contempt of the laws, and to the insupportable wrong and dainage of many of his majesty's good subjects:' year of our TIT. 115. St. 22 & 23 6. For prevention whereof, and discovery of the offenders, A. D. 1670. Be it enacted, That where in any part of this kingdom any person or persons, after the first day of March in the Lord 1670, shall in the night time maliciously, unlawfully and willingly burn, or cause to be burnt or destroyed, any ricks stacks of or stacks of corn, hay, or grain, barns, or other houses or build- grain, &c. or ings, or kilns; or shall in the night time, maliciously, unlaw- kill horses, fully and willingly kill, or destroy any horses, sheep, or other &c. felony. cattle, of any person or persons whatsoever; every such offence shall be adjudged felony, and the offenders, and every of them shall suffer as in case of felony.. 7. Provided always, That no attainder for any the offences Proviso. made felony by virtue of this act, shall make or work any corruption of blood, loss of dower, or disinheritance of heir or heirs. [See A. A. 1787. P. L. 430.] 8. In case any person or persons who shall be convict or The offender attainted of any the offences made felony by virtue of this act may be transas aforesaid, (to avoid judgment of death, or execution there- ported. upon for such his offence) shall make his election to be transported beyond the seas, to any of his majesty's plantations; that then the justices of assise, oyer and terminer, gaol delivery, or justices of the peace, before whom such offender shall be convict or attaint by virtue of this act, and every of them respectively, shall cause judgment to be entered against every such offender, that he be transported beyond the seas to some of his majesty's plantations, in the said judgment to be particularly mentioned and expressed, there to remain for the space of seven years; and that in pursuance of the said judgment, the sheriff or sheriffs of the county or city where such offender shall be so convict or attainted, shall cause the said offender to be safely conveyed and embarked to be transported as aforesaid; and if any such offender shall return into this kingdom before the expiration of the said seven years, he shall suffer death as a felon, and as if no such election to be transported had been made by him.* In the case of The State v. Kirkpatrick, which was before the constitutional court of appeals at Columbia, in November, 1807-he had demurred to an indictment upon this statute, for having in the night time, maliciously, &c. destroyed a horse; and it was contended for him that as he could not avail himself of the optional alternative provided by this clause, the whole statute ought to be considered inoperative and void. On the contrary it was urged, that although the offender cannot from the nature of our present government, and the situation of the country, have the benefit of an election to be transported beyond the seas, yet it cannot be maintained, on legal principles, that the statute is therefore void, except so far as the same is impracticable. And the legislature in adopting this and other English statutes, had carefully guarded against any construction which would have the effect of rendering them inoperative and null, without necessity, by declaring that they should be put in execution as to the substantial parts of them, &c. A. A. 1712. P. L. 100. TIT. 115. A. D. 1670. horses, &c. in Authority of justices of peace respect ing. 9. If any person or persons shall in the night time malī→ ciously, unlawfully and willingly maim, wound, or otherwise hurt any horses, sheep or other cattle, whereby the same shall not be killed or utterly destroyed, or shall destroy any plantations of trees, or throw down any inclosures in manner aforesaid; that then every such offender or offenders shall lose and forfeit unto the party grieved treble the damage which he or they shall thereby sustain; the same to be recovered by action of trespass, or upon the case, to be taken at the common law10. And be it further enacted, That upon the complaint and request of the party or parties injured in any such manner, any three or more justices of the peace for the county, division, city, town corporate, or place where such offence shall be committed, whereof one to be of the quorum, shall and may, and they are thereunto authorized and required by virtue of this act, to enquire, as well by the oaths of twelve lawful men or more of the same county, as by examination of witnesses upon oath, or by any lawful ways or means which to them shall seem meet, of and concerning any the offences before incurred, and offenders therein; and in order thereunto, to issue out warrants, as well for the summoning of jurors, as for the apprehending of all such persons, as shall or may be thereof suspected, and to take their examination touching the same; as also to cause all such other persons as to them shall seem likely to make discovery thereof, to appear before them, and to give information upon oath, of and concerning their knowledge of the premises: so as no person so to be examined by the said justices of the peace, shall be convicted, or in any wise proceeded against, for or by reason of any offence concerning which he or they shall be so examined as a witness, and shall upon such his examination make a true discovery thereof: and in case any person or persons, who by the said justices be thought likely to make discovery as aforesaid, shall refuse to appear or to be examined as a witness, being duly summoned by the 4Bl.Com. 244. said justices in pursuance of this act; it shall and may be lawful for the said justices of the