TIT.116. A. D. 1701. St. 9 An. c. 20. 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. Ib. 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 contained 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, requir ing 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 proceed. ings 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. to try and determine the right of such persons to such offices, before they have done divers acts in their said offices prejudi TIT. 116. No. 1.. 匦 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. . &c. $ 2. 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 As soon as the shall issue out of any of the said courts, and a return shall be return is made, the promade 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. TIT.116. A. D. 1701. P. L. App. **No. 1. ing such return to such writ, he or they shall recover his or their costs of suit, to be levied in manner aforesaid. 4. Provided, That if any damages shall be recovered by St. 9 An. c. 20. virtue of this act against any such person or persons making such return to such writ, as aforesaid, he or they shall not be liable to be sued in any other action or suit, for the making such return; any law, usage or custom to the contrary thereof against whom in any wise notwithstanding. $ 3. Persons not liable to be exhibited as intrude, ces, &c. damages shall 5. And from and after the said first day of Trinity term, in be recovered, case any person or persons shall usurp, intrude into, or unlawfully hold and execute any of the said offices or franchises, it be sued in shall and "other actions. may be lawful to and for the proper officer in each of $ 4. the said respective courts, with the leave of the said courts reHow informa- spectively, to exhibit one or more information or informations tions in the in the nature of a quo warranto, at the relation of any person or nature of quo persons desiring to sue or prosecute the same, and who shall warranto may be mentioned in such information or informations to be the against such relator or relators against such person or persons, so usurping, intruding into, or unlawfully holding and executing any of the said offices or franchises, and to proceed therein in such manner as is usual in cases of information in the nature of a quo warranto; and if it shall appear to the said respective courts, that the several rights of divers persons to the said offices or franchises may properly be determined on one information, it shall and may be lawful for the said respective courts to give leave to exhibit one such information against several persons, in order to try their respective rights to such offices or franchises, and such person or persons, against whom such information or informations in the nature of a quo warranto shall be sued or prosecuted, shall appear and plead as of the same term or sessions in which the said information or informations shall be filed, unless the court where such information shall be filed, shall give further time to such person. or persons, against whom such information shall be exhibited, to plead ; and such person or persons, who shall sue or prosecute such information or informations in the nature of a quo warranto shall proceed thereupon with the most convenient speed that may be; any law or usage to the contrary thereof in any wise notwithstanding. &c. and the Judgment of 6. And from and after the said first day of Trinity term, in ouster shall be case any person or persons, against whom any information given against or informations in the nature of a quo warranto shall in any persons found of the said cases, be exhibited in any of the said courts, shall guilty of such usurpation, be found or adjudged guilty of an usurpation, or intrusion into, or unlawfully holding and executing any of the said offices relator shall or franchises, it shall and may be lawful to and for the said recover costs: courts respectively, as well to give judgment of ouster against If judgment such person or persons, of and from any of the said offices or be given for the defen- franchises, as to fine such person or persons respectively, for dant, he shall his or their usurping, intruding into, or unlawfully holding and executing any of the said offices or franchises; and also it shall and may be lawful to and for the said courts respectively to give judgment, that the relator or relators, in such information named, shall recover his or their costs of such have costs against the relator. prosecution; and if judgment shall be given for the defen- TIT. 116. dant or defendants in such information, he or they for whom such judgment shall be given, shall recover his or their costs A. D. 1701. therein expended against such relator or relators; such costs, St. 9 An. c. 20. and to be levied in manner aforesaid. P. L. App. No. 1. 7. And it shall and may be lawful to and for the said courts The court respectively, to allow to such person or persons respectively, may allow a to whom any writ of mandamus shall be directed, or against convenient whom any information in the nature of a quo warranto, in any time to return of the cases aforesaid, shall be sued or prosecuted, or to the a mandamus, person or persons who shall sue or prosecute the same, such plead, reply, convenient time respectively, to make a return, plead, reply, rejoin or demur, as to the said courts respectively shall seem just and reasonable; any thing herein contained to the contrary thereof in any wise notwithstanding. 