Wix. 2 Barn. & Adolph. 196; Rex v. Clear, 4 B. & Cresw. 899, 7 D. & R. 393 ; Rex v. Smallpiece, 2 Chitt. R. 288 ; Ledesdon v. Exeter, 1 Chitt. Genl Prac. 802, n. (d) ; Rex v. Woolly, 2 Str. 1259, Burns Just. Poor, 44; Rex v. Canterbury, 1 Bla. R. 667, 4 Burr, 2290.)
Citation. — See Clerks.
Clergymen. — Every endowed minister of any sect or denomination of Christians, who has been wrongfully dispossessed of his pulpit, is entitled to the writ of mandamus to he restored 'to his function, and to the temporal rights with which it is endowed. (Runkel v. Winemiller, 4 H. & McH. 429. See the act of 1828, ch. 78.) The office or function of a minister must be endowed, or a mandamus to restore cannot be granted. Endowment does not necessarily mean that land and tithes must be annexed to the living; but' a stipend, rents, emoluments and advantages of any kind, given and secured to the minister, during the time he shall officiate as minister, is an endowment. (Ibid.) On the application of the Rev. M. R. to be restored to the office of minister of the High Dutch Reformed Christian Church in F. it appeared that according to the mode of electing a minister by the constitution of the church, the congregation applied to the Synod of Pennsylvania for a minister to supply the place of the predecessor of R. who had left the church, that th6 Synod recommended R. who was approved and regularly inducted into the office of minister of the church, and became entitled by contract to
Clerks. — The writ lies to a clerk of a court or county to compel him to swear in one who has been appointed commissioner of deeds, and he is not at liberty to refuse on the ground that the person is incapable of holding the office, as that he is a minor or alien, or that the appointment has been iraprovidently made; (People ex rel. Dobbs v. Dean, 3 Wend. 438.) So mandamus lies to compel a town clerk to deliver the records to his successor in office, if he refuse so to do on the application of his successor, and his showing himself to be clerk. (Taylor v. Henry, 2 Pick. 397. Commonwealth v. Athearn, 3 Mass. 287.) So a mandamus was issued from the provincial court to the clerk of a county court, {who had been legally removed from office,) to deliver up the records and sea! of the court to the secretary of the province. (Bordley v. Lloyd, 1 H. & McH. 27.) So the writ will lie from the superior court, in Georgia, to the clerk of the court of ordinary, compelling him to issue a citation in the usual form to the creditors and kindred of an intestate, to show cause why an applicant for administration, prima facie entitled, should not receive letters of administration. (Ex parte Carnochan, Charlt. 215.) The writ of mandamus is the proper remedy to restore a clerk ousted from his office by the illegal appointment of another person. (Dew v. The Judges of Sweet Springs District Court, 3 Hen. & Munf. 1.) The person occupying the office ought to be made a party to the rule, or to the conditional mandamus, or such rule or mandamus ought to he served upon him, so as to enable him to defend his right before the peremptory mandamus issues. ' But, if it appears from the record that he was apprised of the proceedings and defended his right, it is sufficient. (Ibid.) If the original rule be to show cause wherefore a mandamus shall not issue to admit the clerk, the subsequent rule, or the mandamus founded thereon, may nevertheless be to restore him to the said office ; for such rules may be changed and modified so as to square witn the rights of the parties, and attain the real justice of the case. (Ibid)
College. — See Warden.
Commissioners. — The writ has been held to lie: — to commissioners of bankrupts, as to compel them to issue their warrant for a further examination of the bankrupt, (In re Bromley, 3 D. & C. 310, though not to grant a certificate of conformity. See Ex parte King, 7 East, 92, supra § 31) to canal commissioners as where the waters of the Chitteningo Creek were diverted from a mill and other works, on that creek, to feed the Erie Canal; the mill-owner claimed under a grant from the state, bounded on the margin of the creek; he applied to the canal commissioners to appraise his damages, but they refused on the ground that he had no title to the creek. Held, that a
Committee, — A mandamus will be granted, in New Jersey, to compel a township committee to assign a road to the overseers of the highways. (Anonymous, 2 Halst. 192.) But the rule served upon the committee must specify the object required to be done with sufficient particularity. (Ibid.)
Common Pleas. — In New Jersey, a.mandamus will lie to the court of common pleas to make an appointment of surveyors, to vacate a road which has been laid out and recorded, though never opened, where, after a proper application, they have refused to make such appointment. (State v. Judges, 4 Halst. 246.)
Constable. — (See Rex v. Manchester, 1 Dowl. & R. 454. See County Auditor.)
Corporations. — See infra, § 38, et seq.
■ Counsellor. — See supra, tit. Attorney,
County. — See Commissioners.
County Auditor. — A mandamus it seems is the proper remedy to compel a County Auditor to issue an order for constable’s fees, where he is entitled to
County Court. — Where the county court refuses to draw their warrant on the treasurer of the county, directing him to pay an account which has been allowed by the circuit court to the clerk of said court for office rent, a mandamus is an appropriate remedy to compel them to do so. (Boone v. Todd, 3 Mis. 140.) So a mandamus lies from the superior court of Virginia to a county court, to compel such court to build a bridge or causeway, according to the section of the act of assembly concerning public roads. (Commonwealth v. Justices, 2 Virg. Cas. 9.) A return to such mandamus, by the justices, that the convenience of the people does not at that time authorize the heavy burden which will be imposed by the erection of such bridges, &c. is insufficient, because it does not directly deny the necessity of the bridges, or aver that the surveyor, or his assistants, could make or maintain the same. (Ibid.) Such return, being insufficient, should not be traversed, because the matter of the return should not be put in issue, and therefore the traverse should not be received. (Commonwealth v. Justices, 2 Virg. Cas. 9.) So where bridges or causeways are necessary within the limits of a county, and the surveyor of the road, with his assistants, cannot make or maintain the same, the superior court of law for such county hath the power to compel the justices, by writ of mandamus, to build or repair such bridge or causeway. (Ibid. 499. Brander v. Chesterfield Judges, 5 Call, 548.) Where the county court, in Virginia, rejected an application for opening a new road, on a regular hearing, it was heid, that a mandamus eouid not be awarded, by the circuit court, to compel the county court to open the road. (Jones v. Strafford Justices, 1 Leigh, 584.) Mandamus does not lie for the builder of a public bridge, to compel the county court to levy the proportion of the price of the bridge chargeable upon the county; a specific remedy being given him, by statute, to recover the same by action of debt against the justices refusing to levy it. (Justices v. Munday, 2 Leigh. 165.) The superior court will not grant a mandamus to compel a county court to issue a pluries attachment against the body of a garnishee, who had been taken on the alias, and discharged by a judge of the general court under a habeas corpus. (Jackson v. Justices of Harrison, 1 Virg. Cas. 314.) Mandamus to compel county court to record deed of emancipation. (Manns v. Givens et als. 7 Leigh, 689.) The circuit court will, by mandamus, compel the county court to settle and allow all claims against the county, and to levy a tax for their liquidation, if it refuse. (Madison Court v. Alexander, Walk. 523.)
Court. — See Inferior Court.
Court Levy. — A mandamus will not issue to compel a levy court to levy a sum of money, after the time prescribed by law for making it has passed. (Ellicott v. The Levy Court, 1 H. & J. 359.) Cause shown by the justices of the levy court why a mandamus should not issue against them, to levy a sum of money claimed by the sheriff for poundage and other fees, for execu
Court of Sessions. — In Massachusetts, a mandamus may be awarded to compel the court of sessions in each county to erect or provide a suitable house of correction. (Commonwealth v. Hampden, 2 Pick. 414;) and also to compel the court of sessions, that, improperly and without good cause, rejects the verdict of a jury summoned and empannelled to estimate the damages occasioned to any person by the laying out of a highway, to do right and accept the verdict. (Commonwealth v. Norfolk, 5 Mass. 435. Commonwealth v. Middlesex, 9 ib. 388.)
Dead, Body. — See Jailer.
Deeds. — See Clerk, Inferior Court, Mayor, Register of Deeds.
Ecclesiastical Court, officers and persons. — A mandamus lies to compel the ecclesiastical judge to grant probate to the executor named in a will ; (Anon. 1 Vent. 335 ; Anon. 1 Stra. 152 ; Dunkin v. Man, Sir T. Raym. 233 ; Offey v. Best, 1 Lev. 186 ; Rex v. Inhabitants of Horsley, 8 East, 408 ;) or letters of administration to the husband of his' wife’s estate, unless the husband has done something to part with his right; (Rex v. Bettesworth, Stra. 891, 1118 ;) and a mandamus for administration to the next of kin may be granted, notwithstanding a suit depending, if bis consanguinity be not denied ; (Rex v. Hay, 4 Burr. 2295 ; Rex v. Dr. Hay, 1 Bla. R. 640.) But when the validity of a will has been contested in the spiritual court, and a suit is still depending there concerning it, the court will not then grant a mandamus to the judge of such court to grant a probate to any particular person. (Rex v. Hay, 4 Burr. 2295 ; Lovegrove v. Bethell, 1 Bla. Rep. 68.) Nor will the court compel the grant of administration durante minore (stale, for the law has not decided who is entitled to such administration, and we have seen that a mandamus only issues to enforce a legal right. (Smyth's case, 2 Stra. 892. See 1 Chitty’s Genl Prac. 806, 799. See in general Selwyn’s N. P. tit. Mandamus, 11 ; Harrison’s Index, Mandamus, 6. Rex v. Chester, 1 T. R. 396. Ante ; but see Clark v. Sarum, 2 Stra. 1082. Rex v. Bloer, 2 Burr. 1043. Rex v. London, 13 East, 420 ; 1 T. R. 331; Rex v. Field, 4 T. R. 125. Rex v. Barker, 3 Burr. 1265; 1 Bla. R. 300, 352, S. C. Rex v. Jotham, 3 T. R. 575. Anon. 2 Chit., R. 254; Rex v. Harris, 3 Burr. 1420; C. G. P. 793. Id. ibid.; Rex v. Warren, Cowp. 379. Rex v. St. James’s, Cowp. 413 ; Rex v. King’s Clere, 2 Lev. 18 ; Ile’s case, 1 Vent. 143 ; Selw. N. P, Mandamus, 11. n. Rex. v. Canterbury, 8 East, 215 ; see other cases as to clerical persons, Impey, Mandamus. 103 to 106.)
Highway. — See Commissioners, Committee, Common Pleas, County Court, Overseers, Selectmen. ' ■
Inferior Court. — Every inferior jurisdiction, whether created by a public or a piivate law, is subject to have its proceedings inspected, either by appeal or by certiorari and mandamus, where such jurisdiction acts judicially ; they will be coerced to perform their duties, and restrained and confined within their proper limits as prescribed by law. (Williamson v. Carnun, 1 G. &. J. 184, per Baltimore County Court.) Therefore where an inferior court of record, in Virginia, improperly refused to admit a deed to be proved and re
Jailer. — Where a debtor died in prison, and the jailer refused to deliver the body to his friends for interment, until a claim was paid, the court ordered a peremptory mandamus to issue. (Wakefield bailiff, Ex parte 1 Gale & Dav. 566)
Justices. — If the justices omit from their nomination to the executive for the appointment to the office of sheriff, the name of any particular justice, a mandamus will not lie to compel them to make such nomination; for in the exercise of this discretionary power,they cannot be controlled by the superior couits (Frisbie v. Justices of Wythe, 2 Virg. Cas. 92.) The removal of a justice with his family from his county to another, and remaining out for several years, is neither an abandonment or virtual resignation, or forfeiture of his office, and whether void or only voidable by a judicial proceeding, eventuating in a judgment of amotion, no mandamus ought to issue to invest the applicant with an office not belonging to him if void, or which might be taken from him if voidable. (Chew v. Justices of Spottsylvania, 2 Virg. Cas. 208.) Whether the acceptance of the office of deputy clerk of á county court vacates the office of justice or not, the superior court will not grant a mandamus to compel the county court to admit the applicant to an office not belonging to him if void, or which might be taken from him if voidable. (Amory v. Justices of Gloucester, 2 Virg. Cas. 523.) Mandamus lies from circuit court, to compel justices of the peace to administer the oath of insolvency,, and to order the insolvent’s discharge. (Harrison v. Justices of Norfolk, 2 Leigh, 764.) A writ of mandamus lies to compel the backing of a warrant in another county, the duty being ministerial and imperative ; (Rex v. Kynaston, 1 East, 117.) See Overseers. (See also 1 Chit. Genl. Prac. 801. Rex v. Sparrow, 2 Stra. 1123 ; Burn’s J. Poor, 24, 25; Rex v. Norwich, 1 Bar. & Adolp. 313 ; what must be sworn, Rex v. Bedfordshire, Cald. 157 ; and Rex v. Peterborough, id. 238. Rex v. Stafford, 1 Stra. 512. Rex v. Wilt
Jury — See Commissioners.
