: l: (SnrnpU ICam i>rlynol ICtbraty Cornell University Library KD 7613.T17 The law and practice of the high preroga 3 1924 021 848 696 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021848696 THE LAW AND PRACTICE OF THE liglr ^rnngatiut WRIT OF MANDAMUS, AS IT OBTAINS BOTH IN ENGLAND, AND IN IRELAND. BY THOMAS TAPPING, OF THB HIDDLE TEMPLE ESQ., BABBISTEB-AT-IAVT. PHILADELPHIA: T. & J. W. JOHNSON, LAW BOOKSELLERS, NO, 197 CHESTNUT STREET, 1853. CITE & WALTON, PRINTERS, NO. 3 RANSTEAD PLACE. TO \ \\\\ HER MAJESTY'S ATTORNEY-GENERAL, M..P., &c. &c. &c. THIS WORK, IS WITH HIS KIND PEBMISSION, MOST RESPECTFULLY DEDICATED, BT HIS OBLIOBD SBEVANT, THE AUTHOR. PREFACE. The necessity of a Work upon tbe Law and Practice of the High Pre- rogative Writ of Mandamus, was made tnown to the Author during his pupilage in the Chambers of a Special Pleader, when having such a writ to prepare, he was informed that the only sources from whence the Stu- dent or Practitioner could obtain any information upon this most import- ant branch of legal learning, were the cases scattered through the Books of Keports, excepting, however, the brief accounts of the writ which were to be found in Compendious Crown Practices, and in a small treatise on the subject by Impey, published in 1826, which last mentioned work had been rendered useless by recent statutory enactments — ^namely — the stats. 1 Wm. 4, c. 21; 1& 2 Wm. 4, c. 58; 1 Vict. c. 78; 6 & 7 Vict. c. 67, &c., &c. On a subsequent occasion, the Author again felt the necessity of a specific Treatise upon the subject, which fact, together with the liberality with which for the benefit of the subject, and the advancement of justice, the writ has of late years been dispensed by the Court of B. R., and also, that by the passing of the remedial statutes 6 & 7 Vict. c. 67, as to Eng- land, and the 9 & 10 Vict. c. 113, as to Ireland, it is clearly the general policy of the Legislature, to promote it as a remedy, induced the Author to study, and consider the subject, and endeavour to supply to the Pro- fession a Work which would at least be useful. The result of his labours is the present Volume, the scheme of which may be readily seen, by a reference to the Table of Contents. In investigating the subject, the Author has endeavoured to give, not only as well all the legal principles which govern the dispensation of yi PKEFAOB. the writ, as the decisions which have relation to its formula, but has also constructed an Alphabetical Series of the subjects of those matters which from the earliest eases to the 7th Q. B. Keports inclusive, have been de- cided by the Court of B. R. to be either within or without the jurisdiction of the writ of mandamus. It is trusted that this series, which extends over above 250 pages, will be found useful to the Practitioner, as thereby he will be enabled to ascertain at a glance how far such court has either dispensed or refused the writ as to any subject respecting which its inter- ference has been asked. The Table of Cases has also been drawn up with some care, and differs from tables of the same kind in two particulars. First, that to each Case is affixed the names of the Reports, &c., in which it is to be found. This was rendered necessary by the occurrence of so many cases of the same name, ovring to the fact that the Queen is invariably the prosecutor of, and that corporations or artificial persons are for the most part defend- ants to the writ. Thus, there are no less than twenty-ninfi cases, each of which bears the name of R. v. Middlesex (J.) ; twenty-eight of the name of R. V. West Riding (J.), and so of many other instances. Secondly, that to each case, and its reference, has been added the name of all the concurrent reports, in which it is also to be found, in order that the Practitioner may, by a perusal of all the authorities of the same case, determine with particularity its exact legal value, the importance of which will be readily acknowledged when it is known that many of the old Reporters record different facts of the same case, and sometimes disagree in the result of the decision. The Appendix, together with a few specimens of the Writ in its earlier phases of a "Later Missive," "Parliamentary Writ," "Writ of Resti- tution," &c., &c., contains a complete collection of both the English and Irish statutory enactments on the subject; also a list of the Rules, Orders, and Regulations made by the Court of B. R., in pursuance of the stat. 6 Vict. c. 20, for the government of the practice of the Crown side of such Court in England, and a Table of Fees ordained by the Court of B. R., under the authority of the above statute, to be taken by the Queen's Coroner and Attorney, and Master on the Crown side of such Court. P B E F A E. vii It will be seen by the title page, that this Volume professes to give the law and practice of the Writ of Mandamus as it obtains in Ireland. That this object has, to some extent at least, been accomplished, is clear, from the fact, that the Writ of Mandamus, as it obtains in Ireland, has as to its formulm been made, by recent statutory enactments, identical with that Writ as dispensed in England; the words of the statutes, relating to both portions of the United Kingdom being, for the most part, precisely the same. Thus the provisions of the Irish statute, 19 Geo. 2, c. 12, will be found, on comparison, to be fotidem verbis with those of 9 Ann. c. 20, and 11 Greo. 1, c. 4. Again, the Irish statute, 9 & 10 Vict. c. 113, will, on examination, be found to contain the aggregate provisions of the English statutes, 1 Wm. 4, c. 21, 1 & 2 Wm. 4, c. 58, and 6 & 7 Vict. c. 67 ; so that it may with perfect truth be affirmed, that the formulae of the Writ, as it obtains in England and Ireland, are governed by the same statutory enactment. How far the Author has succeeded in his endeavour to produce a Work, which will be useful to the Profession, remains for the Profession itself to judge. The Author may remark that the labour has not been trifling, nor the care smaU, which he has bestowed upon its production. Errors there may be, doubtless many, yet he trusts that the vast number of, and oftentimes conflicting authorities cited, may entitle his Work to the kind consideration and good opinion of the Profession. 8, MiTEE CouBT Chambers, Temple, 16th Mat, 1848. CONTENTS. The Pages referred to are those between brackets. [ CHAPTER THE FIRST. OP THE ORIGIN AND HISTORY OP THE HIGH PREROGATIVE WRIT OF MAN- DAMUS .... .1 CHAPTER THE SECOND. A DEFINITION OF THE MODERN WRIT OF MANDAMUS, TOGETHER WITH A BRIEF OUTLINE OF ITS PROCEEDINGS FROM THEIR COMMENCEMENT TO THEIR TERMINATION. Stat. 9 Ann. c. 20 ; stat. 1 Wm. 4, c. 21 ; stat. 6 & 7 Vict. c. 67. . 4 CHAPTER THE THIRD. OF THE LEGAD PRINCIPLES WHICH GOVERN THE DISPENSATION OF THE WRIT OF MANDAMUS, TOGETHER WITH AN ALPHABETICAL SERIES OP THE SUBJECTS IN RESPECT WHEREOF THE WRIT HAS BEEN EITHER GRANTED OR DENIED. The Jurisdiction of the Writ of Mandamus . . .9 The Legal Principles which govern the Dispensation of the Writ . 10 The absence of a specific Legal remedy — Action — Amercement — Appeal — Case — Distress — Ecclesiastical Jurisdiction — Equity — Lis Pendens — Error — Execution — Pees, withholding — Feigned Issue — Indictment — Quare Impe- dit — Quo Warranto . . . . .19 CONTENTS. 27 Quality of Prosecutor's right to the Writ . . ^ Of those subject to the Writ . • • ' . , The Subjects alphabetically arranged as to which the Writ has been eituer granted or refused ..... 29— -Wl CHAPTER THE FOURTH. OP THE APPLICATION TO THE COURT, AND RULE FOR THE WRIT OF MAN- DAMUS. Proceedings before Application — Demand and Refusal . 282 Demand — By whom made — When to be made — To whom made — Form of— Affidavits ...... 292-285 Refusal— -What — Form of— By whom made^Affidavits — When want of de- mand or refusal to be taken advantage of . . 285 — 287 Notice of application to Court for the writ . . . 2B7 Application for Rule — Nature of— By whom made — Against whom made — When to be made — Affidavits in support of Rule — When necessary — What to contain — Renewing application . . ■ 287 — 295 Rule — How obtained — Motion for, to what Court, when granted — Nisi — Abso- lute in first instance — How obtained — Form of— Service of— Notice of— Affidavit of service and Notice — Enlarging rule — Shewing cause against rule nisi — How — Who may — Rule Absolute — When granted — Against whom ob- tained — Form of — How obtained — Costs — Amendment of . 295 — 306 Compelling Prosecutor to proceed .... 306 CHAPTER THE FIFTH. THE WRIT OF MANDAMUS, ITS FORM, ETC., TOGETHER WITH THE SUBSE- QUENT PROCEEDINGS ANTERIOR TO THE RETURN. The Writ — By whom prepared — Form thereof, Inducements, Averments, Sub- stance of writ, according to rule. Direction, Corporate Body, Officers, Col- lege, Inhabitants of parish. Parish Officers, Justices, How misdirection waiv- ed or taken advantage of — Inducement — Averments of Jurisdiction of Court, of Prosecutor's title, of Defendant's duty — Of demand and refusal — Of ab- sence of specific legal remedy — Mandatory Clause — Teste and return-day — Indorsements — How sued out — How served — Filing the writ — Cross and Concurrent Writs — What — Motion for — Rule for — Return — Costs — Alias and pluries Writs — When granted — Amendment of writ — Supersedeas — Quashing writ ..... 303—339 CHAPTER THE SIXTH. OF THE RETURN, ITS FORM, SUBSTANCE, ETC., AND OF THOSE FORMULAE WHEREBY IT, WHEN DEFECTIVE, MAT BE INVALIDATED. Return- By whom made. Persons, Corporations, In cases vvithin 1 Wm. 4, c. 21 CE.), and 9 & 10 Vict. c. 113 Cl-)— OT Returns by several Corporations, CONTENTS. Xi Officers, &c. — When to be made — How enforced — Rule to return Writ — The Return — When necessary — The species of return — Traverse — Form — Substance — Special in confession and Avoidance — Form — Substance — Double or several returns — Return in the nature of Demurrer — Engrossing return — Signing and Sealing — Swearing return — Filing return — Necessity of— When to be filed— How filed— Staying filing— Taking off the file— With- drawing return — Disavowing return — Amendment of return — Invalidating return — Quashing — Application^Affidavits — Rule nisi, ShewingCause, Rule absolute. Demurrer, Joinder ia demurrer— Paper Books, Argument, Judg- ment, Costs ..... 340—381 CHAPTER THE SEVENTH. THE PLEA, REPLICATION, AND SUBSEQUENT PROCEEDINGS INCLUSIVE OP THE PEREMPTORY WRIT OF MANDAMUS. Plea — What — Time to plead — Rule to plead — Enforcing plea — Form of plea — Filing — Withdrawal of plea — Judgment by default — Demurrer to pleas — Replication — Rejoinder, &c. — Rule to reply — Rejoin, Joinder in demurrer, &c. — Issue — Notice of Trial — Subpoena, Record, Jury Process, Trial, Jeofails &c., Amendments, &c.. Verdict, Damages, Costs, Judgment, How Signed — Entry on Roll, How entered — Nunc pro tunc — As in case of nonsuit — Non obstante Veredicto — Motion in arrest of Judgment — Motion for a new Trial — Error — Writ of Error — Joinder in Error — Execution — Writs of Execution — Peremptory Mandamus, What, When granted — Against whom — How ob- tained — Motion where and when made — Rules nisi and absolute — When Writ peremptory in first instance — Form of Writ — How issued — Returns — Setting Writ aside— Amendment of Writ . . 382—409 CHAPTER THE EIGHTH. OP VARIOUS PROCEEDINGS OP OCCASIONAL OCCURRENCE, AND ALSO OP THE SUBJECTS OP COSTS AND ATTACHMENT. Abatement of Writ — Interpleader — Special Case — Costs — Feigned Issue — Bill of Exceptions — Arbitration — Affidavits — When required — How entitled — Body of Affidavit — Jurat — Filing — Amendment of Costs — When granted — Against whom granted — Bishop — Municipal Corporation — Justices — Inhabi- tants, &c., — Officers, &c., — How obtained — Motion for — Affidavits — Rule nisi — Security for Costs — Forma Pauperis — Taxation — Attachment — Nature of— When granted — How obtained — Motion — Rule nisi— Shewing cause — Writ, form of ..... 410—424 Xn CONTENTS. CHAPTER THE NINTH. OP THE COLLATERAL PROCEEDINGS BY WAT OP ACTION, OR CRIMINAL IN- FORMATION, FOE A PALSE RETURN TO A WRIT OP MANDAMUS. Action for a false return — What a false return — In what Court to be brought — Plaintiffs — Defendants — Declaration — Evidence, &c. — Verdict, &c. — Error, &c. — Costs .... 425 — 432 Information for a false return — When it lies — Motion, Venue, Evidence — Verdict ...... 432 CONTENTS. xiii APPENDIX. Form A. — Letter from Hen. 4 to certain Sheriffs to raise men for the defence of the KingrdoDi against the invasion of Owyen Glendourdy. Dated Thursday, 26th May, 2 Hen. 4, 1401. ... 435 Form B. — Privy Seal, comtnandingr the Treasurer and Chamberlains of the Exchequer to deliver to the Bishop of Lincoln certain articles of plate, &c. ...... 436 Form C. — 6 Hen. 8 — Privy seal, directing' the delivery to Ambassadors, about to repair to France, of the treaty of Amboisc, 1492 - 436 Form D. — 3 Edw. 3 — A writ commanding the Treasurer and Chamberlains of the Exchequer to deliver to John de Stonore, Chief Justice of the Bench, and successors of Willielmus de Herle, late Chief Justice thereof, the Rolls which had been brought in by the latter - 437 A precedent of the Writ of Restitution in Anabie's case, temp. Hen. 6 437 APPENDIX. OP THE ENGLISH STATUTES RELATING TO THE SUBJECT MANDAMUS. Stat. 9 Ann. c. 20 .... 439 Stat. 1 Geo. 1, s. 2, c. 13 . - . - 440 Stat. 11 Geo. 1, c. 4 . . . - 442 Stat. 12 Geo. 3, c. 21 . - - - 444 Stat. 38 Geo. 3, c. 52 . . - - 445 Stat. 1 Wra. 4, c. 21 . - - - 446 Stat. 1 & 2 Wm. 4, c. 58 - . - - 448 Stat. 1 Vict. c. 78 .... 450 Stat. 6 & 7 Vict. c. 67 - - - 451 Stat. 6 & 7 Vict. c. 89 - - - - 453 XIV CONTENTS. APPENDIX. OF THE IRISH STATUTES RELATING TO THE SUBJECT MANDAMUS. Stat. 19 Geo. 2 c. 13 . . - - 454 Stat. 1 Wm. 4, c. 21 - - - " 457 Stat. 1 & 2 Wra. 4, o. 58 - - - - 4.'J7 Stat. 9 & 10 Vict. c. 113 . . - - 459 Rules, Orders, and Regulations made by the Court of B. R. in pursuance of Stat. 6 Vict. c. 20, for the Government of the practice of the Crown side of such Court in England - - - 461 Table of Pees established and ordained by the Lord Chief Justice, and Judges of her Majesty's Court of B. R. to be taken by the Queen's Coroner and attorney, and Master on the Crown side of the said Court, pursuant to Stat. 6 Vict. c. 20 .... 453 TABLE OE CASES CITED IN THIS VOLUME. Where there are several Oases of the same Name, they are inserted Alphabetically as to the Reports in which they are to be found. The pages referred to are those between brackets [ Aberystwith (Case), Stra. 1157 45, 166, 246 Adams v. Savage, 1 Barn. 299 278 Addington v. Clode, 2 W. Blac. 1030 162, 163, 164 Ad ley v. Reeves, 2 M. & S. 53 123 Allen V. Dundas, 3 T. R. 128 34 Arohurst's case, Ray. 214. S. C. 2 Keb. 871. S. C. 1 Vent. 187 34, 64,86,107,111 Andover's case. Holt, 442 249 Andrews v. Cawthorne, Wills, 536 59 . V. Lakin, Noy. 139 356 Anon. 3 A. & E. 552 59,60 Andr. 24. See S. C. Anon. 1 Barn. 370, 425. S. C. mm. Smith's case,, Andr. 24 35 1 Barn. 26 379 1 Barn. 123, 135, 154 135, 142, 170, 173, 280 1 Barn. 138 166 1 Barn. 153 lb6 1 Barn. 155 70 1 Barn. 195 48 1 Barn. 227 55, 56, 407 1 Barn. 252 178 1 Barn. 327 4:13 1 Barn. 362 346 1 Barn. 370, 42.5. S. C. Andr. 24, See Sinith's Case. 35 1 Barn. 402 41, 50, 84, 94, 313 Anon. 2 Barn. 24 100, 389 2 Barn. 83 S. C. Stra. 26 220 2 Barn. 106 344, 349, 389 2 Birn. 129 89 2 Barn. 235 295, 300 2 Barn. 236, 237 185, 287, 2S8 292, 295, 296, 303, 304, 329, 336 2 Barn. 326 223 2 Barn. 334, 348, 361. S. C. Stra. 956 33, 34, 35, 313 — 2 Birn. 426 220 — 2 Barn. 437 77, 293 — 2 Barn. 441 104, 108 — Burr. 235 167 — 2 Chit. 251, 253 113, 138, 174, 261 — 2 Chit. 254 211, 212, 220, 28£ ), 298, 314, 318 — 2 Chit. 255 21, 54, 65, 70, 73, 209, 263, 270 — 2 Chit. 2.57 167, 218, 224 — 2 Chit. 290 209, 298 — Comb. 41 132, 173 — Comb. 133 173 — Comb. 158 104 — Comb. 257 132 — Comb, 285 90 — Comb. 287 256 — Comb 289 280, 366 — Comb. 327 4-24 — Comb. 347 19, 170, 173 — Comb. 478 S. C. Carth. 451) 221, 222 Dyer, 48, pi. 17 114 KVl TABLE 07 CASES. Anon. Dyer, 182 b. 368 Freem.21 68, 78, 89, 151, 152, 258 Freem. 366 70 Freem. 372 33,34 Godb. 44, pi. 52 318 Holt, 6.56 32, 35 1 Keb. 79 370 1 Kf-b 101 273,366 Keb. 286, pi, 94 211 1 Lev. 148 141 Loffl. 148 15, 55 LoftY. IS.") 433 Lofft. 189 131 Loffl, 390 154, 156, 1.57 2 Lutw. 1012 431 Miirch. 101 70,211,212 March 141 44 1 Mod. 79, 194 65 2 Mod. 316 174, 181. 186, 188, 310 3 Mod. 265 98 5 Mod. 374 23, 32, 35, 36 278, 335 6 Mod. 139 S. C. 6 Mod, 164 S. C. Holt. 407 123 6 Mod. 316 186 7 Mod. 118 137, 2.57 7 Mod, 14(1 33, 34 11 Mod. 137 34 11 Mod. 265 333 12 Mod. 164 421. 422 12 Mod. 232 314, 358 12 Mod. 348 421 12 Mod, 410. S C. nom. Lord V.Francis, Holt, 170, 171, vvliich see 373, 422 12 Mod. 515. S. C. 2 Salk. 699 431 12 Mod. 666 18, 151, 152, 153, 249 Noy. 139 71 Poph. 12 89 Roy. 431 12, 351 Ld. Kaym. 959- 229 Ld. Kaym. 989 97,229 2 Roll. 107 30, 152, 277 2 Salk. 428. S. C. Ld. Rayiii 125, nnm. Green v. Pope, S. C. 5 Mod . 316. S. C. Comb. 400. S. C. Skin. 607 407, 429 2 Siilk. im 379, 431 2 Salk 434 324,329, 333, 422 2SHlk 436 101, 337 2 Salk. 525 206, 323, 336 337 3 Salk. 202 429 2 Show. 4S 277 2 Show. 183 3S, 196 41 39, 199, 203 167, 185 Anon. 1 Sid. 257 ^^'^ 2 Sid. 114 33 Stra. 63 103 Stra. 550 33, 34, 35 Stra. 552 105 Stra. 686 Stra. 696 Sty. 151. 447 Sty. 299 Sty, 346, cited in Raym 101, nvm. Clerkenwell Inhabi- tants' case 253 Sty. 3.55 76, 260 1 Vent. 115 70 1 Vent. 267 68, 71, 356 1 Vent. 335 277, 279 1 Wils. 30 336, 338 Anthony v. Leger, 1 Hagg. 10 72 Appleford's case, 1 Mod. 82i S. C. 2 Keb. 299, 661, nom. R. v. Appleford, which see 78, 138, 170, 199, 253, 273, 274, 275, 359 Argent v. St. Paul's (Dean) 3 Doog. 238 430 Arundell v. Arundell, Yelv. 34 364 Ashcroft V. Bourne, 3 B. & Ad. 684 142 Askew's Case, (Dr.) Burr. 2190 3, 3, 9, 13, 19, 20, 30, 64, 176, 217, 288 Atty. Gen. v. Clare Hall, 3 Atk. 662 273 Austin V. Gervas, 2 Barn. 242 72 Awdley v. Joy, Poph. 176. S. C. Noy, 78. S. C. Latch. 123 5, 81, 89, 90, 124, 164, 172, 197, 211, 246, 262, 263, 269, 296, 364, 365, 383 B. Bagg's case, 11 Rep. 93 b. 2, 31, 39, 55, 56, 64, 74, 124, 172, 190, 191, 194, 195, 196, 198, 199, 200, 201, 202, 203, 204, 213, 255, 264, 326, 346, 353, 354, 358, 364, 383, 426, 432, 438 Bagwell V. Jobson, 1 Barn. 144 266 Bailiff's case. Comb. 133 153 Baily v. Boorne, Stra. 392 110 Baker v. Baker, Trem. P. C. 505 321 Baketon's case 267 Ballard v. Jerrard, 12 Mod. 609 116, 249 Banker's case. S. C. nom. R. V. Hornby, 5 Mod. 29. S. C. 14 How. St. Tr. 1. S. C. Harg. St. Tr. 136, and 4 A. & E. 996. S. C. 6 N. «&. M. 508. 