1 Ga. 271 | Ga. | 1846
By the Court
A mandamus nisi was issued by the judge of the Circuit Court for the county of Muscogee, in favor ofT. A. Brannon against John Johnson, the county treasurer, for the purpose of enforcing payment of the following order, to wit:
The manner and time of exercising this power is not prescribed by statute, and we are therefore remitted to the common and statute law oi'England, as of force at the time of our adopting statute for our guidance in this particular. We have no doubt of the power, according,to the common law, of the judges to issue this writ at any time in vacation, but believe that, in general, it must be returnable in term. We are not inclined to favor the idea, that the judges may give judgment upon any question involving facts, in vacation, unless the power be expressly conferred by statute.
In England, the writ of mandamus, when the defendant resided above forty miles from London, was, by a rule in King’s Bench, returnable within fifteen days from the time it bore teste ; if less than forty miles, then within eight days. — 2 Salk. 434. Under other circumstances, no rule as to the time of its return appears to have been established. As the terms of the courts in England occupy the greater part of the year, it would there subject the parties to no inconvenience to have these writs returnable within the terms.
Formerly the answer or return of the respondent was not traversable, and the relator was left to his action on the case for damages for a false return. Now, however, by statute of 4 Anne, the return to the writ rnay be traversed; and this right of traversing is in lieu of an action for false return. Upon the issue made, the jury are to inquire of the damages as part of the charge. Since this statute, in cases to which it applies, proceedings by mandamus are in the nature of an action, pleadings therein being admitted. By the 6th sec. of the statute of Anne, the respondent is allowed time to make a return, plead, reply, rejoin or demur. This .statute does not extend to all cases ; and in all cases to which it does not extend, the proceedings were according to the course of the common law, until the statute of 1 William 4 extended its provisions to all writs of mandamus except as to certain cases therein specified.— Wheaton’s Selwyn, 1115. I refer to these statutes to show, that proceedings by man
Now, in England, the writ of venire facias is always at the command of the court; a jury may be summoned at any time. It is not, therefore, on account of the traverse being triable by a jury, indispensable in England, that the writ be returned in term. But how is it here ? By common law, by statute of Anne, in force in Georgia, by the Constitution of the State and of the United States, the citizen is entitled, as well in the case of a mandamus, as in any other case, to the trial by jury. Can he enjoy this right upon a mandamus, returnable before a judge in vacation ? Can the judge in vacation summon and empannel a jury ? We know of no such general power. The statute of the State prescribes the manner of summoning and empannelirig grand and petit jurors; and where a jury is authorized in any special proceeding, the manner of assembling it is specially designated. The judge can command a jury for the trial of an issue on mandamus, only in term ; and for this reason, we are of opinion, that in all cases of mandamus, where the parties’ rights may depend upon an issue of fact, the writ must be made returnable before the judge in term. There was therefore error in the court below, in not quashing the writ, according to the motion of the respondent’s counsel.
The return exhibited an order of the Inferior Court, passed in vacation, rescinding their first order ; also a further order, passed at a regular meeting of the court, directing the treasurer not to pay the order first issued in favor of the relator. The second in the series appears, by the record, to have been concurred in by only two justices of the Inferior Court, three being present. This order, for this reason, we hold to be a nullity, and was properly disregarded by the judge. The law, organizing the Inferior Court, constitutes five justices tbe court. We hold the concurrence of a majority of the whole number necessary to the validity of their action.
It was claimed by the respondent, that the order directing him not to pay the sum due by the first order to the relator, was a conclusive bar to a recovery upon it. We do not so think. The relator had no notice to appear and resist it. The first order was evidence of a just claim ; the court could not at will recall it. A right of action accrued thereon in favor of the holder against the drawers or their legal agent. They occupy the position and hold the relations of any other drawers of such a paper, and could not discharge themselves by subsequent action, to which the relator was not a partj\ Tbe court, through the respondent, were entitled to such defences against the claim as any other party to such atf instrument would be entitled to make. Nor would the treasurer be loser : for if judgment passes against him, having made such defences as the law allows, it would be a protection against liability over to the court. It is the judgment then of this court, that the decision of the Circuit Judge, on the first assignment of error, be reversed, and affirmed on the second.