Lord and Stewart of a Manor. — To compel an admission to copyhold. See 1 Chitty’s Geni. Frac. 71)4. (Rex v. Robinson, 2 Smith’s Rep. 274; Dick. Sess. 590, 3d edit.; and 3 Geo. 4, c. 23, s. 3, aids defects in form. Rex v. Rennett, 2 T. R. 197; Rex v. Brewsters’ Company, 3 B. & Cres. 172 ; 4 D. & R. 492, S. C.; C. G. P. 351, and 794, note (h). 1 Mad. Ch. Pr. 253, 254; Moor v. Huntingdon, Nels. 12 ; Co. Copyl. sect. 39. King v. Coggan, 6 East, 431; 1 Mad. Ch. Pr. 254. 1 Wm. 4, c. 21, s. 8.)
Magistrate. — In Virginia, a mandamus lies to compel the magistrates, to whom an execution debtor has applied to have the oath of insolvency administered to him, to administersuch oath, andorderthe debtor’s discharge. (Harrison v. Emmerson, 2 Leigh, 764.)
Mayor. — After a charter election in the city of New York, the inspectors of the sixth ward certified thus: “ We have received returns from the several districts of the said ward, &e., copies of which returns certified by us are hereunto annexed. It is impossible for us to declare what persons were, by the greatest number of votes, elected, by reason of lawless violence committed upon the inspectors of the first district &e. and the dispersion of the ballots before they were’counted,” &c. The ward was composed of four districts, three of which had made regular returns, exhibiting the names of the candidates and the number of votes given for each, and copies of these were annexed to the above certificate; but the first district made no return save a statement of the affair which led to the dispersion of the ballots, giving this as a reason why no return could be made; The returns from the other distrlcts} however, showed an election, and it did not appear that the votes given in the first district could have changed the result. Held, that the persons thus appearing to have been elected officers of the ward, were entitled to qualify as such ; and a mandamus was granted commanding the mayor to administer the oath of office to them. (Ex parte Heath and others, 3 Hill, 42.) The writ also lies to the mayor of a corporation to admit an apprentice to his freedom, when he has a right by service, although he had broken his covenant not to marry; (Townsend’s case, 1 Lev.’91. See T. Raym. 69 ;) so the writ lies to compel the enrolment of indentures in proper cases but not otherwise. (Rex v. Marshall, 2 T. R. 2.)
Oath. — See Clerk, Commissioners, Magistrate, Overseers.
Office. — In general it may be laid down as a rule, that where a man is refused to be admitted or wrongfully turned out of any office or franchise that concerns the public, or the administration of justice, he may be admitted or restored by mandamus; (Bac. Ab. tit. Mandamus, c. 1. 11 Co. 93; Bagg’s case, 2 Sid. 112. Same rule laid down by Glyn, Ch. J.;) if no other adequate specific legal remedy exist. (See supra., § 13.)
I.. The office must concern the public, (Bac. Ab. tit. Mandamus, C. Bagg’s case, vt sup. Anon. 2 Ld. Raym. 989.)
Therefore a writ of mandamus will not lie to try the title to a mere public employment at the will of the executive, or other public functionary, as the
But whenever the office, whether it be temporal, ecclesiastical, or otherwise, is legal and public, or fixed and permanent, by statute, charter, or usage, then this writ lies to swear in, admit, or restore a party entitled to the same. Upon this principle in Maryland, every endowed minister, of any sect or denomination of Christians, who has been wrongfully dispossessed of his pulpit, is entitled to the writ of mandamus, to be restored to his function, and the temporal rights with which it is endowed*. (Runkel v. Winemiller, 4 Har. & M’Hen. 429. Aliter, if the office is not endowed, ib.;) and so in South Carolina, a mandamus will lie to restore to his office an inspector of tobacco, removed by an irregular summary proceeding. (Singleton v. Commissioners, 2 Bay, 105.) Hence mandamus is the proper remedy to restore a clerk ousted from his office by the illegal appointment of another person. (Den v. Judges, 3 H. & M. 1.) If the original rule was, to show cause why a mandamus should not issue to admit the clerk, the subsequent rule, or the mandamus founded thereon, may nevertheless be, to restore him to said office. (lb.) The person occupying such office ought to be made a party to the rule, or such rule ought to be served upon him, so as to enable him to defend his right, before the peremptory mandamus issues. If, however, it appears from the record that he was apprised of the proceedings, and defended his right, it is sufficient. (Ib.) And a peremptory mandamus will issue to a county commissioner’s court, to compel them to restore a clerk, the cause of whose removal is not stated on their records. (Street v. Gallatin County Commissioners, Breese, 25.) So a mandamus lies to admit or restore a town clerk; (Bac. Ab. tit. Mandamus, C. 1. Noy. 78, Style 457;) mayor, aider-man, burgess, common councilman, freeman or other person, member of a corporation ; (id. 11 Co. 94, 2 Balst. 122, Style, 299, 457, Raym. 12, 431, 437, Vent. 302, Cro. Jac. 450 ;) recorder, (id. Style, 452, Vent. 143, 153, 4 Burr. 1999 ;) clerk of the peace, (id. 4 Mod. 31, Show. 282,12 Mod. 13 ;) or constable (id. 2 Roll. 82. Roll. Abr, 535, Salk. 175. See Strong, petitioner, 20
II. As we have seen before, mandamus will not lie to admit or restore to an office, if there be another remedy. As in the case of Rex v. Bishop of Chester, (1 T. R. 404, cited supra, § 13. See also Powel v. Milbank, cited supra, § 12. Rex v. Turner, id.;) where quare impedit lay. Therefore, where one claims an office to which he alleges he is duly elected, while another is holding it by color of right, this writ will not lie, because there is a remedy by quo warranto or information. (People v. The Corporation of the City of New York, 3 Johns. Cas. 79,) by one of which proceedings the person in possession ought first to be ousted. (Rex v. Bankes, 3 Burr. 1454. Rex v. Cambridge, 4 Burr. 2011. Rex v. Bedford, 1 East, 80. Rex v. Truro, 3 Barn. & A. 592.) But where a mandamus presents the only specific or convenient mode of trying the right to an office, it may be employed. Therefore mandamus was granted to a corporation to admit and swear in one who appeared upon the affidavits to have the greater number of legal votes, notwithstanding another had been admitted and sworn into the office, there being no other specific, or at least no other such convenient mode of trying the right. (Rex v. Bedford Level, 6 East, 536; and see Rex v. York, 4 T. R. 699.)
As to mandamus to admit corporate officers, see farther infra, § 42, et seq. As to mandamus to admit ecclesiastical officers and persons, see 3 Steph. N. P. 2309, 2310, 2311; Selwyn’s N. P. tit. Mandamus, II; Harrison’s Dig. tit. Mandamus, vol. 2, 1479, tit. Ecclesiastical Law, id. 952 ; Bac. Ab. tit. Mandamus, c. 1, 2; Com. Dig. Mandamus, 1 Chitt. Geni. Prac. 799 ; and Rex v. Chester, 1 T. R. 396; Clark v. Sarum, 2 Strange, 1082 ; Rex v. London, 13 East, 420, 1 T. R. 331; Rex v. Field, 4 T. R. 125; Rex v. Bloer, 2 Burr. 1043 ; Rex v. Greame, 2 A. & E. 615 ; Justices of Bucks, 3 N. & M. 68 ; Rex v. Barker, 3 Burr. 1265. 1 Bla R. 300, 352 ; Rex v. Bishop of Ely, 8 B. & C. 112 ; Rex v. Jotham, 3 T. R. 575; Anon. 11 Mod. 137 ; Rex v. Hay, 4 Burr. 2295. 1 W. Bl. 640 ; Anon. 2 Chit. 254 ; Rex v. Harris, 3 Burr. 1420 ; Rex v. Archbishop of Canterbury, 8 East, 213 ; Rex v. St. Margaret’s Westminster, 4 Maule &. Selw. 250 ; Rex v. Thetford, 5 T. R. 364 ; Rex v. Coleridge, 2 Barn. & Ald. 806. 5 Dowl. & Ryl. 602. 1 Chitt. 588; Rex v. Warren, Cowp. 370 ; Rex v. St. James, Cowp. 513 ; Rex v. King’s Clere, 2 Lev. 18 ; Ile’s case, 1 Vent. 143 ; Rex v. Churchwardens of Westminster, 4 M. & S. 250 ; Rex v. Exeter, 2 East, 462; Rex v. Coleridge, 2 B. & A. 806 ; Ex parte Blackmore, 1 B. & Ad. 122. See other titles of this section.
It has been made a question, what removal or turning out of an officer will entitle him to a mandamus, and it seems to be the better opinion, that on®
Overseers. — In New Jersey, a mandamus will be granted against an overseer of a highway, to compel him to open, clear out and make a certain road within the limit and division assigned to him by the township committee. (The State v. Holliday, 3 Halst. 205.) So it will be granted to compel overseers of the poor, to deliver up parish books to their successors. (Rex v. Clapham, 1 Wils. 305.) A mandamus lies to the overseers to make a rate, (Luddlestone v. Exeter, Fol. 18; Rex v. Edwards, 1 Bla. Rep. 637; Rex v. Fisher, Sayer’s R. 160 ;) the rule for which is absolute in the first instance, for otherwise- the poor might starve. (Id.) So it lies to overseers and guardians to pass their accounts ; (Rex v. Warwickshire, 2 Dowl. & Ry. 299 ;) to justices to swear an overseer to his accounts ; (Rex v. Middlesex, 1 Wils. 125, accord., but see per Lord Tenterden, in Rex v. Essex, 3 Bar. & Adolp. 943 ;) or to proceed to pass overseers’ accounts; (Rex v. Townsend, 1 Bott, 305 ;) or to levy the balance of the overseers’ accounts;) (Rex v. Somersetshire, 2 Stra. 992 ; 2 Sess. Cas. 283 ; Rex v. Pascoe, 2 M. & S. 343 ;) or to hear a complaint against overseers for not delivering a full account; (Rex v. Worcestershire, 3 Dowl. & Ry. 299 ; 2 Mag. Cas. 7, S. C ;) or to hear an appeal against his account, although' not previously allowed at a special sessions ; (Rex v. Colchester, 5 Bar. & Ald. 535 ; 1 Dowl. & R. 146, S. C.; and see Rex v. Gloucestershire, 1 Bar. & Adolp. 1 ;) or a complaint against him for not paying over the balance. (Rex v. Pascoe, 2 Maule & S. 343 ; Rex
Poor. — See Commissioners.
Postmaster General. — Mandamus lies to the postmaster general, requiring him to give a credit on his books to certain contractors ; which credit had been certified by the solicitor of the treasury to be due to the contractors pursuant to an act of congress; and the postmaster general had been ordered by the same act to give the credit, but refused compliance.- (Kendall v. U. States, 12 Peters, 524.)
Railway Companies. — See Corporations.
Rate. — See Overseers.
Records. — See Clerk, Register of Deeds. .
Religious Society. — See Corporations, infra, § 38, et seq., Trustees.
Register of Deeds. — In Connecticut, a mandamus was ordered to issue against a register of deeds, to require him to record a deed of bargain and sale given by a collector to the purchaser of lands sold for taxes. (Strong’s -case, Kirby, 345.) See Clerk, Inferior Court, Mayor.
Schoolmaster. — A mandamus lies to restore a party to the office of a master of a free school. (Anon. Lofft, 146.) See Warden.
Secretary. — A mandamus is the proper remedy to compel a secretary of state to deliver a commission to which a party is entitled. (Marbury v. Madison, 1 Cranch, 137.) So it lies to the secretary of the land-office, of Pennsylvania, to compel him to issue patents to warrantors, under the act of 8th March, 1815. (Commonwealth v. Cochran, 1 S. & R. 473.) And it lies also to the secretary of the land-office, to compel him to make the calculations of interest and purchase money on the lands sold, but not to make them in a certain manner, nor in a proper manner. (Griffith v. Cochran, 5 Binn. 87.)
Selectmen. — In Connecticut, a mandamus will lie to compel selectmen of a town to pay the damages assessed on a highway laid out by them, and to open such highway. (Treat v. Middletown, 8 Conn. 243.)
Sewers. — See Commissioners.
Sheriffs. — Mandamus lies to a sheriff to compel him to execute a deed to a redeeming creditor, but without prejudice to the rights of the parties in a future litigation in equity. (Van Rensselaer v. Sheriff of Albany, 1 Cowen, 501.) See Ex Parte Wilson, (7 Hill, 150,) where this writ was denied to compel a sheriff to give a deed to a creditor seeking to redeem, whose judgment was not a Hen within the redemption law or the act of 1837. (See also The People v. Perrin, 1 Howard Sp. T. Rep. 75. Lester v. Gates; Thompson v. Gates, id. 77.) Whether a mandamus is the appropriate remedy to compel a sheriff to make a deed to property which he has sold ? (Davis v. Pryor, 6 S. & M. 114.)
Speakers. — In Ohio should the speakers of the two houses in the general assembly refuse to sign a certificate of an election, it seems that the supreme court can compel them to do it by mandamus. (The State of Ohio v. Moffit, 5 Ohio, 358.)