peace to commit the party so refusing, to the common gaol for the said county without bail or mainprise, until he shall submit to be examined upon oath, of and concerning his knowledge touching the same offence, or the offenders by whom the same was committed. Limitation of 11. Provided, That no person who shall be punished for any prosecution. offence by virtue of this act, shall be punished for the same offence by virtue of any other act or law whatsoever; nor shall be questioned for the same, unless he be proceeded against within six months after the offence committed. The decision on the motion was delayed from various causes till May, 1810-when the motion was withdrawn. It is an established rule in the construction of statutes, that they shall be so expounded as to give them all the effect of which they are susceptible, according to the intent of the makers of them, and so as to prevent their being eluded if possible. Repeals by implication of law are not favoured, because they cast a reflection (it is said) on the wisdom of the legislature. 11 Co. 63. 10 Mod. 118. Plow. 466, 13, 88. Co. Litt. 24. 4 12. And for the effectual preventing the wilful casting TIT. 115. áway, burning or otherwise destroying, by masters and mariners, of ships under their charge, Be it enacted, That if any A. D. 1701. captain, master, mariner or other officer belonging to any St. 1 An. c. 9. ship, shall, after the said twelfth day of February, 1702, wil- St. 2. fully cast away, burn or otherwise destroy the ship unto Ships destroy which he belongeth, or procure the same to be done, to the ed by masters prejudice of the owner or owners thereof, or of any merchant to owners preor merchants that shall load goods thereon, he shall suffer judice, felony. death as a felon.* P L. 93. 4 Bl.Com. 244. time. 13. And whereas an ill custom has prevailed in this pro- A. A. 1740. vince, of firing guns in the night time; For the prevention P. L. 174. thereof for the future, Be it enacted, That if any person shall Firing guns in the night fire or shoot off any gun or pistol in the night time after dark and before day light, without necessity, every such person shall forfeit the sum of forty shillings current money, for each gun so fired as aforesaid; to be recovered by warrant from any one justice of the peace of the county where the offence is committed, according to the direction of the act for the trial of small and mean causes, and shall be paid to the church wardens of the parish where the offence shall be committed, for the use of the poor of the said parish.† [See Title 21, Benefit of Clergy.-Title 80, Fire-Hunting and Burning the Woods.] TITLE 116. Mandamus‡—Quo Warranto. TIT. 116. P. L. App. 1. ‹ WHEREAS divers persons have of late illegally in- A. D. 1701. truded themselves into, and have taken upon themselves to St. 9 An.c.20. execute the offices of mayors, bailiffs, portreeves and other No. 1. offices, within cities, towns corporate, boroughs and places, See Title 70, within that part of Great Britain called England and Wales; English Staand where such offices were annual offices, it hath been found tutes, § 4. 9. very difficult, if not impracticable, by the laws now in being, • If this offence should be committed on the high seas (which seems to bave been intended by the act) or out of the jurisdictional limits of the state, the state courts cannot take cognizance thereof. The Congress of the United States have power to define and punish felonies committed on the high seas, &c. See Constitution United States, Art. 1. § 8. † See Justices of Peace; and A. A. Feb. 1791. + Mandamus is a writ issuing out of the court of general sessions, &c. In England it is called a prerogative writ, and issues from the king's bench. It is a criminal process relative to civil rights. The courts of sessions in this state, as the court of king's bench in England, have a general superintending power over all inferior jurisdictions and persons, to compel them to do justice in matters appertaining to their office and duty, and to enforce obedience to acts of the legislature, See 2 Inst. 40, 3 Bl. Com. 110. Bull. N. P. 199, 3 Burr. 1267. to bring to a trial and determination the right of such persons to the said offices within the compass of the year; and where such offices were not annual offices, it hath been found difficult Where there is a specific legal right, and no other specific legal and effectual remedy, a mandamus is a proper remedy, upon reasons of justice and public policy, to preserve order and good government. It lies as well to restore one who has been unjustly removed, as to admit one who has a right. Bull. 199. The court will in no case grant this writ till there has been a default; nor to compel a mere ministerial officer to do his duty. Ib. By the common law the proceedings by mandamus were tedious, and therefore oftentimes ineffectual. The writ is in the alternative, commanding obedience to what is therein required, or that cause be shown to the contrary. If no return was made, or an insufficient return, another writ issued called a peremptory mandamus, commanding the act to be done peremptorily. If that was disobeyed, an attachment issued for the contempt. If a return was made to the writ, which upon its face was good, but the matter of it was untrue, the party thereby injured had a remedy by an action on the case for the false return, &c. lb. The statute 9 An. c. 20. requires a return to be made to the first writ of mandamus, and authorizes the party prosecuting the same to plead to or traverse, that is, deny all or any of the material facts con tained in the return, &c. so as to compel an issue and