Sivut kuvina


mises without the intervention of a jury (2). It is however particularly enacted by the statute 33 Hen. VIII. c. 20. that, in case of attainder for high treason, the king shall have the forfeiture instantly, without any inquisition of office. And, as the king hath (in general) no title at all to any property of this sort before office found, therefore by the statute 18 Hen. VI. c. 6. it was enacted, that all letters patent or grants of lands and tenements before office found, or returned into the exchequer, shall be void. And, by the bill of rights at the revolution, 1 W. & M. st. 2. c. 2. it is declared, that all grants and promises of fines and forfeitures of particular persons before conviction (which is here the inquest of office) are illegal and void ; which indeed was the law of the land in the reign of Edward

the Third (a). [*260] *With regard to real property, if an office be found for the king,

it puts him in immediate possession, without the trouble of a formal entry, provided a subject in the like case would have had a right to enter ; and the king shall receive all the mesne or intermediate profits from the time that his title accrued (6). As, on the other hand, by the articuli super cartas (c), if the king's escheator or sheriff seise lands into the king's hand without cause, upon taking them out of the king's hand again, the party shall have the mesne profits restored to him.

In order to avoid the possession of the crown, acquired by the finding of such office, the subject may not only have his petition of right, which discloses new facts not found by the office, and his monstrans de droit, which relies on the facts as found : but also he may (for the most part) traverse or deny the matter of fact itself, and put it in a course of trial by the common law process of the court of chancery : yet still, in some special cases, he hath no remedy left but a mere petition of right (d). These traverses as well as the monstrans de droit, were greatly enlarged and regulated for the benefit of the subject, by the statutes before mentioned, and others (e). And in the traverses thus given by statute, which came in the place of the old petition of right, the party traversing is considered as the plaintiff(s); and must therefore make out his own title, as well as impeach that of the crown, and then shall have judgment quod manus domini regis amoveantur, fc. 3. Where the crown hath unadvisedly granted any thing by letters pa

tent, which ought not to be granted (g), or where the patentee [*261] hath done an act that amounts, to a forfeiture of *the grant (h), the

remedy to repeal the patent is by writ of scire facias in chancery(i). This may

be brought either on the part of the king in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repeal. ing the patent in a scire facias (k). 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) (4). (z) Gilb. hist. exch. 132. Hob. 347.

U Law of si prius, 201, 202. (b) Finch, L. 325, 326.

(h) Dyer, 198. (C) 28 Edw. I. st. 3, c. 19. (d) Finch, L. 324. (e) Stat. 34 Edw. III. c. 13., 36 Edw. III. c. 13. (1) Bro. dor. t. scire facias, 69. 185.

(a) 2 Inst. 48.

(g) See book II. ch. 21.

(1) 3 Lev. 220. 3 Inst. 88.
(k) 2 Vent. 344.

2 & 3 Edw. VI. c. 8.

(4) In New-York this writ issues out of the tained through mistake or ignorance of a maSupreme Court to vacate letters patent ob- terial fact, or from a fraudulent suggestion, or

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) committed in the lands or other possessions of the crown (5). 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 beinous 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 (n), 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 monies 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 [*262] of police and public convenience, being usually left to be inforced by common informers, in the qui tam informations or actions, of which we have formerly spoken (6). 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 information 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, seised by the king's officer for his use. Upon such seisure 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 ihe effects; ard 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 (9). 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(o). 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 shew by what warrant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse (6), (7). This was (m) Moor, 375. (n) Cro. Jac. 212. 1 Leon. 48. Savil. 49.

