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6. The writ of mandamus(y) is also made, by the same statute 9 Anne, c. 20, most full and effectual remedy, in the first place, for refusal of admission where a person is entitled to an office or place in any such corporation; and, secondly, for wrongful removal, when a person is legally possessed. *These are injuries, for which though redress for the party interested may be had [*265
by assize, or other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the court of king's bench; commanding, upon good cause shown to the court, the party complaining to be admitted or restored to his office. And the statute requires, that a return be immediately made to the first writ of mandamus; which return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue, or demur, and the same proceedings may be had, as if an action on the case had been brought, for making a false return; and, after judgment obtained for the prosecutor, he shall have a peremptory writ of mandamus to compel his admission or restitution; which latter (in case of an action) is effected by a writ of restitution.(z) So that now the writ of mandamus, in cases within this statute, is in the nature of an action; whereupon the party applying and succeeding may be entitled to costs, in case it be the franchise of a citizen, burgess, or freeman ;(a) and also, in general, a writ of error may be had thereupon.(b)
This writ of mandamus may also be issued, in pursuance of the statute 11 Geo. I. c. 4, in case within the regular time no election shall be made of the mayor or other chief officer of any city, borough, or town corporate, or (being made) it shall afterwards become void; requiring the electors to proceed to election, and proper courts to be held for admitting and swearing in the magistrates so respectively chosen."
person who had been twenty years in the possession of his franchise, (see 4 Burr. 1962,) but, having reason to consider this too extensive a limit, they resolved upon a new rule, -viz., not to allow such an information against any person who had been six years in possession. 4 T. R. 284. The legislature, however, thinking this too sudden a change in the practice of the court, and because it did not extend to informations filed by the attorney-general, enacted, by 32 Geo. III. c. 58, that to any information in the nature of quo warranto, for the exercise of any corporate office or franchise, the defendant might plead that he had been in possession of, or had executed, the office for six years or more. And, by s. 3, no defendant shall be affected by any defect in the title of the person from whom he derived his right and title, if that person had been in the undisturbed exercise of his office or franchise six years previous to the filing of the information. A title to one office which is a qualification to hold another is not within this clause. 2 M. & S. 71.-CHITTY.
But, by statute 32 Geo. III. c. 58, no member or officer of any town corporate shall be disturbed in the enjoyment of his office or franchise which he has enjoyed for six years, whether the information in the nature of a quo warranto is exhibited by leave of the court or on behalf of the crown by virtue of the royal prerogative. And, by the recent statutes 7 W. IV. and 1 Vict. c. 78 and 6 & 7 Vict. c. 89, the application to the court for the purpose of calling upon any person to show by what warrant he claims to exercise the office of mayor, alderman, or burgess, in any borough within the Municipal Corporation Act, must be made within twelve months after the election of the defendant, or the time at which he became disqualified.-STEWART.
4 Besides the cases arising in corporations, writs of mandamus have been granted to admit prebendaries, (Stra. 159,) an apparitor-general, (Stra. 897,) parish clerks, (Say, R. 159. Cowp. 371,) and sextons. 2 Lev. 18. 1 Ventr. 143. So to admit scavengers, &c., (ib. 2 T. R. 181;) to restore a schoolmaster of a grammar-school founded by the crown. Stra. 58. So to restore a member of a university who had been improperly suspended from his degrees. In like manner, a mandamus will lie to compel à dean and chapter to fill up a vacancy among canons-residentiary, (1 T. R. 652;) so to the ecclesiastical court, (1 Ventr. 115;) so to grant the probate of a will to an executor. 1 Ventr. 335. So a mandamus lies to the judge of the prerogative court of Canterbury to grant administration to the husband of the wife's estate when the husband has done nothing to depart from his right. Stra. 891, 1118. A mandamus will lie to justices to nominate overseers of the poor, although the time mentioned in the 43 Eliz. has expired. Stra. 1123. So to appoint a surveyor of the highways where the justices had not appointed
We have now gone through the whole circle of civil injuries, and the redress which the laws of England have anxiously provided for each. In which the student cannot but observe that the main difficulty which attends their discussion arises from their great variety, which is apt at our first acquaintance to breed a confusion of ideas, and a kind of distraction in the memory: a difficulty not a little increased by the very immethodical arrangement in which *266] they are delivered to us by our antient writers, and the numerous terms of art in which the language of our ancestors has obscured them. Terms of art there will unavoidably be in all sciences; the easy conception and thorough comprehension of which must depend upon frequent and familiar use; and the more subdivided any branch of science is, the more terms must be used to express the nature of these several subdivisions, and mark out with sufficient precision the ideas they are meant to convey. But I trust that this difficulty, however great it may appear at first view, will shrink to nothing upon a nearer and more frequent approach, and indeed be rather advantageous than of any disservice, by imprinting on the student's mind a clear and distinct notion of the nature of these several remedies. And, such as it is, it arises principally from the excellence of our English laws; which adapt their redress exactly to the circumstances of the injury, and do not furnish one and the same action for different wrongs, which are impossible to be brought within one and the same
at the time mentioned in the statute 13 Geo. III. c. 78, (4 East, 132;) so to sign and allow a poor's rate, absolute in the first instance, (Say, R. 160;) so to admit a copyholder, directed to the lord of the manor, (2 T. R. 197, 484. 6 East, 431;) so also to the lord to hold and the burgesses to attend a court, to present the conveyances of burgage-tenements. 1 Wils. 283. 1 Bla. Rep. 60. Bull. N. P. 200.