decision thereon without delay. Esp. Dig. 686. Quo warranto, was a writ which lay at common law, in nature of a writ of right, against him who claimed or usurped any office, franchise or jurisdiction, to enquire by what authority he claimed or exercised the same, in order to determine the right. It also lay for nonuser, or long neglect of a franchise, or mis-user, or abuse of it, requiring the party to shew by what warrant he exercised the right. The writ was originally returned to Westminster. Afterwards, by the statutes 6 Ed. 1. and 18 Ed. 1. St. 2. the same was returnable before the justices in eyre only; but when temporary commissions of assize were instituted, these statutes lost their effect, and the writ was returned and prosecuted at Westminster. Where the judgment was for the defendant he was allowed his franchise; where it was for the king, the franchise was seized into his hands, or granted to whomsoever he pleased; or there was simply judgment of ouster, to turn out the usurper. The remedy, in this form has been disused, and has given place to the process of information in nature of quo warranto, which by the statute 4 & 5 W. & M. c. 18. could not be filed without leave of the court. Information in nature of quo warranto is a criminal proceeding, to punish the usurper by fine, and oust him from the possession of the franchise or jurisdiction he exercises or claims. But it has long been applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor. It is not a complete remedy for the party injured by such wrongful possession, but only paves the way for the application of a more specific and effectual remedy. The statute 9 An. c. 20. authorizes the bringing an information, without leave of the court, at the relation of any person desiring to prosecute the same, to determine disputes between party and party, respecting corporate franchises, or offices, in any city or town incorporated; and provides for the speedy decision of such disputes. And this act gives costs both to the relator and defendant. There are many cases besides those mentioned in the statute of Anne, in which this process will lie; for the power of the court to grant informations in such cases, is not founded on the statute, which was only made to regulate the proceedings therein, relative to corporations. See 3 Bl. Com. 262, &c. Buller's N. P. 210. 2 Inst. 279. 494. Cro. J. 259. 1 Show. 280. TIT. 116. No. 1. to try and determine the right of such persons to such offices, before they have done divers acts in their said offices prejudi cial to the peace, order and good government within such A. D. 1701. cities, towns corporate, boroughs and places, wherein they St. 9 An.c. 20. have respectively acted: And whereas divers persons, who P. L. App. had a right to such offices, or to be burgesses or freemen of such cities, towns corporate, boroughs or places, have either been illegally turned out of the same, or have been refused to be admitted thereto, having in many of the said cases no other remedy to procure themselves to be respectively admitted or restored to their said offices or franchises of being burgesses or freemen, than by writs of mandamus, the proceedings on which are very dilatory and expensive, whereby great mischiefs have already ensued, and more are likely to ensue, if not timely prevented :' 2. For remedy whereof, Be it enacted, That from and after the first day of Trinity term in the year of our Lord 1711, where any writ of mandamus shall issue out of the court of queen's bench, the courts of sessions of counties palatine, or out of any the courts of grand sessions in Wales, in any of the cases aforesaid, such person or persons, who by the laws of this realm are required to make a return to such writ of mandamus, shall make his or their return to the first writ of mandamus. § 2. As soon as the return is made, the pro &c. 3. And from and after the said first day of Trinity term, as often as in any of the cases aforesaid, any writ of mandamus shall issue out of any of the said courts, and a return shall be made thereunto, it shall and may be lawful to and for the per- secutor in son or persons suing or prosecuting such writ of mandamus to such writ may plead to, or traverse all or any the material facts contained plead, &c. to within the said return; to which the person or persons making which the such return shall reply, take issue, or demur ; and such further person returnproceedings, and in such manner shall be had therein, for the ing may reply, determination thereof, as might have been had if the person How the proor persons suing such writ had brought his or their action on ceedings shall the case for a false return; and if any issue shall be joined on be. such proceedings, the person or persons suing such writ shall and may try the same in such place as an issue joined in such action on the case should or might have been tried; and in case a verdict shall be found for the person or persons suing such writ or judgment given for him or them upon a demurrer, or by nil dicit, or for want of a replication or other pleading, he or they shall recover his or their damages and costs in such manner as he or they might have done in such action on the case as aforesaid; such costs and damages to be levied by capias ad satisfaciendum, fieri facias or elegit ;* and a peremptory writ of mandamus shall be granted without delay, for him or them for whom judgment shall be given, as might have been, if such return had been adjudged insufficient; and in case judgment shall be given for the person or persons mak There is no such remedy in this state as that by writ of elegit. See 3 Bl. Com. 418. |