By the Court,
Hogeboom, J.
The proceedings by mandamus are not affected by the code, but must be regulated by the rules of pleading and practice prevailing antecedent thereto. (Code, § 471.) The writ must set forth, in substance, the title of the relator, and show a good reason for issuing the mandamus. (People v. Ransom, 2 Comst. 490. People v. Supervisors of Westchester, 15 Barb. 608.) In this instance the writ appears to do so. The return must set forth the title or justification of the defendants for not doing the act, the performance of which is sought to be enforced by the writ. It must of course, in order to be available, set up a good and available defense or justification. The legal effect of the proceedings turns upon the allegations, in the return, of the subsequent proceedings. The return is supposed to set forth, and should set forth, all the material steps taken by the defendants, just as they took place. It should in itself or by express adoption of the allegations in the writ, either in whole or in part, state the case, which makes out the defendants’ justification. (3 R. S. 898, 5th ed.) There is no provision for a demurrer to the writ, though for certain purposes it has the effect of a pleading; for example, when a demurrer is made to a return, the defendant may still have judgment, notwithstanding its insufficiency, if the writ be substantially *478.defective. (People v. Supervisors of Fulton, 14 Barb. 52. People v. Ransom, 2 Comst. 490.) It is true, also, the defendant may, without a direct demurrer to the writ, have the benefit of such a demurrer by a motion to quash. (Commercial Bank v. Canal Commissioners, 10 Wend. 25.) The return is to be considered an entirety. (The People v. Vail, I Wend. 38.) I do not see why it may not set up any number of facts, constituting as many good reasons for not performing the act which the writ seeks to compel, provided they exist in .point of fact. ' In this case the defendants undertake to allege three different defenses; one turning on the mode of making up the jury, and the members of which it was composed; another, (the one now in question) that the person officiating as justice, who initiated the proceedings, who issued the summons, who drew the jury and who swore the witnesses, did not consummate them by certifying the verdict; a third, that the proceedings were removed by certiorari into the supreme court, and thus placed beyond the jurisdiction of the supervisors. It is with the second defense alone that we have any concern on the present occasion; and I think, on the whole, the defense a sound one and well pleaded in the return. I say on the whole, because there is no express denial, in the return, of the allegation in the writ that the justice who issued the summons certified the verdict; but I think there is a sufficient denial by implication, by the averment of facts inconsistent with such a theory. For the return, in substance, alleges that Philip S. Hasbrouck was the officiating magistrate who issued the summons and conducted the proceedings, though he did not make the final certificate. And if no other legally could do so, then the officer who received the original jury list, as the defendants contend, or if such person was not in fact a justice of the town as the defendants also allege, then the defense is substantially complete. And I think the statute in substance requires, 1. That the town clerk shall deliver the jury list to the party seeking the reassessment of damages; and 2. That such justice shall *479issue the summons, draw the jury, swear the witnesses, and certify the verdict. That verdict, thus authenticated, is final, and furnishes to the supervisors the recognized authority for assessing the damages. (3 R. S. 398, 399, § 86 to 93, 5th ed.) To this specific defense, thus set up, the relator does not demur, hut conceding its legal sufficiency, attempts to avoid its effect by plea; which plea is, in substance, that the commissioners of highways craftily and artfully procured the said Philip S. Hasbrouck to refuse to sign the certificate, in order to prevent the reassessment, and to absent himself so that he could not be found or induced to certify the verdict, and thereupon, in this dilemma, Henry Burnett, a justice of Hew Paltz attending said proceeding, certified the verdict in the form required by the statute. To this plea the defendants demurred; the demurrer was overruled at special term, and the defendants appealed to this court. The judge at special term entertaining great doubt on the question, on the ground that otherwise the relator would be without remedy, and that the certificate is a merely ministerial act. The argument ab inconvenienti is never of very great weight; of none against the positive injunctions of a statute. The law has said that the justice who initiated the proceedings shall consummate them, and I think the mandate must be obeyed. The contingency here presented must be of most unfrequent occurrence, and if any remedy is needed, it must be applied by the legislature. Hor can it be regarded as a very injudicious requisition, that the justice who has supervised the j>roceedings from beginning to end, and who has therefore personal knowledge of their regularity and -correctness, or the contrary, should be the person whose certificate should be necessary to stamp them with authority. We should, scarcely allow any justice other than the one who issued the summons in a civil action, and presided at the trial, to enter the judgment upon the vei’dict. The act in question is in some sense a ministerial ant; not more so than that of the justice who enters the judgment upon the verdict of a jury, so far as the damages *480are concerned. He has no discretion in regard to them; he cannot alter them; and if he should refuse to enter the judgment, the proceeding must fall to the ground.
[Albany General Term,
September 3, 1860.
Gould, Hogeboom and Peckham, Justices.]
I am not forcibly impressed with the argument which seeks to gather the power for another justice to act in the contingency supposed, by the plea, from that provision of the statute which authorizes a special proceeding to be continued before another officer, in case of the death, sickness, resignation, removal from office, absence from the county, or other disability of the one before whom it was commenced. (3 R. S. 475, § 29, 5th ed.) Obviously none of these exigencies have occurred, unless it be that of disability. Disability implies want of power, not want of inclination. It refers to incapacity, and not to disinclination. It is founded upon a want of authority arising out of some circumstance or other, not withstanding the presence of any amount or degree of willingness or disposition to act.
The order of the circuit and special term was erroneous, and must be reversed with costs; and there must be judgment for the defendants on the demurrer, with leave to the plaintiffs to amend their plea on payment of costs.