#### SAMUEL TUCKER v. THE JUSTICES OF IREDELL.

The return of the defendants to an *alternative mandamus*will be taken as trn * unless its falsity is shown by the petitioner.

Where the return of the defendants is filed, which admits a material allegation set out in the petition, but avers new matter in avoidance, the issue, to avail the petitioner, in falsifying the return, should be taken on the new matter, and not on the admitted fact. Such an issue as the latter will be treated as immaterial.

Where a *mandamus*is asked for, to compel the Justices of a county to pay for the building of a bridge, and a verdict is rendered by a jury, finding that the bridge was not built according to the contract, the petitioner has no right to recover, in this form of action, the value of the bridge, during the time it had been used by the public.

Application for a *mandamus*to compel payment for building a bridge over the South Yadkin River, heard before his Honor Judge Caldwell, at Spring Term 1853, of Iredell Superior Court.

The petition was as follows:

“ To the honorable the Judge of the Superior Court of Law in and for the county of Iredell, State of North Carolina :

“ The petition of Samuel Tucker respectfully showeth to your Honor, that, at the November sessions, 1847, of the Court of Pleas and Quarter Sessions for the county aforesaid, the Justices thereof made an order, and caused the same to bo entered of record, appointing Henderson Forsyth, Enos Gaither *452and Alexander Bailey* Commissioners, to let and contract for the building of a bridge over the South Yadkin river, near where Belts’ bridge formerly stood.

“ Your petitioner further showeth that the said Commissioners, in the month of January, 1848, contracted with your p titioner for building said bridge, at the place designated, according to certain written specifications, describing and establishing, with great particularity, the kind of a bridge, the manner of building it, and the material to be used about the same ; that the said Commissioners required your petitioner to sign specifications, and the same were returned to, and are now on file in the office of the clerk of the County Court, and that, to secure the performance of the contract, your petitioner was required to and did execute a bond, with good security, in the sum of two thousand dollars, which said bond was delivered to the said Commissioners, for and in behalf of the county of Iredell, and returned to the said Court, and is now on file in the clerk’s office.

‘•And your petitioner further showeth that the said Henderson Forsyth, Enos Gaither and Alexander Bailey, in contracting with your petitioner, only acted for and in behalf of the county, and by virtue of tbeir appointment as Commissioners as aforesaid, of the County Court.

“ And he further showeth, that the said South Yadkin River at the place designated, is within the limits of Iredell county, and within the jurisdiction of the County Court.

“Your petitioner further showeth, that it was contracted by the Commissioners aforesaid, to pay your petitioner the sum of seven hundred and ninety-nine dollars, for building the bridge according to the said specifications.

“Your petitioner further showeth, that he soon’thereafter went to work, and employed a large number of hands, and, in as substantial and workmanlike manner, as the specifications would admit, built and completed a bridge, which, in every respect, your petitioner positively avers, corresponded to the specifications above mentioned; that, in all things, he perfoimcd his contract, and fol. *453lowed the said specifications as.his guide. Your petitioner further showeth to your Honor, that the said Commissioners, after viewing and examining the bridge after its completion, entirely .approved the same, and made their report to the November session, 1848, of the County Court, stating their examination and approval, and recommending that your petitioner be paid the sum of seven hundred and ninety-nine dollars, according to agreement, (which is filed as an exhibit.) That, upon the presentation of said report, and, according to its recommendation, the Justices of the Court, at the said November session, 1848, made an order, directing the county trustee to pay to your petitioner the sum of $799, for building the bridge as aforesaid contracted for, and completed by your petitioner, a copy of which order, marked B, is herewith submitted, as a part of this petition. Your petitioner further showeth to your Honor, that said bridge thereupon was opened to and used by the community as a county public bridge; and your petitioner applied to the county trustee for his pay; that said trustee deferred payment at the time for the want of the necessary county fimds wherewith to discharge the same. Your petitioner further showeth to your Honor, that, after said bridge had been used by the citizens of the county, and the public geneially, a part of said bridge fell down, not because of any deficiency in the execution of the work on the part of your petitioner, as he is fully convinced and satisfied, but entirely from the plan of the bridge itself, as prescribed in the said specifications, and your petitioner shows, that it is next to impossible to make a permanent bridgo on the plan proposed: for this one reason that the pillars, limit of common rough rock, without mortar or ccmeut, and bounded and built as specified, of only four feet base, and twenty feet high, and three feet at top, are not calculated to stand and support- a bridge ; that your petitioner has taken the opinion of an intolhgent eng’neer, upon the plan of the pillars and bridge, and he states, unequivocally, that such a structure could not. be expected to stand. And your petitioner shows to your Honor, that he faithfully and to the best of his ability, performed t,ho *454work specified by tbe county, and for which he and the Justices, by their Commissioners, contracted, and that he did not contract to insure the work to he permanent, and is in nowise responsible for defects in the original plan of the work. Your petitioner further showeth, that, after said bridge had fallen in part, the Justices, at the February Term, 1849, rescinded ther former order of payment, and hare instructed their County Trustee not to pay your petitioner. Your petitioner shows to your Honor, that he has repeatedly demanded his money, and sought to obtain it, but that his demands have been and still are met with positive refusal; that, having performed his contract, according to his written directions, and received an order for his money, he is now strictly entitled to receive, from the treasurer of the county, the sum of $799, with interest on the same, from the 17th November, 1848, until the same be paid; and as he can have no relief in the premises, save by the extraordinary process of mandamus, he shows that ho is entitled to the same; that he learns from the clerk of the County Court, and so shows to your Honor, that the following are the Justices of the Peace, in and for the county of Iredell, (setting them forth at large.)