Supervisors. — Where under the loan act of New York of 178S, (which authorized the emission of bills of credit to the amount of £200,000, and loaning the same upon mortgage on real estate, and provided that if any deficiency should accrue upon foreclosure, the same should be assessed and levied as other county charges, in the county where the lands were situate,) a loan was made, and upon the foreclosure in 1792, there was a deficiency : it was held, on a motion for mandamus in 1833, that the writ would lie to the supervisors, to compel them to raise the deficiency as the ordinary county charges were levied and collected. (The People v. The Supervisors of Columbia, 10 Wend. 363.
Surrogate. — See Ecclesiastical Courts, &c.
Taxes. — See Commissioners. Supervisors.
Tax Collector. — Upon the principle that an application for a writ of mandamus, is addressed to the sound legal discretion of the court, and will not be awarded to enforce the performance of an act which is contrary to law, where, by law, the tax collector was required to pay all moneys by him collected Into the state and county treasuries ; au order of the board of police to a tax collector to pay the taxes collected to a particular person, not the county treasurer, is without authority of law, and a mandamus should not be issued to compel the tax collector to obey it. (Ross v. Lane, 3 S. & M. 695.) Where a mandamus was issued by the circuit court to a tax collector, to collect a certain tax, and he appealed, and pending the appeal, his term of office expired ; held, that the high court would not grant a mandamus against his successor. (Ibid.)
Treasurer. — A writ of mandamus lies to compel a town treasurer to issue his warrant of distress against a collector of taxes neglecting to collect and pay oyer the same, according to the assessor’s warrant. (Waldron v. Lee, 5 Pick. 323.) Mandamus to the treasurer and directors of the St. Katherine’s Dock Company, under the stat. 6 Geo. IV. ch. 5. (Corpe v. Glyn, 3 Barn. & Adolph. 801.)
Trustees. — A mandamus lies to compel trustees of a county in Ohio to distribute moneys to religious societies. But it is a good return, that the moneys had been all distributed by a former board of trustees. (State v. Warren County, 2 Ham. 10. See also, upon this subject, The People ex rel. Dikeman et al. v. The President and Trustees of Brooklyn, 1 Wend. 318. See Mandamus to Corporations, infra.)
Visitor. — Mandamus lies to a visitor to compel him to receive and hear an appeal, and give some judgment. (Rex v. Ely, 5 T. R. 475. Rex v. Lincoln, 2 id. 338. Rex v. Bury, id. 346. Rex v. Worcester, 4 Maule & S. 415.) W’hen not. (Rex v. Conynham, 5 B. & Ald. 885. 1 Dowl. & R. 529.)
Warden — This writ also lies to a warden of a college to compel him to affix the corporate seal to an. answer in chancery. (Rex v. Windham, Cowp.
Mandamus to Corporations.
§ 38. We have before seen, that one of the modes in which the courts exercise common law jurisdiction over civil corporations, for the purpose of compelling them to observe the ordinances of their constitution, and to respect the rights of those entitled to participate in their privileges, is by the writ of mandamus. (See Angel! and Ames on Private Corporations, ed. 1846, p. 630.) Let us now consider, more in detail, the general principles which govern this writ in its application to corporations. And
I. This writ will not lie to control the discretion of a corporate body or officer, though it may be had to compel such discretion to be exercised.
Therefore, a mandamus will lie to compel a visitor to receive and hear an, appeal; ( Usher’s case, 5 Mod. 452, no decision ; Dr. Walker’s case, B. R. H. 212 ; and 2 Kyd on Corp. 279; Rex v. Bishop of Ely, 1 Wils. 266 ; 1 Black. R. 52, where it is considered doubtful; The King v. Bishop of Lincoln, 2 T. R. 338, n. a.; The King v. The Bishop of Ely, 2 T. R. 338 ; The King v. The Bishop of Ely, 5 T. R. 477; The King v. The Bishop of Worcester et al. 4 M. & S. 415; Angell and Ames on Priv. Corpus, ed. 1846, p. 623, § 5 ;) and to form some judgment, though they will not compel him to go into the merits. (The King v. The Bishop of Lincoln, 2 T. R. 338, n. In this case it is said that it is sufficient, if he decides that the appeal comes too late.) And such judgment, when rendered, is final and conclusive, nor can it be reviewed in any form of proceeding, either directly or collaterally. (Daniel Appleford’s case, 1 Mod. 82. Carth. 92, 93, cites 1 Mod. 82. 1 Lev. 23, 65. 2 Liv. 14. Raym. 56, 94, 100. Sid. 94, 152. 346. Philips v. Bury, 2 T. R. 346. S. C. Skill. 447. S. C. 1 Ld. Raym. 5. Ca. Parl. 45. Rex v. Bishop of Ely, 2 T. R. 290. 1 Black. R. 85.) Nor need the cause of a sentence of deprivation be disclosed in pleading. (Philips v. Bury, 2 T. R. 353, 354. Kean’s case, 7 Co 42. Rastal’s Eut. fol. 1. Alien, Nash Jo. 3.93. Murdock’s Appeal, 7 Pick. (Mass.) R. 322, per Parker, C. J.) The reason of this is, that the visitor’s proceeding is in rem, he pronounces operatively upon the status of the party deprived, (2 Smith’s Leading Cases, 447, notes to Doe v. Oliver and Dutchess of Kingston’s case,) and ail estoppel quasi of record arises. And it has been held, that though á visitor has exceeded his jurisdiction, this writ will not lie to restore the party expelled, for that would be to command a visi
§ 39. Let us now consider some of the cases in which the writ under consideration has been adjudged to lie to corporations. And in the course of this inquiry, let us examine a number of cases which naturally arise where the application for this writ was denied, upon the ground that the merits did not call for the interposition of the court, independently of the general rules we have before considered.
I. The writ of mandamus will lie to corporations as to inferior tribunals and officers, to compel them to exercise their discretion, though not to direct the manner of its exercise.
Thus where by act of parliament empowering certain persons to make a floating harbor at Bristol, it was enacted, “ that it should and might be lawful for the directors of the British Dock Company, and they were thereby authorized and required to make a common sewer in a certain direction therein specified, and also, to alter and reconstruct all or any of the sewers of the said 'city at the mouths thereof, go and in such manner that the sewers might be
§ 40. II. A mandamus will lie to compel a corporation to elect officers. “ Accordingly in case of public corporations, it has been decided that a mandamus lies to compel them to proceed, to the election of a new mayor, at any time after the charter day has passed without such election, where the former mayor, having power to do so, holds over, and refuses to convoke an assembly for that purpose; unless indeed the charter'restrain the right of electing to a particular time ; (Rex v. Cambridge, 4 Burr. 2011; Rex v. Gregory, 8 Mod. 113, 127;) to compel a new election of a mayor, where the re-election of the former mayor was void ; (Rex v. Pembroke Corp. 8 Dowl. P. C. 302 ;) to compel the corporation to proceed to an election of members to supply vacancies in a definite integral class, after a reasonable time has expired from the period of their occurrence, during which they have neglected to fill them up ; nor is it an objection to the granting of the writ, that at the time of application for it, an information in the nature of a quo warranto is pending against the mayor and corporators, to whom it is directed. (Anon. 2 Barnard, 236. Rex v. Grampound, 6 T. R. 302. Rex v. Fowey, 2 Barn. & Cresw. 596. S. C. 4 D. & R. 139.) It will also be granted to compel the corporation to proceed to the election of one out of two persons put in nomination for an office, when the course of proceeding is for one class of the corporation to nominate two persons, of whom another class is to elect one into office. (Rex v. Abingdon, 1 Lord Raymd. 561. Rex v. Ely, 2 T. R. 334.) And though the officers be annual ministerial officers as mace bearers, yet if public ministers, and necessary in the execution of the judicial functions of the corporation, and not mere servants, a mandamuslies to the corporation to compel it to elect them.” (Rex v. St. Martin, 1 T. R. 149. Rex v. Liverpool, 1 Barnard, 83. Angell and Ames on Priv. Corpns. ed. 1846, p. 634.) Messrs. Angell and Ames, in their treatise on the Law of Private Corporations, (p. 635,) observe : — “ We see no reason why the same remedy should not lie against a private corporation aggregate, to enforce an obedience on the part of the members to the charter, or act of incorporation under which they act, if they neglect or refuse to elect their proper officers. In the case of Rex v. The Bishop of Ely, (2 T. R. 290,) the court of king’s bench awarded a mandamus against the bishop, commanding him to appoint as master one of two fellows presented to him by the fellows of a college ; holding that he enjoyed his power of appointment not in virtue of his visitatorial capacity, but by the special appointment of the founder. And in The King v. The Master and Fellows of St. Catharine’s Hall,
§ 41. III. A mandamus will lie to compel a corporator of a public.corporation, duly elected, to take upon himself the execution of his office, though the defendant may plead any sufficient excuse for not accepting the same. (Rex v. Merchant Tailors, 2 Lev. 200. Rex v. Brown and Rex v. Leyland, 3 M. & S. 186, 188.) Therefore, in The King v. The Corporation of Bedford, (1 East, 79,) a rule was granted to one who had been elected mayor of a borough, and to the late mayor, commanding them to show cause why a writ of mandamus should not issue to them, requiring the late mayor to swear the one who had been elected into office, and the latter to appear before the said late mayor and take the oaths, &c., and thereupon to take upon himself the office' of mayor. The rule was answered by showing for cause, that the person elected was equally disqualified to serve, ”and thereupon the court granted a mandamus to elect another mayor.
§ 42. IV. So this writ will lie to compel a corporation to admit one elected to an office in a corporation to the legal possession of his right. (Angell and Ames on Private Corpus, ed. 1846, p. 636.) The writ, however, “ confers no title upon the person admitted, its sole operation being to put him in a situation to enforce his former title, if sufficient in law. For the sake of preserving peace in corporations, it will not be granted, unless the applicant show a prima facie title. Thus, it lies to compel the proper officers to admit to,the possession of his office or place one elected to be mayor, bailiff, ot other officer, an alderman, jurat, capital, or other burgess ; one of the approved-men, or one of the eight-men, if the affidavits show that approved-men, or eight-men, are a class of corporate officers; a high steward, a common-eouneilman, recorder, a town clerk, a steward of a court leet, an attorney of the court of a liberty ; a livery man of a company, being a member of a municipal corporation ; a sword bearer, if an officer of justice ; a serjeant, a constable, a bailiff, though a ministerial officer, or even a common freeman. (Rol. Abr. Rest, p. 4, 8, 7. Steven’s case, T. Ray. 431. Shuttleworth v. Lincoln, 2 Bulst. 122. Rex v. Canterbury, 1 Lev. 119. Taylor’s case, Poph. 133. Braithwaite’s case, Vent. 19. Anon. 1 Lev. 148. Rex v. Wilton, 5 Mod. 257. Clerk’s case, Cro. Jac. 506. Parker’s case, 1 Vent. 331. Rex v. Tidderley, Sid. 14. Guilford’s case, T. Ray. 152. Roe’s case, Comb. 145. London v. Estwick, Sty. 32. Bret’s case, Comb. 214. Rex v. Wells, 4 Burr. 1999. Anon. Dyer, 332, b. n.; Taverner’s case, T. Ray. 446. Middleton’s case, 1 Sid. 169. Milward v. Thatcher, 2 T. R. 87. Stamp’s case, T. Ray. 12. Baxter’s case, Sty. 355. Audley v. Joyce, Poph. 176. S. C. Noy, 78. Dighton, 1 Vent. 78, 82. Rex v. Campion, 1 Sid. 14. Baxter’s case, Sty. 457. Hurst’s case, 1 Lev. 75. S. C. 1 Sid. 94, 152. Anon, and Rex v. Westminster, Comb. 244.
§ 43. V. We have already mentioned, (§ 35,) that a mandamus will be granted to restore wherever it would be granted to admit a member or officer of a corporation.
