J. W. (John William) Willcock.

The law of municipal corporations : together with a brief sketch of their history, and a treatise on mandamus and quo warranto online

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nard. 24. S. C. 2 Str. 78.3. Fitzgib. 4. R. v. Bettesworth, 2 Str. 857.



400



MANDAMUS.



cases not within its provisions ; but compel a return to
the first writ.



Return filed
after death
of defend-
ant.



172. After the expiration of the time when the re-
turn ought to be filed, the prosecutor may call upon the
proper officer to make it at any time ; and if that officer
die, having executed the return but not filed it, the
Court may direct an issue to try its validity, and if
found duly made, cause it to be filed ; yet it is doubtful
whether the Court will grant leave to file it after the
ofiicer's death, on disclosure of that fact. Perhaps it
will be allowed to be filed, if it conclude the rights of
such officer alone, but not if it conclude the rights, or
aver the consent of others, since neither an action, nor
an information can be sustained to falsify it.



How to
compel a
return.



173. The manner of compelling a return is by appli-
cation to the Court upon an affidavit of service for a
peremptory rule to return the writ, the exigency of
which is according to the distance of the place ; for it
is not a four-day rule, but if to be obeyed in London,
it may be granted to make the return instanter, when a
return must be made on the following day.



174. The Court will allow time to make the return
on a reasonable suggestion of difficulty, and the neces-
sary investigation of documents, to ascertain whether
the defendant ought to return performance of the act
commanded by the writ, or whether he have sufficient
cause for refusing to do it.



(172) R. V. Holmes, 3 Bur. 1643—5.

(173) Coventry Case, 2 Salk. 429. De la Costa v. Russia Comp. 1 Bar-
nard, 24, S. C. 2 Str. 783. Fitzgib, 4. R. v. Bettesworth, 2 Str. 857.
783. V. Impey, Mand. 116.

(174) Archbp. of Canterbury v. Trinity College, 2 Barnard. 194.



MANOAMUS. 401

Section IV.
RETURN.

1. GENERAL REMARKS.

175. The return must be made by the Corporation, By whom
select body, or individuals to whom the writ was di-
rected. If the mayor in possession of the office at the

time be only a mayor de facto, he must nevertheless
join in the return. And if a writ be issued to the mayor
or bailiff of B. at the time A. is mayor or bailiff of B.
(without mentioning the name of A.) the return must
be made by A. although C. has intermediately attained
the office ; at least, if the command of the writ were to
admit C. to the office of mayor or bailiff, so that the
office of A. is determined by the very act of obedience
to the writ.

176. It has been held that if the writ be directed to
the mayor, bailiffs and burgesses (this was not the cor-
porate name), the Court cannot refuse to file the re-
turn which is brought to them by the mayor, although
a motion is made to oppose the filing of it, supported
by the affidavits of some of the burgesses, stating that
the return is contrary to the resolution of the majority
of the bailiffs and burgesses ; and that the burgesses
cannot be allowed in this manner to come in and dis-
avow the return, because the mayor is the head of the



(175) Manaton's Ca. T. Ray. 365. Steven's Ca. T. Ray. 432. Knight
V. Wells, 1 Lutw. 519. R. v. Lisle, Andrews, 173. R. v. Clithero, 6 Mod.
133.

(17C) R. V. Abingdon, 12 Mod. 308. S. C. 2 Salk. 431. S. C. Carth. 499,
R. V. Norwich, 2 Salk. 432. Powell v. Price, Comb. 41. Sed. vid. R. v.
Hoskins, C.T. H. 188.

D D



4(J8 MAN DAM IS.

Corporation. It was said also that the return is not
good if made by the mayor without a majority of the
burgesses, nor if made by a majority of the burgesses
in opposition to the mayor, and on this ground the
Court refused to deliver the writ to the burgesses, that
they might make a different return.

177. I apprehend that where the writ is to others
besides the mayor, the only legal return is that which
is made by a majority of the votes of those to whom
it is directed, at an assembly duly convened, as for any
other corporate business, and that it is quite immaterial
whether the mayor or any other principal officers vote
in favor of or against it. The mayor I consider to be
merely a ministerial officer in forwarding the return,
and that if he substitute one different from that which
the majority sanction, either by their direction or acqui-
escence ; after their disavowal no action can be sus-
tained against them for a false return, and of course
that no proceedings can be had upon the return under
the statute : and therefore that on the disavowal of the ma-
jority the Court will not allow the mayor's return to be
filed, but will accept one made by them through the
medium of another officer, and grant a criminal informa-
tion against the mayor.