(0) See page 162. concealment of such fact, or for violation of lies also for the recovery of real property. the terms on which it was granted. So also (6) Seo 2 R. S. 581 : which also details an act of incorporation may be vacated in the fully the mode of proceeding, and the cases in same way and for the same reasons. (2 R. which the information in nature of a writ of S. 578, 5' 12, 13.)

quo warranto is allowed. (5) See 2 R. S. 586, $ 53. In New-York it (7) It must not be forgotten, that although



(p) Hard. 201.
(9) Gilb. hist. of exch. c. 13.
(r) Finch. L. 322. 2 Inst. 282


originally returnable before the king's justices at Westminster (s); [*263] but afterwards only *before the justices in eyre, by virtue of the

statutes of quo warranto, 6 Edw. I. c. 1. and 18 Edw. I. st. 2 (t); but since those justices have given place to the king's temporary commissioners of assise, the judges on the several circuits, this branch of the statutes hath lost its effect (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 seised 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 seise it for the crown ; but hath long been applied to the mere purposes of trying the civil right, seising 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 ex

pedient to new-model most of the corporation towns in the king[*264] dom ; for which purpose many of those *bodies were persuaded

to surrender their charters, and 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 seised 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. & M. c. 8, which enacts, that the franchises of the city of London shall never hereafter be seised or forejudged for any forfeiture or misdemeanor whatsoever. (1) Old Nat. Brev. fol. 107. edit. 1534.

(w) Cro. Jac. 259. 1 Show. 280. (u) 2 Inst. 498. it is said the writ of quo warranto lies against pation on the rights or prerogatives of the him who claims or usurps any office, a limita- crown, for which only the old writ of quo war. tion is implied by the fact, that it is in the na- ranto lay; and that an inforr'ation in nature of ture of a writ of right for the king. Upon this a quo warranto could only be granted in such principle, when an application was made for a cases. 4 T. R. 381. See also 2 Stra. 1196. quo warranto information, to try the validity Bott. pl. 107. And the writ was also refused of an election to the office of churchwarden, in a case of forfeiture of a recorder's place. 2 lord Kenyon said, that this was not an usur- Stra. 819.

(1) 2 Inst. 498. Rast. Entr. 540.

(1) I Sid. 66. 2 Show. 47. 12 Mod. 225.

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 (8), (9)

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 (10). *These are injuries, for which though [*265] redress for the party interested may be had by assise, 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 shewn 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 (2). 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,

[ocr errors]
[ocr errors]

(y) See page 110. (2) 11 Rep. 79

(a) Stat. 12 Geo. III. c. 21.
(6) 1 P. Wms. 351.


(8) This statute, with regard to costs, ex. The legislature, however, thinking this too tends only to cases where the title of a person sudden a change in the practice of the court, to be a corporate officer, as mayor, bailiff, or and because it did not extend to informations freeman, is in question ; but an information to filed by the attorney.general, enacted by 32 try the right of holding a court is not within Geo. III. c. 58. that to any information in the it, but stands upon the common law only, and nature of quo warranto, for the exercise of any being a prosecution in the name of the king, corporate office or franchise, the defendant no costs are given. I Burr. 402. The court might plead that he had been in possession of, of king's bench having a discretionary power or had executed, the office for six years or of granting informations in the nature of qun And by s. 3. no defendant shall be afwarranto, had long ago established a general fected by any defect in the title of the person rule to guide their discretion, viz. not to allow from whom he derived his right and title, if in any case an information in the nature of that person had been in the undisturbed exerquo warranto against any person who had been cise of his office or franchise six years pretwenty years in the possession of his franchise, vious to the filing of the information. A title see 4 Burr. 1962 ; but having reason to con- to one office, which is a qualification to hold sider this too extensive a limit, they resolv. another, is not within this clause. 2 M. & S. ed upon a new rule, viz, not to allow such 71. an information against any person who had (91 See 2 R. S. 585, $ 50 ; p. 613, 03. been six years in possession. 4 T. R. 284. (10) See 2 R, S. 586, 0 54.

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 (11).

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 dis[*266] traction in the memory: a difficulty not a little increased by the

very immethodical arrangement, in which they are delivered to us by our ancient writers, and the numerous terms of art in which the language of our ancestors has obscured them. Terms of art there will

[ocr errors]