216, 265 T^^BLS^^ 0^ OASES. xvu Barnard iston's case, Sty. 542 247 Barnstable's case (Mayor,) Ray. 153 356 Barrow v. Croft, 4 B. & C. 388. S. C. 6 D. & R. 386 396 Barry v. Arnaud, 10 A. &, E. 656 115 Basset v. Chichester or Barnstable (Mayor) 1 Sid. 286 192, 246, 247, 401, 402, 403 Bite's case, 1 Vent. 41 255 Bath V. Hawley (Lord), 2 Keb. 770, 797 247 Batson v. Sayer, Stra. 728 431 Battey v. Townrow, 4 Camp. 5 128 Bentley's case (Dr.), 2 Barn. 19, 22. S. C. 8 Mod. 148, 151. S. C. nom. R. v. Bentley, Stra. 912. S. C. Fort. 202, 206 193, 19.5, 201, 202, 203, 267, 273 Bentley (Dr.) v. Ely (Ep.) 1 Barn. 453 77 Berkshire's(Countess)case32,35, 277 Bernadiston's case, 1 Vent. 146 362 Birmingham Railway v. White, I Q. B. 282 121 Bishop's case, 2 Roll. 71, 106, 107 63, 71, 280 Blackborough v. Davis, 1 Com. 96. S. C. 2 Com. 108. S. C. 1 Salk. 251. S. C. 12 Mod. 615. S. C. Holt, 43. S. C. LA. Raym. 648. S. C. 1 P. Wms. 41, 42, 46 10, 14, 33, 34, 35, 36, 108, 112, 146 277 Blagrave's case, 2 Sid. 49, 72, nom. Blagrave v. Reading (Mayor) 175, 245, 246, 247, 264 Bishop V. Hatch, 1 A. & E. 676. S. C. 3 N. & M. 622 85 Bishopsgate v. Beecher, 8 Mod, 10. S. C. 1 Bott. 79 220, 222, 224 Blakemorev.Glamorgansh. Canal, 1 M. & K. 154 41, 244 Bodmin v. Warlingen, Boit. 733 2:^0, 237 Boon's case, P. 1652 33, 277 Boorman's case, March. 177 13& Bossiney's case, Stra. 1003, see R. V. Bossiney 45, 166, 180, 181, 182, 246, 334 Boston's Clerks' case 202, 263 Boswell's case, 6 Rep. 48 b, 181, 182, 246 Boswell V. Milbank, 1 T. R. 399, n. (d), seePbwel v. Milbank,.26 114 Bowers v. Littlewood, 1 P. Wms. 594 36 Bowles V. Neale, 7 C. & P. 262 212, 432 APBlt, 1852.— 2 Braithwaite's case, 1 Vent. 19 39 203, 351, 355, 358, o70, 371, 428 Braithwaite's case, 1 Doug. 182, n. 428 Breeden v. Gill, 5 Mod. 275 179, 221 Brett's case. Comb. 214 101 Brewers' Company v. Benson, Barnes, 236 95 Brideoak's case, 1 W. Blac. 25 n. 17, 16, 78, 273 Brook V. Ewers, Stra. 113 104, 107 111 V. Turner, 1 Mod. 211 34 Bruce'soase (Lord) Stra. 819 199 200 Buckley v. Palmer, 2 Salk. 431 397, 401, 402, 406, 434 Burgh w. Blount, 10 Mod. 350 109 Burrell. v. Nicholson, 3 B. & Ad. 649 121 Butler V. , 12 Mod. 371 430 CDr.)v. Cobbet, 11 Mod. 254 220, 309, 352 V. Rews, 12 Mod. 349 324, 429, 430 Buxton v.. Singleton, a Keb. 432 107 109, 110, 111 C. Caldioot V. Smkh,.2' Show.. 286 36 Calne'scase, Str. 948. S. C. 2 Barn. 235 54, 93, 94 Calvin's case. Rep. 20, 4,5, 190, 191 Caly V. Hardy,. Holt,. 407. S. C. 6 Mod. 139, 164 239 Cambridge,. L. H. S.'s case, 1 W. Blac. 549 80 Campbell v., Maund,. 5 A. & E. 876 70, 259 Campion's case.. See R. v. Campion V. Skipwethi 1 Sid. 308 329 Cainnon'^ case,. Dyer.. 79 Canterbury v. (Archbp.)i House, Cowp. 140 36 ■ ■'— V. Trinity Coll:, 1 Barn. 194 79, 300, 344 v.Tubb,3 Bing. N. C. 989. S. C.4 Scott, 543 36 Cardiffe Bridge case, 1 Salk. 146. S. C. Ld. Raym. 580 120 Carpenter's case, Ray. 489 12, 70, 72, 314, 317 Carter v. Crawley, Ray. 496 36 Catchin v. Wargar 341 Cattern v. Barwick, Stra. 145 71 Chapman v. Plexman, 2 Vent. 295 429 itni TABLE or CASES, Chester's "case (Archdeacon), M. 17, Car. 1, Rot. 31 211 Chichester's case, LofFt. 253 61 '■ (Ep.) V. Harward, 1 T. R. 652 61, 226 Chitty V. Dendy, 3 A. & E. 321 111 Chrism's case 277 Christchurch's case (Borough) 165 City Worlis' case, 2 Sid. 112 68, 71, 73, 7.5, 78, 151, 172, 173, 174,176,211,212,253,255 Clare's case, 1 Keb. 14 79 Clarlte's case, 1 Vent. 327. S. C. Cro. Jac. 506 53, 198 V. Leicestershire Canal, 6 Q. B. 898 60, 339, 351, 401, 402, 432 Clarke v. Sarum (Ep), Stra. 1082. S. C Andr. 20, 185 19, 26, 28, 61,114,226,227 Clerk's case. See Clarke's case. ■ 2 Vent. 247 251 V. Lee, 10 Mod. 262 229 Clitheroe's case, Comb. 239. S. C. 6 Mod. 133 127, 139, 141, 150, 152, 317 Cock's case, 2 Sid. 112 75 V. Harman, 6 East, 404 161 Colchester's case, 1 Roll. 335 55, 200 ■ (Recorder) 2 Keb. 656 201 Colefat V. Newcomb, Ld. Raym. 1205 29, 63, 144, 145, 229 Collin's case, 1 Keb. 549 44 Colt V. Coventry (Ep.), Hob. 164 309 Constable's case. Comb. 285 89 1 Bulst. 174 89, 90 Coplestone v. Coplestone, 2 Show. 307 34 Corp V. Glyn, 3 B. & Ad. 801 83 Coutanche v. Le Reu.x, 1 East, 134 36S Coveney's case, Dyer, 309 255 Coventry's case, cited in Latch. 123. S. C. Poph. 176 39, 364 (Mayor's) case, 2 Saik. 429 1, 333, 344, 345, 422 (Mayor) case, Holt, 440 34.5 Cox's case, 2 Show. 199 61 • 1 P. Wms. 29 253 V. Copping:, 5 Mod. 396. S. C. Ld. Raym. 337. S. C. 12 Vin. Abr. Evid. (F. b.), pi. 3 95, 147, 209 Crawford v. Powell, Burr. 1013 S. C. W. Blac. 229 94, 141, 166, 188, 348, 439, 431 Crew V. Saunders, Sir. 1005 163 Cripps V. Maidstone (Mayor), 1 Keb. 812 38,39 Crooke v. Watt, 2 Vern. 125 34 Crosby v. Fortescue, 5 D. 273 160 Curser v. Smith, 1 Barn. 59, 63 107, 109,110,221,285 D. Davis's case, Stra. 897 211 Dawson v. Fowel, Hard. 378 71 Dean and Chapter's case. Comb. 133 116 De la Costa v. Russia Company, 1 Barn. 24. S. C. Fitzg. 4. S. C. Stra. 783 126, 345 Devises' case, 2 Keb 725 55, 364 Dighton's rase, 1 Vent. 77, 82. S. C. 1 Sid. 461. S. C. 1 Lev. 291. S. C. Raym. 188. S. C. 2 Keb. 641, 6.56 101, 174, 175, 170, 199, 200, 201, 202, 245, 246, 260, 262, 263, 264, 347 Doe d. Evans v. Jones, 5 M. &. R. 755 118 Hamilton v. Clift, 12 A. & E. 575 155 Le Keux v. Harrison, 6 Q. B. 636. S. C. 14 L. J., N. S. 77, Q. B. 155 Thanet(Earl)r. Gartbam, 1 Bing. 357 201 Winder v. Lawes, 2 N. & \ P. 195 160 Dolbin's case (Dr.), 1 Keb. 872, 861 125, 164. 171, 211 Dow V. Golding, Cro. Car. 196 158 Doyle V. Douglas, 4 B. & Ad. 554 295 Dublin (Dean) v. Dowgatt, 1 P. Wms. 438 396, 397 V. Dublin (Arch- bishop), Fort. 329 397 V. R., 1 Bro. P. C. 73 397, 398 Dunch V. Norwich (City), 2 Salk. 436 201 Duncombs' case, Sty. 22 277 Dunkin's case, 3 Keb. 348. S. C. Trem. P. C. 501 33 V. Brown, 3 Keb. 356 32, 278 V. Du n k i n , 3 Keb. 344 279 V. Mun, Ray. 235. S. C. 1 Vent. 335. S. C. 3 Keb. 348, 350, 354 35, 277, 278, 279 Durham's case (Mayor), 1 Sid. 33 168, 192, 264 E. Earl's case. Garth. 173 101, 195, 198 TABLE Oi' CASES. ZIX Elen V. Forster, 2 P.Wms. 325 273 Eldridge v. Fletcher, 3 D. 588. S. C. 1 H. & W. 199 105, 106, 111 Emery v. Malmesbury (Alder- men), 3 Q,. B. 559. S. C. 3 G. «&. D. 482 81 Enfield v. Hills, Sir T. Jon. 116. S. C. 2 Lev. 236. S. C. 3 Keb. 8.59 39,383,402,406,426,430, 431 Estwick's case, Sty. 43. S. C. 2 Roll. Abr. 456 39, 43, 68, 89, 90, * 99, 101, 139, 313, 314, 316 V. London (Cily), Sly. 42 173, 174, 240 Evelin's case, Cro. Car. 551, 589. S.C.Jon. 439. S. C. 2 Roll. Abr. 234 71, 73 Exeter's case (City) 434 (Dean), 1 Salk. 334—59 (City), V. Glide, 4 Mod. 3;J. S. C. 1 Show. 2.58, 364. S. C. 1 Comb. 197. S. C. Holt, 169, 435. S. C. 12 Mod. 28, 251, S. C. Ld. Raym. 223. See Glide's case and R. v. Glide 33, 37, 39, 40, 55, 56 Exeter (Ep.)T. Hele, Show. P. C. 88 353 Ex parte Acworth (Overseers), 3 Q. B. 397 232, 236, 237, 238 Bagster, 2 M. & R. 46 747 Barnes, 2 D., N. S. 20 161, 162, 164 Becke, 3 B. & Ad. 704 13, 14, 49 Best, 3 D. 39 162, 164 Blackmore, 1 B. & Ad. 123 14, 59, 60 Boyle, 2 D. & R. 13, 14; 2 D. dz. R. 176, n. (a) 106, 107 Brady, 8 D. 232 248 British Patent Compa- ny, 7 D. 614 13 ■ Brosely (Inhabs.) 7 A. & E. 423. S. C. 2 N. & P. 355 218, 236 Carlton High Dale (In- habs.), 4 N. & M. 313. See In re Carlton High Dale, and In re Lodge . 90, 91, 242, 285, 2S6, 294 Chiffinch, 6 East, 346 140 Cirkett, 3 D. 327 212 Davies, 5 B. & Ad. 1091 306, 419 Davy, 2 D., N, S. 24. S. C. Jur. 24 123 Deacon, 5 B. & A, 759 139 Ex parte Duffield, 6 N. & M. 565. S. C. 3 A. & E. 617 62, 70, 73, 259, 298, 414 Farlow, 2 B. & Ad. 341 85 Fielder, 8 D. 525. S. C. 4 Jur. 507 142 Fletcher, see R. v. London (Mayor). Foundling Hospital, 5 D. 722 298 Grossmith, 10 L. J., N. S. 359, Q. B. 135 Harnley (Overseers,) I D. & L. 673 • 219 Harvey, 3 N. & P. 159 87 Home, 7 B. & C. 632 280 Hutt, 7 D. 690 161, 163, 164 Jarvin (Inhabs.), 9 D. 120 235 King, 7 East, 90 28, 140 Le Cren, 2 D. & L. 574. S. C. 14 L. J., N. S. 34, Q. B. 173, 204, 317 Lee, 7 A. & E. 139 S. C. 2 N. & P. 63. S. C. W. W. & D. 471. S. C. 1 Jur. 474 88 Lowe, 4 D. 15 70, 73 15 L. J., N. S. 99, M. C. S. C. 3 D. & L. 737 47 Morgan, 2 Chitt. 2.50 23, 24,109,110,112,228 Morrish, Jac. Rep. 162, 128 Nohro, 1 B. & C. 267 413 Parkes, 9 D. 614 S. C. 1 Woll. P. C. 1-58 85, 87, 286 Penruddock, 1 H. &, W. 347 63, 72, 298 Perring 4 A. & E. 949. S. C.6N. &M. 477 91,214 Phillips, 1 H & W. 660 1.57 Poe, 2 N. «& M. 636 228 Pontefract (Churchwar- dens), 3 G. & D. 188. S. C. 3 Q.B. 391 219, 232, 233, 237 (Inhabs.), 13 L. J., N. S. 5, M. C. 219 Pratt, 2 N. & P. 102 62 129, 266 . Reeve, 5 D. 668. S. C. nnm, R. v. Woods, die. (Com- mrs.), W. W. & D. 364 223 Reynal, 16 L. J., N. S. 304, Q. R 85 XX TABLE OF CASES. Ex parte Ricketts, 4 A. & E. 999. S, C. 6 N. & M. 523 28, 130, 216, 265 Robins, 7 D. S. 556. C. 1 W. W. & H. 578 20, 35, 244 Rugby Charily, 9 D. & R. 214 63, 64 Sandys, 1 N. & M. 591. S. C. 2 B. & Ad. 863 141 Scott, 8 D. 323 213, 291, 324 ' Smyth, 4 N: & M. 583. S. C. 3 A & E. 719. S. C. 1 H. & W. 283. S. C. 5 N. & M. 145 23, 109, 110, 111, 112, 22S Stanford, 1 G & D. 428. S. C. 1 Q. B. 886. S. C. 9 D. 927, iiom. In re Regis- trar of Births, die, at Brixton 248 Tbacher, 1 D. & R. 426 181, 182 Thomas, 16 L. J., N. S. M. C. 57. 91 Thompson, 6 Q. B. 724 S. C. 14 L. J. N. S. 176, Q. B. 294 Turner, 1 W. W. & H. 305 418 ■ Wallingford Union, D. 47 • Whitmarsh, 8 D. 431 132 ■ Williams, 4 Jur. 171 31 • Winfield, 3 A. & E. 70, 73, 259, 285, 287, 298 F. 987 614 Firehiia v. Gair, Brown). 201 116 Ealdo V. Ridge, Yelv. 74. S. C. Cro. Jac. 206 329 Fall V. Reg., 2 G. & D. 804. ,S. C. 1 Q. B. 660. S. C. 13 L. J., N. S. 187, Q. B. 383, 392, 395, 407, 430, 433 Faulkner v. Elger,6 D. & R. 518 114, 431 Featherstonhaugh v, Fenwick, 17 Ves. 313 192 Fenwick v. Agar 32 Finch's case. Rep. 65 314 V. Ely (Kp), 8 B. & C. 112. S. C. 2M. & R. n. (a), 128 161, 162, 163 Flarty v. Adlum 131 Fletcher v. Ingram, 1 Salk. 175 89 Fliidier v. Lombe, Cas. t. Hard. 307 100 Folkard v. Hemel, 2 W. Blac. 1061 162 Foot V. Prowse, Stra. 693 400, 406, 407 Ford V. Hoskins, Cro. Jac. 368 155 Fortre v. Fortre, 1 Show. 351. S. C. 8alk. 36. S. XJ. Holt. 42 33, 34, 277 Foulke's cafe, 1 Barn. 395 42 Frank v. JameS, 5 D. 723 311 Frederick v. Hook, Carth. 153 36 Free (Dr.) v. St. John's College 421 Freeman's case, Cro. Car. .579 199 V. Phillips, 4 M. & S. 486 431 Frenche's case 3^ Frost V. Williams, 7 A. & E.779 133 Fuller V. Wilson, 3 Q. B. 64. S. C. 1 G. & D. 286 119 Gambrel v. Falmouth (Earl), 6 N. & M. 865. S. C. 3 A. &. 617 64 Garrett v. Newcastle (Mayor) 3 B. & Ad. 252 96 Gastrell v. Jones, 2 Roll. 449 42 Gerveis de Clifton's case, P. 22 E. 3 214 Gidley v. Palmerston (Lord), 3R & B. 275. S.C. 7 B. Moore, 91 216, 265 Gile's case, Stra. 881 41 Gillman v. Wright, 1 Sid. 410. S. C. 1 Vent. 11 43, 44, 383 Glide's case (Serjeant), 4 Mod. 33. S. C. Show. 258, 364. S. C. Comb. 197. S. C. Holt, 169, 435. S. C. 12 Mod. 27, 251. S. C. Ld. Raym. 223. See Exeter (City) V. Glide and R. v. Glide 202, 203 Gloucester's (Ep.) case, Comb. 264 249 case (Mayor), 3 Bulst. 189. S. C. 1 Roll. 409 355 Goddard's case (Dr.), 1 Lev, 19. S. C. 1 Sid. 29. S. C. 1 Keb. 75. 84 78, 79, 164, 217 Gold's case 277 Goubot V. De CroOy, 1 C. & M. 772. S. C. 2 D. 86. S. C. 3 Tyrwh. 906 304, 374 Gray v. Tench, Comb. 454 33, 34, 35, 278, 335 Grays v. Cross, 7 Mod. 37 100 Green v. Durham (Mayori, Burr. 127 112,124,125,127,360 — V. Pope, Ld. Raym. 125. S. C. nom. Anon., 2 Salk. 428. S, C. 5 Mod. 316, S. C. Comb. 400. S. C. Skin. 607 119, 430, 432, 434 TABLE OF CASES. XXl Grey v. Willoughby, Moore, 465, pi. 657 3^9, 330 Grove v. Bridges 143 H. Haddock's case, Raym. 435 38, 196, 199 Hall's case, 1 Mod. 76 171 Harcourt v. Fox, 1 Show. 426. S. C. 506, 556. S. C. 4 Mod. 167. S. C. Comb. 209. S. C. Show. P. C. 158. S. C. 12 Mod. 42. S. C. Holt, 188, 189 215 254, 316, 319, 341 Harraan v. Tappenden, 1 East, 552. S. C. 3 Esp. 278 204, 397, 403,418 Harris's case, Trem, P. C. 471 321 V. Jay, 4 Rep. 30 (a) 158 Harrison v. Williams, 4 l). & R. 820 95 Hassell's case, Stra. 211 136 Basting's ease, 1 Sid. 410. S. C. 1 Mod. 23 43, 44 Hawley's case (Lord,) 1 Vent. 145. S. C. 2 Keb. 770, 796. S. C. 2 Salk. 430 199, 246, 362 Hawthornwaile v. Russell, 3 Atk. 126 33, 278 Hazard's case, 2 Roll. 11 201 Hereford's case, 1 Sid. 209. S. C. 1 Keb. 660, 665, 716. S. C. 6 Mod. 309. S, C. 2 Salk. 701 42, 194, 337, 348, 349, 350 357 Hermitage's case. Comb. 210 254 Heme v. Lilborne, 1 Bulst. l.'iO 200 Hicks V. Sherburn, Bac. Abr. tit. " Man." 237 (M) 429 Hills V. Mills, 1 Salk. .36. S. C. 1 Show. 259, n. (h). S. C. Holt, 305. S. C. Comb. 185. S. C. Skin. 299; S. C. 12 Mod. 9 278, 279 Hobson V. Parker, Barnes, 237 163 Hodges V. Atkis, 3 VVils. 398. S. C. 2 W. Blac. 877 94,95 Hogg V. King's Lynn (Mayor) 409 Holden v. , 2 Sid. 40 106 Holland v. Franklin, 1 Leon, 184 364 Hollister v. Folly, 1 Bott. 78 222 Holroyd v. Bra re, 2 B. &, A. 473 158 Holt's case. Sir T.Jones, 51. See R. V. Holt 246 Freem. 441 246, 316 Horsenail's case 334 Howard v. Wood, 1 Show. 364 55 Hubbard v. Penrice, Str. 1246 70, 71, 73 Hughs V Hughs, 1 Keb. 354 296 Hughes V. Mayre, 3 T. R. 275 161 V. Needham, 3 Keb. 118 68, 71 Hunt's case, Stra. 42, 93 90 Hurst's case, Rayra. 56, 94. S. C. 1 Sid. 94. S. C. 1 Lev. 75. S. C. 1 Keb. 354. 44, 45, 68, 151, 152, 173, 191, 211, 247, 2.53, 254, 258, 276 Hutchins v. Chambers, Burr. 579 224 L He's case, 1 Vent. 143. S. C. 2 Keb. 807, 820. S. C. Ray. 211. S. C. 2 Lev. 18, nom. R. v. Kingscleere. S. C. March. 101 .73, 151, 152, 153, 174, 211, 212, 253, 257, 258, 276 Illchester's case, 2 Chitt. 257, n. (a) .55, 56, 298 Imoey V. Pitt,2 Show. 69 35 In re Aitkin, 4 B. & A. 48 161 — Aston Union, 6 A. & E. 784 184 — Barker, 6 Sim. 476 161 — Bailiff of Wakefield. See R. V. Fox — Baron de Bode, 6 D. 789, C. 1 W. W. & H. 332 S. 29, 113, 265 228 46, 305 — Bedford (J.), 1 Chit. 627 — Bromley, 3 D. & R. 310 — Carlton High Dale, 4 N. & M. 312. See Ex parte Carlton High Dale, and In re Lodge 90 — Gateshead (J.), 6 A. & E. 550, n. 19, 240 — Grantham, 4 D. & L. 427 413 — Hand, 4 A. & E. 984. S. C. 6 iV. & M. 520 65 — Heward, 2 D. & L. 753. S. C. 14 L. J., N. S. 113, Q. B. 216 — Hythe (Mayor), 5 A. &, E. 822. S. C. 1 N. & P. 239 58 — Ivimey. See R. v. Middlesex (Register). In re Jewison. See R. V. Fox — King, 7 East, 90. n. (a) 47 — Lodge, 2 A. & E. 123. S. C. 4 N. & M. 312, nom. Carlton High Dale (Inhabs.) See In rg Carlton High Dale, and Ex parte High Dale 16, 17, 91, 210, 290 — Long, 14 L. J., N. S. 23, Q. B. S. C. 14 L. J., N. S. 144, Q. B. 228, 336, 407, 409 — Lowe, 8 East, 238 161 — Milner, 13 L. J., N. S., 186, M. C. 184 xxu TABLE or CASES. In re Palmer, 9 A. & E. 463. S. C. 1 P. & D. 492 85, 413 — Pratt, 7 A. & E. 28. S. C. 2 N . & P. 1 02 280, 23 1 , 232, 236 — Registrar of Births, &c. at Brixton. See Ex parte Stan- ford — Rix, 4 D. & R. 352 62, 92 — St. Giles, &c., 1 D. 540 208 — Sheffield Insuranne Comp. 16 L. J., N. S. 407, Q. B. 82 — Smith, 4 A. & E. 286. S. C. 5 N. & M. 589 265 — Taylor, 5 B. & A. 538 256 — Tithe Commissioners, 1 D., N. S. 810 261 — Walsall,! H. &. W. 370 168, 301, 344 J. Jaqnes v. Cesar, 2 Wms. Saund. 101 397 Jenning's case, 5 Mod. 423, n. (a). S. C. 5 Mod. 521 77, 273, 358 Jone's case, 2 Jones, 177, 178 357 Jonea v. Ashburner, 4 East. 465 97 V. Llandaff(Ep.), 4Mod. 27 249 Jotham V. Marriott, 2 D. 343. S. C. 3 C. & M. 183 302 Justice V. Jones, 1 Barn. 280, 291. S. C. Stra. 857. S. C. nom. R. V. Bettesworth, id. 298 278, 279, 298, 344 K. Kenn's case, 7 Rep. 44 79, 213 Kennet.t v. Avon Canal, 7 T. R. 451 413, 414 Kid V. Watkinson (Dr.), 11 Mod. 221 212 Kinaston v. Shrewsburgf (Mayor), Cas. t. Hard. 379. S. C. Stra. 1051. S. C. 7 Bro. P. C. 376 68, 383, 392, 397 King's (Dr.) case, 1 Keb. 517, 521 71 Knipe v. Edwin, 4 Mod. 2S1. S. C. Comb. 244 4, 172, 276 Lambert's case. Garth. 170. S. C. 12 Mod. 3. S. C. nom. R. V. Hill, 1 Show. 253 178, 249, 250, 348, 350, 351 Langham's case, March. 288, pi 237 194 Lawrence v. Hooker, 5 Bing. 6 17 Lecturer of St. Anne's case. See R. V. London (Ep ) Lee's (Dr.), or Warner's case, 2 Keb. 693 257 Lee V. Drake, 2 Salk. 468 211 V. Milner, 2 M. & W. 824 31 V. Oxenden (Dr.), 3 Salk. 229. S. C. Skin. 290 22, 229 Leigh's case, 3 Mod. 3.34. S. C. nom. R. ». Lee, 1 Show. 2.52. S. C. Carth. 169. S. C. 3 Lev. 309. See R. v. Oxenden 29, 43, 44, 68, 75, 170, 171, 178, 211, 227, 229, 249, 250, 272, 274, 303 Levy V. Cole, 12 L. J., N. S., 295, Q. B. 295 Lewis's case (Dr.) 78 Lidleston v. Exeter (Mayor), Comb. 422, 478. S. C. Fol. 19. S. C. 12 Mod. 126. S. C. Ld. Ray m. 223 20,296,364 Linley Chapel (Inhabs.) v. Ches- ter (Ep.) 429 London (City) v. Estwick, Sty. 32 352, 358, 364, 365, 366, 368 v. Swallow, 2 Keb. 50, 76 169, 295, 326 Londonderry's (Ld.) case, Stra. 857. S. G. 1 Barn. 280 33, 34 Lord v. Francis, Holt, 170. S. C. nom. Anon. 12 Mod. 410, which see 431 Love V. Dr. Bentley, 11 Mod. 134 70, 95, 134, 209 Lovegrove v. Bethel, 1 W. Blac. 668 33, 35, 278 Lucas V. Colchester (Mayor) 350 Lumley's case 39 Luskins v. Carver, Sty. 7 33, 34, 35, 105, 277, 278 M. Machell v. Nevinson, 11 East, 84, n. 200 Manaton's case, Raym. 365 165, 168, 203, 350, 354, 357. 364, 365 Marshall v. Nightingale, 2 B. & G. 313. S. G. 3 D. <& R. 549 430 Martin v. Jenkins, 7 Mod. 365. S. G. Stra. 1145 141,166,431 Martyn v. Hind, 1 Doug. 144, 519 55 Mason v. Day, Gilb. Eq. Cas. 156 v. Keeling, Lord Raym. 608 171 Matthew v. Gary, Carth. 74 133 Maw V. Harding, 2 Vern. 233 36 May V. Gwynne, 4 B. & A. 301 147 Meddlicott's case 2, 90, 364 Merrit's case (Dr.), 2 Show. 178. See R. V. Physicians' College 99 Middloton's case, Dyer. 332 b 2, 39, 74, 101, 172, 296, 316, 333, 437 TABLE 01' CASES. J^XUl Middleton's case, 1 Sid. 169. S. C. 1 Keb. 625, 629. S. C. 1 Lev. 123, nom. R. v. New Wa- terworks (Govr.) SO, 75, 79, 68, 151, 152, 170, 171, 173, 174, 211, 212, 217, 253, 254, 255, 263, 303 Will's case, Kay. 152. S. C. 1 Lev. 162 130 Milward v. Thatcher, 2 T. R. 81 263, 401 Moneyer's case, 1 Sid. 304. S. C. nom. R. V. Starling, 2 Keb. 91 329 Moore v. Hastings (Mayor), Cas. t. Hard. 353 127, 338 Morgan v. Cardigan (Arclidea- con), 1 Salk. 166. S. C. Ld. Raym. 138 70, 71 Morgan v. Carmarthen, 3 Keb. 350 364 Morley v. Stacker, 6 Mod. 83 90 Morris's case 56, 202 Musgrave v. Parry, Vern. 710 146 N, Neale v. Bowles, 1 H. & W. 584 406 Needbam's case, Trem. 469 321 Nigbtijigale v. Marsham, 3 D. & R. 549 2.57 Norfolk's case 264 Northampton's case, Carth. 118 70 Comb. 102 94 LoSt 549 174, 191, 254 Norwich (Mayor's) case, 12 Mod. 322 430 Nottingham's case. Comb, 483 221 (Sheriff) case ' 258 . (Town) case. Bull. N. P. 290 (Town Clerk's) case, 1 Sid. 31 50, 52, 94, 264 O. Offley V. Best, Keb. 243. S. C. 1 Sid. 372. .0 Lev. 187 32,33, 34, 35, 105, 277, 279 Olive V. Ingram, 7 Mod. 267. S. C. Stra. 1114 257, 258 Orme v. Pemberton, Cro. Car. 539 212 Owen V. Saunders, Ld. Ray. 1-58, 161. See Saunders v. Owen 215, 276 (Dr.) V. Stainhow r.). Sir T. Jon. 199. S. C. k (D45. S. C. 2 Show. 200, n. (a) 178, 226, 227 Oxford's (Town Clerk) case. Comb. 244 19, 262 P. Painter v. The Liverpool Gas Company, 3 A. & E. 433 201 Papilion's case. Skin. 64 2-58, 290 292, 317 Parish Clerk's case, 13 Rep. 70 211 Lofft. 434 211 212 Issue's case, Comb. 257 210, 253 Parker's case, 1 Vent. 331 45, 191, 198 II. Clerk, 6 Mod. 253 211, 213 Parkinson's case. Comb. 143. S. C. Holt, 143. S. C. Carth. 