How made. 178. The Court will not direct how the return shall
be made or altered, but after it has been filed will allow
proper alterations to be made with the consent of both
parties, that the question may be brought forward in
the most convenient form. And for this purpose, on the
application of the prosecutor, they will order that the



(177) Vid. Part I. tit. 133. etseq.

(178) R. V. Marriott, 1 D. R. 167.



MANDAMUS. 403

defendant shall be at liberty to amend his return, so as
to raise the proper question for the opinion of the Court,
if he think fit.

179. It must be certain upon a fair and reasonable Must be
construction, without recurring to possible facts which

do not appear ; it is said that the same certainty is
required as in indictments and returns to writs of habeas
corpus. The reasons assigned are, that the party may
have sufficient ground to support an action for a false
return, and that the Court may form a plain conclusion
to warrant their judgment from what appears on the
face of the proceedings. It was formerly added, as a
further reason for requiring this certainty, that the other
party had no opportunity of excepting to it by a counter
plea ; but it has been held that the same certainty is
still necessary, although the statute of 9 Anne has
afforded this opportunity, by giving the prosecutor a
plea to the return. Yet where presumption and intend-
ment are admitted, it will be in favour of the return, and
not to show it insufficient.

180. The return must state facts and not conclusions state facts.
of law, therefore if the writ aver that the prosecutor

was elected, the return must deny the fact of election,
or show how the circumstances of the pretended elec-
tion differ from those which are necessaiy to a valid
election according to the form of the constitution, that
the Court may decide on its legality. So all the facts
of an amotion must be distinctly shown, that the Court



(179) R.V.Abingdon, 12 Mod. 401. S. C. 1 Ld. Ray. 560. S. C. 2Salk.
432. R. V. Sterling, Say. 175. R. v. Lyme Regis, Doug. 153, 154.

(180) R.V.Liverpool, 2 Bur. 731. R. v. York, 5 T. R. 76.

D D 2



404 MANDAMUS.

may judge of its sufficiency both as to the cause and
the form of their proceedings.

Notargu- 181. It must not be arg-umentative, denvino; the facts

mentative, i • , .,.,.. "^

&c. alleged m the writ by implication only ; but must aver

the grounds of defence precisely and positively, and not

even by way of recital. Therefore it ought to say that

A. was not elected. Sec. and it is insufficient to say *' it

does not appear to us that he was ever elected," or *' we

do not know that he was ever elected," &c. So in

showing a custom, it must assert positively that there is

such a custom, and not introduce it by way of recital,

as by averring that " King James, by his letters patent,

reciting that they had a custom to elect any one to be

of the common-council, and to remove him ad libitum,

confirmed the said liberties, &c. and by force of the

said custom, time whereof, &c. used, and according to

the form of the said letters patent, they removed." So

it is insufficient to aver that another person had 18

votes, and the prosecutor only 17, at the election,- for

this is argumentative.

182. If the return set forth a constitution different
from that shown by the writ, it must expressly negative
it. If therefore the writ aver that the bailiffs ought to
be elected from among such aldermen as had not been
bailiffs within three years ; the return must expressly
deny the exclusion, it is insufficient for it merely to
state that they are eligible from among the aldermen
generally, nor is it helped by the additional words "■ ac-
cording to the form and effect of the letters patent ;"



(181) R. V. Winchclsea, 2 Lev. 86. R. v. Hereford, 6 Mod. 309. Basset
V. Barnstaple, T. Ray. 153. S. C. 1 Sid. 286. R. v. CoFentry, 1 Ld. Ray.
391. S. C. 2 Salk. 430, R. v. Rchester, 4 D. R. 330.

(182) R. V. Maiden, 1 Ld. Ray. 481. S. C. 2 Salk. 431.



MANDAMUS. 405

because that is but a repetition of what they have stated
to be the form prescribed by the letters patent.

183. Yet the denial may be composed of several as-
sertions ; for an assertion that the prosecutor was not
admitted at the time of his election, nor since that time,
nor is yet admitted, is equivalent to an assertion that he
has never been admitted up to the time of the return,
and does not relate only to the period at which the writ
issued.

184. If the return rely upon a misdirection of the
writ, it must assert positively that it is misdirected, and
show in what manner. If a return be made to the alle-
gations in the writ generally, and merely conclude that
they were never incorporated or known by that name, it
is insufficient ; particularly if the return profess to be in
obedience to and execution of the writ, and show that
the Corporation has been known by several names,
without setting them forth.



