Hawkins v. More , 3 Ark. 345 ( 1841 )

Dickinson, J.,

delivered the opinion of the court:

The order of the Court was, that “ he certify the matter of the settlement of the administration of the estate of Alexander Burton, deceased, with the will annexed, to (he Governor of this State, as a case pending for adjudication in said court of probate, in which he is alleged to have been of counsel for the. said administration, on the part of the administrator thereof; and that he desist from proceeding to adjudicate upon the matter of the said estate; or that he show cause,” See. The command of the writ is, “that you utterly desist from any further proceeding against said Hawkins upon said citation, and from any further proceedings in regard to the matter of the settlement of said estate.” A return was made, to which the plaintiff filed his plea. The defendant then moved to quash the writ, because it does not conform to the order of the Court upon which it issued. If the writ is defective in substance, the motion may be sustained. Rex vs. Bishop of Oxford, 7 East., 345; The People vs. The Judges of Westchester, 4 Cowen, 73. The only question is, whether the motion can be made after a return. In the case of The King vs. the Mayor of York, 5 T. R., 74, Lord Kenyon and Justice Bulles, said, “It was too late to take objection to the writ after a return thereto.” This is, however, the only case which we have succeeded in finding, that limits the right to object previous to the return. All the other authorities show, that the motion will lie for any defect in substance after the return has been made. And in the case of T e King vs. The City of Chester, Holt R., 438, the return was considered insufficient, and the writ, being found bad, was quashed. See, also, in the case of The King vs. The College of Physicians, 5 Burr., 2740, the mandamus was quashed after the return was made. The same decision was made in the case of The King vs. The Margate Pier Company, 3 B. & A., 221. And Chancellor Walworth held the same doctrine,' in the case of The Commercial Bank of Albany vs. Canal Commissioners, 10 Wend. R,, 25. And these decisions are, 'in our opinión, sustained by reason and justice; for it is presumed that all the material facts on which the relator founded his claim, are set out in the writ, in accordance with the order of the Court by which it is issued.

It is from the writ only that he can learn the commands of the Court, and what he is required to do. Great strictness is at all times required in the issuing of this writ. It must not be enlarged, nor can it be limited within narrower bounds than the Court directs. A variance in substance, changing its character as to the act required to be done, will be fatal. The writ shows the grounds of the complaint. The command to desist from proceeding in the settlement of' the administration, is one tiling; and rights inserted in the writ to desist from further proceeding upon the citation, is another, and wholly different and distinct, for which the Court made no order. If the writ can ex'end at all beyond the order granting it, so as to include other matters, the right involved could, at the will of the party, be made to depend upon a state of facts never presented to- or contemplated by the Court, and upon which, if exhibited, the writ might have been refused, and the original grounds upon which the Court acted in awarding it, &c., wholly lost sight of, and a determination had upon a collateral question, different from the one upon which the Court passed in awarding the writ. So, if it can be entered, upon the same rule, the writ might be more limited in its terms, and in effect thereby not present the whole subject matter as intended to be acted upon by the Court, who is presumed, from a view of the whole state of facts, to have framed the order, and directed the performance of an act, in such a manner as may best effect the object in view, and answer the purposes of justice. It is for the plaintiff to see that his writ is properly issued, and that it conforms to the order of the Court. He cannot complain, if, when he departs from the authority under which he acts, his writ should be quashed and set aside. The writ, in this case, was clearly wrong in commanding the defendant to desist from further proceeding upon the citation, and must therefore be quashed, with costs.