[30]*30The following opinion was delivered by the Chancellor :
An objection was raised on the argument of this cause, to the affidavits and other papers of the relators on which the order for the mandamus was granted, as forming no part of the record in the court below. On the suggestion of one of the members of this court, and to prevent delay, the counsel for the defendants in error consented to waive the objection that those affidavits were not in fact incorporated into the record, reserving, however, the right to insist that they could not legally have been made a part of the record, and that the record was properly made up without incorporating them therein. On a careful examination of this question, I am satisfied these affidavits, &c. formed no part of the record, and could not legally have been taken into consideration by the supreme court in deciding this demurrer to the return of the defendants to the peremptory mandamus. We must therefore la)? them entirely out of the question here.
Some difficulty has occasionally arisen from confounding an alternative mandamus with an order to show cause in the nature of an alternative mandamus. Such a mistake arose in the case of The People v. The Delaware Common Pleas, 2 Wendell, 255. The modem practice is not to award. a mandamus in the first instance ; but to grant an order to show cause why a mandamus should not issue. In such cases the question is discussed upon the original papers on which the order was obtained and upon the opposing affidavits. If there is no dispute about the facts, and neither party wishes the case to be put in a situation to enable him to review the decision upon a writ of error, the court denies the application, or may award a peremptory mandamus in the first instance; in which case no formal .judgment is given, and no record is made up in the supreme court. A writ of error is by statute given upon a decision of that kind in the particular case of a contest between the state and individuals relative to water privileges on the canal. 1 R. S. 235, § 97. In other cases, however, if the facts on which the claim of the relator depends are in dispute, or the parties wish to bring the ease before the court of dernier resort, the supreme court awards an alternative mandamus, in which writ the relator sets forth [31]*31liis tide, or the tacts on which he claims a right to the relief sought by his application, and the defendant is required to do the particular act, or'show why he has not done it. If- the writ is defective, either in form or substance, the defendant may move to quash it. The King v. The Bishop of Oxford, 7 East, 345. The People v. Judges of Westchester, 4 Cowen's R. 73. If the writ is not quashed, the defendant must make a return thereto, unless he thinks proper to put an end to the controversy by doing the act required. If he makes a return he must either deny the facts stated in the writ on which the claim of the relator is founded, or must state other facts, sufficient in law to defeat the relators’ claim. Rex v. The Corporation of Dublin, Batty's R. 628. In the case of The King v. The Mayor of York, 5 Term R. 74, Lord Kenyon and Justice Buller said it was too late to take any objection to the writ, after a return thereto. But in this they were clearly wrong, if they intended to apply their remarks to defects of substance; All the authorities, both before and since that decision, show that any defect in substance in the writ, as a want of sufficient title in the relator to the relief sought, may be taken advantage of at any time before the peremptory mandamus is awarded. In the case of The King v. The City of Chester, Holt's R. 438, the court considered the return insufficient and contradictory ; but they quashed the writ because that was bad also. In Rex v. The College of Physicians, 5 Burr. Rep. 2740, after a return had been made to the writ, the mandamus was quashed because the foundation of the relators’ claim, or private statute, was not sufficiently set forth therein. The relators in that case afterwards applied for and obtained another writ in which the foundation of their claim was stated in extensor and upon a return to this last writ the case was finally decided. So in the recent case of The King v. The Margate Pier Company, 3 Bam. & Ald. 221, the counsel for the relator admitted that the relators’ title was not set out with sufficient certainty in the writ, but as a return thereto had been made he insisted that the objection came too late. He relied also' upon the authority of The King v. The Mayor of York, to sustain that position. But Abbot, Ch. J. decided it was not too [32]*32late to take an objection to the writ; that if the material facts on which the relator founded his claim were not stated in the writ it would deprive the defendant of the power of traversing them; for the defendants were only to answer what was alleged in the writ.