185. It must assert, deny or answer all material facts Must an-

, . „ ,, , . ,, -. swer the

m their lull extent, substantially, and not by mere am- writinsub-



biguity of words. Therefore if the averment be of an
election, a return not elected at the time of receiving
the writ is insufficient, for it denies only that an elec-
tion took place at the moment of receiving the writ : so
if the writ, founded on the possession of an office de
facto, assert that A. was elected; admitted and sworn, it
is not sufficient to reply not elected, and admitted and



(183) R. V. King's Lynn, Andr. 105.

(184) R. V. Ipswich, 2 Ld. Ray. 1239. S. C. 2 Salk. 435.

(185) R. V. Clapham, 1 Vent. 111. S. C. R. v. President des Marches,
2 Lev. 86. R. v. Coventry, Salk. 4.30. R. v. Ilchester, 4 D. R. .3.30. R. v.
Lyme Regis, Doug. 79. 85.



stance.



406 MANDAMUS.

sworn; but it was said that not elected, or admitted or
sworn, might have been good, for if deficient in all
these essentials to a legal title, the applicant had never
been even an officer de facto, which is sufficient to pre-
clude the grant of a peremptory mandamus to be re-
stored, although the return is otherwise defective.

186. So if it attempt to show an incapacity to obey
the writ by reason of the change of circumstances, it
must appear that there was no fraud or stratagem on
the part of the defendant. Therefore to a writ to admit
the prosecutor to the office of mayor, directed to " A. B.
mayor &c." it is an insufficient return that he A. B.
was on a day before the issuing of the writ amoved from
the office of mayor and another elected in his stead,
whereby he could not admit, for if the election of the
prosecutor be legal, it precludes the substitution of ano-
ther mayor before his admission, and the return having
the color of fraud on the face of it, a peremptory writ
will go to A. B. to admit the prosecutor.

Must show 187. The return must aver the existence of all powers
of amoving, which are necessary to warrant the act upon which the
defendants rely, as a cause for not performing the com-
mands of the writ, unless they are incidental to the
body by whom it was done, or incidental to the posses-
sion of another power which it has already shown. Thus
to a mandamus to restore, the defendants relying upon
the validity of an amotion, must if a select body show by
what custom, charter or by-law they have power to
amove ; but having shown their power to amove, they
need not set forth their authority to hold a Court for

(186) R. V. Stevens, T. Jones, 177. S. C. T. Ray. 432. Manaton's
Case, T, Ray. 365.

(187) R. V. Lyme Regis, Doug. 153.



&c.



MANDAMUS. 407

the purpose of amotion, for that is incidental to the
power of amoving. And so if the writ be to the Cor-
poration at large, it is not necessary to show specially
how the power of amotion became vested in them, be-
cause it is incidental to them as a body corporate.

188. It is not necessary to negative possible facts, Need not
so that if the defendants rely upon an amotion, being possible
the body at large, without showing how they were in- ^^ ''
invested with the power of making it, it is equivalent

to an averment that such power is reposed in them, for
this is implied by law ; and it is unnecessaiy to aver
that there is no charter &.c. by which that power is
transferred to a select body. If such a return being
sufficient on the face of it be allowed, as was the cause
at common law, the concealment of a charter so trans-
ferring the power would be as much a false return, and
warrant an action, as an express denial ; for the return,
though it have the semblance of truth, is not true in
substance ; and therefore since the statute, the prosecu-
tor may show in his plea, that this power has been
transferred to a select body, and if found for him, a
peremptory writ must be awarded.

189. If the return rely upon a judgment, it is unne- Need not
cessary to state the proceedings on which it is founded, procced-
for as long as it remains unreversed, no enquiry can be 'yffch"
instituted concerning them under this form of action, ex- founded!*
cept for' the purpose of showing fraud and collusion,
however faulty they may have been ; if the judg-
ment were erroneous, the proper mode of correcting it

is by bringing a writ of error.



(188) R. V. Lyme Regis, Doug. 153, 154. Braithwaite's Ca. 1 Vent. 19.
(189J R. V. West Riding, 7 T. R. 467. R. v. Suddis, I East, 315.



408



MANDAMUS.



190. It is not necessary that every part of the return
should be sustainable : but it is sufficient, if upon the
whole it disclose a fair legal reason, why the writ should
not be obeyed, although certain parts are unsatisfac-
tory ; for these parts may be treated as mere surplusage,
or the Court may disallow them, and send down the
rest to be tried.



Maybe
double.



