Marvin, J.

It will be seen on consulting the case as reported in N. Y. Rep. vol. 20, p. 252, that most of the questions originally raised, and some of which are reviewed, have been disposed of by this court.

The regularity of the proceedings in laying out the highway and in assessing the damages, and the proceedings of the relator to procure the action of the board of supervisors, as then discussed, were affirmed. There was nothing in the case then calling for or justifying any decision or opinion touching the form of the judgment to which the relator was entitled. Can this judgment against the supervisors be sustained? No case in point is cited, but we are referred to the statute, by which, the person' prosecuting the writ of mandamus may demur or plead to the return made to the writ, to which the person making the return shall reply, take issue, or demur, and declaring that “ the like proceeding shall be had therein, for the determination thereof, as might have been had if the person prosecuting such writ had brought his action on the case for a false return.” (2 R. S. 586, § 15.) By the 17th section it is declared, that “in case a verdict shall be found for the person suing such writ, or if judgment be given for him on a demurrer or by default, he shall recover damages and costs in like manner as he might have done in such action oú the case as aforesaid, and a peremptory mandamus shall be granted to him without delay.” It seems to have been supposed that in case the return to the writ was false, the proceedings might be regarded as an action on the *114 case for a false return, and that the relator would he entitled to recover of the defendants as damages the amount he was entitled to receive of the town of Southfield, waiving, I suppose, his right to a peremptory mandamus. Such view would be entirely erroneous. A brief reference to the history of the proceedings by mandamus will enable us the better to under-, derstand the statute. A mandamus is a prerogative writ issuing in the name of the king from the Court of King’s Bench, and directed to any person, corporation or inferior court, &c., requiring them to do some particular thing which appertains to their office and duty. It was introduced to prevent disorder from a failure of justice and defect of police. (Bac. Abr. tit. Mandamus; Jacob’s Law Dict, same title; 3 Black. Com. 110.) The first writ issued is generally alternative, commanding the thing to be done, or that cause to the contrary be shown. This cause might be shown by a return tb the writ, which, if sufficient in law, prevented the issuing of the peremptory writ, and the proceeding came to an end. It is easy to see that while the law remained in this condition the party suing out the writ might be defeated of his rights, by a return to the writ, of facts, good in law, to defeat the' claim, such alleged facts however being untrue. In such a case the party suing out the writ could institute an action on the 'case for a false return, in his. own name, against those making the return, and could recover the. damages he Had sustained by reason of such false return; and thereupon the court, upon a new motion founded upon the postea or judgment in the action for the false return, would grant the writ of mandamus in" a peremptory form. (Jacob’s Law Dict, tit. Mandamus; Bac. Abr. tit. Mandamus, L & M; 3 Black. Com. Ill, 264, 265.)

In this state of the law the statute of 9 th Anne, ch. 20, was enacted, authorizing pleadings by the parties subsequent to the return, and a trial of the "issues, and declaring that the same proceedings may be had as if an action on the case Had been brought for making a false return, and that damages *115 and costs might he recovered, and declaring that a peremptory writ of mandamus shall be granted without delay, as might have been if the return had been adjudged insufficient. (Bac. Abr. tit. Mandamus, H.) The statute of Anne related' to officers, and some subsequent statutes extended its provisions to other cases. The provisions of our own statute are taken from these statutes, and seem to include all cases. But it does not follow that the relator will be entitled to damages, other than nominal, against the defendant in all cases. Under the statute of Anne and our statute he is to have, upon recovering judgment, a peremptory mandamus granted to him without delay. If it is a proper case for damages to be recovered of those against whom the writ is prosecuted, then he may recover such damages in addition to his judgment for the peremptory mandamus, without resorting to his action for a false return. In the case of an expulsion from office, or the refusal to induct into an office, actual damages may have been sustained by reason of the loss of the emoluments of the office during the time of the deprivation. But in a case where the writ itself is a complete remedy, and gives to the party all he is entitled to, how can it be said that he is entitled to other damages against the defendants ? It is to be kept in mind that the peremptory writ is to be granted to him without delay. In this case, the material issues being found in favor of the plaintiff, the judgment should' have been that a peremptory mandamus issue to the board of supervisors commanding them to audit the account as commanded in the alternative writ. And I see no ground for any damages, other than nominal, against the defendants, provided the board of supervisors can be required to include in the damages, assessed at $200, the interest thereon from the time when the claim was presented and should have been audited. If this can not be done, as against the town of Southfield, then I am inclined to think the defendants may be liable for such interest by way of damages, assuming that they make a false return to the writ.

*116 The exception to the admission of the copy of the town records of elections in 1846 was not well taken. The evidence of the loss of the original record was quite sufficient to justify "the admission of secondary evidence. ' Some other objections and exceptions appear. in the case. They were also in the case, substantially as they now appear, when the case was heretofore in this court, and were then disposed of. It is, however, now made a point that the judge erred in not. submitting the issues joined upon questions of fact to the jury. I think the evidence made a case substantially for the court. There was no dispute touching the material and controlling facts, and besides, it does not appear that any request was made that any question of fact sho.uld be submitted to the jury. ’ As has already appeared, the direction to the jury to render a verdict for the relator for $200 and the interest as damages was erroneous, and the judgment is erroneous and must he reversed," unless this court can amend the record and direct or render the proper judgment. This court may reverse, affirm or modify the judgment appealed from, in whole or in part. (Code, § 12.) Why may it not reverse that judgment as to the damages, and direct the proper judgment, viz. that a mandamus issue, and that the relator recover costs and six cents or the $84 damages ? Will not this be a reversal.of the judgment in part, and a ihodification of it ? If this can be done, it ought to be without costs to either party. If such judgment can not be rendered, then the judgment must be reversed and there must be a new trial, unless the defendants will consent that the proper judgment as here indicated should be • entered, without costs of this appeal to either party. If they so consent, then such judgment should stand as affirmed by this court.

The court, upon consultation, is of the opinion that the supervisors could only audit the damages assessed, with the charges &c. as provided in the highway act, (see 2 E. S. 399) § 93, 5th ed.;) and that no more could be levied and collected of tlie town, (§ 94.) That 'as the return of the *117 supervisors was false, and the relator has been kept out of the damages to which he was entitled from. the town, the supervisors may be properly made liable in damages to the extent of the interest upon the $200, to wit, $84. Also, that all the facts are before the court, enabling it ■ to modify the judgment by reversing as to the $200 damages, and affirming it as to the interest as damages, and directing that the judgment be so amended as to grant to the relator the writ of mandamus without delay. Neither party to have costs of this appeal.

All the Judges concurring,

Ordered accordingly.