Page images
PDF
EPUB

quo

branch of the ftatutes hath loft it's effect"; and writs of warranto (if brought at all) must now be profecuted and determined before the king's juftices at Westminster. And in cafe of judgment for the defendant, he fhall have an allowance of his franchise; but in case of judgment for the king, for that the party is entitled to no fuch franchise, or hath difufed or abused it, the franchise is either feifed 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 subfift in the hands of the crown, there is merely judgment of oufter, to turn out the party who ufurped it ".

THE judgment on a writ of quo warranto (being in the nature of a writ of right) is final and conclufive even against the crown. Which, together with the length of it's procefs, probably occafioned that difufe into which it is now fallen, and introduced a more modern method of profecution, by information filed in the court of king's bench by the attor ney-general, in the nature of a writ of quo warranto; wherein the process is speedier, and the judgment not quite fo decifive. This is properly a criminal method of prosecution, as well to punish the ufurper by a fine for the ufurpation of the franchife, as to ouft him, or feife it for the crown: but hath long been applied to the mere purposes of trying the civil right, feifing the franchise, or oufting the wrongful poffeffor: the fine being nominal only.

DURING the violent proceedings that took place in the latter end of the reign of king Charles the fecond, 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 perfuaded to furrender 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 confequence was, that the liberties of moft of them were

[blocks in formation]

feifed into the hands of the king, who granted them fresh charters with fuch alterations as were thought expedient; and, during their state of anarchy, the crown named all their magiftrates. This exertion of power, though perhaps in fummo jure it was for the moft part ftrictly legal, gave a great and juft alarm; the new-modelling of all corporations being a very large ftride towards eftablifhing arbitrary power; and therefore it was thought neceffary at the revolution to bridle this branch of the prerogative, at least so far as regarded the metropolis, by ftatute 2 W. & M. c. 8. which enacts, that the franchises of the city of London fhall never hereafter be feifed or forejudged for any forfeiture or misdemefnor whatfoever.

THIS proceeding is however now applied to the decifion of corporation difputes between party and party, without any intervention of the prerogative, by virtue of the ftatute y 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 perfon defiring to profecute the fame (who is then stiled the relator) against any perfon ufurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; provides for it's fpeedy determination; and directs that, if the defendant be convicted, judgment of oufter (as well as a fine) may be given against him, and that the relator fhall pay or receive costs according to the event of the fuit (1).

(1) This ftatute, with regard to cofts, extends only to cafes where the title of a perfon to be a corporate officer, as mayor, bailiff, or freeman, is in queftion; but an information to try the right of holding a court is not within it, but stands upon the com→ mon law only, and being a profecution in the name of the king, no cofts are given. 1 Burr. 402.

The court of king's bench having a difcretionary power of granting informations in the nature of quo warranto, had long ago established a general rule to guide their discretion, viz. not to allow in any cafe an information in the nature of quo warranto against a perfon

6. THE writ of mandamus is alfọ made by the fame statute 9 Ann. c. 20. a most full and effectual remedy, in the first place, for refusal of admiffion where a perfon is entitled to an office or place in any fuch corporation; and, fecondly, for wrongful removal, when a person is legally poffeffed. Thefe are injuries, for which though redress for the party in- [265] terested may be had by aflife, or other means, yet as the franchifes concern the public, and may affect the administration of justice, this prerogative writ also iffues from the court of king's bench; commanding, upon good cause fhewn 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 traverfed by the profecutor, and his antagonist may reply, take iffue, or demur, and the fame proceedings may be had, as if an action on the cafe had been brought, for making a falfe return: and, after judgment obtained for the profecutor, he fhall have a peremptory writ of mandamus to compel his admiffion or reftitution; which latter (in cafe of an action) is effected by a writ of reftitution.

[blocks in formation]

person who had been twenty-years in the poffeffion of his franchife; but having reason to confider this too extenfive a limit, they refolved upon a new rule, viz. not to allow fuch an information against any person who had been fix years in poffeffion. 4 T. R. 284.

But the legislature thinking this too fudden 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 franchife, the defendant might plead that he had been in poffeffion of, or had executed, the office for fix years or more. And that no defendant should be affected by any defect in the title of the perfon from whom he derived his right and title, if that perfon had been in the undisturbed exercise. of his office or franchise fix years previous to the filing of the information,

BOOK III. So that now the writ of mandamus, in cafes within this ftatute, is in the nature of an action: whereupon the party applying and fucceeding may be entitled to cofts, in cafe it be the franchife of a citizen, burgefs, or freeman2; and alfo, in general, a writ of error may be had thereupon.

THIS writ of mandamus may also be iffued, in purfuance of the ftatute 11 Geo. I. c. 4. in cafe 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 hall afterwards become void; requiring the electors to proceed to election, and proper courts to be held for admitting and fwearing in the magiftrates fo refpectively chofen.

WE have now gone through the whole circle of civil in juries, and the redrefs which the laws of England have anxiously provided for each. In which the student cannot but obferve, that the main difficulty which attends their dif cuffion arifes from their great variety, which is apt at our first acquaintance to breed a confufion of ideas, and a kind of distraction in the memory: a difficulty not a little increased [266 by the very immethodical arrangement, in which they are deJ livered to us by our antient writers, and the numerous terms of art in which the language of our ancestors has obfcured them. Terms of art there will unavoidably be in all fciences; the eafy conception and thorough comprehenfion of which muft depend upon frequent and familiar ufe: and the more fubdivided any branch of fcience is, the more terms must be ufed to exprefs the nature of thefe feveral fubdivifions, and mark out with fufficient precifion the ideas they are meant to convey. But I trust that this difficulty, however great it may appear at first view, will fhrink to nothing upon a nearer and more frequent approach; and indeed be rather advantageous than of any differvice, by imprinting on the ftudent's mind a clear and diftinct notion of the nature of these several remedies. And, fuch as it is, it arifes principally from the by P. Wins. 351.

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

[blocks in formation]

excellence of our English laws; which adapt their redrefs exactly to the circumftances of the injury, and do not furnish one and the fame action for different wrongs, which are impoffible to be brought within one and the fame defcription: whereby every man knows what fatisfaction 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 poffible injury, that can be offered either to the perfon or property of another, for which the party injured may not find a remedial writ, conceived in fuch terms as are properly and fingularly adapted to his own particular grievance.

In the feveral perfonal actions which we have curforily explained, as debt, trefpafs, detinue, action on the cafe, and the like, it is eafy to obferve how plain, perfpicuous, and fimple 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 fomewhat more complex and difficult, and attended with fome delays. And fince, in order to obviate thofe difficulties, and retrench thofe delays, we have permitted the rights of real property to be [267] drawn into queftion in mixed or perfonal fuits, 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 progrefs and hiftory, our prefent fyftem of remedial jurifprudence (in refpect 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 procefs will be found, when attentively confidered, to be one of those troublesome, but not dangerous, evils, which have their root in the frame of our conftitution, and which therefore can never be cured, without hazarding every thing that is dear to us. In abfolute governments, when new arrangements of property and a gradual

U 3

« PreviousContinue »