(11) Besides the cases arising in corpora. Nor to compel admission to the degree of a tions, writs of mandamus have been granted barrister, Doug. 353. or doctor of civil law as to admit prebendaries, Stra. 159 ; an appara- an advocate of the court of arches, 8 East, tor general, Stra. 897; parish clerks, Say. R. 213. (the only mode of appeal is to the twelve 159. Cowp. 371 ; and sextons, 2 Lev. 18. 1 judges) nor to compel any of the inns of court Vent. 143. So to admit scavengers, &c. Ib. to admit a person as a student, or to assign 2 T. R, 181; to restore a schoolmaster of a reasons for refusing to admit him, Wooler v. grammar-school founded by the crown, Stra. Society of Lincoln's Inn, K. B. Mich. T. 58. So to restore a member of an university 1825, 4 B. & C. 5 Dowl. & Ry.; nor for a who had been improperly suspended from his fellow of a college, where there is a visitor ; degrees. In like manner a mandamus will lie nor to the mayor and corporation of the city to compel a dean and chapter to fill up a va. of London, to admit a person to the office of cancy among, canons residentiary, 1 T. R. auditor who had served it three years succes. 652; so to the ecclesiastical court, 1 Ventr. sively, because contrary to the custom of the 115; so to grant the probate of a will to an city, 1 T. R. 423 ; nor to the college of physi. executor, 1 Ventr. 335. So a mandamus lies cians, to examine a doctor of physic who has to the judge of the prerogative court of Can. been licensed in order to his being admitted terbury to grant administration to the husband a fellow of the college, 7 T. R. 282 ; nor to a of the wife's estate, when the husband has visitor where he is clearly acting under a vi. done nothing to depart from his right. Stra. sitorial authority, 2 T. R. 345; nor to restore 891. 1118. A mandamus will lie to justices a minister of an endowed dissenting meetingto nominate overseers of the poor, although house, for if he has been before regularly ad. the time mentioned in the 43 Éliz. has expir- mitted he may try his right in an action for ed. Stra. 1123. So to appoint a surveyor of money had and received. 2 T. R. 198. A the highways where the justices had not ap- mandamus is granted only for public persons, pointed at the time mentioned in the statute and to compel the performance of public du13 Geo. III. c. 78. 4 East, 132 ; so to sign ties. Hence the court will not grant it to a and allow a poor's rate, absolute in the first in trading corporation at the instance of one of stance, Say. R. 160; so to admit a copyholder, its members, to compel the production of acdirected to the lord of the manor, 2 T. R. 197. counts to declare a dividend. 2 B & A. 620. 484. 6 East, 431; so also to the lord to hold 5 B. & A. 899. The mode of burying the and the burgesses to attend a court, to present dead is a matter of ecclesiastical cognizance; the conveyances of burgage tenements. | and therefore where the question was, wheWils. 283. 1 Blk. Rep. 60. Bull. N. P. 200. ther a parishioner had a right to be buried in a

Where it does not lie.-It is a general rule church.yard in an iron coffin, which was a new that a mandamus does not lie unless the party and unusual mode, the court refused a mandaapplying has no other specific legal remedy. mus. 2 B. & A. 806. The cowt have no i T.R. 404. 3 T. R. 652. See Doug. 526. power to grant a mandamus to justices to Thus it does not lie to a bishop, to license a compel them to come to a particular decision, curate of a curacy, which had been twice aug. as, to make an order of maintenance on a par: mented by queen Anne's bounty, where the ticular parish. The admission under a man. right of appointing was claimed by two seve- damus gives no right, but only a legal possesral parties, and there had been cross nomina- sion, to enable the party to assert his right, if tions ; because the party had another specific he has any. Hence non fuit electus has been remedy by quare impedit. So a mandamus bolden not to be a good return to a mandamus does not lie to the governor and company of to swear in a church warden, Stra. 894,5; bethe bank of England to transfer stock, be- cause it is directed only to a ministerial officause the party has his remedy by assumpsit, cer, who is to do his duty, and no inconre. Doug. 523; nor to insert certain persons in a nience can follow ; for if the party has a right, poor's rate, although the ommission is alleged he ought to be adınitted ; if he has not, the to have been, to prevent their having votes for admission will do him no good. Wherever members of parliament. Str. 1259. The court the officer, is but ministerial, he is to execute will not award a mandamus for the licensing his part, let the consequence be what it will. a public house. Stra. 881. Stra. R. 217. Stra. 895.

« EdellinenJatka »