“ A mandamus has been granted to restore a clerk to a butcher’s company, (White’s case, 2 Ld. Raym. 1004,) a clerk to a company of masons, a treasurer to the governors of the new water works, (Rex v. Governors of Water Works, 1 Lev. 123 ; S. C. 2 Sid. 112; Middleton’s case, 1 Sid. 169,) a clerk or surveyor of the city works, (Rex v. Mayor, &c. of London, 2 T. R. 182, n.) a town clerk, a common clerk of a vill, a parish clerk, a sexton, and a scavenger. (1 Vent. 143, 153, Rex v. Slatford, Comb. 419. Sty. 458. Rex v. Guardianos de Thame in Com. Oxon. 1 Stra. 115. Rex v. Barker and another, 3 Burr, 1267, per Lord Mansfield. 2 Kyd on Corp. 320.) In England, it has been decided, that it lies to restore the schoolmaster of a grammar school founded by the crown, (Rex v. Ballivos de Morpeth, 1 Stra. 58,) or the minister of an endowed dissenting meeting house ; (Rex v. Barker and another, 3 Burr. 1265 ; S. C. 1 Black. R. 300, 352 ; Rex v. Joatham, 3 T. R. 575 ;) and in our own country, to restore a trustee of a private academic corporation, though no emoluments were attached to his office. (Fuller v. Plainfield Academic School, 6 Conn. R. 533.) Here, too, the remedy has been applied to restore a member and trustee of a religious incorporation, (Green v. The African Methodist Episcopal Society, 1 Serg. & Rawle, (Penn.) R. 254,) and in several cases, to restore the members of private corporations for charitable purposes, (Commonwealth v. St. Patrick Benevolent Society, 2 Binn. (Penn.) R. 448 ; Commonwealth v. The Philanthropic Society, 5 Binn. (Penn.) R. 486; Commonwealth v. The Pennsylvania Beneficial Institution, 2 S. & R. (Penn.) R. 141,) illegally expelled. If, however, the charter of a society provides for
“ A suspension from office warrants the granting of this writ, as well as a removal ; for. a suspension is a temporary amotion, and otherwise, it is said, under pretenee of repeated suspensions, an officer might be entirely excluded from the advantage of his situation. (Rex v. Guilford, 1 Lev. 162. S. C. T. Ray. 152. Rex v. London, 2 T. R. 182. Rex v. Whitstable, 7 East, 355, and n. Willcock on Mun. Corp. 379.) And the writ has been granted to restore a member of an university, who has been improperly suspended of his degrees. (Rex v. University of Cambridge, T. 19, G. 3. Dr. Ewin’s case, 2 Sel. N. P. (Wheat.’s ed.) 824.) As in case of admission, so it will be granted to restore a deputy on the application of his principal, though not on the application of the deputy himself. (Rex v. President des Marches, 1 Lev. 306.) The modem decisions upon this subject seem indeed to be made in the spirit of Lord Mansfield’s rule, that wherever there is a right and no other specific remedy, this will not be refused. Where it appears from the showing of an officer, that he has been justly though irregularly removed, (Rex v. Axbridge, Cowp. 523 ; Rex v. Bristol, Mayor, 1 D. & R. 389 ; S. C. 5 B. & A. 731 ; Rex v. Bank of England, 2 B. & A. 620,) or in case of a financial officer for life, or quamdiu bene se gesserit, who is suspended until he has submitted his accounts to the proper officer, and paid over the balance due, that he has refused to do so, and been guilty of contumacy and improper conduct towards those whose officer he is, a mandamus to restore, it has been decided, will not be granted. (Rex v. London, 2 T. R. 182.) Neither will the writ be granted to restore one who has been ousted in quo warranto, or who has resigned his office; since judgment in quo warranto is conclusive against the defendant, whether on the writ or on the information ; and after a resignation has been accepted, the corporator cannot resume his office. (Rex v. Tidderley, 1 Sid. 14. Rex v. Campion, id.) And where A. was removed, and B. elected in his place, afterwards A. restored by mandamus, and subsequently his office became vacant; upon the application of B. for a mandamus without a new election, the writ was refused; for A. was a legal officer at the time of B.’s election, so that B. never acquired any title to the office. (Shuttleworth v. Lincoln, 2 Bulstr. 122.) It is, however, no objection to the granting of a mandamus to restore, that another has been elected to the office, since the amotion of the applicant. In such case, the court will grant leave to file an information in the nature of a quo warranto against the person so elected, at the same time that they award the mandamus. (Rex v. Bedford Level, 6 East, 360. Shuttleworth v. Lincoln, 2 Bulstr. 122.) A party, whose right to an office has .been established by verdict, cannot have a peremptory mandamus to restore him, until he has signed a judgment in the action. (Neale v. Bowles, 1 Har. & Woll. 370.” Angelí and Ames on Priv. Corpus, ed. 1846, p. 642, 643, 644, 645. See also Howard v. Gage, 6 Mass. R. 462.)
- As where corporate officers are required by statute to take a particular oath, under penalty of being displaced, this writ may be directed to an eleemosynary corporation, commanding it to remove certain persons from their offices for non-compliance with, the statute. (Rex v. St. John’s College, Skin. 549. 3 Salk. 230. See also Angelí and Ames.on Private Corporations, ed. 1846, p. 640.) In this case, says Mr. Kyd, a quo warranto would not have lain, because the college was an eleemosynary foundation ; but it would lie in case of corporation officers who should neglect, &c., and therefore mandamus would not be the proper remedy. (2 Kyd on Corpns. 337, n. (a.) Angelí and Ames, ut supra.
§ 45. VII. And this writ lies in a multitude of other instances to compel corporations and their officers to do many other acts which they are bound to do, either by virtue of their official station, or by the general law of the land. (See Angelí and Ames on Priv. Corpns. ed. 1846, p. 646.)
Thus the writ of mandamus lies to the “ warden of a college, commanding him to affix the corporation seal to an answer of the fellows to a bill in chancery, though he disapprove of the answer, and it is contrary to his own separate answer put in; (Rex v. Windham, Cowp. 377 ;) to the keepers of the common seal of an university, commanding them to put it to the instrument of appointment of their high steward, pursuant to a grace passed in the senate; (Rex v. Vice-Chancellor, &c. of Cambridge, 3 Burr. 1648;) to a master of an hospital possessed of the advowson of a living, to compel him to put the corporate seal to a presentation where the nomination has been made by a majority of the body of the master and brethren, the right to nominate being in such body ; (Rex v. Kendall, 1 Adol. & Ellis, (N. S.) 366 ; S. C. 41 Eng. C. L. R. 581;) and to the mayor of a city corporation, to compel him to put the corporate seal to the certificate of an officer’s election, where, by the constitution of the corporation, the mayor is bound to certify the election to the king for his approbation. (Rex v. York, 4 T. R. 699, 700; and see Strong, Petitioner, &c. 20 Pick. (Mass.) R. 484 ; where a mandamus was held to lie to a board of examiners, to compel them to give a certificate of his election to a county commissioner, though another person, upon a new election ordered, was elected in his place, whom he might be obliged to remove by quo warranto.) In The Commonwealth v. The Trustees of St. Mary’s Church, (6 Serg. & Rawle, (Penn.) 508,) which was an application for a mandamus to compel the trustees of a religious corporation to affix the common seal to certain alterations and amendments of the charter, no objection was taken by the court to the form of remedy ; though, for substantial reasons of another kind, the application was rejected. And where the regulations of a corporation rendered it necessary for the acquisition of the freedom, that the indentures of apprenticeship should be enrolled, a mandamus was granted to compel the proper officers to enroll them ; the applicant showing in his affidavits the necessity of the enrollment, and that application had been made in vain to the officer to perform his duty. (Rex v. Coopers of Newcastle, 7 T. R. 545.) So
Of the proceedings on Mandamus.
§ 46. The mode of proceeding by mandamus was well settled under the common law, and, with the other parts of that venerable institution, has been adopted in nearly all the States of the Union. It has, however, been changed in some respects by legislative enactment in the various states, but, nevertheless, it has been held, that where the occasions upon which it ought to issue are not pointed out by statute, a recurrence to the common law is necessary to learn in what cases the writ is a proper remedy; (Turner’s case, 5 Ham
§ 47. The application to the court must be founded upon affidavit, stating the right of the party injured, and the denial of justice. (Rex v. Jotham, 3 Term R. 575. 1 Gude Crown Pr. 181.) It has been said that it ought to be entitled in the court where the application is made, as “ In the king’s bench,” (id.) but this seems to be unnecessary under the practice-in this country. It is, however, fatal if it be entitled in a cause, as for example, “ Sup. Court, Andrew Roddy and Wilson Wilkinson vs Thomas W. Hill,” (The People ex rel. Roddy et al. v. Tioga Common Pleas, 1 Wend. 291,) because there is no cause pending, and an indictment for perjury in making such an affidavit must fail, as it could not be'shown that such a cause existed in the court in which the affidavit was made. (Per Savage, J) This rule, however, is not to be extended to any entitling that is fairly descriptive of the proceeding, aud therefore not within its reasou. Hence where an affidavit was entitled, “ Sup. Court: In the matter of John La Farge against the Judges of the Court of Common Pleas of Jefferson County,” it was held, that it did not fall within the rule, and might be read. (Ex parte La Farge, 6 Cowen, 61.) The body of the affidavit should contain a precise statement of all the substantial facts upon which the party relies, in such a form that an indictment for perjury can be founded thereon if it be false. (See Rex v. Sargent, 5 Term R. 466, 469.) Upon this principle, the affidavit should show a default, (Rex v. Borough of St. Ives, Buller’s N. P. tit. Mandamus ; 1 Gude Crow. Pr. 181,) — that the applicant has applied to the defendants to do that which he requires the court to command them to perform, and their refusal or neglect. (Amherst’s case, Sir T. Raym. 214. Rex v. Bishop of Chester, 1 Term R. 403. Rex v. Bishop of Ely, 2 id. 334. Rex v. Jotham, 3 id. 577. 3 Steph. N. P. 2318.) It must also show, that the applicant has complied with all the forms necessary to constitute his right, (id.; Bull. N. P. 201,) and entitle him to the relief he prays. (Rex v. Bishop of Oxfordshire, 7 East, 345.) Accordingly, in an affidavit for a mandamus to compel a corporation to pay a poor rate, it must appear that they had no distrainable goods. (Rex v. Margate, 3 Barn. & Ald. 220. S. C. 2 Chitt. R. 250.) So in an affidavit in support of a motion for this writ to justices to appoint overseers, it must be sworn that the district is, or at. least that it is reputed to be, a village or parish. (Rex v. Bedfordshire, Caldecott, 157. Anon. Lofft, 618. Rex v. Bridgewater, Cowp. 139. See also Rex v. Wiltshire, 1 Wilson, 138.) In an affidavit intended to found a mandamus to compel admission or restoration to an office, the nature of the office, its duties, and other facts necessary to show that it is of a public nature, should be set forth. (1 Chit. Gen. Pr. 808.) And where it is by charter, the substance as applicable should be stated, aud an authenticated copy must be produced at the time of making the motion. (Bull. N. P. 200. Selwyn’s N. P. Mandamus, 1076.) The election and other circumstances under which the applicant claimed, and still claims to be admitted, must be very distinctly and positively stated, and shown to have been according to the charter or prescrip
§ 48. The necessary affidavits having been prepared, the next step is to make an application to the court at the time and in the manner prescribed by its rules. The application is either ex parte or upon notice to the defendant. In some cases the latter is required in the first instance, as, for example, in that class which are termed street cases in the state of New York. (Ex parte Albany Water Works Co. v. Albany Mayor’s Court, 12 Wend. 292.) If, however, the application be ex parte, the court will not act on it until due notice has been given, for without such notice a mandamus can never be granted. (Angell and Ames on Corpus. 3d ed. p. 658. Anon.2 Halst. 192. Brosius v. Reuter, 1 Har. & J. 480.) Again, the application is either that a peremptory mandamus issue at once, or for a rule that the defendant show cause by a certain day therein named, why the particular act sought to be commanded should not be performed, or that a mandamus issue. The former will only be heard upon due notice, accompanied by copies of the papers on which the motion is intended to be founded ; the latter will be heard ex parte, and granted if the papers present a reasonable case. The application for a rule nisi is, however, the usual mode of proceeding. (10 Wend. 30.) Indeed, in Virginia and Ohio, it is said that such a rule must be the first process; (Turner’s case, 5 Hammond, 42; Dinwiddie Justices v. Chesterfield Justices, 5 Call, 556;) and in New York, it has been decided that a peremptory mandamus to a court of common pleas will not be granted in the first instance, but the party must obtain a rule to show cause why it should not issue. (The People v. Judges of Cayuga, 2 Johns. Cas. 68. The People v. Judges of Washington, 1 Caines’ R. 511.) Where a rule nisi has been obtained, if no sufficient cause be shown, the defendant will either submit, or a mandamus will issue to exact a return, showing that the required act has been performed, or some adequate excuse for its non-performance. (1 Chit. Gen. Prac. 809. See Rex v. Jones, Stra. 704. 3 Steph. N. P. 2319. See infra, § 69.) ,
§ 49. Let us now examine the form of the writ, which, as we have before
I. As to the joinder of persons suing out such writ, it may be generally stated that the same mandamus cannot be made to enforce the separate rights of several individuals ; and, therefore, the court will refuse one mandamus to restore a number of persons, the amotion of one not being the amotion of another, one having, perhaps, been removed for one fault, and one for another, which would make it impracticable for the court to grant a joint restitution to them. (Bac. Ab. Mandamus, B ) The case of The King v. Lord Montacute and others, (1 Wm. Blackstone, 60 ; S. C. 1 Wils. 283 ; Bull. N. P. 200 ;) has been supposed inconsistent with this doctrine, because it was moved for five persons, but the answer made by the counsel who argued in support of the rule seems to be conclusive, and to take the case out of the principle before stated, namely, that the “ grievance in the case was one and the same to all,” and in this respect, it is distinguished from the Andover case, (Salk. 433,) in which the general rule was maintained as it has been stated. (See 2 Salk. 436, pl. 19. Comb. 307. 5 Mod. 10. See also 1 Gude Cr. Pr. 189 ; also id. 204. See, however, as to the joinder of churchwardens, Regina v. Twitty, Holt, 424.)