Where it does not lie.-It is a general rule that a mandamus does not lie unless the party applying has no other specific legal remedy. 1 T. R. 404. 3 T. R. 652. See Doug. 526. Thus, it does not lie to a bishop to license a curate of a curacy which had been twice augmented by queen Anne's bounty, where the right of appointing was claimed by two several parties and there had been cross-nominations, because the party had another specific remedy by quare impedit. So a mandamus does not lie to the governor and company of the Bank of England to transfer stock, because the party has his remedy by assumpsit, (Doug. 523;) nor to insert certain persons in a poor's rate, although the ommission is alleged to have been, to prevent their having votes for members of parliament. Stra. 1259. The court will not award a mandamus for the licensing of a public house, (Stra. 881. Stra. R. 217;) nor to compel admission to the degree of a barrister (Doug. 353) or doctor of civil law as an advocate of the court of arches, (8 East, 213,) (the only mode of appeal is to the twelve judges;) nor to compel any of the inns of court to admit a person as a student, or to assign reasons for refusing to admit him, (Wooler vs. Society of Lincoln's Inn, King's Bench, Mich. T. 1825, 4 B. & C. 5 Dowl. & Ryl.;) nor for a fellow of a college, where there is a visitor; nor to the mayor and corporation of the city of London, to admit a person to the office of auditor who had served it three years successively, because contrary to the custom of the city, (1 T. R. 423 ;) nor to the college of physicians, to examine a doctor of physic who has been licensed in order to his being admitted a fellow of the college, (7 T. R. 282;) nor to a visitor where he is clearly acting under a visitatorial authority, (2 T. R. 345;) nor to restore a minister of an endowed dissenting meeting-house, for if he has been before regularly admitted he may try his right in an action for money had and received. 2 T. R. 198. A mandamus is granted only for public persons and to compel the performance of public duties. Hence the court will not grant it to a trading-corporation at the instance of one of its members, to compel the production of accounts to declare a dividend. 2 B. & A. 620. 5 B. & A. 899. The mode of burying the dead is a matter of ecclesiastical cognizance; and therefore, where the question was whether a parishioner had a right to be buried in a churchyard in an iron coffin, which was a new and unusual mode, the court refused a mandamus. 2 B. & 4. 806. The court have no power to grant a mandamus to justices to compel them to ome to a particular decision, as, to make an order of maintenance on a particular parish. The admission under a mandamus gives no right, but only a legal possession, to enable the party to assert his right, if he has any. Hence non fuit electus has been holden not to be a good return to a mandamus to swear in a church-warden, (Stra. 894, 895,) because it is directed only to a ministerial officer, who is to do his duty, and no inconvenience can follow; for if the party has a right, he ought to be admitted; if he has not, the admission will do him no good. Wherever the officer is but ministerial, he is to execute his part. let the consequence be what it will. Stra. 895.-CHITTY.
description; whereby every man knows what satisfaction he is entitled to expect from the courts of justice, and as little as possible is left in the breast of the judges, whom the law appoints to administer and not to prescribe the remedy. And I may venture to affirm that there is hardly a possible injury, that can be offered either to the person or property of another, for which the party injured may not find a remedial writ, conceived in such terms as are properly and singularly adapted to his own particular grievance.