“ Your petitioner therefore prays your Honor, that an *alternative mandamus*may issue to the aforesaid Justices, commanding them, that, unless they show good cause to the contrary, whenever thereto required by this honorable Court, they pay, or cause to be paid, by the officers of this county, the said sum of $7 9, with interest thereon, from the said 17th of November, 1848 ; that, upon their failure to show such cause, they be absolutely and peremptorily commanded by this honorable Court, to pay to the petitioner, the aforesaid sum of $799, with the interest thereon, as aforesaid.

*Osborne Guión*and *Boy den,*Attornies.

North Carolina, *\*

*Iredell County.*J

Samuel Tucker maketh oath, that the several matters of fact set forth in the foregoing petition, as of his own knowledge arc *455true, and those as not of his own knowledge, he believes to be tiue. Samuel Tucker.

(Sworn to before the Clerk of Superior Court.)

This petition was then entered upon the minute docket of the said Court, and the following proceedings had, viz :

Samuel Tuckek, *vs.*Thomas A. AllisoN, and others,

This petition coming on to be heard on the petition and affidavit of the petitioner, it is ordered by the Court, that, unless the defendants shall pay the sum of $799, and interest, as prayed for in the plaintiff’s petition, on or before the first day of January, 1852, that the Clerk of the Superior Court of Iredell county shall issue notices to the several defendants, to show cause, at the next term of this Court, wherefore a writ of *mandamus*shall not issue, as prayed for by the petitioner.

And at Spring Term, 1852, said suit appears on the trial docket, and the following proceedings are had: “Motion to quash disallowed, and defendants required to make a return.” From which order the defendants were allowed to appeal. No appeal bond to be filed, by consent.

In the Supreme Court, the judgment below was affirmed (13 Ired. Rep. 434;) which, being certified, an *alternative mandamus*issued, requiring the defendants to pay the petitioners the sum of $799, with interest, or show cause, and make return to the next term of the Court.

At the Fall Term, 1852, of our said Court, came the defendants and made return to the said petition of Samuel Tucker, as follows:

To the petition of Samuel Tucker, praying a *mandamus*against the justices of Iredell county, they the said justices make return, and for cause show respectfully, to this Honorable Court, that they, from the best of their knowledge and belief, in refusing the payment of the petitioner, as alleged in his petition, haye not acted in bad faith or unjustly to*456wards him, and do not withhold from him a debt which in good conscience he can demand, but they have acted with a sole regard to their public and official duty to the county, and from a desire to protect it from an unfounded and iniquitous claim. They say it is true, that at November Term, 1847, of their county Court, they made the order mentioned in the petition, and also, that the petitioner undertook a contract to build a bridge on the South Yadkin River, according to specifications in writing» (the substance of which is set forth below.)

They deny that the petitioner has built the said bridge in all things, according to his contract, and the said written specifications. They represent that from the best of their knowledge and belief, the petitioner built the said bridge with such gross negligence and wilful unskilfulness, that it is of no public utility whatever; that owing to the frail and insufficient construction of the work, one end of the bridge had crushed the abutment, upon which it was supported, before the petitioner had finished his work ; and in less than two months afterwards, the other end crushed the abutment upon which it was supported, and sunk down, and that since then, the greater part of the bridge has been carried off by the waters Of the stream.