92. S. C. 1 Show. 74, and 74 n. (6), (c). S. C. 3 Mod. 265 73, 254, 268, 272, 273, 274, 303 Parrott's case. See R. v. Newcas- tle (Mayor). Patrick's case (Dr.), 1 Lev. 65. S. C. Raym. 101. S. C. 1 Sid- 346. S. C. 1 Keb. 289,610. S. C. 2 Keb. 65, 166, 168, 171 4, 15, 29, 30, 33, 41, 42, 64, 67, 69, 70, 73, 77, 79, 80,89, 116, 167, 174, 175, 192, 211, 212, 213, 220, 251, 253, 254, 255, 262, 267, 268, 269, 272, 277, 278, 296, 313, 315, 317, 333, 341, 347, 351, 353, 367, 397, 402, 403 Peat's case, 6 Mod. 229. S. C. 2 Salk. 672. See K. v. Peach 10, 118, 119, 221, 235, 320, 321 Pees v. Leeds (Mayor), Stra. 640 75, 315, 316, 397 Pepis's case, 1 Vent. 343 175, 246, 247 Peterborough's case, 1 Sid. 377 221 Pett V. Pett, 1 Com. 89. S. C. Ld. Raym. 571. S. C. Holt, 259. J. C. 1 Salk. 250. S. C. 3 Salk. 138. S. C. 12 Mod. 409. S. C. 1 P. Wms. 25 32, 35, 36 Philip's case, 2 Roll. 82, 85 225 Philips V. Bury, Ld. Raym. 5. S. C. 2 T. R. 346. S. C. Skin. 447, 475. S. C. Show. P. C. 35. 5. C. 1 Sid. 71. S. C. I Show. 366. S. C. 2 Show. 170. S. C. 2 Keb. 799, 861. S. C. 4 Mod. 112 10,61,74,78,79.111,191, 227, 267, 273, 274, 275, 429 Pierce v. Perks, 1 Sid, 281 33,34 35, 279 XXIT TABLE OF'CASBS. Piper V. Dennis, 12 Mod. 253 431 PoJhil V. Blany, 2 Keb. 753 71 Pollice's case, 2 Barn. 365 255 Porphyry v. Legingham, 2 Keb. 344 153 Powell V. Kelburn, 3 Wils. 355 26 V. Milbank, 1 T. R. 399. See Bowell v. Milbank 226 V. Price, Comb. 41 342, 364, 367 Powis' case (Ld,), Dyer, 170 a 1 Price V. Parker, 1 Lev. 158 279 Prohurst's case, Carth. 168 76, 268 Protector (The) v. Colchester (City) Sty. 447, 453 201, 203, 246, 247 V. Craford, Sty. 457 1.5, 68, 73, 78, 139, 151, 152, 173, 174, 176, 212, 246, 254, 255, 260, 262, 263, 271 V. Kingston-up- on-Thames, Sty. 477 115, 127, 353 V. Philips, Hardr. 311, 326 259 Pullen V. Palmer, Ld. Raym. 496 199, 356 Fuse V. Clapham. See R. v. Blet- show. R. Raine's case, 5 Mod. ,54. S. C. Ld. Raym. 262. See R. v. Raines 23, 33,35 Rakestraw v. Brewer, 2 P. Wms. 510 139 Ravenhill's case, Stra. 608 41 Rawlinson v. Shaw, 3 T. R. 558 193 Raysing's case. Dyer, 209 1 Ree d. Conolly v. Vernon, 5 East, 51 154 R. V. (J.) 1 Chitt. 164 133, 230, 237 Abingdon (Mayor) Holt, 441. S. C. 12 Mod. 308. S. C. Carth. 5U1, n. S. C. 2 Salk. 431,699. S. C. Ld. Raym. 559. 165, 168, 398, 313, 314, 315, 316, 319, 32.5, 338, 341, 342, ,344, 346, 351, 353, 357, 359, 361, 365, 366, 367, 368, 380, 433, 434 Adams, 2 A. & E. 409 271 Agardsley (Manor), 5 D. 19 21, 156, 157, 158 Allen, 3 N. & M. 184. S C. 5 B. & Ad, 984 137 Allgood, 7 T. R. 746 162, 163 Allsop, 2 Show. 170, 177, S. C. 2 Jon. 175, 194. S. C. Carth. 168. S.'C. Comb. 143 77, 78, 79,. 217, 271, 272, 273, 274, 275 R. V. Aldborough (Bailiffs), 1 Keb. 308. S. C. 10 Mod. 100 55, 56, 201,203,251,348 — All Souls' Coll. Sir T, Jon. 175 77, 268 — - Amicable Assurance, Str. j696 82 Andover (Burgesses), Ld. Raym. 710 117, 199 -^—Andover (Mayor), 3 Salk. 229 39 Andover (Town), 12 Mod. 332. S. C. 2 Salk. 433. S. C. Holt, 411 324, 337, 430 Anglesea (J.) 1 D. & L. 170. S. C. 12 L. J., N, S. 131, M. C 218 219 '- Antrobus, 2 A. dz. E. 988 ' 94 Appeal Commissioners, 3 M. <& S. 132 122 Appleford, 2 Keb. 862, 864, S. C. 1 Mod. 82, nom. Apple- ford's case, which see. 69, 77, 78, 109,257,258,269 Argent, 2 T. R, 181. S. C. BurBi 1783 192, 212 Armstrong, Andr. 109 369 Arnald, 16 L. J., N. S., 50, Q.B. 64,259,378 Arnold, 4 A. & E. 657. S. C. 6 N. & M. 152 58, 100, 167, 209, 298 Ashton, Say, 159 211, 212 Athay, Burr. 653 41 Attwood, 4 B. & Ad- 481 26, 37, 169, 182, 183, 290 Axbridge, Cowp. 523 190, 192, 201, 263, 264, 401 Babb, 3 T. R. 579 95 Bagshaw, 7 T. R. .363 85 Baily (The) 1 Keb. 33 38, 203, 341, 342, 343 Baines, 6 Mod. 193. S. C. Ld. Rayra. 1265, 1267 215, 229 Baker, 2 N. & P. 375. S. C. 7 A. & E. 502 Baldwin, 7 T. R. 169 170, 411 135 -3P. &D. 124. S. C. 8 A. .fe E. 947. S. C. 1 W. W. & H. 681 136, 392, 401, 406. 407,408 Bangor (Overseers), 16 L. J., N. S., 58, M. C. 16, 210, 338 Banks, Burr. 14,54. S. C. 1 W. Bl. 451, 452 27, 149, 150, 16.5, 166, 167, 168, 180, 181, 182, 183, 246, 299, 300, 301, 306, 403, 412, 416, 442 TABLE 'DI' OASES. XXV R. V. Earker, 1 W. Blac. 300, 362. S. C. Burr. 1265. S. C. Andr. 24, 180 2, 4, 5, 12, 18, 19, 34, 35. 39, 41, 43, 63, 80, 113, 114, 116, 143, 145, 173, 174, 176, 181, 184, 211, 213, 246, 253, 254, 257, 285, 287, 294, 306, 367, 413 Barker, 6 A. & E. 391 61, 241 Barlow, 2 Salk. 609 206 Barnard, 2 Keb. 402 256 Barnard's Inn, 5 A. & E. 24 28, 44, 138, 151 Barnstable (Inhahs.), 1 Barn. 137 220, 221 Pol. 36 220 ■ Barnwell, 11 Mod. 206. S. 220 433 42-i C. Park, 74 Barton, Say, 146 Baskerville, Bac. Abr. tit. " Man." (H.) Batemin, 4 B. & Ad. .553. S. C. 1 N. & M. 718 15,250,301, 413, 414 Bath (Ep.) 1 D. & M. 193. S. C. 5 Q,. B. 147. S. C. 12L. J., N. S. 324, a. B. f)3 Bath (Mayor) 6 Mod. 152 S67, 424, 430 Bath (R.) 9 A. & E. 874. S. C. 1 P. & D. 622 28, 51, 219 Bathurst, 1 W. Blac. 209 145 Baylay, 1 B. & Ad. 761 226 Bear, 2 Salk. 417 199 Beard, 12 East, 672 239 — — Beaufort (Duke), 5 B. & Ad. 442. S. C. 2 N. & M. 815 55 Bedford Corporation, 1 East, 79 315 Bedford Level Corporation, 1 East, 79 165, 166, 167, 168, 181, 182, 299 6 East, 367. S. C. 2 Smith, 535 19, 26, 27, 49, 180, 181j 192, 183, 245, 246, 305, 412 Bedford (Mayor) 267 Bedfordsh. (J.) Cald. 157 205 Bedfordsh. (J.), 9 L. J., N. S. 3 M. C. 233 11 A. & E. 134 232, 236 ; — : 3 P. & D. 21 91, 137 Beecher, 8 Mod. 335 221, 335 Biedle, 3 A. & E. 467 26, 27, 81, 96, 100, 143, 181, 182, 304 Benn, 6 T. R. 198 224 Bentley. See " Bentley's case." R. V. Best, 16 L. J., N. S. 102, M. C. 134 Beston, 3 T. R. 594 91, 96, 169, 203 Bettesworth (Dr.), 7 Mod. 218. S.C.Stra. 857, 956, 1111, S. C. And. 365. S. C. 1 Barn. 291, 298, 331, 424. S. C. 2 Barn. 234, 420. S. C. 2 Keb. 139. S. C. Fitz, 125. S. C. W. Kel. 156. See Justice v. Jones 33, 34, 35, 110, 267, 278, 279, 320, 335, 345, 349 Beverley (M^yqr), 8 D. 140 94, 95, 283 Bilton (R.), 14 L. J., N. S. 33 M C 91 Bingham, 4 Q. B. 887 85, 417, 420 Birmingham Canal, 2 W. Blac. 708 4,18,32,243,286 4 Jur. 318 85 (Rector), 7 A. & E. 259,260 19, 69, 99, 100, 118, 182, 188, 257, 270, 304 ■ Railway. 1 G. & D. 335. S. C. 2 Q. B. 47. S. C. 2 Rail. Cas. 094. S. C. 3 Q. B. 528, and 3 G. & D. in error 1.5, 131, 243, 244, 301, 359, 375 Bishop's Stoke (Manor), 8 D. 608 159, 303 Blackwall Railway, 9 D. 558 16, 17, 293 Black warton(Inbabs.) 10 B. & C. 792 103 Bland (Dr.), 7 Mod. 356. S. C. Bull. N. P. 200 80, 114, 211 2iJ6, 249, 253, 257, 267, 273, 303 Bletshow, 1 Bott. 300. S. C. nom. Fuse v. Claphara, 1- Wils. 305 74, 209, 2^3 Blooer, Burr. 1043 12,18,20, 63, 113, 114, 173, 174, 191, 212, 213,246,258,412 Blyth, 5 Mod. 404 77, 78, 273 Bond, 6 A. di E. 905 28, 51, 145 Bonsai (Manor), 3 B. &.C. 173. S. C. 4 D. & R. 825 155,157 Bossiney. See Bossiney's case. 137 Bosworth, Ptra. 1113 2, 125,126 Boughey, 1 B. & C. 565. S. C. 2 D. & R. 824. 115, 159, 160 Boulton, 8 Keb. 464 52 Bower, 1 B. & C. 585. S. C. 2 D. & R. 842 101, 189, 355 XXVI TABLE or CASES. Brayfield, 2 Keb. 488 R. V. Braintree Union, 4 P. & D. 593. S. C. 1 Q. B. 130 63 Brancaster(Churchwardens), 2 N. &. P. 580. S. C. 7 A. & E. 4.58 68, 349, 351, 360, 385, 386, 428 39, 40, 200, 203 Brecknock Canal, 3 A. & E. 221. S. C. 4 L. J., N. S. 106, Q. B. S. C. 4 N. & M. 817. S. C. 1 H. & W. 279 87, 244,283, ^ 284, 285 Brewers' Com., 4 D. & R. 492. S. C, 3 B. dz. C. 172. S. C. 5 M. & R. 140 155, 156, 157, 159, 160, 288, 302, 380 Bridg-enorth. See R. v. Bridgnorth Bridgewater (Corp.), 3 Douor. 379 165, 166, 167, 168, 181, 234 299, 315 (Inhabs ), 10 A. & E. 694 218 (Mayor), 2 Chitt. 257 47 (Mayor), W. W. 6 D. 129 87 1 N. & P. 466. S. C. 6 A. & E. 339 28, 87, 83, 141 Bridgman, 15 L. J., N. S. 44, M. C. 47 Bridgnorth (Bailiffs),! Barn. 53. S. C. Stra. 808 62, 424 Bridgenorth (Mayor), 2 Chit. 256 37, 38, 54, 180, 186, 188 2 P. dz. p. 317. S. C. 10 A. & E. 66 57 299, 419 Brighton (Churchwardens), 1 N. & P. 775. S. C. 6 A. & E. 794, 798, n. 68, 209 Bristol Dock, 12 East, 429 18, 28, 85 6 B. dz; C. 181. S. C. 9 D. & R. 309 60, 117, 120, 309, 322, 327, 338, 353, 357, 380, 402 - 2 Q. B. 64. S, C. 1 G. & D. 286. S. C. 2 Rail. Cas. 599 19, 25, 30, 60, 1 19, 132, 351, 352, 358, 379 (Mayor) 1 Show. 288. S. C. Comb. 145. S. C. nom. R. V. Rowe, Carth. 199 198, 261, 288, 358, 369, 371 1 D. dz. R. 389. S. C. nom. R. v. Griffiths, 5 B. & A. 713 53, 401, 402 R. V. Bristol ("Railway), 12 L.J. N. S. 106, Q. B. S. C. 3 G. & D. 384. S. C. 4Q. B. 162 131,244, 283, 284,285,286,287 7 Jnr. 233 414 Bristow, 6 T. R. 168, 170 11, 25. 103, 104, 106, 177, 530, 294, 375 Broderip, 5 B. di C. 240. S. C. 7 D. di R. 861 91, 240 Buckingham (Corp.), 10 Mod. 175 3, 4, 53, 57, 124, 191, 194, 198 204, 349, 358 1 N. dz, P. 503 67 Buckioghamsh. (J.), 2 M. & S. 230 133, 134 3 East, 342 218 ■2 D. dt R. 689. S. C. 1 B. dz, C. 485 132, 135, 224, 240, 241, 288 7 B, dz; C. 3 103 ■ 3 N. dz. M. 69. S . C. nom. R. v. Morgan, 2 A. dz; E. 618, n. (a) 119, 224, 240, 241 2 G. di D. 560 236 R. V. Buller, 8 East, 388 94, 288, 299 Bumstead, 2 B. dz; Ad. 705 123, 204, 290 Bury Roads, 6 D. dz.R.. 368 134 Bushfield, 2 Sess. Ca. 67 214 Cadogan (Ld.), 1 D. dz; R. 559. S. C. 5 B. dz; A. 902 163 Cambridge (J.), 8 D. 89 74, 2U6 4 N. dz; M. 238. S. C. 2 A. dz, E. 379 222,231, 418, 419 ^ (Mayor), Burr. 2008 165, 166, 181, 182, 246, 301, 315, 317,384 2 Chitt. 144 125 • 2 T. R. 456 • 100, 353, 360, 361, 362, 372, 373, 374, 376, 384 - 4 P. dz, D. 29.5. S. C. 12 A. diE. 7(2. S. C. 10, L. J., N. S. 25, Q. B. 87,68, 4Ui 4 Q. B. 801. S. C. 14 L. J., N. S. 82 Q. B. 38, 51, 98, 330, 418 (U.), 8 Mod. 148, 150, 164. S. C. Stra. 5.57. S. C. Fort. 202. S. C. Ld. Raym. - 1334. S. C. Andr. 176. 2, 21, 117,118, 193, 197, 198, 199, 201, 202, 203, 267, 268, 300, 353, 403 TABLE OP CASES. XXVU R V Cambridge, (Mayor,) 3 Show. 69 175, 176, 200 Burr. 1651. S. C. 1 W. Blac. 547 1,4,18, 19, 80, 108, 114, 117, 151, 172, 176, 245, 267, 268, 272, 296, 300, 313, 316, 317 ■6T. R.89, 99, 100 53, 106, 112, 193,268,269 Cambridgesh. (J.,) 1 P. & D. 249. S. C. 7 A. & E. 480. S. C. 9 A. & K. 338 47 1 D. & R. 325 134, 231, 291 Campion, 1 Sid. 14, 15. S. C. nnm. Campion's case, 2 Sid. 97 175. 196, 203, 262, 263, 264, 401 Canterbury (Archbp.,) 7 Mod. 230 77, 293 8 East, 219 18, 28, 36, 42, 44, 45, 59, 68, 108, 178, 212, 229, 253, 257, 267, 294 15 East. 117,135,159 10,14,15,41,49, 114, 148, 145, 254, 266, 274, 276, 295, 297, 415, 417 (City,) 1 Lev. 199 39, 117, 125 (Guardians,) 1 W. Blac. 667. S. C. Burr. 2290 220, 221 (Mayor) 63 Stra. 674 175 11 Mod. 493. S. C. Stra. 674 247 Canton (Overseers,) 1 Barn. 299 117, 220 Cape], 10 A. & E. 403 121 Carlisle (Mayor,) 11 Mod. 378. S. C. 8 Mod. 19, 99. S. C. Fort. 200, 201, 204. S. C. Stra. 385. S. C. Ld. Raym. 415, 1283. S. C. Fitzor. 190 56, 74, 196, 197, 198, 200, 246 2 Burn's Ecc. Law, 113 143 Carlyle, 2 B. & Ad. 971 238 Carmarthen (Corp.,) 4 Jur. 365 299 (Mayor,) Say. 211 181,300 1 M. & S. 696 54, 106, 204, 354 3P.&D. 35. S. C. 9 L. J., N. S. 25 Q. B. 85 R. V. Carmarthen (Mayor,) 11 A. & E. 13 87 (R.), 7 A. & E. 756 51, 232 Camarthensh. (J.), 4 B. & Ad. 563 S. C. 1 N. & M. 368 218 16 L. J., N. S., M. C. 167 92, 93 Carnarvonsh. (J.), 4 B. & A. 86 230,231,235,236 IG.&D. 423. S. C. 2 Q. B. 325. S. C. 11 L. J., N. S. 3 M. C. 219, 231, 233, 237 Carpenter, 6 A. & E. 794. S. C. 1 N. & P. 775 68, 170, 210, 305, 309 Carrocke, 1 Bott, P. L. 299 74, 206 Carter, 4 T. R. 246 207, 393 Cartworth (Inhabs.) 1 D. & L. 844 232, 235 Chalice, Ld. Raym. 848 364, 431 Chalk, Comb. 396 55 Ld. Raym. 335. S. C. Salk. 438. S. C. 5 Mod. 254, 257 40, 197, 198, 203 Chapman, 6 Mod. 1.52. S. C. Holt, 443 262, 330, 331, 342, 357, 368, 430, 432, 443, 444 Cheadle Savings' Bank, 3 N. & M. 418, n. (a). S. CIA. & E. 323, n. (a). Cheek, 16 L. J., N. S. 65, M. C. 224, 343 Cheltenham Commrs. 1 Q. B. 471 62, 232 : 4 Jur. 1060 32 Chesh. (J.,) 5 B. & Ad. 4.39 232 2 N. & M. 837 142 9L.J.,N. S. 89, ■ M. C. 233 1 P. & D. 88. S. C. 8 A. & E. 398 218, 237 3 P. Si D. 33, n. (a) 41, 91 — 15 L. J., N. S. 114, M.C. S. C.4D. &L.94 47, 234 ^ 15 L. J., N. S. 124, M. C. 291 8 D. 616 218 11 A. & E. 139 233 1 D., N. S. 570 219 Cheshunt Roads, 5 B. & Ad. 438 136, 413 xxvui TABIiE OF CASES. R. V. Chester (Archdeacon) 1 A. & E. 343. S. C. 3 N. & M. 413 70 (En.) Com. Dig. tit. Man.B. 3Q4 1 W. Blac. 22. S. C. 1 Wils. 206 10,11,21,31, 78, 114, 178, 226, 227, 273, 274, 275 1 W. Blac. 25, n. (o) 28, 114, 186, 193 ■ Stra. 797. S. C. 1 Barn. 52 63, 76, 79, 272, 273, 274 -IT. R. 396 4, 11, 18, 19, 20, 25, 26, 28, 49, 6.5, 113, 114, 144, 182, 217, 249, 288, 416, 417 (Citizens) 1 M. & 5. 101 169 (Mayor) Comb. 307,309. S. C. 5 Mod. 10. S. C. 3 Salk.230. S. C. Holt, 438, 70, 73, 99, 101, 102, 194, 299, 324 336, 337, 348, 349, 350, 356, 380 1 M. &S. 102 26, 99, 101, 182, 183 Chichester, (Mayor,) 1 Show. 273 101, 368 — Christchurch (Borough,) Bull. N. P. 200 468, 325 Claphara, 1 Lev. 306, S. C. Pitzg. 194, 248. S. C. 2 Keb. 738. S. C. 1 Vent. 110, nom. R. V. Marches (President.) See R. V. Win, 164, 306, 319, 322, 346, 353, 354, 355 Clapham, 1 Wils. 305 74, 94 223- 294 Clark, 2 East, 78, 82 'l68, 138, 335, 397, 403, 432, 434 13 L. J , N. S. 91, M. C 133 '■ 1 D. & M. 690. S. C. 5 Q. B. 887 19, 98 Clear, 7 D. & R. 393 S. C. 4 B. & C. 899 4, 5, 16, 18, 28, 74, 83, 84, 223, 285, 288, 294, 414 Clerkenwell Parish, Bull. N. P. 200 290, 300, 305, 306 (Churchwardens,) 3N.&M. 411 129 Parish, 1 A. & fi-317 270 Clithero (Mayor) 1 W. Blac. 61 38 (Town,) 6 Mod. 133 46, 334, 341, 342 — r Cockermouth Inclosure, 1 B. & Ad. 380 87,137,138,291 Codd, 1 P. &D. 456. S. C. 9 A. & E. 682 48, 241 Coggan, 6 East, 431 154, 155, °^ 156,158 Colchester (J.,) 5 B. &A. 355. S. C. 1 D. &. R. 146 207 (Mayor,) Comb. 324 364 4 Doug. 14 181 2 T. R. 259 18, 26, 27, 100, 166, 180, 181, 182, 183, 245, 246, 304, 442 6 East, 360 245 (Town,) 2 Keb. 188 44, 314 Colebrooke, 2 Ld. Ken. 163 148 Coleridge, 1 Chjtt. 592. S. C. 2 B. & A. 806 16, 18, 22, 29, 59, 64, 6.5, 97, 108 Collett, 2 B. & C. 341 227 Conyers, 15 L. J., N. S. 301, Q. B. 106, 110, 124, 329, 378 Conyngham, 1 D. «St R. 529. S. C. 5 B. & A. 885 23,111 Cookson, 16 East, 376 123 Cooper, 1 Keb. 777 39, 203 Coopers' Company, 7 T. R. 543 125,320,321,353,354 Corbett, Say. 267 433 Cornwall (Corp.,) 11 Mod. 174, n.(e) 72, 187, 189, 194 (J.,)5 A. & E. 134. S. C. 1 N. dz, P. 144. S. C. 2 H. & W. 157 218, 233 6 A. & E. 894 218 5 Q. B. 9, n. (o) 238 Cory, 3 Keb. 855. S. C. 2 Lev. 222 255 Holt. 439 413 3 Salk. 230-6 239, 292 Corye, Sty. 87 199, 246, 333 Coventry (Mayor,) 2 Salk. 430. S. C. Ld. Raym. 391. S. C. Holt, 433 101, 115, 17.5, 345, 3,55, 362 ■3 Doug. 236 125, 126, 186, 188, 394, 298 4D.&R. 330. S. C. 2 B. & C. 764 Cowle, Burr. 855 4 Croyden (Churchwardens,) 5 T. R. 713 174, 175, 176, 271, 288, 226, 314 TABLE OP CASES. XXIX R. V. Cumberland (3.). 1 M. &, S. 192, 196, 30, 32, 142, 230, 231, 232, 275, 276, 289, 305 ■, 4 A. & E. 697 134,218,230,239,413 Cumberworth, 3 B. & Ad. 108, 13 1 N. & P. 197. S. C. 4 A. & E. 731 244 Curghey, Burr. 782 165 Customs (Collector), 1 M. & S. 261 257, 293 2 M. & S. 223 259 Comnirs. 5 A. & E. 322. S. C. 1 N. & P. 536. S. C. 2 H. & W. 247. S. C. 6 N. & M. S. 828 113, 115 Cutlers' Company, Ca«. t. Hard. 129 116, 193, 292 Dalby, 3 Q. B. 602 65, 66 Danser, 6 T. R. 642 107, 110 Darlington School, 12 L. J., N. S., 124. Q. B. S C. 6 a B. 682, 707. S. C. 14 L. J. N. S. 67, Q. B. 13, 173, -.^01, 202, 2.54, 360, 381, 385, 397, 399 Dartmouth (Earl), 1 D. & M. 126. S. C. 5 Q. B. 878 207, 242, 452 - (Mayor), 3 Salk, 239 186, 194, 256, 310, 370 ■ 2 D., N. S. 980. S. C. 12 L. J., N. S. 83, M. C. 307, 381, 385 Davie, 9 A. & E. 371 63, 181, 182 Davies, 2 D. & E, 209, 234 201, 212 Day, Say. 202 111 Dean, 2 a B. 731 236 Dean IncloHure (Commrs.), 2 M. & S. 80 18, 19, 25, 131 Deptford Pier, 1 P. & D. 128. S. C. 8 A. & E. 910 28, 32, 86, 87, 292, 294, 420 Denbysh. (J), East, 142 135 14 East, 284 29, 263 9 D. 509 219 233 Derby (Councillors^, 2 N. & P. 589. S. C. 7 A & E. 419. S. C. W. W. & D. 671 12, 29, 69, 99, 100 CMayor), 2 Sal k. 436 16, 55, 314, 337 Cas. t. Hard. R. V. Derby, (J.), 4 T. R. 488 30, 219, 239 Nol. 29 232, 2b 1 1 D. 386 232 6 A. & E. 612 219 6 A. & E. 885. S. C. 1 N. cSi P. 148, n. (a) 218, 233, 237 1 N. & P. 703. S. C. W. W. & D. 248 233 3 N. & P. 591 218 7 Q. B. 193. S. C. 14 L. J., N. S. 84, Q. B. 136 Devises, Bull. N. P. 196, 204 293 Devon, (J.), 1 M. & S. 410 134. 232 4 M. & S. 422 232 1 Chit. 34 219, 237, 238, 239, 418 1 B. & A. 558 276 8 B. & C. 640, n. (a) 218 Dewsbury Roads, 4 Jur. 26 169 Divisional Justices, 1 All. & Nap. 269 62 Dolgelly Union, 8 A. & E. 561. S. C. 3 N. & P. 542. S. C. 1W.W.& H. 513 29, 130, 136, 174, 184, 185, 341, 412 Doncaster (Mayor), 2 Ld. Ken. 391 202 Say. 37. S. C. Ld. Raym. 1566. S. O. 1 Barn. 264. S. C. Bui I.N. P. 201, 205 39, 55, 186, 196, 198, 199, 200, 267, 323, 353 Burr. 738 56 630. 153 127, 128, 195, 196, 197 Derby.«.h. (J.). 1 VV. Blac, 605. S. C. Burr. 1991 119 200, 354, 357, 373, 375, 402 — 7 B. & C. S. C. 5 M. & R. 545 55, 57, 127 Dorchesf. (J.), Stra. 393. S. C. 1 Barn. 82. 221, 222 Dorsetsh. (J.), 15 East, 198 207, 232 Dover (Mayor), Stra. 407 329, 335 16 L. J., N. S. 97, M. C. 58, 59, 187, 195, 348 D'Oyly (Dr.), 12 A. & E. 139 69, 270 Drake, 6 M. & S. 116 41, 240, 411 Dublin (Dean), Stra. 540. S. C. 8 Mod. 28. S. C. 1 P. Wms. 348. 2, 3, 4, 5, 12, 39, 61. 64, 93, 94, 100, 178, 185, 226, 227, 272, 309, 321, 329, 375, 396, 402, 403 XXX TABLE OF OASES. B.. V. Dullingham (Myaor), 1 P. & I). 172. S. C. 8 A. & E. 853 159, 160, 419 Dunelmensem, Burr. 567 20, 272, 274 Durham (Corp.), 10 Mod. 146 263, 264, 362 (Mayor), Burr. 129, 134 96, 349, 428 (J.), 16 L., J., N. S. 112, M. C. ■ 219, 232 Dursley, (Churchwardens), 6 N. & M. 335. S. C. 5 A & E. 10 10, 18, 68 Dyer, 1 Salk. 181. S. C. Ld. Raym. 1406 203 . 2 A. & E. 608. S. C. 4 N. & M. 550 17, 51, 210, 248, 241, 418 — Earle, Burr. 1197 45, 90. 94 — Eastern Counties Railway, 2 P. &. D. 656 31, 244, 2S7 10 A. &. E. 515, 557. S. C. 4 P. & D. 48. S. C. 1 Bail. Cas. 509 11, 12, 15, 18, 24, 28, 39, 31, 108, 131, 243, 244, 280, 286, 287, 288, 292, 320, 322, 323, 328, 337, 349, 351, 352, 359, 373, 375, 376, 385, 413 2 Rail. Cas. 260. S. C. 9 L. J., N. S. 303, Q. B. 243 1 G. &, D. 589. S. C. 2 Y. B. 347. S. C. 11 L. J., N. S. 66, Q,. B. 85 -2G. & D. 1. S. C. 2 a B. 569. S. C. 11 L. J., N. S. 178, CI. B. 243, 327, 416 2 D., N. S. 948. S. C. 12 L J., N. S. 271, Q. B. 85, 86, 110 2 Jur. 365 85 : 4 Jur. 318 243 East India Company, 4 M & S. 283- 17,21,122,234, 301 -4B. & Ad. 530. S. C. 1 N. & M. 335 122, 234,285,206 —— East Lancashire Railway, 16 L. J., N. S. 127, a B. 8.5, 294, 295, 306, 310, 336 Eaton. 9 L. J., N. S. 98, M. C. 206 Ecclesall, 11 A. &E. 612 211 Edlaston (Churchwardens), 1 N. & P. 20, 572. S. C. W. W. & D. 163. S. C. 1 Jur. 53 220, 221, 289, 207 R. V. Edward?, 1 W. Blac. 637. S. C. Burr. 2105 220, 423 Edyvean, 3 T. R. 352, 165, 331 Effingham, 2 B. & Ad. 393, n. (a) 219,235 Elkins, 1 W. Blac. 640 423 Ellis, 2 D . N. S. 361. S. C. 361. S. C. 12 L. J., N. S. 96, Q. B., and 20, M. C. 119, 224, 225, 234, 240, 241, 242, 291, 318 Ely (En.) 1 W. Blac, 54. S. C. 1 Wils. 266 11, 16. 