
    Samuel Howard versus Joshua Gage.
    Writs of mandamus to admit or restore a person to an office, are within the jurisdiction of this Court.
    The proceedings upon such writs are according to the course of the common law, the English statutes regulating them not having been adopted in this state.
    The cases, therefore, in which such writs, for the purposes above mentioned, are an adequate remedy, seem to be, where an office is holden for more than a year, or where the return involves only a question of law, so that, the fact being admitted, a peremptory mandamus ought to go.
    Br the statute of 1785, c. 76, a county treasurer was to be chosen annually for each county, by the major part of * the votes of such of the inhabitants as are qualified [ * 463 J voters for representatives, the record of the votes in each town to be certified to the Court of Sessions, who were to declare the result of the election. And if any person had a majority of the votes, the court was to declare him duly chosen ; and he accepting, taking the oath of office, and giving bond with sureties, was to hold the office for a year, and until another person was legally chosen and qualified to take the office. If there was no choice by the inhabitants the Sessions were to appoint a county treasurer by a ballot of tht justices, to hold the office during the year, and until another was chosen.
    By the statute of 1809, c. 17, the Court of Common Pleas was substituted for the Court of Sessions. At the last term of the Common Pleas holden for this county, the votes for a county treasurer were certified to the justices of that court; and they declared that Joshua Gage was duly elected county treasurer, who accepted the office, and was qualified as the law requires.
    
      Samuel Howard, the former treasurer, and also a candidate for the office at the last election, now moved this Court for a rule on the justices of the Common Pleas, and on the said Joshua Gage, to show cause why a writ of mandamus should not go to admit the said Howard, to the office of county treasurer for the present year, as having been duly elected.
    The rule was1 granted, and, on arguing it, the said justices, as well as Gage, insisted that, from the record of the votes certified, the said Gage was duly elected. The validity of the election was the principal question between the parties; and it appeared to depend on the records of several towns, as certified to the Court.
    After heaving counsel on each side, the Court declined to grant a mandamus. The chief justice observed, that the Court were well satisfied that the granting of such writs in proper cases, as well to admit a man to an office to which he had been lawfully chosen, as to restore a man to an office from which he had been unlawfully removed, was within * their jurisdiction; but [*464 1 that the remedy was inadequate, when the officer was annually elected, from the nature of the proceedings on writs of mandamus in this Court, which was according to the course of the common law ; none of the English statutes regulating these proceedings having been adopted in this state.
    
      If the Court were to grant the writ in this case, solemnly to try the validity of this election, the command to the justices of the Common Pleas would be conditional, to admit Howard to the office of county treasurer, or to show cause why they did not. From the cause which has been shown in arguing the rule, there is little doubt that the justices would — and certainly they might — return, that they could not obey the writ, because that Howard was not duly elected to that office. This return, if true, would assign a sufficient reason for not obeying the writ; and the truth of it could not be inquired into by the Court, either on affidavit or by a jury.
    But the Court could not grant a peremptory mandamus, until the return was falsified. And if it might be granted after the return was falsified by verdict in an action by Howard against the justices, yet such verdict could not in some counties, and probably would not in any county, be found until after the expiration of the year, for which the party complaining was chosen.
    The cases, therefore, in which the writ of mandamus may be an adequate remedy, in admitting or restoring to office seem to be where the office is holden for a longer term than a year, or where the return to the writ will involve merely a question of law, so that, admitting the facts to be true, a peremptory mandamus ought to go. 
    
    
      Wilde for the rule.
    
      The solicitor-general and Weston against the rule.
    
      
       [There is no such rule as forbids the granting of a mandamus where, possibly, it ma not afford an effectual remedy. — Ed.] Vide Commonwealth vs. Athearn, 3 Mass. Rep. 28.
    
   The Court

gave no opinion of the legality of the election, considering it as unnecessary on this rule; but on the ground stated by the chief justice, they ordered the rule to be discharged.  