In the several personal actions which we have cursorily explained, as debt, trespass, detinue, action on the case, and the like, it is easy to observe how plain, perspicuous, and simple the remedy is, as chalked out by the antient common law. In the methods prescribed for the recovery of landed and other permanent property, as the right is more intricate, the feodal or rather Norman remedy by real actions is somewhat more complex and difficult, and attended with some delays. And since, in order to obviate those difficulties and re[*267 trench those *delays, we have permitted the rights of real property to be drawn into question in mixed or personal suits, we are (it must be owned) obliged to have recourse to such arbitrary fictions and expedients, that unless we had developed their principles, and traced out their progress and history, our present system of remedial jurisprudence (in respect of landed property) would appear the most intricate and unnatural that ever was adopted by a free and enlightened people.
But this intricacy of our legal process will be found, when attentively considered, to be one of those troublesome, but not dangerous, evils, which bave their root in the frame of our constitution, and which therefore can never be cured without hazarding every thing that is dear to us. In absolute governments, when new arrangements of property and a gradual change of manners have destroyed the original ideas on which the laws were devised and established, the prince by his edict may promulge a new code, more suited to the present emergencies. But when laws are to be framed by popular assemblies, even of the representative kind, it is too herculean a task to begin the work of legislation afresh, and extract a new system from the discordant opinions of more than five hundred counsellors. A single legislator or an enterprising sovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps a uniform, plan of justice and evil betide that presumptuous subject who questions its wisdom or utility. But who that is acquainted with the difficulty of new-modelling any branch of our statute laws (though relating but to roads or to parish settlements) will conceive it ever feasible to alter any fundamental point of the common law, with all its appendages and consequents, and set up another rule in its stead? When therefore, by the gradual influence of foreign trade and domestic tranquillity, the spirit of our military tenures began to decay, and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the old feodal actions (guarded with their several outworks of essoins, vouchers, aid-prayers, and a hundred other formidable intrenchments) were ill suited to that *more simple and commercial mode of property which succeeded the former, and required a more speedy decision of right, to facilitate ex[*268 change and alienation. Yet they wisely avoided soliciting any great legislative revolution in the old-established forms, which might have been productive of consequences more numerous and extensive than the most penetrating genius could foresee; but left them as they were, to languish in obscurity and oblivion, and endeavoured by a series of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of remedial justice and where, through the dread of innovation, they hesitated at going so far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprising judges, who have sat in our courts of equity, to show them their error by supplying the omissions of the courts of law. And, since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, mich better than
could now be effected by any great fundamental alterations. The only difficulty that attends them arises from their fictions and circuities: but, when 、nce we have discovered the proper clew, that labyrinth is easily pervaded. Our system of remedial law resembles an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore neglected. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult.
In this part of our disquisitions I however thought it my duty to unfold, as far as intelligibly I could, the nature of these real actions, as well as of personal remedies. And this not only because they are still in force, still the law of the land, though obsolete and disused, and may perhaps, in their turn, be hereafter, with some necessary corrections, called out again into common use; but also because, as a sensible *writer has well observed,(z) "whoever considers *269] how great a coherence there is between the several parts of the law, and how much the reason of one case opens and depends upon that of another, will, I presume, be far from thinking any of the old learning useless, which will so much conduce to the perfect understanding of the modern." And, besides, I should have done great injustice to the founders of our legal constitution, had I led the student to imagine that the remedial instruments of our law were originally contrived in so complicated a form as we now present them to his view. had I, for instance, entirely passed over the direct and obvious remedies by assizes and writs of entry, and only laid before him the modern method of prosecuting a writ of ejectment.
OF THE PURSUIT OF REMEDIES BY ACTION; AND FIKT OF THE ORIGINAL WRIT.
*HAVING, under the head of redress by suit in courts, pointed out in the *270] preceding pages, in the first place, the nature and several species of courts of justice, wherein remedies are administered for all sorts of private wrongs; and, in the second place, shown to which of these courts in particular application must be made for redress, according to the distinction of injuries, or, in other words, what wrongs are cognizable by one court, and what by another; I proceeded, under the title of injuries cognizable by the courts of common law, to define and explain the specifical remedies by action provided for every possible degree of wrong or injury, as well such remedies as are dormant and out of use as those which are in every day's practice, apprehending that the reason of the one could never be clearly comprehended without some acquaintance with the other; and I am now, in the last place, to examine the manner in which these several remedies are pursued and applied by action in the courts of common law; to which I shall afterwards subjoin a brief account of the proceedings in courts of equity.
