1767. WRIGHT NOT duly ELECTED a freeman of the said borough, as in and by the said writ is supposed: and he further certifies and returns, that the said Joseph Wright NEVER was APPROVED of by the said Earl of Carlisle or any other Lord FAWCETT. of the said manor and borough of Morpeth, to be a free burgess or freeman of the said borough. And for THESE reasons, he says he has not sworn and admitted or caused to be sworn and admitted the said Joseph Wright into the said place and office of one of the freemen of the said borough, &c.; neither has he administered or caused to be administered to the said Joseph Wright all the oaths which are in such case usually administered and taken, as by the writ is commanded; nor can nor ought he so to do. *. V. ante, p. 127. [ 2044 ] Mr. Walker, on behalf of the prosecuto, objected to this return, "that it was DOUBLE, and therefore bad.” A double plea could not be admitted, even in a civil cause, before the Statute of 4 & 5 Ann. c. 16. § 4. and that act does not extend to any other than civil cases. He then entered into the reasons of it; and argued upon them at large. Mr. Wallace, contra, said the steward was required to admit and swear him; OR to shew cause why he does not. He shews two good causes; which he certainly may do. The practice is so; as appears by the case of Green ́ versus Mayor of Durham.* And in the case of Ward versus Mayor of Newcastle (very lately), separate issues were found; and the prosecutor of the writ was not admitted. In 2 Lord Raym. 1244. 5 Ann. Regina versus Mayor and Aldermen of Norwich, upon a mandamus to admit and swear one Dunch an alderman of Norwich; HOLT, Chief Justice said-" that a return may contain as many causes as the persons that make the return please." In "1 Salk. 436. S. C. it is expressly said, "that the Court' agreed that several causes may be returned." Mr. Walker's reasoning applies to pleading only. Bat different facts may be replied in one replication. Mr. Walker replied, that there is no difference between answers to the king, and answers to a party; and, by common law, a double answer cannot be given to a party. Therefore, neither can it to the king. Here we suggest only a single fact, viz. "that he was "duly elected." This double answer puts it upon the Crown to shew that both the answers are false. If they can give two answers, they may give two thousand; and it can not be supposed that the Crown should be put to shew them all to be bad. Besides, this would also distract the attention of the Court. In Green's case, no exception was taken to the form of the return; they took traverses.* Dunch's case was not argued upon that point. In that case, Mr. Justice POWELL said, "if the return be not contradictory, it is "very inveigling; the Court cannot tell what you rely upon."+ 66 The answer ought to be a SIMPLE answer; though it may include several facts. The Statute of 9 Ann. c. 20. does not justify a double return, though it allows several traverses. Lord MANSFIELD-I see no doubt upon this case. Here is a duplicity in the writ; which requires a duplicity in the return. The writ states "that he was duly elected; "and that he thereby became intitled to be sworn." The answer is, "that he was not duly elected," and further, "that he was not intitled to be sworn in; because he has "not been previously approved of by the Lord of the "Manor; which is essentially necessary, according to a custom which the steward sets forth, to be done before "he can be admitted and sworn." "แ Mr. Walker's argument would strip him of one half of his case, he has Two decisive answers; and why should he be obliged to give up one of them? he is commanded to admit and swear him; or shew cause to the contrary. And he shews a good reason for not admitting and swearing him. He says, this person was neither elected nor approved; both which qualifications were essentially ne cessary. Where a man has two conclusive answers, it is contrary to every principle of justice to confine him to one of them alone; 'tis a rule which never should have been received; and the legislature have set it right, by opening the defence, and admitting the defendant to plead several pleas.‡ + V. 4 & 5. The prosecutor cannot be surprized; for, both causes Ann.c. 16. $4. are specified to him, in the return. And as to the distraction of the attention of the Court or Jury-This is as much an objection to taking several issues on mandamuses. And the authorities, as well as the reason of the thing, are on this side of the question. Mr. Justice YATES-Several consistent causes may be returned to a mandamus; the number of them makes no difference. Mandamuses are distinguishable from the case of civil actions. Civil actions concern private rights between party and party; in civil actions, nothing is in question, wherein the public is concerned. And the defendant must, in these private cases, know his own defence, and upon what foot he is to put it. VOL. IV. I [ 2015 ] 1767. WRIGHT V. FAWCETT. [2046] But in a mandamus relating to a public office, the question is, "whether the person ought or ought not to be ad"mitted to the office." And if he can be shewn to be an usurper, the Court will not admit him; for they ought not to admit an usurper; but if he has a right, he ought to be admitted. The question here is," whether upon the whole matter, "he ought to be admitted." The steward is, by this writ, commanded either to admit, or to shew cause why he does not. And he may shew one or more causes; provided they be consistent. Therefore this is distinguishable from pleas to civil actions. Mr. Justice ASTON The return is good, where it answers the supposal of the writ. This writ charges the steward criminally. It charges him with refusing to admit and swear this Mr. Wright, well