
    Otis Taylor, Petitioner, versus William Henry.
    Upon the application of a person claiming to be clerk of a town in Hampden county for a mandamus to the former clerk, it was held, that a rule to show cause why it should not issue might be granted by this Court to be heard in any county, but that the writ of mandamus must be returnable in Hampden.
    A rule to show cause is not such a writ or process as is required by St. 1782, c. 9, § 3, to have a teste, and to be under the seal of the Court.
    Where the record of a town meeting, held on the 1st of March, did not state that it was adjourned to tne 2d, it was held, that there was not legal proof of the election of a person chosen as town clerk on the 2d, and that such person could not amend the record of the first meeting, and that parol evidence of an adjournment was in admissible.
    At the nisi prius term of this Court holden in the county of Hampden on the first Tuesday of September 1824, Taylor presented a petition,' sworn to before a justice of the peace, in which he stated, that at a legal town meeting of the inhabitants of the town of Chester, in that county, holden for the choice of town officers on the 2d day of March 1824, by adjournment from the 1st day of the same month, he was duly chosen town clerk, and was during the meeting, and in presence thereof, duly sworn into office, and as such town clerk then and there received the warrant for that meeting and the last record book pertaining to that office, and that during the residue of the meeting, and ever since, he had officiated as such town clerk and still held the office ; and that Henry, the former. town clerk, being present at the meeting on the 2d of March, upon Taylor’s being so elected and sworn, voluntarily gave up to him the record book before mentioned ; but that there were in Henry’s possession a jury box, several books of records, the former warrants for town meetings, documents and vouchers pertaining to the office, and also the valuation and assessment lists lodged in the office by the assessors for the time being, which Henry unlawfully detained ; that he had on the 22d of March, and on the 3d of April, requested Henry to deliver them to him, but that Henry refused so to do ; wherefore he prayed that a writ of mandamus might issue, commanding Henry to deliver over to him the jury box, and other things before mentioned, pertaining to the office of the town clerk.
    
      Upon this petition it was ordered, that a rule of court should be served on Henry by leaving a copy of the petition with him, or at his last and usual place of abode, fourteen days before the term of this Court to be holden in the county of Hampshire for the counties of Hampshire, Franklin and Hampden, that he might appear and show cause why he refused to deliver up the jury box &c., or why a writ of mandamus should not be issued against him, commanding him to deliver them up to Taylor.
    
      Bates and Johnson now moved that the rule should be discharged ; and they contended, 1. that this Court, sitting in Hampshire as a court of law for the three counties of Hampshire, Franklin and Hampden, have not cognizance of this proceeding in the first instance ; and they referred to St, 1782, c. 9, § 1, 2 ; 1804, c. 105, § 5, 6 ; 1817, c. 63 ; 1820, c. 14 ; 1815, c. 107, § 3. It is manifest from these statutes, that the justice of this Court sitting in Hampden might have issued a mandamus, and consequently that the Court here have at this stage of the proceeding no jurisdiction over the case.
    2. This process is void, it not being under the seal of the Court and not having any teste ; which forms are required by St. 1782, c. 9, § 3, in all writs and processes of this Court, except in the case of a subpoena ad testificandum. [Parker C. J. This is not a writ' or process within the meaning of that statute. It is merely a rule to show cause. The respondent has a right to come into court or not. If he does not, then a writ issues.]
    
      Bliss senior and E. H. Mills for the petitioner.
    This Court is the successor to the Supreme Court of Judicature, which by St. 11 Will. 3, c. 3, § 1, had jurisdiction of all matters as fully and amply as the Court of King’s Bench, and there is no reason for supposing that this power was limited by St. 1782, c. 9. We think it will be found that there is nothing limiting the King’s Bench or the Superior Ccurt, in the exercise of their power in regard to mandamus, to any county ; and from the nature of the thing it is important that this Court should have jurisdiction on this subject, while sitting in any county, in order that there may not be a failure of justice by delay. Rex v. Barker, 3 Burr. 1267.
    But that this Court sitting here have such jurisdiction, even though they may have it in no other county, will appear by an examination of St. 1804, c. 105, and the several statutes relating to these counties. It is the policy of the law that three or more justices of this Court should have all the jurisdiction which one has. In some cases they have more. [Wilde J. The counsel on the other side admit that if we were sitting in Hampden we should have jurisdiction.] They said that in St. 1804, c. 105, § 6, which provides that all matters, other than questions of law &c., may be heard at the nisi prius terms, the word may means must. The St. 1812, c. 31, § 1, provides that this Court shall be holden at Northampton, as well for the county of Hampden, as for the counties of Hampshire and Franklin, and shall have the same jurisdiction, power and authority for the trial of all actions &c., and to hear and determine all other matters and things arisen or which shall arise within the body of the county of Hampden, as if the same actions, matters and things had arisen within the body of the county of Hampshire. This statute has never been repealed as to this point. The St. 1815, c. 107, is the one on which the counsel on the other side rely, as abridging the jurisdiction of this Court while sitting at Northampton. We agree that one judge has jurisdiction in cases of mandamus, otherwise there might be a failure of justice, as the law terms are held so seldom; but generally such cases involve questions of law, and the full bench likewise ought to have original jurisdiction in them. The statute of 1815, § 3, is the one, if any, which takes away the jurisdiction given by St. 1812, c. 31, and we contend that the statute of 1815 makes provision only for the business then pending. It contains no express repealing clause, and the jurisdiction of this Court is not to be taken away by implication. In cases of certiorari, which are analogous to the present, a rule to show cause is often granted .n one county returnable in another.
    