191. The return need not be single, for it was never
subjected to the ancient strict rules of pleading, but
may assign several causes for refusing to perform the
act commanded by the writ, so they are consistent with
each other, and imply no contradiction. If one only
of these be sufficient in law to warrant the refusal, the
return will be allowed as to that, though it must be
quashed as to the remainder which are merely super-
fluous. The return to a writ to admit to the office of
alderman, may state "that the prosecutor was not a
burgess (a necessary qualification), that he was not
eligible to be an alderman, and that he was not elected
an alderman ;" which causes are not inconsistent with
each other, and any one of them, if true, is a sufficient
answer to the writ. So it may state that the prosecutor
" was elected but refused by those who had the right
of approving, and that he had not received the sacra-
ment," for each alternative admits a formal election,
which the former shows insufficient, thougrh it had
been legal, and the latter avoids for a legal defect.



Inconsist-
ent returns.



192. But where two or more inconsistent causes are
stated, the return must be quashed altogether, for



(190) R. V. Cambridge, 2T.R. 461.
Bristol, 1 Show. 288.

(191) R. V. Norwich, 2 Ld. Ray. 1244.
2044. R. V. Cambridge, 2 T. R. 461.

(192) R. V. Pomfret, 10 Mod. 108. R. v. Norwich, 2Ld. Ray. 1244.
S. C. 2 Salk. 436. R. v. Cambridge, 2 T. R. 461. R. v. York, 5 T. R. 74.



R. V. York, 6 T. R. 495. R. v.
Wright V. Fawcett, 4 Bur.



MANDAMUS.



409



though one or more of them may be true, and sufficient
if standing alone, the return must be false when taken
collectively. The Court cannot know which part to
believe, and will not allow so great an irregularity, al-
though the prosecutor may, since the statute, have an
opportunity of traversing each of them. On this ground
the return must be quashed if it state that A. was elected^
but refused by those who had the right of approving,
that he had not received the sacrament, that he was
turbulent and factious, and procured his election by bri-
bery — and that he was not elected; for although some
of those causes are consistent, and if true sufficient ;
yet as some admit an election, and others deny it, there
is an evident falsity. So a return must be quashed
which asserts that the prosecutor was elected and ad-
mitted, and amoved for non-attendance at the sessions,
and that he had not received the sacrament, and there-
fore his election was void ; for one admits an election,
which the other denies. It may be observed that the
falsity of these returns, is in construction of law and
not in fact ; for it appears that there was a formal elec-
tion, but voidable by reason of the prosecutor not hav-
ing received the sacrament, and that the return was
devised in these terms, from a doubt entertained by the
defendants, whether the election were on that account
voidable only or absolutely void, and therefore, as they
called it, no election.

193. If a return be made by individuals, their signa- Return
tures to it are not necessary, nor is it requisite that the "fg^nature
return of a Corporation have the signature of the mayor °^ '*^*'-

(193) R.v. Chalice, 2 Ld. Ray. 848. Thetfonl Ca. 1 Salk. 192, R- v.
St. John's Col. 4 Mod. 241. Powel v. Price, Comb. 41. Lidleston v. Exe-
ter, Comb. 422. S. C. 12 Mod. 126. S. C. 1 Ld. Ray. 223. R. v. Holmes, ^
3 Bur. 1644. 12 Ed. II. st. 1. c. 5.



410



MANDAMUS.



or the corporate seal ; for such acts of a Corporation are
in the nature of records, and returns by mayors, coro-
ners Sec. are not within the statute of York, which re-
quires the signature of the sheriff to his returns.



Cancelled
after filing.



194. After a return has been filed the Court will not
allow it to be taken off, even on the application of both
parties ; but when the parties applied to the Court for
that purpose, on the ground that it was false and scan-
dalous, they directed that it should be dashed through
as though it were cancelled.



Taking
the file.



oir



195. There was an application by a Corporation to
have a return taken off the file, on the ground of having
been filed since the death of the mayor, who was said
to have made it, and that it concluded the consent of
the majority of the Corporation, as it could not be falsi-
fied by action or information, on account of the mayor's
death. The Court hesitated, and afterwards it was
agreed by the parties, under their direction, that it
should remain on the file, but not be construed to con-
clude any besides the mayor who made it.



II. TO ELECT.



Showing
restriction
by charter.



196. To a mandamus to elect a mayor, the former
having held over after his year had expired, the re-
turn stated, that by the cliarter they were empow-
ered to elect a new mayor on the Tuesday next after
Michaelmas-day in every year, and that the mayor so
elected should continue in office until another should



(194) Widdrington's Case, T. Ray. 68.

(195) R. V. Holmes, 3 Bur. 1643—5.