§ 50. II. To whom directed : 1. The writ must be directed to him who by law is obliged to execute it, or to do the thing required. (Bac. Abr. Mandamus, F.) Upon this principle, it has been decided that where the mandamus Was directed to the mayor, aldermen and commonalty of Ripon, and they returned that they were incorporated by the name of the mayor, burgesses and commonalty of Ripon, the court held the writ bad, because directed to the corporation by a wrong name. (Rex v. Mayor, &c. of Ripon, 2 Salk. 443.) And where a mandamus, to admit a person to the office of town clerk, was directed to the mayor and aldermen of Hereford, and in fact the mayor only was to admit, the writ was quashed. (Rex v. Mayor, &c. of Abingdon, 2 Salk. 699. Reg. v. Mayor, &c. of Hereford, id. 701. Rex v. Smith, 2 Maul. & S. 598. Bac. Abr. Mandamus, F.) In New Jersey, it has been decided that one and the same writ of mandamus cannot be directed to the township committees of two several townships, to compel them to proceed to do their duty in a matter of road. (The State v. Township Committees, 5 Halst. 292.) A mandamus, however, may be directed to a whole corporation, though part only are to do the act; (1 Roll. R. 409 ; 1 Ld. Raym. 560 ; Holt’s Rep. 421;) but if it be directed to a part only, it must be directed to that part which is to do the act sought to be commanded. (Reg. v. Mayor, &c. of Hereford, ut sup. 1 Gude Cr. Pr. 196, 197.) And where the power of amotion was in the mayor, aldermen and others of the common council, the mayor and aldermen being part of the common council, and the writ was directed to the mayor, aldermen and common council, it was moved to quash it for this direction, because it seemed to infer that the mayor and aldermen were no part of the common council: the court said, “ here is nobody in this direction who must not join in the act; this is only repeating the several constituent parts of the corporation ; and the mentioning the entire common council after the mayor and
§ 51, 2. And where the writ is directed to a corporation or select body, it must not only be directed to them in their proper name, but also in their proper capacity, and the application for it must state plainly in what capacity it is intended that the writ should be directed to them. (Bac. Ab. Mandamus, F. Papilion and Dubois, Skin. 64. Rex v. Westlove, 3 Barn. & Cresw. 685. S. C. 5 Dowl. & Ryl. 599.) Thus the direction of a writ to the members of a “town council should be by their corporate name, for that is their legal description as long as they continue to have a corporate existence. (Rex v. Smith, 2 M. & S. 598. See Rex v. Mayor of Abingdon, 1 Ld. Raym. 559. Rex v. Mayor of Hereford, 2 Salk. 701. Bull. N. P. 204, (a.) Regina v. Mayor of Gloucester, Holt, 451. Pees v. Mayor of Leeds, Str. 640.) If, however, a mandamus were directed to the members of a corporation, instead of the corporation by its corporate name, the objection would he valueless, if not taken in limine on a motion to quash. It could not prevail after the return. (Fuller v. The Plainfield Academic School, 6 Conn. 532. See Regina v. Bailiffs of Ipswich, 2 Salk. 434.)
3. Nor will this writ be directed to one who has not the power to execute it. (State v. Dunn, Minor, 46.)
If the writ be wrongfully directed, sueh misdirection may be specially re» turned, (Regina v. Bailiffs of Ipswich, 2 Salk. 434,) and the court will grant a supersedeas quia impravide emanavit, (Rex v. Corporation of Wigan, 2 Burr. 782. See further, on the subject of direction, Queen v. Mayor of Derby, 2 Salk. 436 ;) or it may be superseded on motion. (Rex v. Norwich, 1 Stra. 55. Rex v. Hereford, 2 Salk. 701. Rex v. Abingdon, 1 Ld. Raym. 560. Rex v. Smith, 2 M. & S. 598.)
§ 52. III. Of the body of the writ. The writ should contain all those facts which are necessary to show that the party applying for it is entitled to the relief prayed for. (Rex v. Justices of West Riding, &c. 7 Term R. 52. Rex v. Bishop of Oxford, 7 East, 345.) The title of the relator to the relief sought must be clearly and distinctly stated in the alternative mandamus, so that the facts alleged may be admitted or traversed ; it is not enough to refer in the writ to the affidavits and other papers on file, in which the order for the mandamus was made ; though such reference is allowable to show the amount of a sum of money claimed, but not the right of the relator thereto. Therefore, where an alternative mandamus was directed to the canal commissioners, directing them to pay the president, &e. of the commercial bank of Albany certain moneys “ according to the order and certificate of the canal board and assignment to the bank mentioned in the affidavits on file in our supreme court of judicature, or signify to us the cause to the contrary thereof,” &c., it was held, that it was bad, and that the reference to the affidavits, &c.
As to the teste and time of return : these depend so much upon merely local rules, that it is hardly thought necessary to refer to them.
§ 53. If there be any irregularity in the writ, it may be amended at any time before it is returnable. (Bac. Ah. Mandamus, B. Regina v. Clithero, 6 Mod. 133. Rex v. Lyme Regis, Doug. 135.) But the court will not amend it after
§ 54. We will now consider upon whom, and in what manner service of the alternative mandamus is to be made. Under the English practice, the original writ and copies must be served personally upon the party or parties to whom such writ is directed ; and in the event of its being necessary to serve several persons with eopies of the writ, the original writ must be shown to every one personally when the copies are served, and the original writ after-wards served personally upon the principal person mentioned therein, it being expressly stated in the original writ that it must be returned to the court, and therefore it must be personally served upon one of the persons required to obey it, that it may be so returned ; and you can only proceed against such of the parties for a contempt in not returning the writ, who have either been served with the original writ itself, or a copy of the original writ, the writ itself being shown. (1 Gude Cr. Prac. 183. Rex v. Mayor of Exeter, 12 Mod. 251. 3 Steph. N. P. 2325.) Under this rule, the delivery of a mandamus directed to a county court to such of the judges as were sitting in open court, (Smith v. Dyer, 1 Call, 562,) and the delivery of a copy of the alternative writ, at the same time showing the original, (The People v. The Judges of Westchester, 4 Cowen, 73,) in vacation, (id.; The People v. Herkimer Common Pleas, 7 Wend. 536,) have been held good service. (See also Rex v. Corporation of Truro, cited 1 Gude Cr. Prac. 192.)
§ 55. After service of the alternative writ, the defendant may move to quash or supersede the same. (See The People v. Judges of Westchester, 4 Cowen, 73.) Objections, however, which are merely technical, and do not go to the substance of the relief sought, ought to be urged before a return is made ; (Fuller v. Plainfield Academic School, 6 Conn. 532; see also The King v. Mayor, &c. of Ripon, 2 Salk. 433, pl. 12 ; Ld. Raym. 563 ; vide Carthew, 500, 501;) but it is otherwise with those of a more solid character, which may be taken at any time before the issuing of a peremptory mandamus. Thus, where the writ was directed to a corporation, commanding them to pay a poors’ rate, •but omitted to state that the defendants had no effects upon which a distress could be levied, it was held to be a fatal omission. (Rex v. Margate Pier Company, 3 B. & A. 220. Taverner’s case, Sir T. Raym. 446. Townsend’s case, id. 69. J Lev. 91.) So, likewise, where it was suggested on the face of the writ, directed to an inferior officer of a college, that such college was subject to the power of a “ visitor,” the writ will be quashed, it being bad on its face, because such a jurisdiction is but a forum domesticum, and not taken notice of by the common law, and is a jurisdiction which purely belongs to the visitor. (Dr. Walker’s case, C. T. A. 212. Rex v. Whaley, 7 Mod. 308, 309.)
The motion is founded upon some error or defect, as for instance,misdirection ; (Rex v. Mayor, &c. of Norwich, 1 Str. 55 ; Rex v. Mayor, &c. of Abingdon, 2 Salk. 699 ; Reg. v. Mayor, &c. of Hereford, id. 701 ; see Rex v. Smith, 2 Maule & Selw. 598 ; Pees v. Mayor, &c. of Leeds, 1 Strange, 640 ; Bac. Abr. Mandamus, F.;) or a misjoinder of interests in bringing the writ; (Bac. Abr. Mandamus, B.; 2 Salk. 436, pl. 19 ; Comb. 307; S. C. 5 Mod, 11 ; S. C. 2 Salk. 433, S. P.; see also Rex v. Mayor of Kingston-upon-Hull, 1 Str. 578, 8 Modern, 209 ; Rex v. Wildman, 2 Strange, 893 ;) or some defect that renders the- writ falo de se; (King v. Dr. Walker, Ca. temp. Hard 212 ; Bac. Abr. Mandamus, B.;) or when the writ has been sued out in violation of the intention of the court: thus, where a rule has been obtained for a mandamus to issue, and the mandamus is taken out in other terms than is warranted by the rule, and differing not merely by adding things incidental to a mandamus, but materially enlarging the terms, the court Will quash the writ. (Rex v. Water Eaton, 2 Smith, 54. And see Rex v. Tucker, 3 B. & C. 345.) In Bacon’s Abridgment, (Mandamus, B.) it is said that “ the writ oannot be superseded after the return is out, neither can the party move to quash it before a return made and filed.” To supersede or quash the writ, a notice of motion must always be given. (Anon. 1 Wils. 30. 3 Steph. N. P. 2324.) That the motion to quash may be made by the prosecutor before a return, see supra, § 53.
§ 57. The writ is to be returned by him to whom it is directed ; and if any other return it in his name, without his privity and consent, an action on the case lies against him: also, it is an offence for which the court will grant an attachments.
^ 58. We have already seen, (§ 52,) that the alternative mandamus should contain all those facts which show the title of the applicant to the relief prayed for. Some violation or neglect of legal duty must be shown in the person to whom it is directed; and if this be omitted, the writ maybe quashed or superseded. But if the writ be sufficient and the defendant does not desire to do the act directed by it, he may then make a return. The return must state with certainty those facts which constitute a defence to the mandamus. It ought to contain a full and certain answer to all the allegations expressly made in the petition for it, and to disclose a just and legal reason why the mandamus should not be obeyed. (The Inhabitants of Springfield v. The County Commissioners of Hampden, 10 Pickering, 59.)
But certainty to a certain intent in general is all that is requisite here, which means what, upon a fair and reasonable construction, may be called certain, without recurring to possible facts, which do not appear. If the return be certain upon the faee of it, that is sufficient, and the court cannot intend .facts inconsistent with it, for the purpose of making it bad. Tf presumptions were to be allowed, certainty in every particular would be necessary, and no man could draw a valid and sufficient return. Besides, presumption and intendment, as far as they go, must be in favor of returns, not against them. (Per Buller, J., Dougl. 159. See Rex v. Mayor of Monmouth, 4 Barn. & A. 497. Rex v. Mayor of Carmarthen, 1 Maule & S. 697. See also Rex v. Corporation of Dublin, Batty, 628.) It has been said, that in point of form a return requires the same certainty and precision necessary in declarations and other pleadings ; (Brosius v. Reuter, 1 Harr. & Johns. 551 ;) or in an indictment or return to a writ of habeas corpus. (Rex v. Mayor of Lyme Regis, Doug. 157, 158.) In the case of The King v. The Mayor, &c. of Cambridge, (2 T. R. 456, 461,) Buller, J.,in alluding to a return of two repugnant causes, .observes, “ it is like a declaration in which two inconsistent counts are joined.”