1 &c, statutes of 8. After the said first day of Trinity term, an act made in The act the fourth year of her majesty's reign, entitled "An act for 4 An. c. 16. the amendment of the law, and the better advancement of jus- and all the tice, and all the statutes of jeofayles, shall be extended to all writs of mandamus, and informations in the nature of a quo be extended jeofailei, shall warranto, and proceedings thereon for any the matters in this to writs of act mentioned. [See Title Charleston, 3d Vol. mandamus, &C. Manslaughter. [See Homicide.] TITLE 117. Marriage." 1. AND to prevent all illegal and unlawful marriages, not allowed by the church of England, but forbidden by the table TIT. 117. of marriage; Be it enacted, That no minister in this province, A. A. 1706. Marriage is a civil contract, as well as a religious ceremony. The law of marriage is a positive institution of society, founded principally on the Mosaic code. The validity of marriages in England depends on various statutes, not in force here, and the rites and ceremonies of the established church. In the early stages of our juridical and civil history, the laws of the province on this subject were in conformity to the English; but as the population of the country encreased by emigrants from all countries, and of different religious denominations, this adherence to Episcopal regulations and forms, was gradually relaxed, and at length generally disregarded. During the vigorous government of Oliver Cromwell, marriages were solemnized in England by the civil magistrate; and this practice prevailed in many, if not all the provinces of America, subject to the British crown. It is customary in VOL. IL F P. L. 12. A. A. 1706. TIT. 117. knowing the same, shall presume to join together in marriage, any persons whatsoever, contrary to the table of marriages, by this act appointed to be set up in every parish church within this province, under the penalty of one hundred pounds, nor shall any person forbidden to marry by such table of marriage, presume to be joined in marriage, under the penalty of fifty pounds, or twelve months imprisonment. Penalty for marrying contrary to the table of marriages. Fines for unlawful marriage. Tables of marriages to be set up in the parish churches. Fines, &c. how to be recovered, 2. And no justice or magistrate, being a layman, shall presume to join any persons in marriage, under the penalty of one hundred pounds current money of this province, to be recovered and disposed of, as hereafter in this act is directed.* 3. The respective vestries of each parish, with all convenient speed, and within twelve months at most, after the ratification of this act, shall procure a fair table of marriages, transcribed, and set up in their respective churches, and the same keep continually in the said church, that persons being thereby informed what marriages are forbidden, may avoid the contracting of any such unlawful marriages. 4. All the fines and forfeitures mentioned in this act, that do not exceed the sum of forty shillings, shall be recovered, prosecuted, adjudged, levied and distrained by any one justice of the peace in this province, as in the act for the trial of small and mean causes is directed; and the same being so recovered, shall be paid to the church-wardens of that parish where the person inhabits, against whom the forfeiture is recovered, to be disposed of toward the defraying the public charges of the said parish.t this state, to celebrate or publish the matrimonial contract, by or be◄ fore a minister of the gospel, (of any sect, and without regard to any particular form or ceremony) or by or before a justice of peace, or other lawful civil magistrate. How far the informality of a marriage may afford ground for questioning its validity, on a trial for polygamy, may, perhaps, admit of some doubt. See 1 Bl. Com. 433. By marriage the personal estate of the wife instantly vests in the husband. Even the civil existence of the wife is said to be suspended or merged and incorporated in that of her husband 1 Bl. Com. 442. * This A. A. commonly called "the church act," provides for the establishment of religious worship in the province, according to the church of England. The province was divided into ten parishes; churches were directed to be built; rectors appointed; glebe lands appropriated, &c. Rectors were constituted corporations sole, and the glebe lands were to descend to them and their successors, as also negroes bestowed on the parishes. The rectors were to receive one hundred pounds current money per annum (except the rector of St. Philip's, who had one hundred and fifty pounds) out of the public treasury, besides fees and perquisites; but the people chose their rector in the several parishes. Vestries were established, who were respectively required to provide a fair table of marriages; church-wardens were to be elected; clerks and sextons appointed, who were to have salaries. In short, a complete parochial system of church government was established, or prescribed: and it must have gone into effectual and general operation between the years 1706 and 1760. But it seems never to have extended farther than about sixty miles from Charleston, except partially. See Trott's Laws, 145. + See Justices of Peace, and A. A. Feb. 1791. The jurisdiction of justices of peace is by this act confined to causes of action arising from contract. |