In treating of remedies by action at common law, I shall confine myself to the modern method of practice in our courts of judicature. For though I thought it necessary to throw out a few observations on the nature of real actions, however *at present disused, in order to demonstrate the *271] coherence and uniformity of our legal constitution, and that there was no injury so obstinate and inveterate but which might in the end be eradicated by some or other of those remedial writs; yet it would be too irksome a task to perplex both my readers and myself with explaining all the rules of pro
() Hawk. Abr. Co. Litt. pref.
ceeding in those obsolete actions, which are frequer tly mere positive establishments, forma et figura judicii, and conduce very little to illustrate the reason and fundamental grounds of the law. Wherever I apprehend they may at all conduce to this end, I shall endeavour to hint at them incidentally.
What, therefore, the student may expect in this and the succeeding chapters is, an account of the method of proceeding in and prosecuting a suit upon any of the personal writs we have before spoken of, in the court of common pleas at Westminster, that being the court originally constituted for the prosecution of all civil actions. It is true that the courts of king's bench and exchequer, in order, without entrenching upon antient forms, to extend their remedial influence to the necessities of modern times, have now obtained a concurrent jurisdiction and cognizance of very many civil suits; but as causes are therein conducted by much the same advocates and attorneys, and the several courts and their judges have an entire communication with each other, the methods and forms of proceeding are in all material respects the same in all of them. So that in giving an abstract or history (a) of the progress of a suit through the court of common pleas, we *shall at the same time give a general [*272 account of the proceedings of the other two courts; taking notice, however, of any considerable difference in the local practice of each. And the same abstract will moreover afford us some general idea of the conduct of a cause in the inferior courts of common law, those in cities and boroughs, or in the court-baron, or hundred or county court; all which conform (as near as may be) to the example of the superior tribunals, to which their causes may probably be, in some stage or other, removed.
The most natural and perspicuous way of considering the subject before us will be (I apprehend) to pursue it in the order and method wherein the proceedings themselves follow each other, rather than to distract and subdivide it by any more logical analysis. The general, therefore, and orderly parts of a suit are these: I. The original writ; 2. The process; 3. The pleadings; 4. The issue or demurrer; 5. The trial; 6. The judgment, and its incidents; 7. The proceeding in nature of appeals; 8. The execution.
First, then, of the original, or original writ; which is the beginning or foundation of the suit. When a person hath received an injury, and thinks it worth his while to demand a satisfaction for it, he is to consider with himself, or take advice, what redress the law has given for that injury; and thereupon is to make application or suit to the crown, the fountain of all justice, for that particular specific remedy which he is determined or advised to pursue As, for money due on bond, an action of debt; for goods detained without force, an action of detinue or trover; or, if taken with force, an action of trespass vi *et armis; or to try the title of lands, a writ of entry, or action of trespass in ejectment; or for any consequential injury re
(*) In deducing this history the student must not expect authorities to be constantly cited, as practical knowledge is not so much to be learned from any books of law as from experience and attendance on the courts. The compiler must therefore be frequently obliged to rely upon his own observations, which in general he hath been studious to avoid where those of any other might be had. To accompany and illustrate these remarks, such gentlemen as are designed for the profession will find it necessary to peruse the books of entries, ancient and modern, which are transcripts of proceedings that have been had in some particular actions. A book or two of technical learning will also be found very convenient, from which a man of liberal education and tole
rable understanding may glean pro re nata as much as is sufficient for his purpose. These books of practice, as they are called, are all pretty much on a level in point of compo sition and solid instruction, so that that which bears the latest edition is usually the best. But Gilbert's History and Practice of the Court of Common Pleas is a book of a very different stamp; and though (like the rest of his posthumous works) it has suffered most grossly by ignorant or careless trauscribers, yet it has traced out the reason of many parts of our modern practice, from the feodal institutions and the primitive construction of our courts, in a most clear and ingenious manner.1
The more recent publications of Mr. Serjt. Sellon and Mr. Tidd, and those of Mr. Impey and Mr. Lee, now afford still more explicit information on the subject of Practice. CHITTY.
3 Before the passing the 6 Geo. IV. c. 96, one great object of proceeding by special original was to compel the defendant to bring a writ of error in parliament, if he intended to delay; but that act having restrained writs of error upon judgments, even before verdict, unless the defendant finds bail in error, proceedings are now more frequently by capias in the court of Common Pleas and by latitat in the King's Bench.