Therefore, if to a mandamus to the Lord «President and Council of the Marches, to admit a person to the exercise of office of deputy secretary, the return is, that nonfuit tempore receptionis brevis deputatus constitutus ; this is naught; for if he were made his deputy before, the return was true, unless he made him his deputy at the very instant of the receipt of the writ. (The King v. Clapham, Vent. 110. Bac. Abr. Mandamus, I) So where a mandamus was granted to restore the recorder of Barnstable, directed to the mayor the corporation, and he returned, quod non constat nobis that he was
§ 59. On the other hand, to a mandamus to admit a person to an office, the defendant may return that the applicant was not qualified, or that he was not elected. (Bac. Abr. Mandamus, I. Rex v. Williams, 8 Barn. & Cresw. 81.) So a return to a mandamus to justices to hear and determine a complaint before them “ that it was determined,” has been held valid. (Rex v. Richardson, 1 Wils. 21.) So in answer to a mandamus to elect, it is a good return that a person has been “ duly elected and sworn into office,” it being sufficiently positive as to the principal fact. (Rex v. Williams, Sayer, 140.) A return that a party was not duly elected sexton according to ancient custom, “ and there is a custom for the inhabitants, &c. to remove at their will and pleasure, and that the party was removed pursuant to such custom,” is good. (Rex v. Churchwardens of Taunton, Cowp. 413.) So to a mandamus requiring A. to deliver to the churchwardens certain books, &c. in his custody, it is a good return to say, that on and since the teste of the writ, A. had not nor has had the books, &c. or any of them in his custody, power, or possession. (Rex v. Round, 5 N. & M. 427. 1 H. & W. 546.) “ Non fuit amotus," is a good return. (Rex v. Mayor of Colchester, I Sid. 210.) “Non fuit electus,” (Regina v. Corporation of Corn, 11 Mod. 174 ; Regina v. Twitty, 7 Mod. 84 ; Regina v. Borough of Aldborough, 10 id. 101.) “ non debito modo electus et prcefectus ad officium, (Rex v. Lambert, 12 Mod. 2 ; Rex v. Mayor of York, 5 T. R. 66,) that some other individual instead of the applicant had been elected; (Rex v. Williams, Sayre, 140,) and a return that the complainant has resigned — are valid and sufficient returns. (Rex v. Mayor of Rippon, 1 Ld. Raym. 564. Rex v. Tidderley, 1 Sid. 14. 3 Steph. N. P. tit. Mandamus. Bac. Abr. tit. Mandamus, I. Com. Dig. tit. Mandamus, D. 3.) It is a good return to a mandamus nisi, for the distribution of proceeds of ministerial lands in Ohio, that, before the application, the money was all distributed. (Universal Church v. Trustees, 6 Ham. 445.) And upon the petition of a town for a mandamus to county commissioners, compelling them to supervise and finish a part of a certain highway previously laid out, an alternative mandamus was issued, to which the commissioners made return that the part mentioned had been commenced and dedicated by the town with the aid of individuals voluntarily, and without expectation that the town would be remunerated by the county; and the return was held good. (Springfield v. Hampden, 10 Pick. 59.) So a return made to a mandamus, by B. G. and the others, as “ late township committee,” is sufficient. (State v. Griscom, 3 Halst. 136.) And where an alternative mandamus had been directed to a town clerk, commanding him to record the survey of a road pursuant to the act, (1 N. R. L. 270, sess. 24, c. 186,) or show cause; and the clerk returned, that he did not record the survey, because one of the commissioners had signed the survey by the name of Zaccheus Higby, whereas he was elected by the name of Zaccheus Higby, junior; and because the commissioners had not
§ 60. We. have before seen, that if a return be certain to a common intent, that is sufficient, and we may here add that the court will not intend inconsistent facts for the purpose of making it bad ; (Rex v. Mayor of Lyme Regis, Doug. 157 ; Manaton’s case, Sir T. Raym. 365 ; Rex v. Mayor of Doncaster, Sayer, 39 ; Glide’s case, 4 Mod. 35 ; Rex v. Mayor of Abingdon, 2 Salk. 431; Holt, 436-441; 3 Stephen’s Nisi Prius, 2326;) nor will they require that the right claimed in the writ be negatived, if it be admitted subject to a material qualification. (Rex v. Corporation of Dublin, Batty, 628.) If the supposal of the writ be false in not truly stating the constitution of the corporation, the •return ought to deny the constitution as being that which is mentioned in the writ. (Rex v. Bailiffs of Malden, 2 Salk. 431.)
§ 61. The court at common law may receive a return without a verification by the oath of the party ; (1 Sid. 227 ;) or they may require such verification. (Pal. 455. Ld, Ray. 365.) The return need not be signed fay or on behalf of the party making it, and if it be made by a corporation, it is said that it need not be signed by the head thereof; (1 Salk. 192 ; Skin. 368 ;) nor made under the common seal. (See Com. Dig. tit. Mandamus, 2.)
§ 62. The return having been made and filed, it maybe necessary for the defendant to amend it. It is said, that clerical mistakes may be amended after the return is filed ; (Rex v. Lyme Regis, Doug. 135 ; Willcock on Corpns. p. 2, pl. 272, et seq.;) but amendments are allowed with caution; and, therefore, after a verdict on a traverse to the return, the court would not allow the defendants to amend the return- by setting forth a different constitution of the corporation. (The King v. Mayor of Grampound, 7 T. R. 699.) In regard to motions by the defendant to quash his return, Lord Holt remarks in an anonymous case in 12 Mod. (page 410,) “ if an officer make an ill return, he
§ 63. By the common law, the plaintiff was not at liberty to traverse the return, even though it might be false in fact, but the remedy was either by an action on the case for a false return, or, if the mailer concerned public government and no particular person was so far interested as to maintain an action, by information against the particular persons that made the return. (See supra.) But the statute of 9 Anne, ch. 20, permitted the return to be denied in certain cases, which it is unnecessary to state here at large. The Revised Statutes of New York extending the principle of the statute of Anno, provide that whenever a return shall be made to this writ, the person prosecuting such writ, may demur or plead to all or any of the material facts contained in the said return ; to which the person making such return, shall reply, take issue or demur; and the like proceedings shall be had therein for the determination thereof, as might have been had, if the person prosecuting such writ had brought his actiou on the case for a false return; and that issues of fact joined in any such proceeding, shall be tried in the county within which the material facts contained in the mandamus, shall be alleged to have taken place. (2 R. S. 2d ed. 486, §§ 55, 56.) And a similar provision suggested by-the statute of Anne existed previous to the revision. (The People ex rel, Shuvert v. Champion, 16 Johns. 61.) In regard to the practice under this statute, Mr. Justice Sutherland observes: — “Although these statutes contemplate formal written pleadings in the ordinary mode of conducting suiis, the practice of the court is virtually to allow pleadings ore tenus ; that is, the relator is permuted to discuss the return, aud to ask for a peremptory mandamus, and whilst he does not put in a formal demurrer, the case is considered as embraced in the description of non-enumerated business, and is heard as such ; but if a formal demurrer is interposed, it becomes enumerated business, and can be heard only at the stated terms. It is optional with a relator whether it shall be considered enumerated or non-enumerated business, unless the court specially direct formal pleadings to be interposed. No injury can result to the defendant in consequence of this privilege allowed the relator, for if ha wishes to carry up the cause for review, the court permits him, after its decision, to make up and file formal pleadings, so that a record may be made up ; which privilege, however, is not granted to the relator, who has chosen to as-k for a peremptory mandamus, without formally demurring ; if dissatisfied with the decision of the court, he cannot carry up the cause for review.” (The People ex rel. Bentley v. Commissioners of Highways of Hudson, 6 Wend. 560.) But although the relator may either demur or traverse, on a return to a mandamus, he is not at liberty to do both ; and, therefore, though he may be ruled to plead or demur to the return within twenty days, (The People v. The Cayuga Common Pleas, 10 Wend. 632,) he cannot be ruled to do both. (Vail ads. The People, 1 Wend. 38.) In regard to demurrer, it has been said that a relator will not be allowed to demur specially lo a return ; and, therefore, where the relator having obtained an alternative mandamus, commanding the judges of the common pleas of New York to sign and seal a
But notwithstanding a rule to plead or demur to the return may have been taken, the relator may apply on due notice at a special term for a peremptory mandamus, as if no such rule had been entered. (The People v. Cayuga Common Pleas, ut sup) The prosecutor can reply to a retu'rn to a mandamus ; (Rex v. Mayor of Lyme Regis, Doug. 159 ;) and that which is not answered upon the return, must be looked upon as admitted to be true. (Reg. v. Corporation of Buckingham, 16 Mod. 174.) And where the prosecutor of a mandamus to which a return had been made, moved for a concilium, and the court upon argument adjudged that the return was sufficient in law, it was held, he could not afterwards traverse the facts contained in the return. (Rex v. Mayor and Aldermen of London, 3 B. & Ad. 255.) The prosecutors of a mandamus moved to take the return off the file on affidavit, and on objections made against the validity of the return itself. The court, after argument on the law and facts, ordered in general terms that the rule should be discharged. The defendant then traversed the return.' On motion to take the traverse off the file, because judgment had already been given in favor'of the validity of the return, it was held, that the prosecutors were entitled to traverse. (Regina v. Payn, 11 A. & E. 955.)
§ 64. The prosecutor of a mandamus to restore, traversed the facts in the return, and seven issues were joined ; but he afterwards deserted his traverses, and set the return down in the paper, to be argued upon its validity in law. It was accordingly argued ; blit Sir J. Burrow doubted whether this was regular, if the defendants had objected. (Wilsford v. Mayor, &c. of Doncaster, 2 Burr. 738.)
^ 65. We have already seen (supra, § 57) that a return of inconsistent .matters will render the return bad, but a ease may arise where several inde?
§ 66. If a mandamus were returned many years ago, the court will not permit the return to be traversed now, without special affidavits. (Rex v. Corporation of Swansea, E. 24, Geo. III. cited in 1 Gude Crow. Prac. 192.)
§ 67. Under the statute of 9 Anne, before referred to, upon issue joined on traverse of return lo a mandamus, judgment as in case of nonsuit may be given in the same manner as in an action. (Wigan v. Holmes, Sayre, 110. Sayer’s Law of Costs, 166. M. 27, Geo. II. and E. 32, Geo. III. Allen v. Mayor of Stafford, 4 T. R. 689. 1 Gude Crow. Prac. 192.)
§ 68. We now eome to consider the remedies for false return, to which we have before incidentally alluded. Before the statute of Anne, a sufficient return, like the return of a sheriff) could not be called in question in the proceeding in which it was made; but in a case where no one was particularly interested to bring an action for a false return, the court would direct an information. (See 3 Steph. Nisi Prius, 2332. Also a very full collection of the authorities in Augell and Ames on Corporat. 3d ed. 676, n. 1. Com. Dig. tit. Mandamus, D. 6, and authorities. Bac. Abr. tit. Mandamus. L. Salk. 374, pl. 16. Lord Raym. 584. Rex v. Lancaster, 1 Dowl. & Ryl. 485.) In those cases where no right to traverse the return is given by statute, the only remedy of the plaintiff is by an action on the case for a false return. (Bac. Abr. tit. Mandamus, L. Com. Dig. tit. Mandamus, D. 6.) This aetion may be brought at any time after judgment given upon the return, but not before, (Com. Dig. ut sup.) by all those who have made application for the mandamus, (Bac. Ab. Mandamus, L.; 1 Lord Raym. 125,) against all or any one .of those who made the return, as against a mayor only where the return was made by the mayor and aldermen ; though if it appear in such an action that the mayor voted against the return, but was overruled by the majority, the plaintiff will be nonsuited; (Rich v. Pillington, Carth. 171, 172 ; see also 6 Mod. 152 ;) and it lies as well for a suppressio veri as for a suggestio falsi; (Dougl. 149, 158.) In an action for false return, it cannot be objected that mandamus would not lie, (Lord Raym. 125,) nor that it was directed to a corporation by the wrong name ; nor that, on account of the improper direction of the writ, the defendants need not have made any return. (Id. 564. See also Com. Dig, tit. Mandamus, D. 6, n. (e) to Am. ed. of 1825.) Where the return to a mandamus was, that there was neither the hand of the mayor nor the seal of the corporation to it; the court stated, “ It is well enough with
§ 69. Let us now examine the peremptory mandamus, which is the final order of the court that the particular act sought to be commanded be performed. And
I. When it may be issued. Where both parties are heard on a motion for an alternative mandamus, and there is no dispute about the facts, a peremptory mandamus, if it be lawful, will be granted in the first instance, because in such a case there is no necessity for going through the usual forms of the alternative writ, (Ex parte Rogers, 7 Cowen, 526, 533, 534; Ex parte Jennings, 6 Cowen, 518.) If, however, it is desired to bring error, a peremptory mandamus will be refused at this stage of the proceedings ; or if a rule for one has been granted, it will be changed into a rule for an alternative mandamus, so that the facts may be put on record by a return. (Ex parte Jennings, ut sup. See Rex v. Dean and Chapter of Dublin, 1 Strange, 536, where it was decided that no writ of error lay on the
Again. If the return to the alternative mandamus be insufficient, the peremptory writ may be awarded. (Bac. Abr. tit. Mandamus, M. Com Dig, tit. Mandamus. The People v. Seymour, 6 Cowen, 579. The People ex rel, Bush v. Collins, 7 Johnson, 549. Rimkell v. Winemiller, 4 Harris and McHen. 429.) Bo if the return have been falsified in an action upon the case; Bac. Abr. ut sup.; Com. Dig ut sup.;) or in New York, in case a verdict shall be found for the person suing such writ upon-plea to all or any of the material facts in the return ; or if judgment be given for him upon demurrer or by default, this writ shall be granted without delay. (2 Rev Stat. of N. Y. 2d ed. 486, § 57. See also stat. 9 Anne, ch. 10, § 2.
II. Form : In The People ex rel. the Com. of Highways of Poughkeepsie v. The Supervisors of the County of Dutchess, (1 Hill, 50,) Justice Bronson remarks that “ the peremptory writ, when awarded, should follow the alternative mandamus;” and although he does not extend the remark beyond the particular case then before the court, this may be safely slated as the general rule.