Previous to the statute of 9 Ann, ch. 20, for rendering proceedings on writs of mandamus, &c. more effectual, 1 Evans’ Stat. 176, the defendant was liolden to great strictness in his return to the writ, as the relator had no remedy but by a suit for a false return. Such is now the law in England in cases not coming within the statute. Our statute is general, and gives the same remedy, by traverse, plea, or demurrer to the return to an alternative mandamus, in all cases. After the passing of the statute of Ann, the proceedings in cases coming within its provisions assumed the foim of ordinary suits. The mandamus set out the grounds of the claim of the relator to the relief sought, and answered to the declaration in other suits. To this the defendant made a return, either traversing the facts there stated, or admitting those facts and setting up-new mat ter in avoidance. To t he return the relator either demurred, took issue thereon, or pleaded other matters in answer, as in ordinary suits. 3 Black. Comm. 265.
The return to the alternative mandamus in this case is objectionable, in form at least, in not charging facts positively and distinctly ; in this respect it is very informal and defective ; instead of stating facts, the return merely sets out or refers 1.0 matters of evidence from which those facts are inferred. This is contrary to every principle of good pleading and if the writ in this case had shown a valid title in the relators, I should think the demurrer to the return well taken. But here another well settled principle of pleading applies to the case under consideration. Although the particular pleading demurred to is bad, either in form or substance, yet if some previous pleading is defective in substance, judgment must be given against the party who has committed the first fault. Upon referring to the mandamus, as set out in the record, it shows no right in the relators whatever to the money which the writ commands these defendants to pay. Perhaps it was sufficient in this case, in the writ, to refer to the order and as[33]*33signment annexed to the affidavits on file, to ascertain what the defendants were required to pay; but the facts showing why they ought to pay that sum, should appear in the writ, clearly and distinctly ; so that the facts there alleged might be admitted, or traversed. 6 Mod. R. 310. 7 East, 345. 5 Burr. 2742.
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[30]*30The following opinion was delivered by the Chancellor :
An objection was raised on the argument of this cause, to the affidavits and other papers of the relators on which the order for the mandamus was granted, as forming no part of the record in the court below. On the suggestion of one of the members of this court, and to prevent delay, the counsel for the defendants in error consented to waive the objection that those affidavits were not in fact incorporated into the record, reserving, however, the right to insist that they could not legally have been made a part of the record, and that the record was properly made up without incorporating them therein. On a careful examination of this question, I am satisfied these affidavits, &c. formed no part of the record, and could not legally have been taken into consideration by the supreme court in deciding this demurrer to the return of the defendants to the peremptory mandamus. We must therefore la)? them entirely out of the question here.
Some difficulty has occasionally arisen from confounding an alternative mandamus with an order to show cause in the nature of an alternative mandamus. Such a mistake arose in the case of The People v. The Delaware Common Pleas, 2 Wendell, 255. The modem practice is not to award. a mandamus in the first instance ; but to grant an order to show cause why a mandamus should not issue. In such cases the question is discussed upon the original papers on which the order was obtained and upon the opposing affidavits. If there is no dispute about the facts, and neither party wishes the case to be put in a situation to enable him to review the decision upon a writ of error, the court denies the application, or may award a peremptory mandamus in the first instance; in which case no formal .judgment is given, and no record is made up in the supreme court. A writ of error is by statute given upon a decision of that kind in the particular case of a contest between the state and individuals relative to water privileges on the canal. 1 R. S. 235, § 97. In other cases, however, if the facts on which the claim of the relator depends are in dispute, or the parties wish to bring the ease before the court of dernier resort, the supreme court awards an alternative mandamus, in which writ the relator sets forth [31]*31liis tide, or the tacts on which he claims a right to the relief sought by his application, and the defendant is required to do the particular act, or'show why he has not done it. If- the writ is defective, either in form or substance, the defendant may move to quash it. The King v. The Bishop of Oxford, 7 East, 345. The People v. Judges of Westchester, 4 Cowen's R. 73. If the writ is not quashed, the defendant must make a return thereto, unless he thinks proper to put an end to the controversy by doing the act required. If he makes a return he must either deny the facts stated in the writ on which the claim of the relator is founded, or must state other facts, sufficient in law to defeat the relators’ claim. Rex v. The Corporation of Dublin, Batty's R. 628. In the case of The King v. The Mayor of York, 5 Term R. 74, Lord Kenyon and Justice Buller said it was too late to take any objection to the writ, after a return thereto. But in this they were clearly wrong, if they intended to apply their remarks to defects of substance; All the authorities, both before and since that decision, show that any defect in substance in the writ, as a want of sufficient title in the relator to the relief sought, may be taken advantage of at any time before the peremptory mandamus is awarded. In the case of The King v. The City of Chester, Holt's R. 438, the court considered the return insufficient and contradictory ; but they quashed the writ because that was bad also. In Rex v. The College of Physicians, 5 Burr. Rep. 2740, after a return had been made to the writ, the mandamus was quashed because the foundation of the relators’ claim, or private statute, was not sufficiently set forth therein. The relators in that case afterwards applied for and obtained another writ in which the foundation of their claim was stated in extensor and upon a return to this last writ the case was finally decided. So in the recent case of The King v. The Margate Pier Company, 3 Bam. & Ald. 221, the counsel for the relator admitted that the relators’ title was not set out with sufficient certainty in the writ, but as a return thereto had been made he insisted that the objection came too late. He relied also' upon the authority of The King v. The Mayor of York, to sustain that position. But Abbot, Ch. J. decided it was not too [32]*32late to take an objection to the writ; that if the material facts on which the relator founded his claim were not stated in the writ it would deprive the defendant of the power of traversing them; for the defendants were only to answer what was alleged in the writ.