These defendants show, that in the petitioner’s contract, it is specified that “the face wall of the abutment on the South side of the river was to be started in the bottom of the river, against a rock; to be four feet thick tapered up twenty feet high, to be three feet thick at the top for the cope; two side walls to be started, fifteen feet from outside to outside; to be three feet thick at bottom, tapered to two feet at top, and the space between the walls to be filled with rock and dirt to settle them ; and the abutment on the North side of the river is to start forty-eight feet in the river, and tobe constructed as the abutment of the South side.” And they represent, from the best of their information and belief, that the face walls and side walls of the abutments were not built as specified in the terms of the contract, but that stone, without regard to their fitness, in size and form, were so laid as fraudulently to present *457the face of a wall, when in truth, what represented walls were of unequal thickness, and of a single stone, and varying with the size of the stone; and instead of rock and dirt, the abutments were filled in with loose salid. These constructions st; rted in water, from foundations loosely placed in the mud and sand, instead of at the bottom of the river against the rock, and were reared on one side of the river to the height of twenty feet. These defendants represent, from the best of their information and belief, that these pretended walls, in many parts, did not exceed a foot in thickness, and were so frail as to be totally inadequate for *the*support of the bridge, and for this cause they crushed, and the bridge sank down, and was rendered impassable and useless. They further represent, from their information and belief, that the timbers used in the construction of the said bridge were not such as are specified in the terms of the contract; — - were not all of heart timber, but large portions of material pieces were white pine or sap wood; the defendants show that the petitioner, in the several particulars mentioned, as well as others, has violated the terms of his contract for building said bridge, and has no just demand for the payment of the stipulated price. The defendants show that the said bridge fell down and became useless from the deficiency of the execution of the work, by the petitioner, and that it was not because of any defect in the plan of said bridge as contained in said specifications. Defendants further show, that it is true, that two of the commissioners, appointed by them to make the contract for the building of said bridge, did represent to them in writing that said contract was completed according to agreement, but such representation was untrue. The petitioner and the said commissioners knew, at the time it was made, that it was untrue ; they were all fully aware that the bridge, in its construction, was deficient in the particulars, herein before alleged, and that it was of little or no use to the public. These defendants are informed, and believe, that the said commissioners, before they would agree to make the »aid fraudulent representation to the justices concerning the structure of said bridge, knowing it to be frail and wholly insuf*458ficient, required the petitioner to put a wooden pillar, consisting of two wooden posts upright under the main wooden structure of the bridge, to support it, and that said bridge was in this condition, supported by such wooden posts, when they made the aforesaid representation to the defendants. The defendants believe and say that with a knowledge that petitioner had not performed his contract, these commissioners with him fraudulently confederated to procure from these defendants an order for the payment of the stipulated price of the work, and in pursuance of this design, they falsely made the above mentioned representation, by which the defendants were misguided and deceived, and induced to make an order directing the county trustees to pay the stipulated money. The defendants believe and represent that the said certificate of the commissioners was advised, counselled, and approved by the petitioner with a perfect knowledge, on his part, that the contract for building said bridge had not been substantially performed, and with the design of fi audulently taking and receiving money from the county, without any just title to demand it. These defendants state that at the next term of their County Court, they rescinded the aforesaid order, (it being the very first opportunity they had of so doing, after learning that they had been imposed upon by the petitioner,) and that said defendants believed at the time, and they still believe, that they had power and authority in law so to rescind their own order. These defendants state that they are not informed that any surrender of the bridge was made to them or the public, by the petitioner, nor have they surrendered or dedicated it to the public use, by any special act of their own ; nor have they any knowledge or belief that the aforesaid commissioners accepted it, except as the above mentioned certificate may be evidence of acceptance.

*Mitchell Lillington,*and *W. P. Qaldwell*for defendants.

Personally appeared Thomas A. Allison, one of the defendants in behalf of all the justices of the county of Iredell, and *459maketh oath that the several matters which are set forth in the foregoing return, as of their own knowledge are true, and those set forth as not of their own knowledge, are true to the best of his-.undorstanding and belief. Thomas A. Allison.

Sworn to in open Court. W. II. Haynes, Clerk.

This suit was regularly continued in Court until the Spring Term, 1853, when the following proceedings were had, his Honor Judge Caldwell presiding:

The following issues were made up between the parties:

1st. Was the bridge in question built according to contract?

2d. Was the bridge in question accepted by the County Court, or by the Commissioners, after it was so built ?

Whereupon, the following jury of good and lawful men are empanelled, and sworn to try the issues joined between the parties, viz: (naming them;) who, for their verdict, say, as to the first issue: “ That the bridge in question was not built according to contract.”

And, as to the second issue, they say, “ That the said bridge, after it was built, was accepted by the County Court of Iredell.”

Upon which verdict and premises aforesaid, it is moved by the plaintiff that a peremptory *mandamus*issue to the said Justices of the Peace, commanding them to pay the said sum of $799, in the pleadings demanded.

The Court, upon consideration, refused the said motion, “ and thereupon it is considered by the Court, that the said writ be-quashed, and the defendants go without day,” from which judgment the plaintiff appealed to the Supreme Court.

*Boyden, Osborne*and *Q-uion,*for the plaintiff.

*Mitchell*and *W. P- Galdwell,*for the defendants.

PeaRson, J.

