Page images
PDF
EPUB

it was not doubted, but that some improvement might grow out of what had been done. Accordingly by a supplement a year afterward, some of the most material defects in the law were supplied. What yet remains to have it accommodated to all purposes of justice, with regard to a claim of possession; or of property; or of an interest in real estate, will in due time be discovered, and the remedy may be applied.

"For every man's land is in the eye of the law inclosed and set "apart from his neighbour's, &c." III Bl. Com. 209.

THIS principle of the common law would seem to be restrained by the act of 1700 of this commonwealth, and other acts pari materia. The principal act is chap. 56, entitled an act for regulating and maintaining of fences; 1st. Smith's laws 18. It was decided in Addison's district; and may have been elsewhere, that this act, or these acts giving a special and summary remedy, did not take away the common law; but, though decided in my favour, in a case at that bar, I did not approve of the doctring laid down by the court, in all particulars. It did appear to me, that it was a change of the common law to some extent, in consideration of the settlement and state of the country; where it was contrary to the convenience of the inhabitant, to have it supposed that the owner of cattle could keep them from trespassing upon the uninclosed ground or wood-land of another. It could not be but by running at large that the stock of the settler could be supported before there were inclosed pastures; and the obligation of having keepers to hinder them from trespassing would be inconsistent with the situation of the improver in a new country. These acts therefore qualifying the right which the owner of the soil had in his uninclosed grounds, appeared to me necessary; and that an action of trespass would not lie unless the owner of adjoining grounds had done something towards excluding an entry on his possessions, such as is prescribed by the act in question.

Be this as it may, the proceeding at common law notwithstanding this act, would seem to be restrained by the act 21 March, 1806, 4th Sm. Laws, 332, Sec. 13," that in all cases where a remedy is provided or duty enjoined, or any thing directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted agreeably to the provisions of the common law in such cases further than shall be necessary for carrying such act or acts into effect."

In the case referred to, the president laid it down, that, "In England, the law is a fence round every man's ground; and trespass may be maintained for passing over the uninclosed ground of another against his will. Every man must take care to keep his cattle from going on the land of another. In this country our circumstances have led us to suppose that every man must take care of his land that the cattle of others go not on it.

"The act regulating fences gives a new and summary remedy for trespasses on lands, enclosed with fences of the description therein mentioned; but takes not away any remedy which existed before, and at the time of the passing that act. The person injured whose fences are of that description, may proceed under that act, or at common law. And if the fences are not of that description, the person injured, though he can have no remedy under that act, may have remedy at common law."

The decision of the president was correct in the main point of this case; for the defendant had thrown down the fence, and turned his cattle in. This took the case out of the act. In other words the act did not apply to it; it was a trespass at common law. Add. Rep. 259.

III Bl. Com. 264.

THE writ of mandamus in Pennsylvania, stands as it did at common law. The British statute 9 Anne, c. 20, being since the charter to William Penn, and not being introduced here, could not be reported by the judges as in force in this commonwealth. But the provisions of this statute are salutary, and deserve to be introduced by an act of the legislature; and perhaps could not be done in better terms substantially than in the words of the British statute. For it is true, as is said, in the marginal note to this statute, Ruffhead's edition, that it is clearly and correctly drawn. It was drawn by Mr. Justice Powell, 1 Black. 95.

So far as respects the mandamus, it is entitled an act for rendering the proceedings more speedy and effectual.

The first provision is as follows; "that where any writ of mandamus shall issue, such person, or persons who, by the laws, are required to make a return to such writ, shall make his, or their return to the first writ of mandamus.

Sec. II. And that as often as any writ of mandamus shall issue, and a return be made thereunto, it shall and may be law. ful to and for the person, or persons suing or prosecuting such writ of mandamus, to plead to, or traverse all or any the material facts contained within the said return; to which the person or persons making such return, shall reply, take issue, or demur and such further proceedings, and in such manner shall be had therein for the determination thereof as might have been had if the person, or persons suing such writ had brought his, or their action on the case for a false return, and if any issue shall be joined on such proceedings, the person, or persons suing such writ, shall and may try the cause 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, judg ment 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 damages and costs to be levied as in other cases; 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 judged insufficient; and in case judgment shall be given for the person, or persons making such return to such writ, he, or they, shall recover his, or their costs of suit to be levied in manner aforesaid.

Sec. III. Provided always that if any damages shall be recovered by 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 in any wise notwithstanding.

Sec. IV. That it shall and may be lawful for the courts respectively, to allow to such person, or persons respectively to whom any writ of mandamus shall be directed, or to the person, or persons who shall sue or prosecute the same, such convenient time respectively to make a return, plead, reply, rejoin or demur as to the said courts respectively shall seem just and reasonable.

Sec. V. That this act shall be extended to cases of the like nature with those contemplated by the statute of the 9, Anne, c. 20. which British statute would not seem to have been introduced here, but which as referring the trial of facts to a jury, is consonant with the spirit of our constitution, and ought to be adopted.

The above is the substance, and in the words of a bill which I would suggest to the legislature.

By the same statute 9 Anne, c. 20. It is provided in the case of a proceeding by information in the nature of a writ de quo warranto.

"That in case any person or persons shall usurp or intrude into, or unlawfully hold and execute any office or franchise to which that statute has a reference, it shall and may be lawful to and for the proper officer in each of the respecfive courts, with the leave of the said courts respectively, to

exhibit one or more information or informations in the nature of a quo warranto, at the relation of any person or persons desiring to sue, or prosecute the same, and who shall be mentioned in such information, or informations, to the 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 theirrespective 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, in any wise notwithstanding.

"And in case any person, or persons, against whom any information, or informations in the nature of a quo warranto, shall, in any of the said cases, be exhibited in any of the said courts, shall be found, or adjudged guilty of an usurpation, or intrusion into, or unlawfully holding and executing any of the said offices, or franchises, it shall and may be lawful to and for the said courts respectively, as well to give judgment of ouster against such person, or persons, of and from any of the said offices, or franchises, as to fine such person, or persons respectively, for his or their usurping, intruding into, or unlawfully holding and exercising any of

« PreviousContinue »