knowing the premises, but having no regard for the duty of his office in that behalf. So that the steward is charged as criminal in that he did not admit and swear him; and being so charged with a breach of his duty, he may return as many consistent answers as he will. And this answer is consistent; for it directly follows the supposal of the writ. Mr. Justice HEWITT-This being a matter of a public nature differs from private civil causes. If the steward might not return several causes, where there really are several good objections to the prosecutor of the mandamus, an usurper might be admitted into a public office, which he has no right to. There is no authority to warrant the objection; the authorities are on the other side. Therefore he concurred in holding the return to be sufficient. Per Cur.' unanimously. RETURN ALLOWED. Thursday 14th Indictment REX versus JoHN TUCKER and Eleven Others. THE HE defendant and eleven others had been indicted in the same indictment, which was for unlawfully exercising the trade or mystery of tanning leather contrary to the statute of 1 Jac. 1. c. 22. § 5. concerning cutting and tanning leather. On Thursday 5th Feb. last, it was objected by Mr. Ashurst, who moved on behalf of the defendants, to quash the indictment-1st. That this is not an indictable offence; for the prosecutor ought to pursue the penulty annexed to the offence, which is specified in one and the same clause of the act; viz. forfeiture of the leather tanned, or the just value thereof. And, 2dly, That several defendants can not be joined in one and the same indictment. A rule was then made to shew cause; and it was now made absolute. Mr. Wallace, for the prosecutor said, he thought he could support the indictment, upon the first objection; but he could not upon the second. Whereupon RULE made ABSOLUTE (for quashing the indictment.) WRIGHT and RATHBONE, Assignees of RICHARD SCOTT, That Lewis Fontaine, a merchant in London, on 4th June, shipped the goods mentioned in the declaration on board a ship called The Two Friends, whereof William Spencer was master, then in the port of London, and bouud upon a voyage to Liverpool; and that the said William Spencer thereupon signed two bills of lading, of the same tenor and date as follows Shipped by the Grace of God, in good order and well conditioned, by Lewis Fontaine, in and upon the good ship called The Friends, whereof is master, under GoD, for this present voyage, William Spencer, and now riding at anchor in the river of Thames, and by God's Grace bound for Liverpool, to say, 102 quarters, 4 bushels of wheat, in 164 sacks; and 217 quarters 4 bushels of beans, in 348 sacks, 20 matts, being marked and numbered as in the margin; and are to be delivered in the like good order and well-conditioned at the aforesaid port of Liverpool, the danger of the sea only excepted, unto order or to assigns; he or they paying freight for the said goods as per charter Qrs. Bush. 102 217 320 4 Wheat, in 164 Sacks. 4 Beans, in 348 Ditto. Quarters 512 Sacks (a) This Case was cited, 2 Durn. 74, and Buller. I said that in his opinion it is one of the best Cases in the Law on mercantile subjects; and vide page 73, where he calls Lord Mansfield the founder of the Commercial Law of this Country. .1767. WRIGHT party. In witness whereof, the master or purser of the said ship hath affirmed to two bills of lading, all of this tenor and date; the one of which bills being accomplished, the other to stand void. And so GoD send the good ship CAMPBELL. to her desired port in safety: Amen.· V. WILLIAM SPENCER. Dated in London, 4th June 1766, That Mr. Fontaine, on the same day, indorsed one of the bills of lading to Richard Swanwick, who was then a merchant in Liverpool, as follows: viz. " Deliver the "within to Mr. Richard Swanwick or order. Lewis Fon"taine;" and, by the next post, sent the bill of lading, so indorsed, to Mr. Swanwick at Liverpool: which was received by him. That on 24 July following, Swanwick, being arrested by the Sheriff of Lancashire for the sum of £400. at the suit of Messrs. Guinand and Hankey, applied to Richard Scott, who was also a merchant at Liverpool, with whom Swanwick had had dealings in giving out and taking credit upon notes and bills of exchange, and to whom Swanwick was then indebted (upon balance) in the sum of £800. or upwards, to become bail for him to the Sheriff; which Scott refused doing, unless Swanwick would give him a security to indemnify him against the consequences of becoming bail, and also a security for his debt. Upon this, Swanwick produced the bill of lading which he had received indorsed from Fontaine, and offered to indorse it [ 2048] to Scott; assuring Scott "that the goods comprized in it, were his own property, and that he had paid for them;" (which was not truc.) Upon this, it was agreed between Swanwick and Scot, that Scoll should become bail to the Sheriff; that Swanwick should indorse the bill of lading to Scott; and that he should sell the goods, and should out of the produce be indemnified; and what remained should be applied towards satisfaction of the debt due from Swanwick to Scott. And upon this, Scott became bail ; and Swanwick indorsed the bill of lading to Scott, as follows: viz." deliver the within to Mr. Richard * Swan"wick or order; value received. Richard Swanwick" and delivered the same to Scott. This should be Scott, I suppose. That, the day following, Fontaine being come down from London, applied to Scott concerning the bill of lading which had been so indorsed; and informed him "that the goods comprized in the bill of lading had been "consigned by him to Swanwick as a factor only, to be "disposed of for him (Fontaine,") which was the truth; though Swanwick had represented himself to Scott, as the |