(196) R.v.Tregony, 8Mod. 11,3. 127. VidePart I. tit. .531.
bridge, 4 Bur. 2011.



R. V. Cam-



MANDAMUS. 414

he duly elected in manner as aforesaid, and then pro-
ceeded to say, that the last charter day had passed
without a new election, and therefore they could not
proceed to a new election until the next charter day,
unless the present mayor should die or be amoved. It
was held that another mayor could not be elected until
the charter day except in such cases, and therefore that
the return was good. This case was before the statute
11 George, and the learned editor of this report, ap-
pears to be of opinion that the statute empowers the
Court to compel an election in such cases before the
charter day ; but I apprehend that it is restrained
by the preamble to Corporations, in which the mayor
has no power of holding over, and can only be extend-
ed to Corporations in which it is doubtful whether
the chief officer have such power.

197. To a mandamus to elect, by which it appears incapacity
that the constitutional number of aldermen is fifteen,

that an election must be made at an assembly of a ma-
jority of such number, it is an insufficient return that
there are not eight aldermen who were legally elected,
and therefore they cannot elect ; because although
there are not eight whose titles were originally unim-
peachable, there may be eight or more, of whom the
titles of some were originally good, and those of others,
though at first voidable, are now become unimpeach-
able by the operation of the indemnifying statutes.

198. To a mandamus to elect under this statute, if Election

under H

the return rely upon an election on the day after the Geo.



(197) R. V.Monmouth, 1 B. A. 49. 5Geo. I. c. 6. 32 Geo. III. c. 58.
and Indemnity Act.

(198) 11 Gep. I. c. 4. 3. fi. R. v. Morgan, 7 Mod. .'i2.'?. V. Part 1. tit,
111.



412 MANDAMUS.

charter day or the following Monday, there having been
an omission on the charter day, it must show all the
circumstances essential to such an election, and aver
that A. the person nearest in place or office presided;
an averment that A. one of the nearest in place presided
is not sufficient.



Office full,
&c.



199. To a mandamus under this statute, to the
stev/ard of a court leet, commanding him to summon a
jury to elect and swear in a portreeve, the return is
sufficiently positive and certain, if it state that he has
held a Court, empannelled a jury, and charged them
to elect and swear some person into the office of port-
reeve ; that the jury found that A. was already duly
elected and sworn into that office on the charter day,
and that therefore no person could be elected and sworn
into the office as the writ commands. And this is
sufficient to preclude the issuing of a peremptory writ.
So if he were commanded to direct them to present B.
whom the writ asserts to have been elected, the return
may be that the juiy find that he was not elected.



III. TO ADMIT.

200. To a mandamus to admit, it is a sufficient re-
turn to show that the prosecutor has been ousted in
quo warranto, subsequently to his acquiring the title
upon which he relies ; and this return is conclusive,
althouo-h the ouster was for want of admission alone,
the prosecutor's election having been legal.



(199) R. V, Williams, Say. 141. R. v. Willis, 7 Mod. 262.

(200) Vid. Quo Warranto, Judgment. R. v. Serle, 8 Mod. 332. S. C>
R. V. Hull, 11 Mod.391. R. v. Taylor, 7 Mod. 172.



MANDAMUS.



413



201. An aveiTOent that the prosecutor has nof been Not elected.
elected is a sufficient answer to the general allegation in
the writ, that he has been elected ; but an averment
that he has not been dull/ elected is insufficient, for this
puts no fact in issue, but admits that there has been
an election, yet asserts that it was not according to the
constitution of the Corporation, and therefore in such
case it ought to show how he was insufficiently elected.
Yet if the writ alleged that he has been duly elected,
a return that he has not been duly elected is sufficient, »

for it fully answers the suggestion of the writ.

202. But the better opinion seems to be that it is
quite immaterial whether the word duly be introduced
or omitted, for if it be not a due election, it cannot be
considered any election so as to afford the prosecutor
the benefit of this writ ; and as a due election is im-
plied in an averment of an election, so the word " duly"
ought not to injure if introduced in the denial of that
fact.

203. Ifthe writ set forth certain facts, and conclude by Musttra-

verse tacts.
reason whereof the prosecutor was elected, the return

must not aver that the prosecutor was not elected ; for

that is an admission of the facts in their fullest extent, and

a denial only of the legal inference \ but it ought to

traverse some material fact, on the truth of which the

election is founded. Or if all the facts be indisputable,



Online LibraryJ. W. (John William) WillcockThe law of municipal corporations : together with a brief sketch of their history, and a treatise on mandamus and quo warranto → online text (page 30 of 40)