17, 77, 78, 80, 111, 185, 273, 274, 297, 304, 314, 335 1 W. Blac. 76. S. 0. Burr. 153. S. C. 1 Ld. Ken. 441 273 Andr.176,181,183 63, 76, 77, 78, 80, 93, 110, 226, 246, 275 2 T. R. 290, 345. S. C. 1 W. Blac. 90, n. (h) 10, 16, 78, 79, 80, 166, 176, 274, 275, 299, 432 5 T. R. 475 274, 275 2 M. & R. 127 S. C. 8 B. & C. 112 84, 95, 147 England (Bank), 2 Doug. 526 18, 20, 294, 323 2 B. & A. 622 5, 12, 23, 46, 83, 95, 97, 323, 402 Esham (Mayor), 2 Barn. 265 423 Essex Commrs. 1 6. & C. 477. S. C. 2 D. & R. 700 121 (J .), 2 Chit. 385 219, 232 323 5 M. & S. 513 222 1 B. & A. 210 219,232 4 B. & A. 373 10,61, 134 7 D. & R. 6.58 133 3 B. & Ad. 741 207 1 D. 539 222 Evans, 1 Show. 282. S. C. 4 Mod. 31. S C. 12 Mod. 13. S. C. Holt, 188 214, 215, 253, 371 1 Q. B. 352 158, 159 Everdon (Manor), 16 L. J., N. S. 18, a B. 155 Everet, Chas. t. Hard. 261 31, 483, 189, 304 Evesham (Corp.), Kely, 243 (Mayor), 7 Mod. 166. S. C. Stra. 949. S. C. 2 " Barn. 236, 267 37, 38, 75, 56, 185, 331, 332, 344 TABLE OF OASES. XXXI R. V. Evesham (Mayor), 3 N. & P. 351. S. C. 8 A. &E. 266 94, 292 Excise Commrs., 2 T. R. 385 4, 122, 288, 292, 295 6 Q. B. 975. S. C. 14 L. J., N. S. 179, Q. B. 122, 286 Exeter (Chapter), 12 A. & E. 536 181, 182 (Dean), 2 Show. 217. S. C. 2 filoJ. 316 43, 130 (Ep.), Palm. 51 59, 64 2 East, 466 15, 29, 63, 143, 144 (Mayor), 1 Show. 258, 260, 365. S. C. Comb. 198. S. C. 4 Mod. 33. S. C. Holt, 16J, 435. S. C. 12 Mod. 27, 251 39, 40, 187, 196, 197, 198, 199, 201, 202, 203, 330, 353, 403 : Ld. Raym. 223. 364, 432 (R.), 3 G. & D. 167. S. C. 5 Q. B. 342. S. C. 13 L. J., N. S. 7, M. C. 48 hlye (Bailiffs), 1 B. & C. 85. S. C. 2 D. &. R. 172 13, 16, 96, 97, 107, 108, 109, 125, 170, 199 (Corp.), 4 B &, A. 271 47, 97, 199, 218 (Mayor), 2 P. di D. 348. S. G. 9 A. & R. 670. S. C. 8 L. J., N. S., Q. B. 142 57, 58, 59, 296, 297, 305, 407 Fall, 1 G. & D. 118. S. C. 1 Q. B. 636. S. C. 5 Jur. 887 70,. 135, 205, 208, 381, 392, 393, 395, 396, 419, 434 Farringdon Ward, 4 D. & R. 735 40, 41 Faversham Freefishers, 8 T. R. 3-52 123, 126, 127, 200, 204, 3.58 Featherstonhaugh, Burr. 530 401 Fenton, 1 G. & D. 17. S. C. 1 a B. 480 67 Ferrand, 1 Chit. 745. S. C. 3 B. & A. 260 92 Field 4 T. R. 125 20, 143, 144 7 East, 348 b 248 Fisher, Say. 160 222, 298 Fleet (Warden), 3 Mod. 335 73 Flintsh. (J.), 7 T. R. 200 109, 218 2 D. & L. 143. S. C. 13 L. J., N. S. 163, M. C. 219 R. V. Flintsh, (J.), 15 L. J,, N. S. 50, M. C. 47 16 L. J., N. S. 55, M. C. 233 Flockwold Inclosure, 2 Chit. 251 14, 96, 138, 206 Ford, 2 A. dt E. 588. S. C. 4N. &M.451 283,284, 285 Fowey (Mayor) 4 D. & R. 134. S. C. 5 D. & R. 614. S. C. 2 B. & C. 591 10, 12, 14, 15, 37, 38, 57, 179, 292, 293, 297, 330. 331, 344 Fox, 2 Q. B. 246. S. C. 11 L. J., N. S. 41, Q. B. S. C. 1 G. & D. 566. S. C. In re Bail- iff of Wakefield. S. C. In re Jewison, 5 Jur. 989 97, 407 Fox, 1 W. W. & H. 4 209 Freeman, Ld. Ken. 19 67 Freshford (Churchwardens), And. 24 220 Frieston (Inhabs.), 5 B. & Ad. 598 218, 230, 231, 232 Frost, 8 A. di E. 822. S. C. 1 P. <& D. 75. S. C. 1 W. W. & H. 664 51, 94, 283, 284, 289, 304, 413 Gaborian, 1 East, 82 94 Gadsby, 1 N. & P. 572 221, 289, 319 Gamble, 11 A. & E. 69. S. C. 3 P. & D. 123. S. C. 9 L. J., N. S. 2 Q. B. 18, 19, 21, 25, 31, 120, 236, 243 Gardner, 1 N. & P. 308. S. C. 6 A. & E. 112 86 Gaskin (Dr.), 8 T. R. 209 53, 200, 201, 203* 212, 366 Gilkes, 8 B. &. C. 439. S. C. 2 M. & R. 454 128 Glamorgan (Mayor), 2 Smith, 8 392, 400 (Inhabs.), 12 Mod. 403 406 Glamorgansh. (J.), 15 L. J., N. S. 110, M. C. 238, 417 Glide, 12 Mod. 29. See Ex- eter (City) V. Glide, and R. v. Glide 40, 353, 355 Gloucester (Ep.) 2 B. & Ad. 158 13, 14, 117, 145, 185, 249 (J.)i 1 Doug. 191 109, 218 6 N. & M. 117 10, 133 zxsu TABLE OF CASES. R. V. Gloucester, (Mayor), 3 Bulst. 126, 189. S. O. 1 Roll. 409. S. C. 2 Show. 504 38, 39, 40, 200, 203, 263, 314, 344, 353, 363 (Mayor,) Holt, 450 56, 192, 198, 313, 314, 315, 316 1 D. & M. 677. S. 0. 5 Q. B. 862. S. C. 13 L. J., N. S. 233, Q. B. 51 Gloucestersh. (J.), 3 M. & S. 127 137 15 East, 582 - 262 1 B. & Ad. 2 207, 230, 231, 232, 236, 237 2D. &E. 45,48 3 T>. 298 218 426 1 P. & D. 249. S. C. 7 A. & E. 480 S. C. 9 A. & E. 338 47 Godolphin (Ld.), 8 A. & B. 347. S. C. 3 N. & P. 488 16, 29, 240, 303, 304 1 D. & L. 831. S. C. 13 L. J.,N. S. 57, M. C. 221, 222 Godwin, 1 Doug. 397 172, 263 Goodrich, 2 Smith, 388 42 Gordon, 1 B. & A. 524, 526, n. a. 223, 379 Gower (Dr.), 3 Salk. 230 1,77, 190 Grampound (Mayor,) 6 T. R. 301 27,54,56,278,303 w_— — — .^— — — — ^— 7 T H 699 56, 368, 369 Grantham, (Corp.) 2 W. Blao. 716 149, 152 Graicesend, (Mayor,) 2 B. & C. 602. S. C. 4 D. & R. 117 125, 177, 189 Gray's Inn, 1 Doug. 3.53 75 139,139,272 Greame, 2 A. & E. 614 134, 418 Great Farringdon (Church- wardens,) 9 B. &, C. 541 223 Great Western Railway, 1 D. &M.471. S.C. 5 Queen's Bench, 597. S. C. 1 D. & L. &7i 86,285,413, 490, 421 Green, Skin. 670. S. C. Ld. Raym. 152, S. C. 5 Mod. 316 62, 119, 439, 432 R. V.Green, 6 A. &E. 548. S.C. IN. & P. 631 11,30,52,94, 287 Greene, 4 Q, B. 653 420 Griffiths, 5 B. & A. 731. S. C. nom. R. v. Brifctol (Mayor,) 1U.&.R. 389 53, 176, 192, 201, 288, 292, 386, 401, 402 Grimes, Burr. 2598 200, 201 Guildford (App. Men), 1 Lev. 162. S. C. Raym. 152. S. C. 1 Keb. 623, 868, 880. S. C. 2 Keb. 1, 623 43, 130, 191, 192, 193, 197, 199, 310, 318, 341 Guise, 3 Salk. 88. S. C. Lord Raym. 1008. S. 0. 6 Mod. 99 70, 73, 187, 189, 194 Gun makers' Company, W. Kel. 280 126 Guy, 6 Mod. 89 412 Hale (Dr.), IP. & D. 297. S. C. 9 A. & E. 339 153, 154 Halifax (Oversews), 10 L. J., N. S. 81, M. C. 206 Hall, 1 H. & W. 83 224 4 N. & M. 546 224 Halls, 3 A. & E. 494 210 240 241 Raise, 1 Keb. 20 55, 260, 319, 366, 430 Hamstall, (Inhabs.), 3 T. R.382 222 Hantz (J.), 1 B. & Ad. 658 22,25,91,99,119,240, 241 Hare, 13 East, 188 121, 412 414 Harewood, 2 East, 177 186. 188 Ilarham Roads, 4 Jur. 50 8H, 373 375 Harland, 8 A. & E. 826 ' 124 Harnham Roads, 5 Jur. 408 413, 420 Harris (Dr.), Burr. 1420. S. C. 1 W. Blax;. 430 23, 35, 70, 71, 72, 168, 187, 189, 1P4, 249, 278,333,359, 402, 403, 412 V. Harrison, Burr. 1323. S. C. 1 W. Blac. 372 99, 125, 126 16 L. J., N. S. 53. M. C. 21, 205,4ie TABLE OF OASES. XXXllI R. V. Harwich, (Mayor), 1 P. & D. 134. 8. C. 8 A. & E. 919. S. C. 8 L. J., N. S. 13 Q. B. 57, 58, 187 Harwood, 8 Mod. 380, I,d. Raytn. 1405 70, 72, 73, 187, 188, 194, 229 Ilaslemere (Corp.), Say. 106 331, 332, 333 Hastings (Ld.), 1 I). & M. J 32. S. C. 6 Q. k 141. S. C. 13 L. J., N. S. Ill, M. C. 48 (Mayor), Cas. t. Hard. 362 321 5 B. & A. 693, n. (fl) 150 ID. & R. 149 108, 109 Havering (Stewaird), 5 B. & A. 691 108, 109, 150 Haworth, 12 East, 555 67, 74 Hay (Dr.), Burr. 2295. S. C. 1 W. Blac. 445, 640 27, 33, 35, 36, 105, 277, 278, 412 Hearle, Stra. 625. S. C. 3 Bro. P. C. 178. See R. v. Hull. 397 ■ HeathCotP, Fort. 290. S. C. 10 Mo.l. 51, 61 2, 1.5, 17, 37, 81, 183, 296, 303, 326, 336, 403, 421, 422, 423, 436, 442 Heaven, 2 'I'. R. 772 38, 40, 190, 191, 197, 201, ^3 Hedger, 4 P. & D. 52. S. C. 12 A. & E. 139. S. C. 9 L. J., N. S.. 117, M. S. 69, 205 Helston (Mayor), Stra. 555 180 Henchman (Dr.). Cas. t. 130. n. (a) 70,72,73,187,189, 194 Hendon (Inhabs.), 2 D. & R. 449 222 (Manor), 2 T. R. 484 155, 157, 158, 159 Hereford, 1 Keb. 655. S. C. 1 Sid. 209 262, 263 (Mayor) 6 Mod. 309. S. C. 2 Sails. 701. S. C. Ld. Raym. 560 262, 309, 316, 332, 342 Hertfordsh. (J.), 1 Chitt. 700 103 3 T. R. 504 109, 218. 237 4 B. & Ad. 561 237 . 8 D. 636 218 Hewes, 3 A. & ^:. 725, 730 S. C. 5 N. & M. 139 104. 106, 109, 111, 112,233 Hexham (Manor,) 5 A. dz. April, 1852.— 3 E.559. S. C. IP.&D. 53 15S 1.56, 160 R. V. Heydon (Aldermen), Say. 208 165, 167, 299 Heyward, 1 M. & S. 628 28,29,30,275,418 Hill, 1 Show. 203, 253. S. C. nom. Lambert's case, Carth. *170. S.C. 12Mod. 3 116,249, 348, 351 —^ Hinchcliffe, 16 L. J., N. S. 78, M. C. 47 Holbeche, 4 T. R. 779 14, 220 299 Holford, 2 Barn. 330, 350 ' 58, 94, 313 ■ Holland, 1 T. R. 662 41 Holmes ^Mayortif-Wigan), Burr. 1641 57, 246, 365, 366, 367 Holt, 3 Keb. 667. S. C. Sir T. Jon. 52 175, 200, 201, 246, 313, 314, 315, 316, 319 Hopkins, 1 Q. B. 161. S. C. 4P. &D550. S.CiOL. J., N. S. 63, Q. B. 18, 20, 21, 51, 107, 1S6, 320, 323 Hornby. See Banker's case. Horsley (Inhabs.), 8 East, 408 ^ 33 Horton, 1 T. R. 374 a05 Hoskins, Cas. t. Herd. 188 16.5, 341, 342, 365, 367 House of Correction (Govr.), 2 N. & M. 138 227, 411 Hughes, 4 B. & C. 379 351 3 A. & E. 429. S.C. 5N. &M. 94 12,52,91, 210, 224, 240, 234, 301, 418 —^ Hull, 11 Mod. 390. is. C. nom. R. V. Hearle, Stra. 625. S C. 3 Bro. P. C. 178. S. C. Ld. Raym. 1447. 167,168,178, 188, 354, 401 (Mayor), Stra 578 335, 337 Railway, 8 Jur. 491. S. C. 13 L .r., N. S. 257. Q. B. S. C. 6Q. B. 70 20,23,86, 417 (Recorder), 3 N. & P. 595. S. C. 8 A. & E. 638 276 Hungerford Market, 2 B. & Ad. 204 301, 406 ^ 4 B. & Ad. 204 S. C. 1 N. &. M. 112 85, 87, 373 2IV.& S. C. 1 A. & E. 668 85 M. 340. Huntingdonsh, (J.), 5 D. & R.588 91 xxxiv TABLE OF OASES. R. V. Hutchinson, 8 Mod. 99. S. C. Fort. 200 195, 196, 197, 199, 353 Hyth (Mayor,) 5 A. & E. 832. S. C. 1 N. & P. 239 57 Illchester (Bailiffs), 2 D. & R. 724. S. C. 4 D. & R. 326. S. C. 2 B. & C. 764 108, 149, 357, 370 Int'leton, (Manor), 8 D. 693 160 Ingram, 1 VV. Blac. 49 52, 84, ^ 94 Ipswich (Bailiffs), 1 Barn. 407. 46, 324, 335 2 Salk. 434. S. C. Ld. Raym. 1233. S.C. Holt, 443 186,196,198, 202, 203, 204, 247, 299, 315, 318, 345, 347, 349, 403, 408 7 East, 81 140 (R), 8 D. 103 51 Jay, 3 Keb. 714. S. C. 1 Vent. 302 101, 102, 192, 198, 364 Jennings, 2 Jur. 179 226 Jeyes, 3 A. & E. 421. S. C. 5 N. & M. 104. S. C. 1 H. & W. 325 4, 7, 9, 2.'j, 30, 84, 97, 103, 104, 131, 280 Johnson, Stra. 261 203 4 M. & S. 515 25, 103 Jones, Stra. 704 287 2 Barn. 239 91, 92, 304 6 T. R. 28 140 Jorden 185 Jotham,3 T. R. 575 28, 88, 118, 186, 193, 294, 413, 414 Jukes, 8 T. R. 635 230, 239 Kelk, 12 A. & E. 559. S. C. 4 P. & D. 185. S. (;. 1 G. & D. 127. S. C. 1 Q. B. 600. S. C. 9 L. J., N. S. 362, Q. B. B. 0. 5 Jur. 888 89, 120, 309, 348, 319, 381, 392, 395, 411, 417, 428 Kelvedon, (J.), 5 A. & E. 690 218 Kendall, 4 P. & D 603. S. C. Q. B. 361. S. C. 10 L. J., N. S. 137, Q. B. 118, 137,2.54,267, 271, 272, 281, 2-^5, 286, 322, 323, 338, 349, 351, 353, 3.57, 360, 366, 370, 373, 374, 378 Kensington, Q. B. & Ad. 740 266 Kent, (J.), 6 .V]. & S. 2.58 30 11 East, 230 14, 92, 93 R. V. Kent (J.), 14 East. 396 13, 14, 15, 31, 32, 142, 230, 231. 232, 236, 275. 276, 289 8 B. & C. 639 218, 237 9 B. & C. 289 29, 222, 232, 285, 290 4 N. & M. 299 271 ■ 2 a B. 686. S. C. 2 G. & D. 152. S. C. 11 L. J., N. S. 26 M. C. 147,219 Kesteven (J.) 1 D. &M. 113. S. C. 3 Q. B. 8111. S. C. 13 L. J., N. S. 78, M. C. 219, 231, 233, 2.35 Kiddy, 4 D. & R. 735 41, 92 Kicnbollon (Inhabs.), 6 A.Sl E. 604 218 Kingscleere (Churchwar- dens). 2 Lev. 18. t^eelle's case 63, 89, 1-51, 152, 153, 175, 211, 254 King's Lynn (j:), 3 B. & C. 147. S. C. 4 D. & R. 778 251, 290, 292 Newton (Inhabs.), 1 B. & Ad. 880 135 Kinffston upon Hull (Mayor), 8M()d.'210. S. C. Str.578. S. C. 11 Mod. 382 93, 125, 310, 324 Kirke, 5 B. & Ad. 1089 37,417, 419, 420 Knapton, 2 Keb. 445 262 Kynaston, 1 East, 116 218 Lacy, 5 B. & C. 706 132 Lambeth, 12 Mod. 3. S. C. Garth. 170. S. C. 1 Sid. 209, 210 42,226 (Parish), 12 Mod. 3 72 2 B. & Ad. 651 68 3 N. & P. 416. S. C. 3 A. & E. 3.56. S. C. 9 L. J., N. S., 113 M. C. 69.70 Lancash. (J.), 12 East, 366 134, 291 1 B. &. A. 630 137 5 B. & A. 755 90 7 B. & C. 691 14, 218, 232, 233, 2-il 1 D. & It. 485 205, 432, 433, 434 2 M. & R. 519. S. C. 8 B. & C. 593 132, 134 1 G. & D. 146. S. C. 2 Q. B. 85 219 3 G. & D. 296. S. C. 4 Q. B 910 219 10 L. J., N. S. 103, M. C. 67 3 Q. B. 367. TABLE OF OASES. XXXT S. C. 2 G. & D. 714. S. C. 12 L. J., N. S. 76, M. C. 219, 239 R. V. Lancash. (J.), 12 L. J., N. S. 110, 1 M. C. 232 1 D. & M. 488 219 2 Barn. 430 205, 347 Land Tax Commissioners, 1 T. R. 148 173, 174, 181 Lane, 11 Mod. 270. S. C. Fort. 275. S. C. Lord Raym. 1304 56, 192, 195, 198 Langlev, 5 Q. B. 619, n. {g) 201 Larwood, 4 Mod. 269 251 Lee, 1 Show. 252. S. C. Carth. 169. S. C. 3 Lev. 309. 3 Mod. 334. See Leigh's case and R. v. Oxenden 29, 43, 75, 152, 153, 350 Leeds CanaUS P. & D. 174. S. C. 11 A. & E. 316 60, 87, 291 (J.), 4 T. R. 583 10 . (Mayor), Stra. 640 190 7 A. & E. 963. S. C. 3 N. &. P. 145. S. C. 10 L. J., N. S. 112, Q. B. 4 P. & D. 632 512 11 A. & E. 100 94 " 101, 180, 182, 297 • 4 Q. B. 796 418 • (Kailway), 5 N. dz, M. 246. S. C. 3 A. & E. 683 85 Leicester 221 (Ep.), 7 D. & R. 708 302 •(J.),4B.&C.891. S. C. 7 D. & R. 370 52, 103, 209, 283, 302, 305, 323, 324, 379, 409 (Mayor), Burr. 2087 39,40, 5.5,191, 196, 197,198, 201, 402 Leicestersh. (J.), 1 M. & S. 444 109, 110, 111, 112, 230, 281, 236, 237, 238, 320 4 D. 633 218 Lewis, 1 Barn. 166. S. C. Stra. 855. S. C. Fitzg. 85. S. C. Sess. Ca. 68, pi. 2 214 ~ 1 0. 530 1.35 Leyland, 3 M. & S. 184 168, 180 Lincoln, (Ep.), 2 T. R. 338 273, 274, 275 404 ■ (Mayor), 5 Mod. 12 Mod. 272 190, n. (o). S. C. Carth. 448. S. C. 5 Mod. 339, 402. S. C. Ld. Raym. 203 125, 126, 315 R. V. Lincoln's Inn, 7 D. dz, R. 368. S, C. 4 B, & C. 8.55 18, 21,27, 28, 29, 36, 79, 126, 138, 139, 267, 273 Lincolnsh. 3 B. & C. 548 48 Litchfield (Archdeacon), 5 N. fiz, M. 42. S. C. 1 II. & W. 463 71, 73, 298 (Ep.) Stra. 1023. S. C. 7 Mod. 218. S. C. 2Keb. 287. S. C. And. 367. S. C. 2 Barn. 365, 429— see R. v. Rush- worth 12, 23, 144, 177, 201, 213, 253, 254, 255, 293, 353 (Mayor), 1 G. di D. 28. S. C. 1 Q B. 453. S. C. 5 Jur. 889. S. C. 6 Jur. 624. S. C. IIL. J., N. S l-i2, Q. B. S. C. 16 L. J., N. S. 333, Q. B. 51, 58, 59, 415 2 Q. B. 693. S. C. 2 G. dz, D, 10 58 Littleport, 6 Mod. 97. S. C. Fol. 8. S. C. 2 Salk. 531. S. C. 3 Salk. 232. S. C. Ld. Raym. 1009. S. C. 10 Mod. 104. S. C. Holt, 579 221, 338, 380 Liverpool (City), 1 Barn. 81 93, 268, 299 (Customs), 2 M. & S. 223 16, 29 (Mayor), Burr. 723,731 39,55, 101, 190, 192, 195, 198, 199, 2(10, 202, 2(i3, 351, 3.53, 354, 357, 358, 359, 375, 383, 402 3 N. dz; P. 280. S. C. 8 A. dz, E. 176 88, 145, 213 Railway, 6 N. &. M. 186. S. C. 4 A. & E. 650 85 — Llandillo Roads, 2 T. R.232 15, 131, 132 — Lloyd, Stra. 996 215 London (Aldermen), 2 Barn. 398 75, 84, 257 — ^ Assurance, 5 B. di A. 901. S. C. 1 D. & R. 510 22, 28, 53, 82, 83 _ (City), Skin. 293, 301. S. C. 4 Doug. 360 39 1 Show. 240 187 2 Barn. 398 173 Dock, 6 N. dz, M. 390. S. C. 5 A. & E. 163 8.5, 261, 353,369,-373,411 (Ep.), 1 Show. 282, n. (ft) 215 1 Wils. 11. S. C. nom. Lecturer of St. Anne. Stra. 1192. S. C. 13 TABLE OP OASES. Kast, 420, n. 15, 23. 29, .SO, 33, 59, . 62, 122, 143, 144, 145, 149, 171, 173, 178. 227, 254, 267 R. V. London (Ep.). 1 T. R. 331 29, 115, 143, 144, 145, 293, 412 13 East, 420 15, 29, 117, 143, 144, 146, 199, 294, 297, 313, 314 (J.), Burr. 1456 240 15 L. J., N. S. 127, M. C. 233 (Mayor), 1 Show. 280. S. C. 4 Mod. 58 180 — 10 Mod. 53 43, 303 — 13 Mod. 17. S. C. Skin. 293 39, 370, 371 2 Show. 69 246 Holt, 169 201 M. 26 G. 3, B. R. 203 4 Doug. 360 39, 357 1 T. R. 146 180 1 T. R, 423 45, 115, 184, 185, 288, 292 2 T. R. 177 53, 101, 171, 174, 175, 182, 185, 190, 192, 193, 199, 201, 203, 211, 253, 281, 288, 292, 294, 359 2 T. R. 182, n. (6) 60, 75, 84, 151, 153, 173, 174, 186, 191, 192, 211, 258 15 East, 631 222, 232 5 B. & Ad. 233 303, 304, 360, 413, 426 9 B. & C. 21. S. C. 4 M. & R. 46 13, 38, 96, 97, 190, 191,275, 297,360, 361, 362, 386, 411 3 B. & Ad. 254. S. C. 2 N. & M. 126 13, 14, 38, 117, 185, 186, 198, 199, 309, 349, 360, 361, 374, 375, 377, 281, 333, 384, 386, 392, 392, -397, 426, 431 1 N. & M. 285 360 1 D. & M. 484. S. C. 5 d. B. 555. S. C. 13 L. J., N. S., M. C. S. C. 1 D. & L. 806, nom. Ex parte Fletcher 228 (Mayor), 16 L. J., N. S. 185 43, 44, 357, 384 Railway, 4 N. & M. 458. S C. 2 A. & E. 673 85 R. V. London Railway, 2 P. & D. 243. S. C. 10 A. & E. 3 2 G. & D. 444. S. C. 3 Q. B. 166. S. C. 11 L. J., N. S., 186. Q. B. 85 85 15 L. J., N. S., 42 Q. B. S. C. D. & L. 399 18, 22, 86, 98, 290, 294 (Requests Court), 7 East, 295 313 Waterworks, 1 Lev. 123 29, 137, 142, 170 Lonff, 1 Barn. 82 93, 123, 352 10 L. J., N. S., 124. M. C. 219 1 G. & D. 367. S. C. 1 Q,. B. 740 97 Love, 12 Mod. 601 100 Lowton Parish, 11 Mod, 301 220, .346 Lucas, 10 East, 235 161, 162 Ludlara, 8 Mod. 267. S. C. Stra. 675 12.5, 126 Luton Roads, 1 G. & D. 248. S. C. 1 Q. B. 860. S. C. 10 L. J., N. S. 263, Q. B. 131, 288, 292, 304, 357, 359, 395, 402,^ 406, 408 Lyme Regis (Mayor^^ 1 Doug. 79, 134, 149. C. S. Andr. 105 40, 56, 73, 80, 159, 181, 191, 19.5, 196, 197, 198, 199, 200, 201, 203, 321, 334, 335, 346, 348, 349, 350, 351, 353, 354, 356, 357, 358, 362, 368, 369, 370, a72, 389, 401, 402, 428, 429 Lynn, 2 H. & W. 314 160 (Mayor,) Andr. 105 195, 348, 351 Lyndsay (J.), 6 M. & S. 379 218, 237, 239 Mac Kay, 4 B. & C. 658 184, 291 Maidstone (Corp.), 1 Keb. 733 188, 349 (Mayor,) 6 D. & R. 334 52, 151 Maiden, Burr. 2132 180, 188 (Bailiffs), 2 Salk 431. S. C. Ld. Raym. 481 46, 348, 351 Malinesbury (Aldermen), 3 G. & D. 482. S. C. 3 Q. B. 677. S. C. 11 L. J., N. S. 318. Q,. B. & C. 6 Jur. 1107 55, 127, 395 (High {stew- ard,) 4 Jur. 222 81 TABLE OF OASES. XXXVll R. V. Malmesbury CMayor), 9 D. 359. S. C. 5 Jur. 566. S. C. 10 L. J., N. S. 129, Q. B. 421 Manchester (Borough), 16 L. J., N. S. 27 Q. B. 87, 141 ■ (Churchward- ens), 7 D. 707 206, 298 (J.), D. & R. 454. S. C.. nom. R. v. Lan- cansh. (J.), 5 B. & A. 955 (Mayor), 5 Q. B. 402 90 87 Railway, 8 A. & E. 413. S. C. 3 N & P. 439 295, 415, 420 -&c. Railway, 11 384 A. & E. 956, n. Railway, 1 G. & IX 338. S. C. 3 Q. B. 528. S. C. 3 G. & D. 269 60, 131 244, 288, 292 349, 397, 402, March, Burr. 999 126, 373 Marches (President) see R. V. Clapham, and R. v. Win. Margate Pier, 3 B. & A. 223. S, C 2 Chit. 256 18, 19, 24, 25, 223, 319, 320, 323, 338, 375, 380 Market Street (Commrs.), 4 B. & Ad. 333, n. (o) 83, 85 Mariott, 1 D. & R. 166 132, 369 Marriott, 12 A. & E. 779 241 iMarsh, 4 D. & R. 260 92 Marsham, 2 T. R. 2 115 Martin, 1 D. & M. 386. S. C. 2 li. B. 1037, n. (a) 98 13 L. J., N. S. 54, M. C. 133 — Martyr, 13 East, 55 47, 48 — Maude, 2 D., IM. S. 58. S. C. 11 L. J., N. S. 120, M. C. 48 — Main, 3 T. R. .596 414 Merchant Tailors, 2 B. & Ad. 115 95j 121, 161, 162, 163, 413, 416 Merionethsh. (J.) 1 D. & M. 121. a C. 6 Q B. 163. ». C. 13 L. J., N. S. 114, M. C. 219 Middlesex (Archdeacon), .5 N. & M. 497. S. C. 3 A. &, E. 615 12, 63, 70, 72, 73, 258, 285, 286, 290, 299. ^J.), Say. 148 205 1 Wils. 125 30, 207 6 M. & 8. 