III. Practice: A motion for a peremptory mandamus, on the coming in of a return to an alternative mandamus, is a non-enumerated motion, if the relator has not formally demurred. (The People v. The Commissioners of Highways of Hudson, 6 Wen. 559.) It is optional with the relator, whether it shall be considered enumerated or non-enumerated business, unless the court specially direct formal pleadings to be interposed; if he elect to have it considered non-enumerated business, the court, on the application of the defendant, but not of the relator, will give leave, after its decision of the ques. tion, to have formal pleadings made up and filed. (Ib.) On motion fora peremptory mandamus, the court do not look at the affidavits on which the alternative writ was founded ; their decision is made solely upon the return to the alternative writ. (The People v. Hudson, 7 Wen. 474.) Where an application is made for a peremptory mandamus on the return of an alternative writ, the papers on which the original motion was made must be presented, and the points stated in writing in support of the application. (The People v. Delaware Common Pleas, 2 Wen. 255.)
§ 70. The mode of enforcing obedience to the peremptory mandamus is by attachment, which must be moved for upon affidavits showing the right of the applicant to this remedy, and due notice to the defendant. Therefore, where on motion for an attachment against the defendants for not obeying a peremptory mandamus commanding them to seal a bill of exceptions, the affidavit omitted to state the service to have been when the court was sitting, ■ or the persons on whom made, the court denied the motion (The People v.
§ 71. By the Revised Statutes of New York, (vol. 2, 2d edition, page 486, § 57,) in case a verdict shall be found for the person suing such writ, or if judgment be given for him upon demurrer or by default, he shall recover damages and costs, in like manner as he might have dune in such action on the case for a false return. And on a recovery of damages by virtue of that statute, against any persons claiming to be a corporation, the court may cause the costs therein to be collected, by execution against the persons claiming to be a corporation, or by attachment against the directors or other officers of any such corporation. (Id. § 58.) On trial of a mandamus under 9 Anne, if the plaintiff gets a verdict, he recovers damages as well as costs; but the defendant only recovers costs, he having sustained no damages. (Ipswich, mandamus to admit Hare. Mic. 17 Geo. III. 1 Gude Crown Prac. 190. See also id. 176.)
§ 72. In Ex parte Root, (4 Cowen, 548,) the court state that the general practice of the court is not to give costs on motion for mandamus, and this especially when such motion is ex parte, but nevertheless when the motion is heard upon notice, and is clear against the relator, the court will deny 1t with costs. (Id.) Nor are costs usually given on granting an alternative or peremptory mandamus on motion. “ If the relator wishes to secure costs,” (say the court,) “ he must go to his demurrer or issue of fact.” (The People ex rel. Holley v. Supervisors of Columbia: The same ex rel. Waterman v. The same, 5 Cowen, 291.) Where the defendants in an action apply to the supreme court for a mandamus to the judges of the court below, and the plaintiffs oppose the issuing of a peremptory mandamus, and request a return to be
FORMS.
A few forms are here given for the use of the practitioner, for which no apology is deemed necessary.
I. Mandamus to Inferior Tribunals and Judicial Officers.
1.
A general form of an alternative mandamus which may be adapted, (with proper additions,) to any case, court or officer. (Humphrey, 504; sec 3 Ld. Ray. Rep. 203, 206, 353, for precedents.)
The people of the state of New York, to [the court, board of supervisors, commissioners of highways, or other officers or persons to whom it is to be directed,! greeting: Whereas, [here recite the facts or statements, briefly, which preceded the gravamen or injury.] Nevertheless, you the aforesaid [court, officer or person,] have unjustly, [slate briefly the order or proceeding óf which you complain,] as we are informed by his complaint. Now therefore, we being willing that full and speedy justice be done in this behalf to him the said as it is just, command you, that immediately after the receipt of this writ you,'[insert the thing or matter required to be done, or omitted, substantially according to the order of the court allowing the mandamus,] or that you show us cause to the contrary thereof, lest complaint shall again come to us by your default; and in what manner you shall have executed
Peremptory mandamus thereon.
As in the last form, adding after the words “ as we have been informed from his complaint made to us,” the words “ and which complaint we have adjudged to be true as appears to us of record,” and omitting “ or that you show us cause to the contrary thereof.”
3.
Peremptory mandamus to vacate an order setting aside a fi. fa. (Blunt v. Greenwood, 1 Cowen, 15, 22. Supra, § 29.
The people of the state of New York, to the judges of the court of .common pleas of the city of New York, greeting: Whereas lately [n. s.] recovered a judgment for the sum of against one which said judgment was entered of record, in the said court of common pleas, on the day of , and upon which said judgment a fieri facias was issued ; and, afterwards, a levy made by virtue of the said fieri facias, upon the goods and chattels of the said to wit, on the day of ; and whereas, we have been informed, from the complaint of the said , that a rule was granted by you during the last term of the said court of common pleas, setting aside the said fieri facias, to the great damage and grievance of the said : We, therefore, being willing that due and speedy justice should be done to the said in this behalf, as it is reasonable, do command you, firmly enjoining you, that immediately after the receipt of this our writ, you do, without delay, vacate and cause to be vacated, the said rule granted by you at the last term of the said court of common pleas, that the same complaint may not, by your default, be again repeated to us : and how you shall have executed this our writ, make known to us, before our justices of our supreme court of of judicature, at the in the town of in the county of. on the next, then and there returning this our writ, upon peril that may fall thereon. Witness, &c. [the usual teste.] Clerics. ■ -, Att’y.
4.
The same, to vacate an order setting aside the report of referees. (Humph. 503. Supra, § 29.
The people of the state of New York, to the judges of the court of common pleas in and for the county of ■ , greeting: Whereas we have been given to understand, in a certain action of trespass on the case pending before you between , plaintiff; and defendant, that a certain report of referees was duly made to you in writing by , the referees appointed in the said action, by which said report the said referees certified that, [here state report substantially, and the amount reported.] Nevertheless, you, the aforesaid judges, have not only unjustly refused to render
5.
Alternative mandamus to restore an .attorney. (Supra, § 28. "2 R. S. 488, 510. 1 R. S. 221. Humph. 502. See cases, § 28.
The people of the state of New York, to the judges of the court of common pleas, in and for our county of greeting: Whereas, as we have been given to understand, that , Hsq was duly admitted, appointed and licensed to practice as an attorney and counsellor at law of the said court of common pleas, to have and to hold such office so long as he should well demean himself therein. By virtue whereof the said was and is justly entitled to the exercise of the office aforesaid, and to take the fees, perquisites and profits thereof. Nevertheless, you the aforesaid judges, have unjustly removed him from the exercise, of such office to the grievous damage of the said as we are informed by his complaint; therefore, we, being willing that full and speedy justice be done in this behalf to him the said as it is just, command you, firmly enjoiuing that immediately after the receipt of this writ, you restore him to the aforesaid office of attorney and counsellor at law of the said court of common pleas, and permit him to exercise the same, and to take the fees, perquisites and profits thereof, or that you show cause to the contrary before our justices of our supreme court of judicature, at on the day of h'ext, lest complaint shall again come to us by your default; and in what manner this our command shall be executed, make appear to'our said justices of our said supreme court of judicature, on the day of at and then sending back to us this our writ. Witness, &c. [ths usual teste.] - Clerks.
Peremptory mandamus thereupon.
As in the last, adding to the words “ as we are informed by his complaint,” these words, “ and which complaint we have adjudged to be true, as appears to us of record.” Omit “ or that you show cause to the contrary before our.
7.
Alternative mandamus to a court of sessions to hear and determine an appeal against an order of bastardy. (2 Gude, 398, et seg.)
The people, &e. To--.-. Whereas we have been given to understand in our court before us that at , an appeal was entered on the behalf of against a certain order made by , two justices chosen in and for , for filiating on the said . a bastard child, born of the body of ; and yon the said , before whom the said appeal was brought as aforesaid, were then and there required, on behalf of the said , to hear and determine the matter of the said appeal, yet you the said before whom the said appeal was brought as aforesaid, not regarding your duty in that behalf, did not hear and determine the said appeal, nor have you at any time since heard or determined the same, to the great damage and grievance of the said , and to the manifest injury of his estate, as we have been informed from his complaint made to us; whereupon he haih besought us, that a fit and speedy remedy may be applied in this respect; and hereupon we, being willing that due and speedy justice should be done in this behalf, as it is reasonable, do command you the said that you do proceed to hear and determine the said appeal, at or ..that you show us cause to the contrary thereof, lest in your default the same complaint should be repeated to us ; and bow you shall have executed this our writ make known to us at pn next. Witness, [the usual teste.] Clerics. -, Aii’y.
8.
Peremptory mandamus thereon.
As in the last form, adding after the words “ as we have been informed from his complaint made to us,” the words “ and which complaint we have adjudged to be true as appears to us of record,” and omitting " or that you phow us cause to the contrary thereof.”
9.
Alternative mandamus to two justices to take the examination of a pauper touching the' reputed father of a bastard child. (2 Gude, 407, et seq.)
The people, &e. To--. Whereas we have been given to understand in our court before us, that heretofore (to wit) on the day of in the year of , one having declared herself to be with child, and that such child was likely to be born a bastard, and to be chargeable to the county [or town] of in the said county, ap. plication was made unto you the said and , being two of the justices of by and on behalf of the superintendent [or guar* dian] of the poor [or commissioners of the aims house,] of the said county, [or town,] to take the examination of the said touching the person
The peremptory mandamus thereon similar to the last form, With the changes stated in No. 6.
II. Mandamus to Inferior Officers and Corporations.
11.
Mandamus to one who has the custody of public papers or documents, to permit a person to inspect and take copies of the same. (2 Gude, 464,465, 466, 432.)
The People, &e. To- --. Whereas we have been given to understand, in our court before us at , that a certain plaint in replevin is now pending in our said court before us, wherein one is the plaintiff, and one is the defendant, touching the claim or title of the said to a certain right of eommou and pasturage for all manner of cattle and other commonable rights in, over, and upon the open, common, waste and unenclosed lands and grounds situate, lying and being within the , in the said county of . And whereas we have been also given to understand, in our said court before us, that application hath been made to you, the said , on behalf of the said , to permit and suffer the said , or his attorney or agent, to inspect the papers and public documents whereof you have the custody, so far as the same relate to the matters in question in the said plaint, and to take copies and extracts therefrom ; but that you have absolutely refused to permit the said , or his attorney or agent, or other person on his behalf, to inspect the same, or to take copies or extracts therefrom, to the great damage and prejudice of the said , as we have beon informed from his complaint made to us ; whereupon he hath besought us that a fit and speedy remedy may be applied in this respect; and we, being willing that due and speedy justice should be done in this behalf, as it is reasonable, do command you, the said , and each of you, and-
12.
Mandamus to a late clerk to deliver up books, &.c. to the present clerk. (2 Gude, 497, 498, 499.)
The People, &c. To---. Whereas we have been given to understand, in our court before us, that , hath been duly chosen, appointed, and sworn into the office of town [or county or other] clerk. And whereas all the public books, records, and muniments of and belonging to the said [town or county] ought to be placed' aad deposited with, and remain in the custody, power, and possession of the said , as such town [or county or other] clerk, for the use and benefit of . And whereas we have been also given to understand, in our court before us, that the aforesaid public books, records, and muniments of and belonging to the said [town or county,] have been for a considerable lime last past, and now remain in your custody, possession, or power; and application bath been made to yon on behalf of the said as such town [or county or other] clerk as aforesaid, that the same should be delivered by you to the said , as such town [or county or other] clerk as aforesaid, in order that the same might remain in-his custody and possession, as such town clerk as aforesaid, for the use and benefit of '; yet you, well knowing the premises, but not regarding your duty in this behalf, have absolutely neglected and refused, and still do absolutely neglect and refuse to deliver to the said , so being such clerk as aforesaid, the aforesaid public books, records, and muniments of and.belonging to the said [town or county,] andón the contrary thereof unjustly detain the same in your custody or power, in contempt of us, to the great damage and grievance of the said , and to the great hindrance of the administration of justice within the said [town or county,] as we have been informed from his complaint made to us in that behalf; we therefore, being willing that due and speedy justice should be done in this behalf, as it is reasonable, do command you, firmly enjoining you, that immediately after-the receipt of this our writ, you do without delay deliver, or cause to be delivered to the said , so being such clerk as aforesaid, ail the said public-books, records, and muniments of and belonging to the said borough, in your custody, possession, or power, in order that the same may remain in the custody and possession of the said , as such clerk as aforesaid, for the uso and benefit of , or that you show us cause to the contrary thereof,
13.
Mandamus to compel certain officers, as supervisors, commissioners, &c., to make a rate, tax, or assessment for repaying sums expended in public works . or for other purposes. (2 Gude, 434, 438.)
