Sivut kuvina

And so also, if upon office untruly found for the king, he grants the land over to another, he who is grieved thereby, and traverses the office itself, is entitled before issue joined to a scire facias against the patentee, in order to avoid the grant. (1) (3)

4. An information on behalf of the crown, filed in the exchequer by the king's attorney-general, is a method of suit for recovering money or other chattels, or for obtaining satisfaction in damages for any personal wrong (m) com mitted in the lands or other possessions of the crown. It differs from an information filed in the court of king's bench, of which we shall treat in the next book; in that this is instituted to redress a private wrong, by which the property of the crown is affected; that is calculated to punish some public wrong, or heinous misdemeanor in the defendant. It is grounded on no writ under seal, but merely on the intimation of the king's officer, the attorney-general, who "gives the court to understand and be informed of" the matter in question: upon which the party is put to answer, and trial is had, as in suits between subject and subject. The most usual informations are those of intrusion and debt: intrusion, for any trespass committed on the lands of the crown, (2) as by entering thereon without title, holding over after a lease is determined, taking the profits, cutting down timber, or the like; and debt, upon any contract for moneys due to the king, or for any forfeiture due to the crown upon the breach of a penal statute. This is most commonly used to recover forfeitures occasioned by transgressing those laws which are enacted for the establishment and support of the revenue; others, which regard mere matters of police and public convenience, being usually left to be enforced by com[*262] inon informers, in the qui tam informations or actions, of which we have formerly spoken. (0) But after the attorney-general has informed upon the breach of a penal law, no other information can be received. (p) There is also an imformation in rem, when any goods are supposed to become the property of the crown, and no man appears to claim them, or to dispute the title of the king. As anciently in the case of treasure-trove, wrecks, waifs, and estrays, seized by the king's officer for his use. Upon such seizure, an information was usually filed in the king's exchequer, and thereupon a proclamation was made for the owner (if any) to come in and claim the effects; and at the same time there Issued a commission of appraisement to value the goods in the officer's hands; after the return of which, and a second proclamation had, if no claimant appeared, the goods were supposed derelict, and condemned to the use of the crown. (7) And when, in later times, forfeitures of the goods themselves, as well as personal penalties on the parties, were inflicted by act of parliament for transgressions against the laws of the customs and excise, the same process was adopted in order to secure such forfeited goods for the public use, though the offender himself had escaped the reach of justice.

5. A writ of quo warranto is in the nature of a writ of right for the king, against him who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right. (r) It lies also in case of non-user or long neglect of a franchise, or mis-user or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse. (4) This was originally returnable before the king's

(1) Bro. Abr. tit. scire facias, 69, 185. (0) See page 162. (p) Hardr. 201.

(m) Moor. 375. (n) Cro. Jac. 212. 1 Leon. 48. Savil. 49. (q) Gilb. Hist. of Exch. c. 13. (r) Finch, L. 322. 2 Inst. 282.

(3) This remedy is still retained, and is resorted to in the United States; the writ generally issuing from the highest court of law in the state. See in general Tidd. Pr. 1090, et seq.

(4) [It must not be forgotten, that, although it is said the writ of quo warranto lies against him who claims or usurps any office, a limitation is implied by the fact that it is in the nature of a writ of right for the king. Upon this principle, when an application was made for a quo warranto information, to try the validity of an election to the office of churchwarden, Lord Kenyon said, that this was not an usurpation on the rights or prerogatives of the crown, for

VOL. II.-21


justices at Westminster; (s) but afterwards only *before the justices in [*263] eyre, by virtue of the statutes of quo warranto, 6 Edw. I, c. 1, and 18 Edw. I, st. 2; (i) but since those justices have given place to the king's temporary commissioners of assize, the judges on the several circuits, this branch of the statutes hath lost its effects; (u) and writs of quo warranto (if brought at all) must now be prosecuted and determined before the king's justices at Westminster. And in case of judgment for the defendant, he shall have an allowance of his franchise; but in case of judgment for the king, for that the party is entitled to no such franchise, or hath disused or abused it, the franchise is either seized into the king's hands, to be granted out again to whomever he shall please; or, if it be not such a franchise as may subsist in the hands of the crown, there is merely judgment of ouster, to turn out the party who usurped it. (w)

The judgment on a writ of quo warranto (being in the nature of a writ of right) is final and conclusive, even against the crown. (x) Which, together with the length of its process, probably occasioned that disuse into which it is now fallen, and introduced a more modern method of prosecution, by information filed in the court of king's bench by the attorney-general, in the nature of a writ of quo warranto; wherein the process is speedier, and the judgment not quite so decisive. This is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seize it for the crown; but hath long been applied to the mere purposes of trying the civil right, seizing the franchise or ousting the wrongful possessor; the fine being nominal only.