279 91 R. V. Middlesex (J.), 2 Keny. 163 119, 224 1 Chit. 366, 368 137, 306, 415 16 • East, 310 232 4 B. & A. 298 47, 218, 230 3 B. dz. Ad. 100 89 5 B. & Ad. 1113. S. C. 3 N. (Sz, M. 110 111, 238 1 D. 116 135 2 H. & W. 222 91 2 A. & E. 606. S. C. 4 N. & M. 5, 50 418 (A.), 3 A. & E. 616 181 (J.), 5 N. & M. 126 52, 224 2 D. 163 218 ■ 9 A. & E. 540. S. C. 1 P. & D. 402. S. C. 2 W. W. & H. 100 13, 16, 17, 29, 32, 103, 109 3 P. & D. 459. S. C. 11 A. & E. 809 219,232 9 L. J., N. S. 59, M. C. 233 12 L. J. N. S. 36, M. C. 241 12 L. J., N. S. 59, M. C. 134 14 L. J., INT. S. 139, M. C. 233 15 L. J., N. S. 100, M. C. 219 16 L X, N. S. 104, M. C. 147 16 L. J. N. S. 135, M. C. 219 • 4 a B. 807. S. C. 12 L. J., N. S. 134, M. C. 219 2 D., N. S. 385 224, 242 2 D., N. S. 719 137, 302 3 D. & L. 109 222 3 D. & L. 745 219, 233 (Lun. Asy. V. J.), 2 G. & D. 300. S. C. 2 Q.B. 433. S.C. 11 L, J., N. S. 30, M. C. ■ 63 xxxviii TABLE OF CASES. R. V. Middlesex, (Register), 7 Q. B. 156. S. C. notn. In re Ivi- mey, 14 L. J , N. S. 200, Q. B. 248 (Sheriffs), 3 G. & D. 549, S. C. 13 L. J., N. S., Q. B. 14. S. C. Wallier V. London Railway, 3 Q. B. 549, 744. S. C. 5 Q. B. S65. S. C. 13 L. J., N. S. 38, Q. B. 85, 86, 417 Midhurst (Borough), 1 Wils. 283. See R. v. Montacute (Lord) 325 Mildenhall Savings' Bank, 2 N. & P. 278. S. C. 6 A. fiz, E. 952 252, 300 Mildmay, 5 B, & Ad. 254. S. C. 2 N. & M. 773 157, 160, 377 Mills. See R. v. Guildford (Approved Men). 2 B. & Ad. 578 14, 219, 418 Milverton (Manor), 3 A. & E. 285. S. C. 1 H. & W. 282 15, 89, 148, 149, 150, 228, 290, 304, 346, 408 Menshall, 1 N. & M. 277, 230 Mirehouse, 2 A. & E. 637, 644. S. C. 4 N. & M. 394 51. 91, 134, 210, 224, 340, 241, 301, 414, 418 Mizen, 1 D. N. S. 865 414 Monday, Cowp. 530 38, 188, 342, 367 Monmouth (Mayor), 4 B. & A. 496 57, 130, 354, 356, 370 Monmouthsh. (J), 1 B. & Ad. 895 14, 110, 112, 218, 233, 417 4 B. & C. 846. S. C. 7 D. & R. 334 109, 110, 111, 219, 230, 233, 233, 236, 237 ■8 B. & 230, 232, 237 3D. 306, 14, 218 12 L. J., 48, 218 1 D. & 237 1 Blac. C. 138 310 N. S,, M. C. 126 L. 145 Montacute (Ld.) 61. S. C. nom. R. v. Midhurst (Borough), 1 Wils. 283. S. C. 3 Mud. 334, n. (e) 5, 10, 11, 38, 55, 57, 74, 115, 137, 139, 141, 148, 149, 153, 153, 154, 155, 1.57, 158, 159, 167, 168, 176. 169, 227, 2^5, 324, 325 R. V. Montague, 1 Barn. 72 123 Montgomerysh. (J.), 2 D. & L. 119. S. C. 14 L. J., N. S. 142. Q. B. 219, 233 Morgan, 7 Mod. 322 165 2 A. & E. 613. S. C. 3 N. & M. 68. See R. V. Bucks. (J.) 135, 224 (e) Morpeth (Ball), Stra. 59 130, 178, 188, 211, 229, 250, 253, 254, 255, 257, 383 (Bailiffs), Stra. 179 128 897 Morris, Ld. Raym. 338 Nash. Ld. Raym. 989. S. C. 1 Salk. 149 90 Neale, 4N. &M. 868 201, 204, 212, 213 Nene Outfall, 4 M. & R. 647. S. C. 9 B. & C. 875 85, 120, 261, 411 Newbury (Mayor), 1 Q. B. 751. S. C. 1 G & D. 388. S. C. 2 G. & D. 109. S. C. 2 Jur. 812. S. C. 6 Jur. 821. S. C. 11 L. J., N. S. 149, Q. B. 88, 199, 320, 323, 334, 338, 339, 381, 395, 416 Newcastle (Corp.), 1 Barn. 385 423, 424 Newcastle (Hostmen), Stra. 1223 9.5, 170, 379 (J.), 1 B. & Ad. 933 233, 325 (Mayor), coin. monly called Parott's case 196 cited in Burr. 530 192, 196, 360 - 1 Q. B. 751. S. G. 1 G. & D. 388 384, 416 Newcastle-upon-Tyne (May- or), 1 East, 115 388,431 Newoomb, 4 T. R. 368 224, 240 New Coll. 2 Lev. 15. S. C. 1 Mod. 82 3, 79, 80, 191, 268, 303, 304, 347, 368 Newell, 4 T. R. 266 205 New River, 1 Keb. 269, 631 173, 174, 262 Newsham, Say. 211 16.5, 166, 180, 181, 299, 442 New Waterworks, 1 Lev. 123. See Middleton's case 79 New Windsor (Mayor), 13 L. J., N. S. 337, Q. B. S. C. 7 Q. B. 908. S. C. 14 L. J , N. TABL] OF A S S S. XXXIX S. 319, Q. B. 58, 187, 351. 360, 380 R. V. Norfolk (J.), 1 D. & R. 69, 75. S. C. 5 B. & A. 484 10, 13, 14, 218, -219, 231 1 N. & M. 67 206, 207 2 B. & Ad 944, 207 3 N. & M. 55. S. C. 5 B. & Ad. 990 218, 232, 233 Norris, 1 Barn. 385 127 Norlhamptonsh. (J.), 6 A. & E. HI 218 Northern Railway, 8 D.329. S. C. 9 L. J., N. S. 53, Q. B. 85 Northleach Roads, 5 B. & Ad. 984 16, 136, 286 North Midland Railway, 11 A. & E 955. S. C. 3 P. & D. 622. S. C. 2 Rail. Cas. 1. S. C. 9 L. J., N. S. 267, Q. B. 85, 360, 374, 384 North Riding (J.), 2 B. & C. 290. S. C. 2 D. & R. 510 13, 13, 14, 28, 129, 227, 228, 239, 240, 292 ■ 7 Q. B. 154. S. C. 14 L. J., N. S. 91, M. C. 133 331, 345 Norlhwich Savings' Bank, 9 A. & E. 729. S. C. 1 P. & D. 477 15, 32, 231, 252 — Norwich, (Dean), Stra. 158. S. C. Fort. 222 226, 227, 373 (J.), 3 D, & R. 43 223, 234 (Mayor), Stra. 5.5, 180 313, 314, 316, 319, 335, 336 Norwich (Mayor), 2 Salk. 436. S. C. Holt, 444. S. C. Ld. Raym. 1244 13, 38, 117, 229, 324, 353, 360, 361, 362, 374, 375, 402, 403 1 B, & Ad. 310 129, 13.5, 180 8 A. & E. 633 88, 175 ■ 3 Q. B. 285. S. C.2G. &.D. 605 S. 246, Q. B. 11 L. J., N. (Overseers), Nol. 88 28 223 Railway, 15 L. J., N. S. 24, Q. B. S. C. 3 D. & L. 3«5 19, 244, 284, 285 Nottingham, 1 W. Blac .58 17, 295, 379 (J.), Say. 217 41 2 iBarn. 56 218, 320 R. V. Nottingham, (Mayor), Say. 36 293, 3(19, 322, 373 (Town), Bull. N. P. 201 193, 401, 433 (J.), 3 A. &. E. 500. S. C. 5 N. & M. 160 52, 103, 283 Old Water- works, 1 N. «& P. 480. S. C. 6 A. & E. 355. S. C. W. W. & D. 166 18, 19, 20, 24, 27, 45, 46, 83, 86, 99, 141, 147, 2H2, 294, 302, 305, 379, 414 Waterworks, 5 N. & M. 493 85 Oakhampton (Mayor), 1 Wils. 332 125 Old Hall (Manor), 10 A. & E. 2.56. S. C. 2 P. & D. 518. S. C. W. W. &. D. 650 109, HI, 150,353,360,361,374,375 Oldham (Manor), 16 L. J., N. S. 110, M. C. 250 Ollerhead, or R. v. Wigan (Corp.). Burr. 782, 785 167 Oreford (Borongh) 332 Orford, Say. 146 433 Osborn, 1 Com. 240 125 Ottery St. Mary, 3 G. & D. 382. S. C. 4 Q B. 157. S. C. 12L. J., N. S. 118,Q. B. 28,63, 64, 118, 140, 271 Oundle (Manor), 1 A. & E. 283, 297. S. C. 3 N. & M. 484. S. C. 1 N. & M. 586. 4, 7, 155, 157, 158, 159, 379, 375, 376, 398, 416, 417 Ouse Bank Commissionerp, 3A. &E. 544 31,117,120,317 328, 346, 352, 359, 374, 375, 403 Owen, Stra. 669 334 4 Mod. 293. S. C. Comb. 317 215 5 Mod. 314. S. C. Comb. 239. S. C. Skin. 669. S. C. Holt, 190 94, 326, 333, 337, 345, 406, 408, 422, 423 Oxenden, 1 Show. 217, 219. S. C. num. R. v. Lee, 251,261, 263. S. C. Keb. 549. S. C. 3 Lev. 309. S. C. Holt, 434. S. C. 3 Mod. 332. S. C. Carth. 169. S. C. Skin. 290. S. C. 3 Salk. 230 2, 12, 18, 19, 44, 70 89, 110, 174, 178, 212, 229, 260 Oxford (Corp), Cas. t. Hard. 177 180, 313 '■ (Ep.), 7 East, 345, 351 63,93,113,143,144,309 319,320,321,323,337,414 xl TABLE OF OASES. R. V. Oxford (C), 7 East, 600, 606 49, 113,320 (Mayor), 2 Salk. 429. S. C. 2 Jon. 121. S. C. Holt, 43S. S. C. Comb. 419 100, 165, 175, 176, 187, 188, 204, 263, 4012, 40 6 A. & E. 349. S. C. 1 N. & P. 474 27, 28, 81, 99, 100, 101, 180, 181, 182, 192,245,313,315,419 . Palm. 4.'jl. S. C. Nby, 92. S. C. Latch, 229 39, 40, 194, 201, 203, 227, 333, 346, 364, 366, 370, 422 Roads, 4 P. & D. 154. S C. 12 A. & E. 427 132 Oxfordsh. (J.), 1 M. & S. 446 2 B. & A. 91 203 279 1 B. &. C. 92 48 3 G & D. 349. S. C. 4 Q,. B. 177. S. C. 12 L. J., N. S, 4, M. C. 123, 233 -^ 5 D. 116 48 Paddington Vestry, 9 B. & C. 461 4, 15, 30, 134, 288, 412 Pagham's Level, 8 B. & C. 355. S. C. 2 M. &, R. 471 120, 243, 297 Palmer, 8 East, 416 204, 205 288, 292 Parrott. See Parrott's case 197 Pascoe, 2 Moore & Scott, 343 00, 207 Pateman, 2 T. R. 777 37, 17.5, 179, 197 Payn, 1 N. & P. 52S. S. C. 6 A. & E. 392. S. C. 1 W. W. & D. 99, 142. S. C. 2 Jur. 47 11, 12, 25, 50, 102, 103, 104, 115, 136, 177, 303, 329, 349, 352, 360, 367, 373, 374, 415, 417 Payn, 1 Jur. 54. S. C. 3 P. & a 623. S. C. 11 A. & E. ».i5. a C. 2 Rail. Cas. 1. S. C. 9 L. J., N. S. 285, Q. B. 102, 367, 372, 373, 375, 384 Paynter, 7 Q. B. 225. S. C. 14 L. J., N. S. 179, M. C. 224, 240, 343 Peach, 2 Salk. 572. S. C. nom. Peat's case, 6 Mod. 229 11, 12, 189 Pedley, 4 Barn. & Adolph. 398 236 B: V. Pembroke (Ch wdns.), 5 A. & E. 603. S. C. 1 N. C& P. 69 68, 385 (Corp.), 8 D. 302 166, 167, 315 Pembrokesh. (J.), 2 East, 212 133 r — 2 B. & Ad. 391 15,219,235,236 Penrice, Stra. 1235 348, 350 Peterborough {J.),Cald.238 205 Pettiward (Dr.), Burr. 2452 135, 432, 433, 4.34 Philingham, 1 Keb. 777 39,55 Phippen, 7 A. & E. 96-5. S. C. R. V. Ricketts, 3 N. & P. 151. S. C. 2 Jur. 966 99, 179, 180 Physician's Coll., 2 Show. 178. S. C. nom. Dr. Merit's case 99, 138, 139, 216, 217 Burr. 2186 55, 96, 124 ■- 7 T. R. 282 216 Burr. 2740 217 324, 338, 339, 380 Pickles, 3 Q. B. 599, n. (a). S. C. 12 L. J., N. S., 40, Q. B. 115,295,314,413 Pindar, 8 Mod. 235, 3:^2. S. C. Stra. 582, 625, 627. S. C. Ld. Raym. 1447 180 Pitt, 10 A. & E. 272. S. C. 2 P. & D. 385 15, 18, 23, 154, 15-i, 157, 159 Plymouth (Borough), 1 Barn. 81, 130 165, 313, 319, 333 Pole 442 Pomfret (Mayor), 10 Mod. 107 55, 198, 354,362 Ponsford, 1 D. & L. 116. S. C. 12 L. J., N S. 313, Q. B. 20,53 Ponsonby, Ves. 6, 197. S. C. 5 Bro. P. C. 287. S. C. ISay. 245 197 Pontefract (R.), 2 Q. B. 543. C. S. 2 G. & D. 700. C. S. 12 L. J., N. S. 81, M. C. 219,236 Poole (Mayor), 3 N. & P. 119. C. S 7 A. &E. 739 266 Poole (Mayor), 1 G. & D. 728. S. C. 1 Q. B. 616. S. C. 9 L. J., N. S. 231,Q.B. S. C. 10 L. J., N. S 198, Q. B. 51, 88, 313 338, 367, 401, 408, 409, 414, 422, 423, 424 (R.), 1 N. & P. 756 51 Poor Law Commissioners, 1 N. & P. 371. S. C. 6 A. & E, 1 225 TABLE or OASES. xU R. V. Poor Law Cora., 9 A. & E. 911 63 Portsmouth (Mayor), 3 B. & C. 153. S. C. 4 D & R. 769, 28, 38, 56. 102, 189, 190, 191, 293 Powell, 4 P. & D. 719. S. C. 1 Q. B. 352. S. C. 10 L. J., N. S. 148, Q. B. S. C. nom. R. V. Richmond, 5 Jur. 605 113, 154, 156, 157, 158, 159, 160, 164, 338, 380 (Corp.), 7 A. & E. 735. S.C. 3 N. & P. 119 67,87, 88 Price, 11 A. & E. 735 146 Prin, 1 Keb. 520, 549, 594, 609, 686 81, 246, 247, 313, 340, 342, 358 Procter 212 Radnor (Earl), 4 Jur. 460 237 Radnorsh. (J.), 2 D.,. N. S. 676 220 15 L. J., N. S. 151, M. C. 31, 147, 218, 294 Raines, 12 Mod. 136. S. C. 12 Mod, 205. S. C. Salk. 299. S C. Carth. 459. S.C. 3 Salk. 162,233. S.C. Holt, 310. S. C. Ld. Raym. 361. S. C. 3 P. Wms. 337, n. (6). See Raine'a case 1 1, 13, 33, 35, 39, 4«, 44, 68, 79, 101, 102, 151, 171, 189, 229, 255, 257, 258, 277, 278, 279, 333, 3.52, 357, 373, 402 Ramsden, 3 Adolphus & El- lis, 4.56 184 Rawlinsoli, 6 B. & C. 23. S. C, 9D. &R.7 133 Rees, Carth. 393, 417. C. S. 5 Mod. 325. S. C. Comb. 417. S.C. 12 Mod. 116. S.C 3 Salk. 90. S. C. 1 Salk. 165. S. C. Ld. Raym. 138 70, 71 Bequests' Court, 7 East, 272 107 Rennett, 2 T. R. 167 22, 154, 155, 156, 157, 158 Reynell, Cas. t. Hard. 130, -n, (1) : . 72 Rice, 5 Mod. 325. S. C. 12 Mod. 116. S. C. 3 Salk. 90. S. C. Comb. 417, S. C. Carth. 393 , S.C. Ld. Raym. 138 70, 72, 73 Rich, Comb. 147 68 — — Richardson, Burr. 517, 538, 195 198,199,204,353,357 401 1 Wils. :6, 21 114 142, 150, 230, 240, Richmond. See R. v. Powell, 1 R. V. Ricketts, 10 A, & E. 544. S. C.4P. &D. 48. S. C. 3N. & P. 151. See R. v. Phippen 18, 25 H9 299 Rigge, 2 Barn, (fe Adol. 550 159 Rippon (Town), 2 Keb. 15 36, 354 (Mayor), 2 Salk. 433. S. C. Ld. Raym. 563. S. C. 1 Com. 86 39, 56, 93, 192. 201, 315, 383, 4(11, 430 Roberts, 3 A. & E. 776 164, 177, 178, 247, 249 Robinson, 8 Mod. 336 165, 352, 422 Burr. 799 22, 25, 1 19 2 iSmith, 274 91 Stra. 555 165, 179 Rochester (Dean), 1 Barn. 40 226, 227, 313 3 B. & Ad. 95 12, 226 Rocks, Ld. Raym. 1447 167, IfiS Rodgers, 2 Salk, 245, 246 102 Rogers, 2 D., N. S. 673. S. C. 12 L.:J., N. S. 51, M. C. 239 Rotherham flnhabs.), 12 L. J., N. S. 17, Q. B 301 Rotherhithe, 8 Mod. 339 221 Round, 5 N. & M. 427. S. C. 4 A & E. 139. S. C 1 H. 6 W. 546 136, 304, 320. 323, 348, 351, 352, 359, 374, 377, 417, 426, 428 Rowe. See R. v. Bristcil. Rufford (Inhabs.),Stra. 512. S. C. Fort. 321. S. C 8 Mod. 39. S. C. cited in 2 Salk. 458, ,marg. S. C. Foley, 9 -^ 205 Rushworth, Kel. 288. S. C. 7 Mod. 217. S. C. Comb. 448. See R V. Litchfield (Ep.) 44, 71, 107, 125, 143, 171, 212, 2.53, 2.54, 255 258 Russell, 1 D., N. S. 544 ' 242 Rye (Harbour), 5 B. & Ad. 1094 416 (Mayor), Burr. 798. S C. 2 Ld. Ken. 468 141, 342, 412, 421,422 St. Albans' (J.), 1 P. & U. 148. S. C. 8 A. & E. 932 210 (Mayor), 12 East, 550 247 (Parish), 11 Mod. 206, 254 220 xlii TABLE OP CASES. R. V. Andrew's (Parish), 7 A. & E. 281 a. S. C. W. W. D. 395 221, 297, 329, 330, 334, 335, 336, 341, 343, 344 St. Andrew's (Parish), 10 A. & E. 736 210, 225, 353, 359, 373 13 L. J.,N. S.341,Q. B. S. C. 6Q. B. 78 209. 225, 411 Anne's (Rector), Burr. 1877 211 Bartholomew (Churchwds,), 3 Salk. 86. S. C. Holt, 418 145 • 2 B. & Ad. 560 271, 402 Catherine Hall, 4 T. R. 233. 241, 435 76, 78, 89, 255, 267, 269, 272, 273, 275 George (Overseers), 2 W. Blac. 624 220 James' (Vicar), 5 Q. B. 622 201 Westminster, 5 A. & E. 391 - John (Churchwardens), 16 259 65 L. J., N. S. 54, M. C. John's Coll., Comb. 237, 277, 282. S. C- Holt. 436. S. C. 2 Keb. 168. S, C. 4 Mod. 233, 368, 369. S. C. Skin. 359, 368, 393, 454, 546. S. C. Ld. Raym. 126, 564 3, 5, 16, 77, 78, 80 100, 171, 185, 190, 213, 268, 269, 273,274,275, 299, 310, 317, 326, 333, 336, 341, 344, 347, 350, 359, 363, 264, 375, 407, 40s Katherine Dock, 4 B. & Ad. 369. S. C. 1 N. & M. 121 10, 15, 45, 83, 98, 141, 169, 294, ^ 302, 373, 379, ^ 375, 377, 392 Leonard's, 2 Salk. 483. S. C. Cas. t. Hard. 508 220 Luke's (Vestrymen), 2 N. & M. 464 180, 183, 2 ;8, Margaret, (Parish), 4 M. & S. 249,2.53 22,65,208 1 P. & D. 116. S. C. 8 A. & E. 889. S. C. 2 P. & D. 510, S. C. 1 W. W. & H. 673 65, 66, 67, 68, 108, 284, 286, 377 — 10 A. & E 732, n. (o) 379 Martin's Land Tax Com- mi.ssioners, 1 Term Reports, 146 143, 167 (Parish), 3 B. & Ad. 907 271 R. V. Mary (Parish), 8 Mod. 344. S. C. Stra. 700 220 Kensington, 2 B. & Ad. 740 271 Marylebone (Parish,) 5 A. & E. 268. S. C. 6 N. & M. 600 52, 103, 209 (Vestry), 5 A. & E. 80 223 St. Nicholas (Guardians,) 4 M. & S. 324 130, 174, 175, 271 Pancras (Parish,) 1 A. & E. 80 74,180,182,270 3 N. & M. 425 208 ■5 N. & M. 228. S. C. 3 A. & E. 535 16, 65, 209, 266, 294, 305, 319, 320, 321, 323, 337, 328, 327, 339, 375, 379, 380,402,403,409 9 A. & E. 314. S. C. 1 N. & P. 507 65, 208, 209, 266,' 267, 319, 326, 327, 363 379 - 7 A. & E. 751. S. C. 5 D. 722 218, 392, 397 9 A. & E. 535 30 ■ 11 A. & E. 15, 27, n. (a) 270, 304, 310, 336, 369 6Jur. 391 30, 313 -2 D., N. S. 957 381,395,417,419 Paul (Parish,) 1 M. & R. 596 18, 210, 291 Peter's Coll., 1 Q. B. 314 420 9 L. J., N. S. 321, Q. B. 77 (J.), 1 N. & M. 108. S. C. 4 Barnwall & Adolphus, 342 222,225 (Parish,) 5 T. R. 364 22, 65 12 A. & E. 512. S. C. 4 P. & D. 253 18, 26, 61,114,116,226, 227, 300 Saviour's (Churchwardens), 1 A. & E. 380 270 (Parish), 7 A. & E. 92.5. S. C. 3 N. & P. 126 S. C. 1 N. & P. 496 51, 66, 170, 210, 299,317, 343, 363, 373, 377, 381, 416, 417, 419 ■ Salisbury (Ep.), And. 20, 21 256,227 TABLE OF OASES. zliii R. V. Salop (Churchwardens), Bull. N. P. tit. "Man." 408 (J.,) 2 B. & A. 694 129 4 B. & A . 8ii6 16, 47, 233 2 Barnwall & Adol. 145 210 3 B. & Ad. 910 205 6 D. 28 219, 306 3N. «feP. 286. S. C.8A.&E.173 218 1 G. & D. 146. S. C.2Q.B. 85 219 Sal tash ( M ay or), Raym . 432. S.C.Jon. 177 349,370 Sal way, 9 B. & C. 482 37, 99, 183 Sanchar, 1 Show. 66,67; 2 Show. S. C. Jon. 121 37, 187, 188 Sandwich (Mayor), 2 Keb. 92 197 11 L. J., N. S. 132, Q. B. 2 G. & D. 28. S. C. 2 Q. B. 295 88, 305 Sankey, 6 N. & M. 839 94 Sargent, 5 T. R. 466 413 Scarborough (Corporation). See Scarborough's case, R. v. Sarborough (Corp.), 105 331, 332, 333 Scawen, cited in Burrow, 1453 299 - Scott, 1 D. & L. 212 381, 397, 419, 420 See R. V. Shortridge. ■ 2 Q, B. 248 97 Scrivener's Company, 10 B. & C. 511. S. C. 5 M. & R. 543 126, 255, 256 (Society), 1 G. & D. 641 2-55 Selby, 2 Show. 154 125 Serle, 6 Mod. 332, 334 167, 368, 191, 403 Severn Railway, 2 B. & A. 646 11, 18. 19, 20, 24, 2.i, 27, 60, 82, 131, 243, 244 Sewers Commissioners, Stra. 763. S. C. Ld. Ray. 1479 15, 16, 121, 346 Sharpe, Gilb. 255 314, 335 11 Mod. 175 412 Shaw, 12 Mod. 113 55, 193 5 T. R. 549 103, 177 Sheffield Railway, 11 A. & E. 196. S. C. 3 P. & D. Ill 62, R. V. Shelly, 3 T. R. 141 161, 162, ]i>4 Sheppard, 3 T. R. 381 181, 182 Shepton Mallett (Over- seers), 5 Mod. 421 206, 323, 336, 380 Shortridge, 1 D. & L. 855. S. C. 13 L. J., N. S. 70, M. C. nom. R. V. Scott 128, 231 Showier, Burr. 1391 205 Shropshire, (J.), 7 East, 549 218 Shrewsbury (Mayor), 2 Barn. 394. S. C. Stra. 1051. S. C. Cas. t. Hard. 147. S. C. W. Kel. 282. S. C. 7 Mod. 201. S. C. Ridgw. 46. S. C. 14 Vin. Abr. 583 39, 40, 200, 201, 202, 203, 342, 347, 352, 354, 372 Sillifant, 4 A. & E. 354 S. 5 N. & M. 641 15, 67, 231, 234, 240, 241, 242 Simms,4D. 294 209 Simmons, 3 Doug. 237 168 Simpson, Stra. 609. S. C. 8 Mod. 325. S. C. Ld. Raym. 1379 70, 71, 72, 187, 189, 194, 229 1 Blac. 455 S. C. Burr. 1463 277, 278, 279, 300, 301 Slatford, 5 Mod. 317. S. C. Comb. 419. S. C. 2 Salk. 428. S. C. Burr. 1452. S. C. Holt, 438 100, 175, 187, 262, 263, 264, 321, 354, 355 Slythe, 9 D. & R. 229 319, 386 Smallpiece, 1 Chitt. 288 95, 209 Smith, Stra. 126 228 1 M. & S. 594, 598 313, 314, 315, 316, 317, 318, 326 5 Q. B. 619. S. C. 1 D. & M. 565. S. C. 13 L. J., N. S. 166, Q. B. 201, 202, 204, 212, 213, 379, 386 Somerset (Commrs.) 9 East, 111. S. C. 7 East. 70 121, 423 (J.), 1 N. & M. 252 123 Soraersetsh. (J.), Stra. 992 207, 224 1 H. & W. 82 133 4 B. & C. 913 232 xliv TABLE OP GASES. R. V. Somersetsh. (J.), 4 N. & M. 394. S. C. •2A.&E.637 241 16 L. J., N. S. 86. M. C. 219. 233 Southampton (J.), 6 M. & S.394 218,237 Southmolton, (Mayor), Skin. 1-22 119 Southwood, 5 M. cSz. R. 416 156 Sparrow, 7 Mod. 393. S. C. Stra. 1123 135, 205, 328, 337, 403 SpOtland (Overseers), 1 Barn. 137. S. C. Cas. t. Hard. 194 220, 4S2, 433, 434 Spragg, Burr. 999, 1004, 1005 126 Stack, 12 L. J., N. S. 58, M. C. 214 Stafford (J.), 5 N. & M. 100. S, C. 3 A. & E. 425 418 (Marquis), 3 T. R. 646 4,18,22,26,28,113.114, 213, 266, 411 7 East, 521 157 (Mayor), 2 Keb. 364 39. 194 4 T. R. 689 127. 334, 397 . (Recorder), 1 P. & D. 72 103 Staffordshire, (J,), 7 T. R. 81 133 3 East, 150 133 12 East, 571 91 6 N. & M. 477. S. C. 4 A. & E. 844 67, 232 • 6 A. & E. 90, 101. S. O. 1 N. & P. 277 16, 52, 103, 147, 207, 352 3 N. & P. 488. S. C. 8.A. &E. 338 128 1 D. 507 418 1 D. 484 218, 236 2 D., N. S. 353 218, 219 12 L. J., N. S. 9 M. C. 233 13 L. J. N. S. 81, M. C. 207 16 L. J., N. S. 53, M. C. 219, 233 Stainforth Canal, 1 M. & S. 32 21, 85, 87, 291, 292 R. V. Stamford (Mayor), 6 Q." B. 433 87, 339 Stamp Commissioners, 16 L. J., N, S. 75, Q. B. S. C. 6 Q. B.657 16,279,372 Stanford (Governors), 1 N. & P. 328. S. C. W. W. & D. 593. S. C. 1 Queen's Bench, 130 28, 63 Starling. See Moneyer's case, and R. v. Sterling. Stenhowfe, 2 Show. 199. S. C. Skm. 45. S. C. Sir T. Jon. 199 61 Steward, 4 P. .&, D. 349. Same Case, 10 L. J., N. S. 40, M. C. 60 Stephens, Sir T. Jon. 177 416 Sterling, 2 Keb. 65, 91. See Moneyer's case and R. v. Starling 169 Stevens, Sir T. Jon. 177, 215 167 1 Doug. 179 357 Stirling, Say. 174 346,353,3.^8 Stoke, (Inhabs.), 2 T. R. 541 Wl 6 East, 514 232 - — Stoke Damerel (Minister), 5 A. & B. 5SJ. S. C. 1 N. & P. 56. S. C. 2 H. & W. 346 20, 21, 24, 27, 65, 120, 165, 166, 181, 182, 208, 257, 258, 270, 284, 285, 294, 318 Stratford-upon-Avon (May- or), 1 Lev. 291 5, 199 Street, 8 Mod. 99 24, 209 Suffolk (J.), 6 M. & S, 57 110, 112, 322, 2:^3 '■ 1 B. dz. A. 640 220, 225, 232, 205 9 D. & R. 111. S. C. 6 Barnwall & Creswell, 110 10, 133 - 5 N. & M. 144. S. C 3 A. &. E. 725. 17, 112, 220, 230,237, •, 176, 199, 202, 247, 357 (Cnmrnrs.) 5 A. & E. 815 16, 86, 328, 337, 349, 412, 417 8 A. & E. 901,n.