Previous to the statute of 9 Ann, ch. 20, for rendering proceedings on writs of mandamus, &c. more effectual, 1 Evans’ Stat. 176, the defendant was liolden to great strictness in his return to the writ, as the relator had no remedy but by a suit for a false return. Such is now the law in England in cases not coming within the statute. Our statute is general, and gives the same remedy, by traverse, plea, or demurrer to the return to an alternative mandamus, in all cases. After the passing of the statute of Ann, the proceedings in cases coming within its provisions assumed the foim of ordinary suits. The mandamus set out the grounds of the claim of the relator to the relief sought, and answered to the declaration in other suits. To this the defendant made a return, either traversing the facts there stated, or admitting those facts and setting up-new mat ter in avoidance. To t he return the relator either demurred, took issue thereon, or pleaded other matters in answer, as in ordinary suits. 3 Black. Comm. 265.
The return to the alternative mandamus in this case is objectionable, in form at least, in not charging facts positively and distinctly ; in this respect it is very informal and defective ; instead of stating facts, the return merely sets out or refers 1.0 matters of evidence from which those facts are inferred. This is contrary to every principle of good pleading and if the writ in this case had shown a valid title in the relators, I should think the demurrer to the return well taken. But here another well settled principle of pleading applies to the case under consideration. Although the particular pleading demurred to is bad, either in form or substance, yet if some previous pleading is defective in substance, judgment must be given against the party who has committed the first fault. Upon referring to the mandamus, as set out in the record, it shows no right in the relators whatever to the money which the writ commands these defendants to pay. Perhaps it was sufficient in this case, in the writ, to refer to the order and as[33]*33signment annexed to the affidavits on file, to ascertain what the defendants were required to pay; but the facts showing why they ought to pay that sum, should appear in the writ, clearly and distinctly ; so that the facts there alleged might be admitted, or traversed. 6 Mod. R. 310. 7 East, 345. 5 Burr. 2742. It may sometimes be allowable to refer to extrinsic facts to ascertain precisely what is claimed in a suit; but the reasons why it is claimed must always appear upon the record, to enable the court to judge of their validity. As the mandamus was defective in substance, I am satisfied that judgment was properly given for the defendants on the demurrer to the return.
The defendants in error have, however, expressed a willingness to waive all questions of mere form, and to have this cause decided on its merits, provided they are not tobe met with formal objections on the other side ; I shall therefore proceed to consider the case upon its merits, on the facts as they appear from the affidavits and papers, upon both sides, and as upon an order to show cause why a mandamus should not be granted. It was in this manner, as I understand from the opinion annexed to the case, that the cause was examined and decided in the supreme court.
The Chancellor (hen proceeded to examine the case on its merits, and came to the conclusion that the judgment of the supreme court ought to be affirmed ; and the court being unanimously of opinion that the judgment of the supreme court ought to be affirmed, it was accordingly affirmed.
This cause was argued in the autumn of 1831, and decided in the winter following.