The People, &e. To------, greeting. Whereas [state the circumstances from which the obligation to make the rale arises] nevertheless you our said [commissioners of sewers] for the said, count}', not being ignorant of the premises, but little regarding your duty in this behalf, have absolutely refused and still do refuse to make such rate, tax, and assessment, in contempt of us and to the no small damage and injury of , as we have been informed from their complaint made to us in that behalf; whereupon they have besought us that a speedy remedy be granted to them ; we therefore being willing that a speedy remedy be provided for them in that behalf, as is just, do command you our said , by firmly enjoining you, that you do without further delay, in due form of law make and cause and procure to be made a rate, tax, and assessment oh all and every person and persons who hath, or have, or holdeth, or hold any lands, tenements, and hereditaments within the said county, [town or city;] [describe the mode in which the rate is to be made ;J and that you do all and singular acts, matters,, and things necessary, and which you may lawfully do in this behalf, or signify to us good cause to the contrary, lest by your default complaint thereof "be again made to us : and in what manner you shall'have executed this our writ make appear to us at , on next, then returning to us this our writ; and this you or any of you are not to omit on peril that may ensue thereon. Witness, &c. Clerks.
14.
Mandamus to compel officers, as commissioners, supervisors, justices, &e., to. levy a sum assessed on a certain person pursuant to a statute. (2 Gude,. ■ 421,441.)
The People, &c. To---, greeting. Whereas [state the circumstances out of which the obligation to levy the sum assessed arises] nevertheless you the said , well knowing the premises, but not regarding your duty in this behalf, did then and there absolutely neglect and refuse, and have ever since absolutely neglected and refused, to issue such warrants [or warrant] as aforesaid, as we have been informed from the complaint of the said collectors [or other persons] made to us; whereupon they have besought us that a fit and speedy remedy be applied in this respect; and we, being willing that due and speedy justice should be done in this behalf, as it is reasonable, do command you, the said , firmly enjoining you, that immediately after the receipt of this our writ, upon proof made upon oath of the demand made by the said collectors as aforesaid of the said sum of so assessed upon the said as aforesaid, and of the non-payment thereof,
15.
Mandamus to a person to take upon himself the office of mayor.
The People, &c. To---, Esq ,• greeting: Whereas, we have been given to understand in our court before us, that heretofore (to wit) on now last past, you the said , were in due manner elected into the office of mayor of , to serve in the same office for the space of one whole year, then next following, of which election you the said then and there had notice ; and it then and there became and was the duty of you the said , so being elected as aforesaid, to take the oath for the due and faithful execution of the office of mayor of the said [town or city], and to take upon yourself and execute the said office of mayor of the said town for the residue of one whole year, computed from , now last past; yet you the said , well knowing the premises, but not regarding your duty in this behalf, have absolutely neglected and refused, and still do absolutely neglect and refuse to take the oath for the due and faithful execution of the office of mayor of the said town, [or city,] and to take upon yourself and execute the office of mayor of the said town, [or city,] in manifest obstruction of public justice within the said town, and to the great damage and grievance of the inhabitants thereof, as we have been informed from the complaint of , made to ns; whereupon they have besought us that a fit and speedy remedy may be applied in this respect; and we, being willing that due and speedy justice should be done in the premises, as it is reasonable, do command you, the said , firmly'enjoining you, that immediately after the receipt of this our writ, you do take the oath for the due and faithful execution of the office of mayor of the said town, [or city,] and that you do take upon yourself and execute the said office of mayor of the said town, for the residue of one whole year, computed from the said day of now last past, or that you show us cause to the contrary thereof, lest the same complaint should by your default be repeated to us: and how you shall have executed this our writ, make known to us at , on next, then returning to us this our said writ. Witness, &c. Clerks.
16.
Mandamus to restore one of the common council of a city. (2 Gude, 545.) ■The People, &c. To the citizens of the common council of our city of , and to every of them, greeting: Whereas, was duly elected, sworn, and
17.
Mandamus to elect a mayor. (2 Gude, 500, 503, 505, 507, 510, 511, 512, 515, 516, 518, 520, 522, 524.
The People, &e. To---, greeting: Whereas, [set out the circumstances out of which the obligation to elect arises,] and we have been given to understand in our court before us, that on , now last past, being the day appointed for the election of a mayor of the said town [or city] as aforesaid, no election was made of a mayor of or for the said town [or city] for the present year, [pursuant to the direction of the statute iu such case made and provided,] nor hath any election of a mayor of or for the said town [or city] been since at any time made, as we have also been given to understand in our said court before us, to the manifest hindrance and obstruction of public justice within the said town [or city] : we therefore, being willing that a due and speedy remedy should be applied iu this behalf, as it is reasonable, do command you, the said [mayor, aldermen, and.commonalty] of the said town [or city,] firmly enjoining you, that every of you having a right to vote or be present at, or to do any other act necessary to be done in order to the election of a mayor of the said town [or city] do, upon , the next, between the hours of o’clock in the morning, and o’clock in the afternoon of the same day [assemble yourselves in some convenient place or places within the said town [or city] of , and that being so assembled, you [describe here in what manner the election is to be held] do then and there, according to your authority in that behalf, respectively proceed to the election of a mayor of the said town and borough for the residue of one whole year, to be computed from , now last past: and that you, and every of you, do every act necessary to be done in order to such election [pursuant to the statute in such case made and provided;] and that such of you to whom the same of right belongs, do administer or cause to be administered to the
Mandamus to elect an alderman in the place of one who has left the country.
The people of the state of New Yoik, by the grace of God free and independent, to the mayor, aldermen and commonalty of the city of New [l. s.] York, greeting : Whereas, on the first day of November last past, and for the two succeeding days, an election was duly held according to law in the fifth ward of the said city, for the purpose of electing an alderman and other officers of the said fifth ward, according to the charter of the city of New York, and the statutes amending the same, and whereas at the said election, David Rogers had a majority of votes for alderman of the said ward; whereupon the said D. Rogers was entitled to, and ought to have qualified himself to become a member of the common council of the said city by appearing and taking the oath or oaths by iaw provided, but on the contrary thereof the said D. R., soon after the said election took place, and in the said month of November, and before the first day of January last past, departed from the United States for the island of St. Croix, in the West Indies, without 'having ever qualified himself by law to assume the office of alderman of the said fifth ward. And whereas, the said D. R. has ever since been, and still is absent from the United States, whereby the said fifth ward is not fully represented in the said common council, and manifest Injustice is done to the residents and electors in the said fifth ward, as has been suggested to us by the complaint of J. B. Schmelzel, J. R. Manley, G. Conklin, George Arnold, D. Banks, and Benj. Briggs, residents and electors in the fifth ward. And whereas, we have been informed by the said complaint, that by reason of the premises aforesaid, the office of alderman o'f the said fifth ward is now vacant, and that it is proper, expedient and necessary that an election for alderman of the said war'd should be had without delay; therefore, being willing that due and speedy justice should be done in this behalf, as it is reasonable, we do command you, by firmly enjoining you, that immediately after the receipt of this our writ, you do without delay cause an election to be held for the purpose of choosing and electing an alderman of the said fifth ward, pursuant to the charter and the acts of the legislature of the state of New York, in such case made and provided, or signify to us the contrary thereof, that the same complaint may not, by your default, be again repeated to us, and how you shall have executed this our writ, make it appear before our justices of
By the Revised Statutes of New York, (vol. 2, 3d ed. p. 259, § 1,) “ the supreme court shall possess the powers, and exercise the jurisdiction, which belonged to the supreme court of the polony of New York, with the exceptions, limitations and additions, created and imposed by the constitution and laws of this state.” The jurisdiction of this court as it now exists, is traced to the ordinances of 1699 and 1704 ; by the latter of which, it is invested with fail and ample power and authority to have and take cognizance of all pleas and causes, civil, criminal and mixed, and to hear, try and determine the same, as fully and absolutely to all intents and purposes, as the courts of king’s bench, common pleas, and exchequer in England. (1 Grah, Prac. 3d ed. p. 304.) The provision of the constitution of 1846, (art. vi. § 3,) that there shall be a supreme court, having general jurisdiction in law and equity, in no respect changes the power of that tribunal to grant the writ of mandamus.
The Revised Statutes of Massachusetts (499, § 5,) provide that the justices of the supreme judicial court “ shall have power to issue writs of error, certiorari, mandamus, prohibition and quo warranto, and all other writs and processes, to courts of inferior jurisdiction, to corporations and individuals, that shall be necessary to the furtherance of justice, and the regular execution of the laws.”
The provision in the Statutes of Maine is very similar. It is that the supreme judicial court “ shall have power to issue writs of error, certiorari, mandamus, prohibition, quo warranto, and all other processes and writs, to courts of inferior jurisdiction to corporations and individuals, which may be necessary for the furtherance of justice, and the due execution of the laws.” (Rev. Stat. of Maine, 395, § 5.)
The Constitution of Missouri, of 1820, (art. v. § 3,) provides that “ the supreme court shall have a general superintending control over all inferior courts of law. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs; and to hear and determine the same.”
The Revised Statutes of Michigan enact that the supreme court “ shall have authority to issue writs of error, certiorari, mandamus, habeas corpus, procedendo, supersedeas, and all other writs and process which may be necessary for the due execution of the law, the administration of right and justice, and the full and perfect exercise of its jurisdiction, and to have and determine thereon, according to the principles and,usages of law.” (R. S. of Mich. 358.)
In Ohio, the Act of February 7, 1831, gives to the supreme court power
In Pennsylvania the supreme court has the power to grant mandamus. The Stat. of 16th June, 1836, provides that “ besides the powers hitherto possessed by the supreme court, to issue writs of mandamus, the said court shall have power to issue such writs to any other court or tribunal constituted by the authority of the laws of the commonwealth, in all cases where such interposition shall, in the discretion of the said court, be necessary to the advancement and due administration of justice and this power is also extended to the courts of common pleas: — “The several courts of common pleas, the president judge being present, shall, within their respective counties, have the like power with the supreme court, to issue writs of mandamus to all officers and magistrates, elected or appointed, in or for the respective county, or in or for any township, district, or place within such county, and to all corporations, being or having their chief place of business within such county. The jurisdiction aforesaid, shall be exercised in the manner, and according to the rules, hitherto observed and practised in the supreme court of this commonwealth, except so far as the same shall be altered by this act.” (Act of June 14, 1836.)
See the New Jersey Statute, Elmer’s Dig. 320.
It is also stated in this case that he might have a remedy in equity against the corporators as partners, if unlawfully suspended, but as we have before seen, supra, § 13, a remedy in equity will not prevent the granting of a writ of mandamus, though it will influence the court in the exercise of the discretion which they possess. The case in question might, perhaps, he sustained upon this ground, if it were regarded as simply declaratory of the general principle that the court will not grant the writ, where the remedy in equity is in their judgment plain, simple and expeditious ; but if it be regarded as affirming that a remedy in equity is an answer to an application for the writ, it is too broad and inconsistent with later decisions.
The alternative mandamus in this case was taken in July, 1832, by the attorney general. The point was raised, and the court decided that the presumption of payment in analogy to the statute of limitations, was not applicable to demands due to. the government previous to the. revised statutes, which extended that statute to actions in the name of the people. (See Slat. 9 Geo III. c. 16. 32 Geo. III. cb. 58.) Thus affirming the common law principle, nullum tempus occurrit regi, (2 Inst. 273 ; Bro. Max. 27,) aud applying it to the government of the state. But if the case were again to arise, it might be successfully urged, in view of the statute, that the people had slept upon their rights, (see § 16, supra, p. 217-14,) and that another maxim of the common law should intervene — vigilantibus, non dormientibus jura subveniunt. (2 Inst. 690. Bro. Max. 391. Wing..Max. 672.) The New York statute is broad enough to support this view. (See 2 R. S. of N. Y. 2d ed. 225, § 28.)
The editor cannot loo fully express his obligations to Messrs. Angelí and Ames, for their kind permission to make the very free use he has done of their valuable treatise on the Law of Private Corporations, a work so complete and exhaustive as to render unnecessary any further examination of this branch of the subject.
By the Revised Statutes of the State of New York, (vol. 2, 2d ed. p. 486, § 54,) it is provided that “ whenever any writ of mandamus shall issue out of the supreme court, the person, body, or tribunal, to whom the same shall be directed and delivered, shall-make return to the first writ of mandamus; and for a neglect so to do, shall be proceeded against as provided in the thirteenth title of the eighth chapter of this act.” The mode of proceeding referred to (see 2 Rev. Stat. 2d ed. p, 440-446,) is by attachment under the statutory provisions, concerning proceedings as for contempts to enforce civil remedies, and to protect the rights of parties in civil actions.
By § 59 of the statute first referred to, it is provided that “ the supreme court, or any justice thereof, shall have the same power to enlarge the time for making a return and pleading thereto, and filing any subsequent pleading, as in personal actions.”
Therefore, if a mandamus be. directed to the mayor, &c., and the mayor, who is the most principal and proper person, return and bring in the writ, the court, upon affidavits, will not examine whether there was the sense of the majority, but will receive it, and leave the parties to punish the mayor for the misdemeanor, if he be guilty ; but a peremptory mandamus will be granted if the return be falsified. (The King v. Mayor, &c. of Abingdon, Carth. 499. S. C. 1 Ld. Raym. 559. S. C. 2 Salk. pl. 9 ; and leave granted by the court to file au information against the mayor. Bac. Abr. tit Maudamus, G.)