(b) 85, 2>.'i,286, 419,420 Thatcher, 1 D. & R. 426 143,' 188 Thetford (Churchwardens) 5 T. R. 364 .'J9, 65, 117 (Mayor), 6 Mod .25 422 8 East, 270 57, 64, 180, 325 Thomas, 3 G. & D. 485. S C. 3QB..589. S.C. UL. J., N. S. 295, Q. B. 65, 66, 231 Tidderley, 1 Sid. 14 53, .55 175, 176, 192, 201, 264, 401, 402 Tindall, 6 A. & E. 150 120 Tintarfel (Mayor) Stra. 1(103, 1157 184 Tilhe Commissioners, 12 L. J., N. S. 109, Q. B. 261 -. Tiverton (Mayor), 8 Mod. 186, 196 Tod, Stra. 530 115, 122, 229, 2:39, 240 2 Jur. 565 256 Todmordeon (Overseers) 4 P. di D. 553 S. C. 1 Q. B. 185 210 386 11 L. J. N. S. 129, M. C. 207 Totness (Mayor) 5 D. & R. 481 38, 56, 102. 190, 191 (Union) 7 Q. B. 690. S. C. 14 L. J., N. S. 148, M. C. 217 Tower, 4 M. & S. 162 84, 161, 162, 163 Hamlets, 1 B. & Ad. 2.36 121 3 G. & D. 92. S. C. 3 Q. B. 670. S. C. 11 L. J., N. S. 231, Q. B. 54, 84 121 Townsend, 1 Keb. 458, 470, 659. S. C. 1 Lev. 9L S.C. 1 Sid. 1(17. S. G. Ray. 69 195 1 Butt. 305 206 ■ 5 B & A. 421 133 ■ Traill, 4 P. «& D. 335. S.C. xlvi TABLE OF CASES. 12 A. & E. 761. S. C. 10 L. J., N. S. 56, M. C. 142 R. V. Treasury Lords, 1 A. & E. 374. S. C. 2 P. & D. 498, 504 31, 87, 266, 302 4 A. & E. 286. S. C. 5 N. & M, 589 12, 18, 19, 28, 113, 216, 265 4 A. & E. 976. S. C. 6 N. & M. 505. S. C. 2. H. & W. 67 216, 265, 266 _ 10 A. & E. 374. S. C. 4 P. & D. 498 Trecolhick, 2 A. & E. 405 109 300 51. 241 Tregony (Mayor) 8 Mod. 111. S. C. 8 Mod. 127 167, 313, 316, 318, 319, 335, 338, 380 Trinity Chapel, 8 Mod. 28. S. C. Stra. 536 42, 125, 383, 397 — House, 9 D. 565 292 Truebody, 11 Mod. 75. S. C. Ld. Raym. 1275. S. C. Holt. 449 55, 196, 197, 500, 201 Truro (Mayor) 2 Chitt. 257 126, 16.5, 194, 197 2 B. & A. i590 11, 38. 47, 5fi, 167, 194, 197, 218 Tuclier, 1 Barn 28 379 3 B & C. 545. S. C. 5 D. & R. 434 231, 232, 242, 251, 300, 303, 306, 327, 336, 337 Turkey Company, Burrow, 943 126 , Turner, 2 Jon. 215 168, 183, \ 332 1 M. & K. 456 155 Tvvitty, 2 Salk. 4:i4. S. C. 7 Mod. 83. S. C. Holt, 442 70, 72, 73, 187, 189, 194, 32.5, M48, 401 Twyford, 5 A. & E. 430. S. C. 6N.&M. 836 91,240 Tyllier, 2 Keb. 2.50 101, 192, 193 Uttoxpter, 1 Bott. 83. 305 222 Vicars, 11 Mod. 214 56 Victoria Park, 1 Q. B. 288. S. C. 4 P. & D. 639 18, 23, 24, 83, 141, 149, 169, 305 Vintuprs' Company, Bull. N. P. 196, 2(10 186, 293 Walker, 6 M. & S. 277 101 14 L. J., N. S. 120. M. C. S. C. 3 D. & L. 131 47 R. V. W^all (Dr.) 11 Mod. 261 212 Wallingford (J.) Kel, 208 136, 335 Wallis 22.5 Walsall (Inhabitants) 2 B. & A. 157 205 Ward, Gilb. 193 2.50 Ward (Dr.) 1 Barn. 112, 295, 295, 380, 415. S. C. 7 East, 364, n. (b). S. C. Stra. 894, 897, S. C. Pitz. 193, 194, 195 23, 42, , 70, 72. 73, 152, 153, 174, 178, 185, 186, 187, 189, 192, 194, 212, 226, 229, 248, 249, 310, 31.3, 317, 319, 322, 323, 327, 338, 349, 370, 3S0, 403 8 East. 216 249 Warnford, 5 D. & R. 489 62, 92 Warren, Cowp. 370 211, 212, 213 Warwick (Corporation) 10 A. & K. 38.5. S. C. 9 L. J., N. S. 159. Q. B. S. C. 2 P. & D. 429 37, 87, 88 Warwicksh. (J.)2D. &R. 299 206 5 B. & C. 430. S. C. 8 D. & R. 147 92, 205 5 D. 382 301, 413, 41.5, 420 2 A. & E. 768 91,237 6 A. & E. 873. S. C. 2 N. & P. 1.53 218 6 Q. B. 7.52. S. C. 14 L. J., N. S. 39 M. C. 219,233,413 Water Eaton (Manor) 2 Smith, .54 .306, 310, 336 Watson, 2 Neville & Per- ry 595 109 Watts, 7 Adolphus & Elli-s 464 207,223 Welbeck (Inhabs.) Stra. 1143 205,370 Wells (Corp.) Burr. 2004 198, 24.5, 246 247 (Mayor) 4 D. 562 280 Weobly, Stra. 1259 21, 220, 221, West Looc (Mayor) Bnrr. 1387 165, 167. 1(H, 184 3B.& C.681. S. C. 2D«z,R. 181. S. C. 5 D. & R. 590 28, 37, 38,55, 46, 57. 96, 124, 151, 283, 284, 285, 287, 290, 292, 294, 303, 304, 317, 414 TABLE OF CASES. xlvii " R. V. West, Looe, (Mayor), 5 D. & R. 414 96, 102, 190, 191 Westminster (Churchward- ens (5 A. & E. 391 69 (Dean) Comb. 244. S. C. 4 Mod. 281 19, 276 Westmoreland (J.) Say. 282 231. 232 Bott, 734 230, 237 1 Wils. 138 32, 205, 280 10 B. iSi C. 226 103 Westoe (Churchwardens) 5 A.&E.789. S. C. IN. &P. 222 17, 84, 9.5, 209, 220, 294 West Riding (J.) 3 T. R. 776 132 7 T. R. 48 93, 320, 321, 337, 339, 380 7 T. K. 467 111, 150, 319, 374 7 East, 350 S. C. 3 Smith, 341 320 12 East, 116 103, 294, 412 3 M. & S. 493 91, 3.58, 414 4 JM. & S. 327 218, 222, 232 3 D. & R. 306 134, 140 4 B. & Ad. 685. S. C. 1 N. & M. 426 133, 232, 233, 236 5 B. & Ad. 677. S. C. 2 N. & M. 390 14, 232, 233 5 B. & Ad. 1003 231, 232 2 B. & C. 229 131, 137 — 4 B. & C. 678. S. C. 1 M. & R. 547 313 1 A. & E. 563 S. C. 3 N. & M. 802 62, 86, 239 2 N. & M. 66,757. S. C. 1 A. & E. 606 5, 20, 137, 232, 233, 23j, 236 3 P. & D. 462 218, 232 '■ 4 P. & D. 668. S. C. 1 Q. B. 325 43 1 G. & D. 10L.J.N. S. 137,M. C. S,C. 11 L. J. N. S, 8.5, M. C. 135,231, 232, 233, 235, 236, 239, 415 R. V. West Riding, 2 Q. B. 331 231 2 Q. B. 505. S. 1 G. & D. 706. S. C. 6 Jiir. 506. S. C. 11 L. J., N. S. 80, M. C. 219, 234, 291 (Inhabits.) 1 G. & D. 630. S. C. 2 Q. B. 705 219, 231, 232 (J.) 5 Q. B. 1 S. C. 3G. &D,170. S. C. I D. &M.590. S. C.12L. J.,N S. 148, M.C. 111.237,238,239, 248, 375, 409, 416, 417, 419 2 D. N. S. 708 218 2D. & L. 488 219 West Riding (J.) 11 L. J., S. 57, M. C. 230 12 L. J., N. S.37M. C. 2.9 13 L. J., N. S. 39, M. C. 233 14 L. J., N. S, 119, M. C. S. C. D. & L. 1.52 219, 233, 234 15 L. J , N. S. 52, M. C. 147 16 L. J , N. S. 171, M. C. 147, 2H2, 372 Weymouth (Mayor), 7 Q, B. 46. S. C. 14 L. J., N. S. 3.53 Q. B. 59, 354 Whaley, Stra. 1139. S. C. 7 Mod. 308 77, 268, 272, 274, 304, H3.5, 336 Wheeler, 3 Keb. 360 49, 64, 137 Cas. t. Hard. 9i^, 199. S. C. Cunn. 1.55 11,18, 23, 28, 30, 64, 84, 94, 172, 193, 2.50, 265, 286, 293 1 Barn. 99 .50 1 W. Blac. 331 423 198. S. C.1Q.B.624. S. C. Wheelock, 5 Barn. &£!res. 511 239 Whiskin, Andr. 1 356 Whitaker, 9 B. & C. 648 1.5, 121 Whitchurch, 2 Barn. 447 94, 338 White, 3 Salk. 232. S. C. 6 Mod. 18 nom. White's case 60, 173 Lord Raym. 1379. S. xlviii TABLE OF CASES. C. 8 Mod. 325 60, 68, 70, 71, 72, 229 R. V. White, 4 T. R. 771 222 Whitford (Manor) 1 Q,. B. 355. S. C. 7 D. 709 158, 159, 164 Whitley (Inhabs.) 11 A. & E. 90 218 Whitstable Fishery, 7 East, 355. S. C. 3 Smith, 319 20, 22, 53, 126, 192, 277 Wigan (Corp.) Burr. 782. S. C. Ld. Ken. 584. See R. v. Ol- lerhead 184, 313, 331, 332 Wigan (Mayor), Burr. 1643 313, 363, 36.5, 368 I Sid. 92 39. 297 Wild man, Stra. 879. S. C. 1 Barn. 402, 405, nom. R. v. Wiseman, 49, 52, 84, 306, 310, 324, 335 Wilkinton (Churchwardens) 1 Barn. 227 220 Williams, Say. 140 181, 182, 225, 373 Burr. 402, 408 439 Burr. 1317 41 8 B. & C. 681. S. C. 3 M. & R. 402 70, 71, 72, 73, 348, 349, 350, 363, 373, 428 Willingford (J.) 2 Barn. 132 336, 337, 338 Willis, Andr. 279. S. C. 7 Mod. 261 149, 150, 166, 168, 184, 29, Willis, 3 B. & A. 510 157 Wilson, 5 D. & R. 602 65 Wilson, 10 B, & C. 80. S. C. 5 M. & R. 140 153, 155, 156 3 N. & M. 753 62 5 N. & M. 119 224 Wilton (Mayor), 5 Mod. 257. S. V. 2 Salk. 428. S. C. Ld. Raym. 225 53, 55, 197, 199, 200, 202, 3(i3, 304, 3.55 4D, 562 108, 109 Wilts. Canal, 8 D. 623 85, 285 286 5 N. & M. 348, 459. S. C. 3 Adolphus & El- lis 483 19 46, 82, 83, 84, 177, 284, 285, 286 (J.), Burr. 1530. S. C. 1 W.BIac. 467 33 1 East, 683 218, 232 R. V. Wilts. Canal, 10 East, 404 14, 218, 233 13 East, 352 10, 137 2 Chit. 257 234,236 8 B. & C. 380. S. C. 2 M. & R 401 -222,233 8 D. 717. S. C. 4 Jur. 460 132, 136; 234, 242,305 Win. 2 Keb. 738. S. C. nom. R. V. Marches (President) 1 Lev. 306. S. C. 1 Vent. 110, 111. See R, V. Clapham, 178, 309, 321 Winchelsea (Corp.), 2 Lev. 85 2:. Winchester (Ep.), 7 East, 573 71, 412 (Mayor), 7 A. & - E. 220. S. C. 2 JN. & P. 274. S. C. W. W. & D. 525. S. C. 1 Ju». 738 26, 27, 99, 100, 305 Windham, Stra 879 98 Winter, 2 Keb. 134 256 Winton, 5 T. R. 89 422 Wistow, 1 Gale & Davison, ■ 681 235 ^ Witham SaTings' Bank, 3 N. & M. 416. S. C. 1 A. & E. 321 128, 252, 289 Wix (Inhabs.) 2 B. & Ad. 197 69, 317, 318, 336, 349, 416; 419, 421, 422 Woodman, 4 B & A. 507 271 Woodrow, 2 T. R. 732 46 57,92,165,180,258 — — Woods, &c. (Commrs.) See Ex parte Reeve. Worcester (Canal), IM. & R. 533 18, 2e-, €3, 305 Worcester (Ep.), 4 M. & S. 415 63, 274, 275 (J.), 7 D. 789 245 (Mayor), Cas. t. Hard. 123, n. (i) 221 Worcestersh. (J.), 1 Chit. 649 233, 237 5 M. & S. 457 207, 222 2 B. & A. 133, 418 3 D. & R. 74, 206 — 9 D. & R. 137, 230 12 A. & E. 28. S. C 3P. &,D. 465. S. C. 9 L. J, N. S. 81, M. C. S. C. 4 Jur. 1009 205 228 249 ■^ll TABLE OF OASES. xlix R. V. Worcestersh. (J.), 4 P.& D. 440. S. C. 10 L. J., N. S. 13, M.C. Wrexham (Churchwardens); 15 Vin. Abr. 214, pi. 6. Roads, 5 A. fitE. 581 224 136 67 ) Wriothesley, IB. & Ad. 648 Wyndham, Oowp. 378 5, 9, 10, 12, 18, 78, 80, 96, 193 Yarborough (Ld.), 12 A. & E. 416. S.C, 3P. &D. 491 222 York (Archbp.), 6 T. R. 490 254,297,360,370 (J.), 3 T. R. 150 218 4 B. & Ad. 342. S. C. 1 N. & M. 108 16, 18, 20 2 B. & C. 771 103, 218, 232 1 A. & E. 828. S. C. 3 N, & M. 685 31, 86 -, -(Mayor), 4 T. R. 699 27, 9,6, 166, 180, 182, 188, 245, 246, 303 • 5 T. R. 66, 72 187, 189, 194, 246, 309, 318, 336, 338, 339, 349, 350, 351, 356, 357, 360, 361, 362, 370, 371, 374, 379, 384, 402 6 East, 360, n. (d) 245 8 D. 502 88 3 Q. B. 550. S. C. 2G. &D. 605. S. C.11L.J., N. S. 246, Q. B. S. C. 2 Jur. 1082 88, 191, 386, 397 (Railway), 14 L. J., N. S. 277, as. 30, 195, 244 (Recorder), 4 D. & L. 376. S.C. 16 L. J.,N. S. 22, M.C. 147 (Sheriffi), 2 Show, 154 44, 187, 189, 194 -. 3B.&Ad.775 44, 191 R. V. Yorkshire (Inhabs.), 7 East, 355, n. (a) 192 (J.), 1 Doug. 193 218 Yonge, 5 M. & S. 120 280 Young, Burr. 561 41 Reynall's case, 9 Rep. 99 198 Rich V. Pilkington, Carth. 171 426, 428, 430 Richards v. Dyke, 3 Q. B. 267 19 Right V. Banks, 3 B. & Ad. 668 155 Rioter's case, 1 Vern. 195 105, 112 Robert's (Dr.) case, 2 Show. 170. S. C. 2 Keb. 102, 364 49, 77, 78, 212 Robinson v. Grosscourt, 5 Mod. 105 126 Robotham V. Trever, 2Brownl. 11 211 April, 1852.— 4 Roe V. Aylman, Barnes, 321, 236, 237 161 Roger's case, T. 18, C. 1 125 ■ : ., V. Jones, 5 D. & R. 484 158, 162, 163 Ruding V. Newell, Stra. 983 194, 249, 406, 432 Russell V. Succlin, 1 Sid. 218 431 S. Sabine's case. See Savill's case. St. Alban's v. St. Botolph'e, 11 Mod. 206 220 — Balaunce's case (Parish), Palm. 51. S. C. 2 Roll. 106 30, 70, 104, 106, 108, 176 — Burien's case 35, 89, 277 — David's (Ep.) v. Lacy, Ld. Rayra. 544 107,397 — Dunstan's Clerk's case, Comb, 105 212 — Ives' (Borough) case, Bull. N. P. 195 414 — John's Coll. V. Todington* Burr. 195. S. C. 1 W. Blac. 71 78 — Luke's V. Middlesex 376, 377, 380, 381, 396, 398, 399, 400, 401, 405, 415, 446, 451, 460 6 & 7 Vict. c. 86 248 6 & 7 Vict. c. 89 38, 45, 46, 50, 51, 55, 56, 57, 58, 59, 62, 74, 81, 92, 99, 127, 141,146, 165, 167, 180, 183, 184, 256, 262, 287, 298, 407, 453 6 & 7 Vict. c. 90 255 7 & 8 Vict. ^. 101 47, 48 7 & 8 Vict. c. 110 82 8 Vict. c. 10 47 9 & 10 Vict. c. 113 (I.) 173, 183, 210, 224, 231, 240, 241, 242, 289, 299, 302, 306, 307, 313, 333, 334, 341, 342, 343,344, 349, 371, 372, 375, 376, 377, 380, 381, 383, 384, 385, 387, 388, 392, 393, 394, 395, 396, 397, 398, 400, 401, 404, 405, 408,411, 415, 416, 419, 425, 426, 428, 458 Note. — Cases cited to which a dagger, | is annexed are inserted in the English Common Law Reports, Philadelphia Edition. Those to which a star * is annexed, have been reported in the recent decisions of the Court of Exchequer, Edited by Messrs. Hare and Wallace. T. & J. W. JOHNSON. THE LAW AND PEACTICE OF THE WRIT or MANDAMUS. CHAPTEE THE FIEST. OF THE OEIGIN AND HISTORY Of THE HIGH PREROGATIVE WRIT OF MANDAMUS. The Writ, the subject of this Treatise, Las, since its institution as a legal formula, become so changed and amplified, both in form and efficacy, that some have been induced to consider it to be of almost modern establishment; whereas the truth is, that so early as the thir- teenth century, it was but a species of that ancient and extensive, but now obsolete class of writs, whose generic name was " mandamus "(a) (a) The term " mandamus " is to te found in a great variety of ancient Writs, privy seals, &c. (see App. Forms B. 0. and D.,) totally different from the modem writ, which for ttie sake of distinction was usually called a fecial mandamus, R. t. Dr. Gower, 3 Salk. 230. Among the several species of ancient writs of mandamus were the following : 1st. A writ that lay on the death of one of the king's tenants to inquire of what lands he had died seised ; it was granted after the year and day, when in the meantime the writ called diem clausit extremum had not been sent out to the escheator, Spathnrst's case. Hob. 101 ; Fitz. N. B. fol. 253 b, 561. See stat. 12 Car. 1, c. 24 ; Dyer. llO a, 209. 2nd. A writ, in the nature of a charge to the sheriff, to take into the king's hands all the lands and tenements of the king's widow, who, against her oath for- mally given, married without the king's consent. Keg. fol. 195 b ; Blount's Die. tit. " Man. ; " Termes de la Ley, tit " Man.; " Toml. Law Diet. tit. " Man." As to a royal mandamus for the granting of academical degrees, &c., see E. v. Cambridge (U.,) Burr. 1651. As to a mandamus from Chancery, see Mayor of Coventry's case, 2 Salk. 429. 56 tapping's mandamus. but which writ, on account of its pre-eminence and gradual development *during centuries of judicial nurture, ultimately became, and is t ^ -J now known to us by the appellation of « The High Prerogative Writ of Mandamus." (l)) At so early a period of our legal history did this writ exist as an instrument or means whereby various public duties and powers were com- manded and enforced, that the exact date of its institution cannot, with any accuracy, be shewn. An attentive consideration, however, of its gen- eral character, and of the principles upon which it is founded, namely, those of the common law,(c) shews that its origin miay be safely referred to that clause of the Magna Charta, which declares that " nuUi negabi- mus aut differemus justitiam vel rectum."(c?) Many instances are recorded of the writ having issued so early as the reigns of Edw. 2, and Edw. 3, and Lord Mansfield, in an elaborate judg- ment,(e) while descanting upon this point, states, that in a manuscript book of reports which he had seen, the reporter in reporting Dr. Bon- ham's case, cites the case of a mandamus temp. Edw. 3, directed to the University of Oxford, commanding the restoration of one upon whom the sentence of "bannitus" had been passed.(/) So that it is not true that the writ was first used so lately as the reign of James 1, in a case called Bagg's case •,(^g') probably, however, Bagg's case was merely the first writ, in its judicial form, which had reference to municipal corpora- tions, for it was not till long afterwards, namely, an. 12 Wm. 3, that such writs were entered of record ; at which time a rule of Court was promulgated, that they should be so entered of the same Term they came in.(A) In the Cottonian Manuscripts(t) also, and in those valuable L ■' repertoria of historical facts and judicial proceedings, made acces- sible to all by the learned labours, among others, of Rymer, Madox, Pal- grave, and Nicholas, we find many and distinct evidences of its existence (6) See meaning of " Prerogative," post, p. 4, n. (a.) (c) R. V. Boswortli, Stra. 1113. \d) 10 Mod. 53. (e) Dr. Askew's case, Burr. 2190. In R. v. Cambridge (U.), Fort. 202, they are stated to be much older thanthe reign of Edw. 1. (/) 10 Mod. 5T, perPowys, j.,and in Widdrington's case, M. 13 Car. 2 ; 1 Lev. 25. S. C. 1 Keb. 132, the antiquity is stated as in the text. Hern's case is there stated to have been the first writ of mandamus ; its date, however, is not mention- ed. Imp. Man. 1, n. (a). So in Riley, 534, is a mandamus, an. 5 Edw. 2, which is cited in Dr. Askew's case. Burr. 2190. Early- instances of the writ are, Anable's case, temp. Hen. 6. Middleton'a case, 2 Dyer, 332 b ; B. T. 16 Eliz. Tompson v. Edmunds, 2 RoU. Abr. 456, pi. 4 : T. 4 Jac. Meddlecott's case, 10 Eliz.; 6 Edw. 2 ; Clo. Roll. Mem. 8. : {g) T. 13 Jac. 1 ; 11 Rep. 93 b, which has been often alleged to have been the first case of mandamus; 1 Show. 263; some have liinitedthe expression to the first mandamus " in corporation cases," R. v. Barker, 1 W. Blac. 352, per Lord Mans- field, 0. J. R. V. Heathcote, (Mayor,) 10 Mod. 5T, per Powis, J. (A) Stra. 540, per Fortescue, J. See post, tit. "Judgment," (Entry of Proceed- ings.) (i) Bibl. Cotton, Cleopatra, f. Ill, f. 115. ORIGIN AND HISTOBT. 57 during the fourteenth and the commencement of the fifteenth centu- ries, (j") At this period, the writ was in form no more than a mere letter mis- sive from the sovereign power commanding (" mandamus,"^ the perform- ance of a particular act or duty by those to whom it was directed and sent ; to it no return was allowed, and disobedience of its commands was punishable by attachment. (^) Subsequently, during the latter half of the fifteenth century, the writ was directed to issue "per regem et concilium" upon a petition to Parlia- ment for redress ; it then became in form a parliamentary writ; (Z) and about the same time, from it being chiefly used merely to enforce restitu- tion to public of&oes, received from such its object and effect, the appel- lation of " Writ of Restitution" by which name it is designated in all the older abridgments' and reports.(m) At length, on account of its extensive use and highly remedial nature, it obtained the sanction of an original writ, and was dispensed by the Court of B. E. in all cases where there was a legal right to justice, but for which right the law had not provided any specific legal remedy,(ra) and by an amplification of its jurisdiction, it was allowed to embrace mat- ters not strictly involving the notion of a restitution ; as where it com- manded an " admission" to an office, &e. At the same time its appel- lation was again, but for the last time changed to that of " manda- mus "{o) which, when such writs were in Latin, was the first word of the mandatory clause.(jp) *0f late years our writ has been liberally interposed for the r ^a ■[ benefit of the subject and the advancement of justice ; and it would seem, from a consideration of the several acts of Parliament which have recently been passed with a view to make it more remedial and use- ful, that it is the general policy of the Legislature to promote it as a rem- edy, (j) (j) See Appendix, Forms A. B. C. and D. \k) R. V. Dublin (Dean,) Stra. 540, per Fortescue, J. E. v. Dublin (Dean,) 8 Mod. 29-. R. V. New Coll., % Lev. 15. R. v. Buckingham (Corp.,) 10 Mod. ITS. See such a writ, Appendix (A.) " Mandata principum,. aunt monita et prjecepta qu£e rectoribua provinciarum, aliisque magistratibus palam, vel arcano, litteris daban- tur," Frontin : de Aquseductib. Artie. 3. It is not, however, to be understood by the above quotation that the Romans had any such proceeding as a " Manda- mus." {I) Riley, fol. 601. R. v. St. John's, Cam., Comb. 281 ; 2 Eeb. 167, 168, per Twisden, J. See Appendix, Form D. See post, tit. "University " (Scholar, Res- toration.) (m) See- Taylor's case, Poph. 133; Bulstrode's Rep. passim. R.V.Taylor, 3 Salk. 230. See Lord Hale's Analysis,-where it is so called. (n) R. V. Dublin (Dean), 8 Mod. 29. (o) See Form, Appendix D. (p) In temp. H6n. 2, the mandatory clause of writs usually commenced with the words, " prsecipio tibi," or "ideo prsecipio tibi." Glan. lib. 1, cc. 13, 14, 17, 19, &c. ; lib. 6, cc. 5, 15, 18. Inter mandare et praecipere hoc interest, quod illud est minus imperio sum, et erga aequales, aut etiam superiores exercetur, hoc to- tum est imperii, et potestatis. ' Hlo quippiam edicimus ab alio ssepe exequendum quam ei cui mandamus, hoc ab ipso illo cui praecipimus, Sueton. in Ner. i;. 