      Bates in reply.
    This is a case between party and party involving questions of fact. The petitioner and respondent both live in the county of Hampden ; the transactions in question took place there, and it is a common law right of parties to have the facts tried there. The judge at nisi prius might have made us answer in Bristol, or any other county, as well as here. The statute of 1815 has reference to subsequent cases, as well as those which were then pending, and is conclusive. All the jurisdiction is referred by it to the nisi prius terms, except in cases which require three judges, and it is conceded that this is not one of those cases. I see not, if this Court sitting here have jurisdiction of this case, why they have not in any case. As to cases of certiorari., they require three judges.
    
      
       Tidd’s Pr 453 et seq
      
    
   Parker C. J.

said, in substance, that the Court were ol opinion, that a preliminary question of this kind might be heard by the Court in any county ; as in cases of applications for writs of certiorari and petitions for new trials We all recollect instances where it has been done in those cases ; some of which are reported in our books. In Commonwealth v. Union Ins. Co. in Newburyport, 5 Mass. R. 230, a rule was granted in Suffolk returnable in Essex, to show cause, why an information in the nature of a quo warranto should not issue. And it is convenient that the practice should be so, considering the infrequency of the terms of this Court in any one county. Where prompt justice is required, delay may thus be avoided. But we are of opinion that a mandamus in the present case could not be re turned here ; we should have to order the clerk of Hampden to issue the writ returnable at the court to be held in that county, which would not be till after the next election of a town clerk. In a case therefore where prompt justice is required, this should seem to be a failure of justice

After this opinion was delivered, the counsel went into an argument upon the question, whether the petitioner would derive any advantage from a mandamus; and if he would, whether he was regularly chosen town clerk, and so entitled to apply for such writ.

On this last question the following extract from the town lecords was produced. “ At a legal meeting &c. on Monday, the first day of March, A. D. 1824 &c., the following persons were elected to office &c., viz. chose William Shepard moderator. At an adjourned meeting, March 2, 1824, chose Otis Taylor town clerk, and sworn. William Shepard, moderator. Attest, Otis Taylor, town clerk.” A witness also was called to prove that Taylor demanded of Henry the documents &c. belonging to the office of the town clerk.

Bates and Johnson. We say that Taylor was not chosen at a meeting held regularly by adjournment, and that it was not competent for a town clerk, chosen on the 2d day, to make any record of what was done before he was chosen. If we are at liberty to go behind this record, we can show that the meeting on the 1st day was not regularly holden.

Parker C. J. There seems to be a defect according to the records, a meeting being stated to have been holden on the 1st of March, and no adjournment of it oeing mentioned.

Bliss and Mills. There was a reguiar adjournment, and application was made to Henry to certify it. Taylor was legally chosen on the second day. He thought he had no right to enter on the records the adjournment of the preceding day. But the meeting on both days was only one meeting, and he may now certify the adjournment.

Wilde J. He may not have been present before he was chosen.

Bliss. The old clerk shall not take advantage of his own wrong in refusing to certify.

Wilde J.' It does not appear that it is his own wrong.

Bates. This record is objectionable in another respect, that the choice of a moderator on the first day is certified by Taylor.

Bliss and Mills. The original minutes were written by Henry, and were merely transcribed by Taylor into the book. The adjournment may be proved by parol evidence. In Bangs v. Snow, 1 Mass. R. 181, such evidence was admitted, to show that money was raised by a parish for a purpose not expressed in the parish records. Suppose a representarive should be chosen by a town and the town clerk should refuse to certify it, would not the house of representatives admit parol evidence of the fact ? The whole pro ceedings here are certified by the moderator, as well as by-Taylor.

Parker C. J., in giving the opinion of the Court, said in substance, that the petitioner, in order to obtain a mandamus.> must show that he was chosen town clerk. On the day preceding his supposed election there was a town meeting in Chester, and the proceedings of it are recorded by Taylor. But no adjournment of that meeting is recorded. We think that that fact must appear by the records. The record of the meeting on the 2d of March is merely that “at an adjourned meeting ” &c., without saying of what meeting it was an adjournment. It might have been of a meeting in February or any other time.

It is made a question, whether Taylor may not amend the record, so as to show that the meeting on the 2d of March was held by adjournment of the meeting of the day preceding. The objections to this are, that he was not town clerk on the first day, and that he had no control of the records and no official knowledge of what took place before his election. His record was made from the minutes of Henry, which contained no mention of an adjournment, so that they would not help him. It is said to be usual for the new clerk to record the proceedings of the meeting at which he is elected ; but if he may record the doings of a meeting the day before his election, it should seem that he might those of a meeting held six months before and continued by adjournment to the time of his election.

It is next contended, that parol evidence is admissible, but we do not find any case which authorizes the opinion that an adjournment may be proved by parol evidence. And it would be dangerous to admit such proof. Suppose a town to be very much divided ; it might be hard to decide, without polling, whether a meeting was adjourned or not, and we should have honest and intelligent men swearing to each side of the question. If a fact of this kind can be proved 0y parol evidence, it is difficult to see why the election of officers may not be proved in the same manner. This goes to the foundation of our system of civil society.

We are obliged to come to the conclusion, that there is no proof of a legal meeting on the second day, and that the petitioner is not town clerk.

Mills. We offered to prove by the moderator the legal organization of the meeting.

Parker C. J. We considered of that, but he is no more than any other witness.

Petition dismissed. 
      
      
        Manning v. Fifth Parish in Gloucester, 6 Pick. 6; Hartwell v. Littleton, 13 Pick. 229.
     
      
       See Commonwealth v. Athearn, 3 Mass. R. 287, per Parsons C. J.
     