State v. Wil. Bridge Company , 3 Del. 540 ( 1842 )

The court at the last term, (ante 312,) issued a writ of mandamus, commanding the Wilmington Bridge Company to make their bridge in conformity with the charter, or show cause, c. The respondents made return to this writ that the bridge had been made conformably with the charter. The Attorney-general traversed this return; andMr. Wales now moved to strike out the traverse, on the ground that the return was conclusive and not traversable, and that the Attorney-general could only have remedy by an action for a false return. He cited Bac. Ab. 520, tit. Mandamus K.; 1 Harr. Johns, 551; 3 Am. Dig. 398.

Gilpin, Attorney-general. — The court sustained its right to proceed by mandamus in this case, and issued the first writ of mandamus, to which there has been a return, and the question now is, how we shall next proceed; shall the State be permitted to traverse the return, or must it be put to an action for a false return. The traverse on a return to a mandamus is given by Stat. 9 Ann,ch. 20, which was passed long before the jurisdiction was given to this court or the old Supreme Court; and I contend that theStat. 9 Ann, is adopted for this purpose to govern the proceedings in that jurisdiction, which was given to this courtas the Court of King's Bench had it. I know no reason to assign for the adoption of an old statute, except that it is applicable to the subject matter, and was used at the time our courts were instituted. Many of the old English statutes have been so held to be extended to this State. I can conceive of many reasons why a private individual should be put to his action for a false return, when the State should be allowed the more direct mode of a traverse.

Mr. Wales. — We must take our rules of practice in cases of mandamus from the course of the common law. By the common law there can be no traverse to a full return, but it is to be taken to be true, or the party must bring his action for a false return. The right to traverse is given in England by the statute of Ann, which has not been considered as adopted in either of the neighboring States of Maryland or Pennsylvania; and which has never been considered as in force here. That statute gave a traverse only in certain cases, and I contend that, even if it was in force here, it does not apply to a case of this kind, but only to certain cases of admission to public offices,c. And there is reason why the matter should not be traversed, especially where the State is the informer, for it could not recover damages; but if any individual is aggrieved the remedy is open to him by an action against the company for a false return. (1 Harr. Johns. 551.)

The Court ordered the traverse to be stricken out; and gave judgment against the bridge company for costs.