40, extr. (?) R. V. Jeyes, 3 A. & B. 421.f R. v. Oundle (Manor,) 1 A. & E. 297.t 58 tapping's mandamus. CHAPTER THE SECOND. A DEFINITION OP THE MODERN WRIT OP MANDAMUS, TOGETHER WITH A BRIEF OUTLINE OP ITS PROCEEDINGS PROM THEIR COMMENCEMENT TO THEIR TERMINATION. Bepore proceeding to a detailed consideration of our subject, it may be useful to define it, and to state in a few words its general outline. The modern writ of mandamus may be defined to be, as before stated, a high prerogative writ,(a) breve regium,(6) and not a writ of right ;(c) it is properly and in its nature, a writ of restitution((£ ) of a most exten- sive *and remedial nature,(e) to the aid of which the subject is L J entitled, upon a proper case previously shewn to the satisfaction of the Court of B. E.(/) It is founded on Magna Charta, cap. 29,(y) and was introduced to ampliate justice by the prevention of disorders, arising from either a failure or defect of police. It is therefore used and resorted to on all occasions where the prosecutor has a legal power conse- quent upon the violation of some legal right or duty, for which the law has not established any specific or adequate legal remedy, and where, in (a) Ante, p. 2. Knipe t. Edwin, 4 Mod. 281. R. t. Barker, 1268. S. C. 1 W. Blac. 300, 352. R. t. Dublin (Dean), Str. 536. By the term prerogative writ is meant either firstly, that the power to award is not delegated by the Crown to the ordinary judges between party and party, that is, the justices of 0. B., but is re- served for that Court in which the Queen is supposed to be personally present ; or secondly, that such a writ is one of grace and favour granted according to discre- tion upon probable cause shewn, and not a writ of right, that is, not such a writ as the subject has a right to call upon the Court to issue under the clause of Mag- na Charta, by which the Queen is bound not to refuse or delay justice or right. 4 Mod. 340 ; 3 Bl. Com. 132. R. v. Cowle, Bur. 855. R. V. Chester (Bp.), 1 T. R. 369. R. v. Stafford (Marquis), 3 T. B. 646 ; 4 Bac. Abr. Man. C. D. R. v. Cambridge (TJ.), 1 W. Blac. 551. E. t. Birmingham Ca- nal, 2 W. Blac. 708. (i) R. V. Patrick, 1 Keb. 610. These writs are called by Coke (Calvin's case, 1 Rep. 20 ; Vaughan, 401), brevia mandatoria remedialia, because tney are resorted to for the purpose of restoration, and not to turn out, &c. 4 Mod. 234, 281 ; Bac. Abr. tit. " Man." (A), The writ was also emphatically called the festinum reme- dium, from its speedy dispensation of justice (Stra. 540). (c) See note (a). R. v. Excise Commissioners, 2 T. R. 385. R. v. Clear, 4 B. & C. 901.f R. V. Paddington Vestry, 9 B. & C. 461.t (d) R. V. Buckingham (Corp.), 10 Mod. I'TS. It is by Lord Hale, in his Analy- sis, expressly called a writ of restitution, 4 Mod. 234 ; 2 Bulst. 122. R. v. St. John's Coll., Comb. 281. The Roman law has this rule, " Cum et verbum restiium lege invenitur etsi non specialiter de fructibus additum est : tamen etiam fruc- tus sunt restitueudi." D. 50, 17, 173 (1). («) R. V. West Riding (J.), 3 N. & M. 88 : + 1 Show. 219. Calvin's case, 7 Rep. 20 ; 3 Bl. Com. 110 ; 3 Steph. Com. 682. ' (/) The Court must be satisfied that they have jurisdiction to grant the writ, because, being a prerogative writ, it will not be issued as of course, nor be granted merelyfor asking. Dr. Askew's case, Burr. 2190, 2191, 2192. The power of issuing this writ belongs exclusively to the Court of B. R., and is considered as one of the flowers of that Court. Awdley v. Joy, Poph. 175 ; Imp. on Man. 1, n. (b) ; 3 Bl. Com. 110 ; 4 Mod. 240 ; 4 Inst. 71 ; Year Book, 1 H. 4, pi. 19 ; 6 H. 6, pi. 29. (g) 10 Mod. 53. i i i- > > i- THE MODERN -WRIT. 59 justice and good government, there ought to be one.(A) It is not appli- cable as a redress for mere private ■wrongs.(i) In its form, it is a command issuing in the Queen's name from the Court of B. K., and directed to any ofScer, person, artificial person, or corporar tion within the Queen's dominions, requiring the performance of some act or duty therein specified, the execution of which, such Court has pre- viously determined to be consonant to right and justice. (/) The writ is ordinarily obtained on the motion of counsel to the Court of B. E.. at Westminster, during Term, supported by a suggestion, on the oath of the party injured (jproset^tor) of his right, and of the denial of justice by the defendant; (A;) whereupon, in order more fully to satisfy the Court that there is a probable ground for its interposition, a rule (nisi) is made (except in some general case where such a ground r *« n *is manifest),(Z) requiring the defendant " to shew cause why a writ of mandamus should not issue." By stat. 1 Wm. 4, c. 21, s. 4, relief is afforded to officers and other per- sons, whose duties are to admit to offices, or to do or perform other mat- ters, in respect of which they claim no right or interest ; by providing in favour of such persons, that it shall be lawful for the Court to which ap- plication is made for the writ of mandamus to relieve them from the lia- bilities incident to the execution thereof, by calling upon any other person having or claiming any interest in the matter of such writ, to appear and shew cause against the issuing of the same, and thereupon to make such rules and orders between all parties as the circumstances of the case may require, (m) If, on the discussion of the rule, the defendant do not shew a sufficient cause against it, it is made absolute, and a writ is issued in the alterna- tive, commanding him by a day therein expressed, called the " return- day," either to execute the command of the writ, or signify to the Court some reason to the contrary,(m) which writ is personally served upon the defendant. If such a writ be defective in form, it may in certain cases be amend- ed, but if the defect be not the subject of amendment, it must either, according to circumstances, be superseded or quashed, for the pro- secutor cannot, upon such a writ, safely or advantageously prosecute his right. (A) Burr. 1265, 1268, per Wilmot, J. S. C. 1 W. Blac. 300, 352, supra, R. y. Windham, Cowp. StS ; Com. Dig. tit. " Man." A. It lies, as will be seen hereaf- ter, in some cases where the applicant has another, though a more tedious reme- dy, or when the specific remedy is obsolete. See post, 3 Bl. Com. 110 ; 3 Steph. Com. 682. E. v. England (Bank), 2 B. & A. 622. B. t. Oxenden, 1 Show. 263. (i) B. T. Clear, 4 B. & C. 901,-|- per Holroyd, J. B. v. Montacute, 1 W. Blac. 61. S. C. 1 Wils. 283 ; Com. Dig. tit. " Man." (A). R. v. Dublin (Dean), Stra. 536 ; Poph. 176 ; 1 Lev. 291. tj) 3 Bl. Com. 109 ; 3»Steph. Com. 681, supra, n. (a). he) 3 Bl. Com. Ill ; 3 Steph. Com. 683. See tit. " Application," post. h) 3 Steph. Com. 683. See tit. " Rule," post. \m) 3 Steph. Com. 685. See stat. App. (») 3 Bl. Com. Ill I 3 Steph. 683. 60 tapping's mandamus. If, however, the writ be good both in substance and form, the defend- ant must duly proceed to execute it, and if he by the time mentioned fail therein or do not return to the Court a legally sufficient excuse or justifi- cation for such failure in his respect and obedience, he is liable to be pun- ished for his contempt by attachment. (o) Before the statute 9 Ann. c. 20, the practice was, not to issue an attachment for a neglect to return the writ until after the issue of alias and pluries writ.(^) Formerly if the defendant returned a legally sufficient cause: although false in fact, the Court would not{q) try the truth of the return upon affi- davits, but in the first instance assume it to be true, and decline to pro- ceed further on the mandamus.(r) The prosecutor was therefore, if such were the case, compelled to shew' by extraneous proceedings, that such re- turn was false, which was done by bringing an action against the defend- ant for a false return ; and if it *were found by the jury to be t ' J false, the prosecutor not only recovered damages equivalent to the injury sustained, but if such action were in the Court [of B. E., had awarded to him a mandamus, peremptorily commanding the defendant to do his duty.(s) This course of practice having been found most oppressive and dilatory, the Legislature, by stat. 9 Ann. c. 20, made the vrrit a most full and effectual remedy, in the first place, for refusal of admission where a per- son is entitled to a corporate office or place; and secondly, for wrongful removal, when such an one is legally possessed ;(«) for such statute (amended and extended by stat. 1 Wm. 4, c. 21, to writs of mandamus in all cases,) amongst other things requires that a return be immediately made to the first writ of mandamus, thereby rendering the issue of an alies or a pluries in ordinary eases unnecessary. The same statute also declares that such return may be pleaded to, or traversed by the prosecu- tor, and that the defendant may reply, take issue or demur, and the same proceedings had, as if an action on the case had been brought /or making a false return; and that after judgment obtained for the prosecutor, he shall have a peremptory writ of mandamus to compel his admission or restitution, (m) Thus, the writ of mandamus in cases vrithin the statutes, is, to a cer- tain extent, assimilated both in its direct and incidental proceedings to an action; the prosecutor, if he ultimately succeed, being according to the maturity of the case, entitled to the damages and costs, to bring a writ of error, and to issue execution. («) The prosecutor may, however, still bring his action for a false return. (0 (o) 3 Bl. Com. 111. See tit. "Eeturn." (p) See tit. " Rule to return writ." See stats. 9 Anne, c. 2 ; 1 Wm. 4, c. 21, post. 3 Bl. Com. in ; 3 Steph. Com. 684. See tit. post,," False Return." 3 Bl. Com. Ill ; 3 Steph. Com. 684. See tit. " Peremptory Writ." 3 Bl. Com. 264. See stat. App. (u) 3 Bl. Com. 265. See stat. App. M 3 Bl. Com. 265. See post, tit. " Error." R. v. Jeyes, 3 A. & E. 421.+ E. v. Oundle (Mayor), 1 A. & E. 29l.f THEMODEKNWKIT. 61 If on the other hand, the defendant return to the writ legally insuffi- cient grounds of excuse or justification, then there issues upon the disal- lowance of such return, a segond writ, called a " peremptory mandamus" peremptorily commanding the defendant to execute its command, to ■which no other return will be admitted, but a certificate of perfect obedi- ence and due execution of the writ.(w) The sufficiency of the return in point of law, was formerly determined, either summarily upon motion, in case it was clearly bad or insufficient, or on condlium after a special argument, when its insufficiency was not so apparent, (x) But by a late statute (6 & 7 Vict. c. 67) it is enacted, that the prosecutor objecting to the validity of the return, shall do so by *way of demurrer to the same, in like manner as in personal ac- ^ ^ tions;(y) and thereupon, the writ, return, and demurrer, shall be ■- ^ entered on record ; and the court shall adjudge either that the return is valid in law, or that it is not valid in law, or that the writ of mandamus itself is not valid in law ; and if it adjudge that the writ is valid, but the return invalid, they shall award a peremptory mandamus, and shall also in any event award costs to be paid to the successful party. The same statute also provides, that either party shall -be at liberty in every case where judgment is given against him upon a mandamus, whether after demurrer or otherwise, to prosecute a writ of error thereon, according to the ordinary course of a writ of error in personal actions.(z) So that by virtue of this last statute, the writ of mandamus is at this day, from the period at least of the return, entirely assimilated to an action, (a) If the prosecutor be ultimately successful, the Court will award to him his peremptory writ of mandamus, which when served upon the defend- ant, he is bound to obey, under pain of an attachment; but which peremptory writ is, if prematurely issued, or for any inherent defect, lia- ble to be quashed by the Court. If the defendant be ultimately successful, he. is entitled, under the above statutes, to his costs, and to writs of execution against the prosecu tor for the recovery thereof. (w) 3 Bl. Com. Ill ; 3 Stepb. Com. 684. See tit. " Peremptory Writ." \xj 3 Steph Com. 684. See Ind. " Return." (y) The general rules of pleading and practice are applicable to cases of manda- mus, and its incidental proceedings. (z) 3 Steph. Com. 685. See tit. " Error." (a) 3 Steph. Com. 684. See tit. " Plea." 62 tapping's mandamus. [*9] ^CHAPTER THE THIRD. OF THE LEGAL PRINCIPLES WHICH GOVERN THE DISPENSATION OF THE WRIT OF MANDAMUS, TOGETHER WITH AN ALPHABETICAL SERIES OF THE SUBJECTS IN RESPECT WHEREOF THE WRIT HAS BEEN EITHER GRANTED OR DENIED. 1st. Mandamus. 1st. Mavdamus. Its jurisdiction - - - - 9 The absence of a specific legal In what cases it issues - 9 remedy continued. The absence of a specific legal Fees, withholding 24 remedy - - - - 18 Feigned issue - 24 Action 20 Indictment - - - 24 Amercement 21 Quare impedit - - - 26 Appeal 21 Quo warranto - 26 Case . . - . 21 Quality of prosecutor's right to Distress - . . - 21 the writ - - . 2T Ecclesiastical Jurisdiction - 22 Of those subject to the writ - 29 Equity 22 2nd. The subjects, alphabetically Lis pendens - 23 arranged, as to which the Error - - - 23 writ has been either granted Execution 23 or denied ... 29 1st. Mandamus — Its Jurisdiction — In what Cases it issues. The grounds upon which the Court of B. R. formerly granted or re- fused the writ of mandamus, are not in the ancient cases explicitly sta- ted, but during the time Lord Mansfield presided in that Court, he took great pains to state particularly the circumstances which induced the Court either to refuse or grant the writ.(a) The efiect of the various decisions, however, is, that .the Court of B. R. as the general guardian of public rights, and in exercise of its authority to grant the writ, will render it, as far as it can, the suppletory means of substantial justice in every case where there is no other specific legal remedy for a legal right and will provide as effectually as it can that all oflScial duties are fulfilled^ r*im ■'f^erever the subject-matter is properly within its control; *the L -' right of the Court to apply this means for the attainment of such an end, and to prevent that defect of legal justice which might otherwise ensue, has been in general admitted. (6) The principle above stated may be otherwise expressed thus, that the Court of B. R. will not interpose by granting the extraordinary writ of man- (ffi) 1 T. R. 404; 4 B. & Ad. 360.-|- S. C. 1 N. & M. 124.t Dr. Askew's case, Burr. 2188, 2189. Bac. Abr. tit. " Man." R. v. Jeyes, 5 N. & M. 104.t R. t- Wyndham, Cowp. 3ls, ' (6) R. Canterbury (Archbp.), 15 East, 135, per EUenborough, C. J. ; 2 B. & C. 598.t S. C. 4 D. & R. 132.t ' 'f & , , IIGAL PEINOIPLES, ETC. 63 damns, unless the applicant have not only a specific legal power, properly the subject of this writ, a fulfilment of which is demandable from the person to whom such writ must be directed, but also, there must not exist a specific legal remedy, whereby the fulfilment of such power may be compelled ;(c) so that the writ will not be granted unless to prevent a failure of justice,(ci) that is, it issues upon the assumption that that which ought to have been done at a time past has not been done.(e) The writ can only properly issue to command the doing or performance of some act or duty in execution of a legal obligation, and has not the same operation as the ancient writ de non molestando. Thus the Court refused the writ to command justices to sufier a dissenting minister to preach in a particular meeting-house. (/) So a mandamus will not be granted in anticipation of a defect of duty or error of conduct.(^) The Court of B. K. has no jurisdiction to grant the writ in any case except those in which it is the legal judge of the duty required. Thus it cannot interfere with a visitor's duty, it being a private and domestic jurisdiction, over which the Court of B. R. has not ordinarily any con- trol. (A) *The jurisdiction of the Court to command the execution of the r *i i -i particular act or duty, the subject-matter of the writ, must be ^ clear, otherwise it will not interfere. Thus, where the charter of a borough directed that when it should happen that any of the capital bur- gesses should die, dwell out of the borough, or for some cause be re- moved, it should be lawful for the remainder to elect others in the place of those so happening to die or be removed ; it was held that these words were not so unambiguous as to warrant the Court in granting a mandamus to admit two persons in the room of two non-resident capital burgesses, the corporation not having previously removed them from their offices for this cause, (i) Formjarly the Court was very astute in seeing to its juris- (c) 1 T. B. 404 ; 4 B. & Ad. Seo.f S. C. 1 N. & M. IZi.f R. v. "Windham, I Cowp. 311. (d) R. T. Fowey (Mayor), 2 B. & 0. 598-1 S. C. 4 D. & R. 132. R. v. Norfolk (J.), 1 D. & R. VS.f R. T. Ely (Ep.), 2 T. R. 345. R. t. Montacute, 1 W. Blac. 64. S. C. 1 Wils. 283. Dr. Askew's case. Burr. 2189. R. t. Canterbury (Archbp.), 8 East, 219. R. v. Canterbury (Archbp.), 15 East, 133. R. v. Chester, 1 W. Blac. 22. S. C. 1 Wils. 206. Bac. Abr. tit. " Man." (e) R. T. Gloucester (J.), 6 N. & M. 117, H8.-|-" R. v. Leeds (J.), 4 T. R. 583. R. T. Wilts (J.), 13 East, 352. R. v. Essex (J.), 4 B. & Aid. 2T6.t R. t. Salop (J.), 4 B. & A. 626. R. v. Suffolk (J.), 9 D. & R. lll.f S. 0. 6 B. & 0. llO.f (/) Peat's case, 6 Mod. 229. S. C. 2 Salk. 5T2. It seems, however, according to the reasoning of the Roman law, that the quiescence or neutrality of the justi- ces, as stated in the text, would have been deemed equivalent to " action." For it is laid down in such law, that " Qui non facit, quod facere debet ; videtur facere adversus ea, quia non facit. Et qui facit, quod facere non debet : non videtur fa- cere id, quod facere jussus est." Paulus, (lib. 13, ad Edict.) D. 50, IT. 121. (ff) Blackborough v. Davis, 1 P. Wms. 48. (A) Year Book, 8 Edw. 3 ; Lib. Ass. pi. 29. Philips v. Bury, 1 Sid. 71. S. C. 2 Show. 170 ; Mod. 82. 2 Keb. 799, 861. S. C. cited in 2 T. R. 355. R. v. Ches- ter (Ep.), 1 W. Blac. 22. S. 0. 1 Wils. 206. (i) R. V. Truro (Mayor), 3 B. & A. 590, R. v. Ely (Ep.), 1 W. Blac. 54. S. C. 1 Wils. 266. 