During the violent proceedings that took place in the latter end of the reign of King Charles the Second, it was, among other things, thought expedient to new-model most of the corporation-towns in the kingdom; for which purpose many of those *bodies were persuaded to surrender their charters, and [*264] informations in the nature of quo warranto were brought against others. upon a supposed, or frequently a real, forfeiture of their franchises by neglect or abuse of them. And the consequence was, that the liberties of most of them were seized into the hands of the king, who granted them fresh charters with such alterations as were thought expedient; and, during their state of anarchy, the crown named all their magistrates. This exertion of power, though perhaps in summo jure it was for the most part strictly legal, gave a great and just alarm; the new-modelling of all corporations being a very large stride towards establishing arbitrary power; and, therefore, it was thought necessary, at the revolution, to bridle this branch of the prerogative, at least so far as regarded the metropolis, by statute 2 W. and M. c. 8, which enacts that the franchises of the city of London shall never hereafter be seized or forejudged for any forfeiture or misdemeanor whatsoever.

This proceeding is, however, now applied to the decision of corporation disputes between party and party, without any intervention of the prerogative, by virtue of the statute 9 Ann. c. 20, which permits an information, in nature of quo warranto, to be brought with leave of the court, at the relation of any person desiring to prosecute the same (who is then styled the relator), against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; provides for its speedy determination; and directs that, if the defendant be convicted, judgment of ouster (as well as a fine) may be given against him, and that the relator shall pay or receive costs according to the event of the suit. (5)

(8) Old Nat. Brev. fol. 107, edit. 1531. (w) Cro. Jac. 259. 1 Show. 280.

(t) 2 Inst. 498. Rast. Entr. 540.
(x) 1 Sid. 86. 2 Show. 47. 12 Mod. 225.

(u) 2 Inst. 498.

which only the old writ of quo warranto lay; and that an information in nature of a quo warranto could only be granted in such cases. 4 T. R. 331. See also 2 Stra. 1196; Bott. pl. 107. And the writ was also refused in a case of forfeiture of a recorder's place. 2 Stra. 819.] (5) [The court of king's bench, having a discretionary power of granting informations in tho nature of quo warranto, had long ago established a general rule to guide their discretion, viz:

6. The writ of mandamus (y) is also made by the same statute, 9 Ann. c. 20, a 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 [*265] may be had 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. (6)

(y) See page 110.

(z) 11 Rep. 79.

(a) Stat. 12 Geo. III, c. 21.

(b)1 P. Wms. 351.

not to allow in any case an information in the nature of quo warranto against any person who had been twenty years in the possession of his franchise: see 4 Burr. 1952; 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. 234. 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.

By statutes 7 Wm. IV, 1 Vic. c. 78, and 6 and 7 Vic. c. 89, the application to the court in the case of one claiming 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.

In the United States the proceeding to try an alleged usurpation of an office or franchise is by in information in the nature of a quo warranto, or some statutory substitute to which the same principles are applicable. The books of practice in the several states will give the proceedings. See also Ang, and A. on Corp. § 731 et seq. In Howell's State Trials, vol. 8, p. 1039 et. seq., will be found the proceedings in the quo warranto cases against the city of London and other corporations in the time of Charles II, which are referred to in the text.

() [Besides the cases arising in corporations, writs of mandamus have been granted to admit prebendaries (Stra. 159); an apparator general (Stra. 897); parish clerks (Say. R. 159; Cowp. 371); and sextons (2 Lev. 18; 1 Veat 143). So to admit scavengers, &c. (ib. 2 T. R. 181); to restore a schoolmaster of a grammar-school founded by the crown. (Stra. 55.) So to restore a member of an uaiversity who had been improperly suspended from his degrees. In like manner a mandamus will lie to compel a dean and chapter to fill up a vacancy among canons residentiary: 1T. 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 El.z. has expired. Stra. 1123. So to appoint a surveyor of the highways where the justices had not appointed 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 copy. holder, directed to the lord of the manor: 2 T. R. 197, 434; 6 East, 431; so also to the ford

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 diffi culty not a little increased by the very immethodical arrangement in [*266] which they are delivered to us by our ancient writers, and the numer ous 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 the frequent and familiar use; and the more subdivided any branch of the science is, the more terms must be used to express the nature of these 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 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 ancient common law. In the methods prescribed for the recovery of landed and other permanent property, as the right is more intricate, the feudal, 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 retrench those delays, we have permitted the rights of real property to be [ *267 ] 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 have 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,

to hold and the burgesses to attend a court, to present the conveyances of burgage tenements. 1 Wils. 283; 1 Blk. Rep. 60; Bull. N. P. 200.

It is a general rule that a mandamus does not lie unless the party applying has no other spocific legal remedy. 1 T. R. 404; 3 id. 652. See Doug. 526.

As to the cases in which mandamus will lie generally, see supra, p. 110, note.

a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps an 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 tranquility, 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 feudal 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, [*268] and required a more speedy decision of right, to facilitate exchange 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, much 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 once we have discovered the proper clue, 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, us 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, (c) "whoever con[ *269 ] siders 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.

(c) Hawk. Abr. Co. Litt. pref.


« EdellinenJatka »