At common law, the return to a writ of *mandar mus*could not be traversed; and if the matters set forth were sufficient in law, the defendant had judgment to go without day. If the return was false, the remedy of the person aggrieved thereby was an action on the case for making a false return; and if *460the plaintiff proved the matters of fact false, he recovered damages and costs. By 9th Anne, ch. 20, in certain cases, all or any of the material facts set out in the return may be traversed. Our statute of 1836, ch. 97, section 5, extends this provision to all cases, and upon a traverse of any of the material facts, “such proceedings shall be had, as might have been had, if the person suing such writ had brought his action on the case for a false return,” &c.

In our case, the return states that, after the return was made, the following issues were submitted to the jury : 1st. *“*Was the bridge in question built according to contract?” 2nd. “Was it accepted by the County Court, or by the Commissioners after it was built?” The jury find that the bridge in question was not built according to contract. They find further, that the said bridge, after it was built, was accepted by the .County Court of Iredell. The record formally drawn up from these entries on the minute docket, shows that the petitioner traversed the return in two particulars, on both of which the defendants joined issue, and there- was a verdict in favor of the defendants, upon the first issue, and in favor of the petitioner upon the other.

The petitioner thereupon moved for judgment, that a *peremptory mandamus*issue, &e., which was refused, and ho excepts. There is no error.

The return sets out, that the bridge was not built according to the contract in several important particulars, which are specified ; “ that it is true that two of the commissioners, appointed by them, to make the contract, did represent to them, in writing, that the petitioner had built the bridge according to contrast, and that, thereupon, the defendants did make an order, directing the money to be paid to the petitioner;” but they aver that the representation, so made to them by the two Commissioners, was wilfully false, and was fraudulently procured to be made by the petitioner, with intent to deceive the defendants, and induce them to make the order; that, having soon after-wards discovered the fraud, and being satisfied that the bridge *461had not been built according to the contract, they, at the next *term,*(which was the first opportunity they had for so doing,) rescinded this order, and refused to direct the money to be paid to the petitioner. The main, and most material fact set out in the return, is, that the bridge was not built according to contract : this fact the petitioner traverses, the defendants join issue, and it is found in their favor.

The petitioner also traverses the fact that the bridge had not been accepted by the defendants: upon this issue is joined, and is found in favor of the petitioner.

It will be observed, that the fact here traversed was averred by the petitioner, and was admitted by the return. So it was a fact agreed, and the issue thereupon was immaterial, for the -defendants confess it, and seek to avoid its effect, by averring new matter, viz., that the representations, made to them in writing, by the two Commissioners, were wilfully false, and fraudulently procured by the petitioner. This was a fact material for the petitioner to traverse: he did not do so, but puts his traverse upon a fact confessed. In the absence of a traverse, or a finding thereon in favor of the petitioner, we are to assume all the averments ol the return to be true, the petitioner being only entitled to ask for a *peremptory mandamus, upon the ground that he has shown the return to he false,*as if he had at common law established the falsity in an action on the case.

The material fact, that the bridge was not built according to the contract, being found by the verdict, and the other material fact being taken as true, because not traversed, and shown to be false, we are at a loss to see any pretext whatever that the plaintiff had to ask for a judgment against the defendants, on the ground that they had made a false return; and, as the matter is now presented, we should have considered the defendants guilty of a gross neglect of a high public duty, if they had not refused to let the petitioner receive the money.

It was suggested upon the argument, that, although the petitioner was not entitled to recover the specific sum, yet he might recover the actual value of the bridge, if it had been used *462by tbe public. “ A *mandamus*is a bigb prerogative writ, and is only granted when one has a *special legal right*which cannot be recovered by an ordinary action.” State v. Justices oe Mooke, 2 Ire. Rep. 430. So the petitioner must show himself entitled to the specific right, and, failing in that, the suggestion that he should recover damages, and have a writ of enquiry, as upon a *quantum meruit,*under the common counts in assump-sit, has nothing whatever to support it.

In looking at the judgment, we perceive it is, that the *“writ he quashed,”*and the defendants go without day,” &c. The former part was inadvertently entered, and the judgment must be corrected, so as to be, *“*It is considered by the Court that the defendants go without day, and recover of the petitioner their costs.” A judgment that the writ be quashed is not conclusive, and is proper when the petition does not disclose a case coming within the legitimate scope of the writ of *mandamus,*or where it is informal or defective, by the omission of necessary parties, or of some material fact. * The case, set out, presents one proper for a *mandamus:*both the petition and the return, so far from being informal or defective, are well drawn for the purpose of putting the matter of controversy upon the merits, and may be used “as forms,” with the exception of some repetition and unnecessary statement, whicti most pleaders use from abundance of caution, under cover of the maxim, that *utile per inutile non vitiatur.*

This case has been decided upon its merits, and the judgment should be final and conclusive, as directed above.

Judgment affirmed.