64 TAPPING'S MANDAMUS. diction, even, for instance, in a case where a statute specially delegated to the Court the power of enforcing certain duties and requirements by writ of mandamus ;(/) because the ancient form and method of proceeding by mandamus prevented the judgment of the Court from being reversed by any Court of Error, a consideration which induced the Court to be cau- tious in assuming jurisdiction; but now, since this defect has been reme- died by statute, the Court never declines to interfere in any case clearly within its jurisdiction ; for it has no more right to refuse to any of the Queen's subjects the redress which it is empowered to administer, than to enforce against them powers not confided to it.(^) As to the jurisdiction of the writ, it may be generally stated, that it comprehends the execution of the common law, of statutes, acts of Par- liament,(Z) or of the King's charter,(m) in all cases for which there exists no legal remedy. It is not, however, applicable as a private remedy,(re) to enforce simple common law rights between individuals as to compel payment of money due on bond, or the restitution of chattels, stUl less to command a party to abstain from a tort or from the abuse of his oflEioe.(o) And where the Court of B. R. has power to amend all extra-judicial errors which tend to the breach of the peace, oppression of the subject, r*121 *°' other misgovernance,(jj) such Court may, by such writ, com- *- mand right to be done. Thus where a corporate officer is amoved without cause, he may be restored by mandamus, (j) So wherever there is a right to execute an office, to perform a service, or exercise a function or franchise, (more especially if it be matter of public concern, or attended with profit,)(j') and a person is kept out of possession or dispossessed of such right, and has no specific legal remedy, the Court of B. E. will assist by mandamus for the sake of justice, in order to preserve peace and order : or as the writ formerly expressed it, " Nos A. B. debitam et festinam justitiam in hac parte fieri volentes ut est justum."(s) Formerly the received idea was, that a mandamus would lie only to command the performance of a ministerial duty ; but modern cases have gone much further, and it is now the constant practice to grant the writ, to command the performance by any inferior jurisdiction or officer, of any {j) E. V. Greene, 6 A. & B. 548.t S. C. 1 N. & P. esi.f (k) E. T. Bristow, 6 T. R. ItQ. E.T. Eastern Counties Eailwav, 10 A.. & B. 515.t S. 0. 4 P. & D. 48. il) 3 B. & A. 590 ; 1 W. Blac. 54. S. C. 1 WUs. 266. f m) E. T. Chester (Ep.), 1 T. E. 404. R. v. Severn Eailway, 2 B. & A. 646, 648. (n) Per BuUer, J., 1 T. E. 404. R. T. Wheeler, Cas. t. Hard. 99. E. v. Manta- cute, 1 "W. Blac. 61. S. C. 1 Wils. 283.. Com. Dig. tit. " Man." (A) (o\ 1 N. & P. 527. S. 0. 6 A. & E. 392.t E. v. Peach, 2 Salt. 572 (p) 11 Co. 98 a. Com. Dig. tit. « Man." (A). E. v. Oxenden, 1 Show. 219: 2 Hawk. P. C. T, 9. ' ' (q) Eay. 431. Com. Dig. tit. " Man." (A). (r) The value of the matter, or the degree of its importance to the public police, IS not scrupulously weighed. E. v. Barker, Burr. 1265. Bac. Abr. tit "Man." 257. E. v. Oxenden, 1 Show. 263. See post, tit. " Ofiice " [s) E. V. B^ker Burr 1267. S. C. 1 W. Blac. 352, 552. R. v. Windham, Cowp. 378. Bac. Abr. tit. " Man." ' LEGAL PRINCIPLES, ETC. 65 puWic duty for whioli there is no speoifio remedy, (i) The duty must be a public one,(M) though the value to the public is not scrupulously weigh- ed j(d) it must also be of a temporal nature,(to) unless jurisdiction be given to the Court by some positive law, as by those acts of Parliament which direct the making and levying of church rates, (a) The duty must also be imperative, (y) and not discretionary ; there *being numerous cases which clearly establish that a mandamus r *i o -i cannot issue to enforce the exercise of a discretionary power, ^ except in those cases where such discretion is limited as to time, and such time has passed, (is) It does not lie to command the doing of a particular judicial act, for such an act is clearly discretionary, and therefore it is that the writ, when directed to judicial persons, is general in its terms. (a) Thus the quashing of a rate, being a judicial act, the Court of B. E. cannot command the justices, by mandamus, so to do. (6.) So where a magistrate had exercised his discretion by refusing to convict on the evidence ad- duced before him, in support of an information, the Court refused to com- mand him by mandamus to rehear the case, or return the proceedings which had taken place before him.(c) So where an appellant against an order of affiliation, moved the Court of Quarter Sessions for a postpone- ment of the appeal, on account of the absence of material witnesses ; which being refused, the appellant declined to go into his case, whereupon the order was confirmed; the Court, on motion for a mandamus to the justices to hear the appeal, notwithstanding the production of affidavits tending to show that they had acted unjustly in not granting^ the postponement, re- fused to interfere, the matter being one peculiarly within the judicial cog- nizance and discretion of the magistrates. (cZ) For if it appear that the sessions have exercised a discretion in a matter which properly belongs to (i) R. V. Fowey (Mayor), 2 B. & C. 596,t per Best, J. S. C. 4 D. & R. 143.-); R. T. Payn, 6 A. & B. 399.f S. C. 1 N. & P. 524.f R. v. Exeter (Chapter), 12 Ai & B. 528.t S. C. 4 P. & D. 252 ; Stra. 159, 536, 1082. R. t. Blooer, Burr. 1043 ; 3 B. & Ad. 95.f R. y. Litchfield (Ep.), 1 Mod. 218, per Lord Hardwicke, 0. J. S. 0. Kel. 28V. S. C. 2 Barn. 365, 429. R. v. Derby (Councillors), 7 A. & E. 421.f S. C. 2 N. & P. 589.f Carpenter's case, Ray. 439. R. v. Middlesex (Archdeacon), 3 A. & E. 615.f S. C. 5 N. & M. 494.f R. y. Peach, 2 Salk. 572. Com. Dig. tit. " Man." (A). [u) R. y. England (Bank), 2 B. & A. 622,f per Bayley, J. R. y. Dublin (Dean), Stra. 536. R. t. North Biding (J.), 2 B. & 0. 290.f R. y. Eastern Counties Rail- way, 10 A. & B. 557.t S. C. 4 P. & D. 48. [v] R. y. Barker, Burr. 1265. Bac. Abr, tit. "Man." 257. R. y. Oxenden, 1 Show. 263. , (w) Burr. 1046. R. v. Dublin (Dean), Stra. 536. [x) See tit. " Church." (V) R. y. Hughes, 3 A. & E. 429, 432.t S. C. 5 N. & M. 94.t (2) R. y. Treasury Commissioners, 4 A. & B. 297.t S. C. 5 N. & M. 589.-J; And see R. y. Darlington School, 12 L. J., N. S. 124, Q. B. Where " a discretion " is given ; by it is understood a sound discretion, and according to law, for the Court of B. R. has power to, and will redress things otherwise done ; Bstwick y. London (City), Styles, 43. (a) See tit. " Office," (Officers judicial, &c.) \b\ R. y. Middlesex (J.), 9 A. & E. 546.t (c) Ex parte The British Patent Company, 7 D. '614. (<^) Ex parte Beck, 3 B. & Ad. 704.f April, 1852.— 5 66 TAPPINO'S MANDAMUS. their jurisdiction, it is an invariable rule that the Court of B. R. does not interfere, (e) As it lies not to command the exercise of a discretionary or voluntary act, power,(/) or ]aght,(g') of what kind soever; so neither does it lie to influence nor control the exercise of such a discretionary act, power, or right.(A) Thus, the Court will not grant the writ where a matter '■ is *left to the discretion of an individual, or body of men, which discretion has been exercised, and no ground appears that it has been done wrongfully.(i) So the Court will not interfere with the discretion of an inferior jurisdiction, where it is exercised in accordance with reasonable rules or practice, (y) which principle has been since confirmed by many cases. (A) It must, however, be clearly understood, that although there may be a discretionary power, yet if it be exercised with manifest injustice, the Court of B. -E. is not precluded from commanding its due exercise; the jurisdiction, under such circumstances, being clearly established.(Z) Thus, the Quarter Sessions has a discretion to exercise with respect to What is reasonable time for giving a notice of appeal ; but the Court of B. R. has also a kind of visitatorial jurisdiction over them in the exercise of such discretionary power, and where the Court thinks that they have not exer- cised it in a way that ought to be given effect to, it will interfere by man- damus and correct it.(m) So where one is to act according to his discre- tion, and he will not act, nor even consider the matter, the Court of B. R. will, by mandamus, command him to put himself in motion to do it.(n) Thus, if justices reject an application in the exercise of the discretion vested in them by the Legislature, the Court of B. R. will not interfere ; but if they reject it on the ground that they have no power to grant it, (e) R. T. Norfolk (J.), 1 D. & R. T4.f R. v. Kent (J.), 14 East, 396. See post, tit. " Quarter Sessions." (/) R. T. London (Mayor), 3 B. & Ad. 254.t R. v. Gloucester (Ep.), 2 B. &Ad. 158.^ (g) R. T. Eye (Bailiffs), 1 B. & 0. 85. S. C. 2 D. & R. l'?2.+ See 9 B. & C. 21-t {h) R. T. North Riding (J.), 2 B. & 0. 290.t R. v. Eye (Bailiffs), 1 B. & C. SB.f S. C. 2 D. & R. l'?2.t Com. Dig. tit. " Man." B. 1. Wright v. Faweett, Burr. 2041 ; Ld. Raym. 1244 ; Port. 283 ; R. v. Dr. Askew, Burr. 2186. (i) R. T. Plockwold Inclosure, 2 Chit. 251.f R. v. Surrey (J.), 2 Show. H. See Blackborough v. Davis, Comyns, 26. R. v. Kent (J.), 11 East, 230. K. v. Mills, 2 B. & Ad. ht6.\ Ex parte Blackmore, 1 B. & Ad. 123.+ Com. Dig. tit. "Man." (B.) 1. R. v. Monmouthshire (J.), 1 B. & Ad. 895.+ R. v. London (May- or), 3 B. & Ad. 255, 265.+ R. T. Fowey (Mayor), 2 B. & C. 588.+ R. v. Norfolk (J.), 1 D. & R. 74.+ ^ ^ ^ 1' I (j) 3 D. 306. (ft) R. T. Lancashire (J.), 7 B. & C. 691.-|- R. v. "West Riding (J.), 5 B. & Adol. (J) Ex parte Becke, 3 B. & Ad. 704 ;+ 10 East, 404. R. v. Lancashire (J.), T B. & C. 692.-|- II I \ n (m) R. T. Wilts (J.), 10 East, 404, per Ellenborough, C. J., cited in and com- mented on in R. v Monmouthshire (J.), 3 D. 310, 311 ; but see R. t. West Riding (J.j, 5 B. & Ad. 671,-f- per Parke, J. See tit. " Quarter Sessions" (Appeal). (») R. V. North Ridmg (J.), 2 B. & C. 291.+ R. v. Mills, 2 B. & Ad. 578.+ Holbecke, 4 T. B. 779. ' ' E.T. LEGALPBINOIPLBS, ETC. 67 the Court will interfere, so far as to set tie jurisdiction of the magistrates in motion, by directing them to hear and determine upon the applica- tion.(o) So although the fact of "oupproval" for offices may be in the discretion of a party, yet such party must inquire, as to enable himself to exercise a considerate discretion on the subject, and if he will not so inquire, it is a fit case for the interference of the Court to command fur- ther inquiry.(p) *There is, therefore, no instance of a mandamus r *jk -i to compel an "approval," but the Court wUl, by mandamus, compel an inquiry, and in so doing it does not at all interfere with the exercise of such discretion. (j) The object of the granting of the writ of mandamus being, as before stated, to prevent a failure of justice,(r) and to provide an immediate and efficacious remedy, it follows that it will not be granted if, when granted, it would be nugatory, (s) in accordance with the maxim, Lex non cogit ad inutilia.(«) For the principle upon which alone the Court of B. E. exercises this prerogative power is, that a strong political necessity for such remedy exists, and that without it the ends of justice must be de- feated, (m) So the Court will refuse it, if it be manifest that it must be vain and fruitless,(«) or useless,(w) or cannot have a beneficial efFect.(a;) Thus where the writ is sought to one magistrate to command him to do that which cannot be done but by two.Q/') So it will be refused where it is clearly unnecessary,(») as where, by reason of an oflfer or concession from the other side, the object of the writ is attained, (a) So the Court will not grant it to command the per- formance of anything in future which has always been voluntarily done before. Thus, where trustees under a road act had turned a road through an inclosure, and made the fences at their own expense, and repaired them for several years, a mandamus was refused to command them to continue such repairs. (6) lo) R. V. Kent (J.), 14 East, 396. (p) R. T. Canterbury (Archbp.), 15 East, 135. E. v. Kent (J."), 14 Bast, 395. R. T. Gloucester (Ep.), 2 B. & Ad. 158.-J- See tit. " Lectureship," post. Iq) 14 East, 399, 400 ; 15 East, 138, supra. {r) Ante, p. 10. (s) R. T. London (Ep.), 1 Wils. 11. S. 0. nom. Lecturer of St. Anne's Stra. 1192. R. T. Exeter (Ep.), 2 East, 466. The Protector v. Craford, Styles, 457. R. v. Pem- brokeshire (J.), 2 B. & Ad. 391.-i- R. v. Whitaker, 9 B. & 0. 648.t R- v. Milverton (Manor), 3 A. & E. 285.+ {t) R. V. London (Ep.), 12 East, 420, n. (a). See Stra. 763. S. C. Ld. Eaym. 1479. («) R. T. Powey (Mayor), 4 D. & R. 134.-|- S. C. 2 B. & C. 591.t R. y. The Pad- dington Vestry, 9 B. & C. 456.+ R. v. The Eastern Counties Railway, 10 A. & E. 543.+ S. C. 4 P. & D. 48. (v) E. T. Heathcote, 10 Mod. 55, per Eyre, J. R. v. Milverton (Manor), 3 A. &E. 285.f (w) R. v. Sewers' Commissioners, Stra. 763. S. 0. Lord Raym. 1479. R. v. Bir- mingham Railway, 1 G. & D. 335. S. 0. 2 Q. B. 47.t ix) R. V. Northwich Savings' Bank, 9 A. & E. 729.f S. C. 1 P. & D. 477. M R. V. Sillefant, 5 N. & M. 643.t Iz) R. T. Pitt, 10 A. & E. 372.-J- S. C. 2 P. & D. 285. (a) Anon. Loflrt. 148. See tit. " Application," (Demand and Refusal,) post. (6) R. T. Llandilo Roads, 2 T. R. 232. Com. Dig. tit. " Man." (B). 68 tapping's mandamus. So the Court will refuse it if it see that it must ultimately fail.(c) Thus, to a mandamus to make a sewers' rate to reimhurse an expen- ditor, it was returned that the writ was not delivered tUl the 12th February, and that the commission expired four days afterwards, and ^^Ifj , *that therefore the defendants had not time, &c. The Court, on '- allowing the return, said that a peremptory mandamus could not be granted, it appearing there was then no power in any body to execute thg writ.(^) So the Court will see that the object of the mandamus is for some proper and definite purpose, and not for the gratification of mere curiosity.(e) Thus, it has been held, that a parishioner cannot have a mandamus to inspect churchwardens' and overseers' accounts, under Stat. 17 G-eo. 2, c. 38, without showing some special ground for wishing to see them, or that there is a grievance for which the writ would be a remedy.(/) Nor will the Court grant it where it is sought, merely in order to obtain the opinion of the Court on a point of law.(^) So the Court will not grant the writ if it wUl introduce confusion and disorder, (A) or be vexatious,(t) or where it is manifestly improper(y) or absurd, as if the writ asked against A., to oblige B. to do an act.(i) So although the Court will, by mandamus, order that to be done whict ought to, and may lawfully be done, yet it will not require that to be dtae which is indecorous in its nature, for non omne quod licet, honestum est,(Z) nor which may become the subject of indictment as a public nuisance;(m) nor that which is illegal, (re) or which cannot be legally enforced,(o) it being also a rule of the Roman law that " Quod contra rationem juris P^,w-| receptum est, non est producendum *ad consequentia.(p) Thus, where the condition of a constables' bond was contrary to the (c) E. T. Bateman, 4 B. & Ad. 553,j- per Lord Demuan, C. J. (d) Stra. 763. S. 0. Lord Eaym. 1479. h) E. T. Staffordshire (J.), 6 A. & E. 90.f S. C. 1 N. & P. 27Y.f (/) E. T. Clear, 4 B. & 0. 899.f S. C. 7 D. & E. 393 jf 6 A. & E. 90, lOl.f S. 0. 1 N. & P. 277.t See tits. "Books," " Parish," (laspection), &c. !g) R. T. BlackwaU Eailway, 9 D. 558. h) R. v. Ely (Ep.), 1 W. Blac. 59. S. 0. 1 Wils. 266. i) E. V. St. John's CoU. Comb. 238. /) E. v. Ely (Ep.), 2 T. E. 336, 337. E. t. Bangor (Overseers), 16 L. J., N. S. 53, M. C. * V ;i I (k) E. T. Derby (Mayor), 2 Salk. 436. E. t. Ely (Ep.), 1 W. Blac. 56. S. C. 1 i7;in oca n^»~. T\:_ J.rj. tl Hr n /|-i\ T>__ « l. ,-. ,,-mr .. /T-., Wils. 266. Com. Dig. tit. " Man." (C). Bac. Abr. tit. "Man." (F). (l) Paulus, lib. 62, Edict. D. 50, 17, 144. (m) E. T. Coleridge, 1 Chit. 597,f per Abbott, C. J. (n) In re Lodge, 2 A. & E. 123.f E. T. Liverpool (Customs), 2 M. & S. 223. K. V. London (Customs), 1 M. &. S. 259. E. t. St. Pancras, ^c, 5 N. & M. 228.t S. C. 3 A. & E. 535.f As to a mandamus for purposes partly legal and partly not, R. T. Thames Commissioners, 5 A. & E. 815,t And see 3 A. & E. 535.+ S. C. 5 N. & M. 228,t supra. E. t. Lord Godolphin, 8 A. & E. 347.+ S. C. 3 N. & P. 488.+ See also E. V. Middlesex (J.), 9 A. & B. 540.t S. C. 1 P. & D. 402. S«l ^i T; ^x^^i^??^ ^°^^^' *•=■> 5 B. & Ad. 984.+ E. T. York (J.), 4 B. & Ad. 342.f S. C 1 N. & M. 108 ;t 5 N. & M. 228.t S. C. 3 A. & E. 535,+ supra. B. v. Sparrow, 7 Mod. 393. S. C. Stra. 1123. R. v. Stamp Commissioners 16 L. J., N.S. T»i y- ^- (P) Paulus, lib. 50. ad Edict. D. 50, 17, 141. ETC. 69 statute in that behalf, the Court would not, by mandamus, command the justices to put it in ?uit, as they had no authority to enforce the condi- tion,(g) nor will the Court compel, by mandamus, the doing of an act which is not authorized by law, because the party who is called upon to do it has not resisted doing it by appealing to another tribunal; but as the Court of B. R. is only suppletory to the defects of other jurisdictions, it will enlarge the rule until the appeal be made.(r) So a mandamus will not be granted to command any person to exercise a jurisdiction which that person is not most clearly and certainly appointed to, and bound by law to exercise ;(s) for the Court will not grant such writ except it clearly see that there is a power lodged in the person against whom the mandamus is prayed. (<) Nor will the Court grant it merely for the sake of a return,(M) nor against a person as an inferior ministerial officer, who obeys a power which he is unable to resist. («) Formerly the Court would not in any case grant the writ where it would subject those executing it to an action.(w) But since the statute 6 & 7 Vict. c. 67, B. 3, by which it is enacted that no action, suit, or any other proceeding shall be commenced or prosecuted against any person or persons whatsoever, for or by reason of any thing done in obedience to any peremptory writ of mandamus(a;) issued by any C ourt having authority to issue writs of mandamus : it is apprehended, according to the principle, ces- sante causa,, cessat efFectus, that the Court is not now so strict in this respect. The Court has, however, refused the writ in a case where it would have had the effect of subjecting third parties to penalties under the revenue laws, &c.(y) *lheabsenceor leant of a specificlegal remedy. The writ of man- damus is not a writ grantable of right, but by prerogative, (a) and, ■- -' amongst other things, it is (as before stated)(o) the absence orwantof a speci- fic legalremedy, which gives the Court jurisdiction to dispenceit(6.) It is not (g) In re Lodge, 2 A. & B. 123.f (r) R. V. Bast India Company, 4 M. & S. 283, 284. See tit. " East India Com- pany." («) E. v. Ely (Ep.), 1 Wils. 268. S. C. 1 "W. Blac. 58. B. v. Middlesex (J.), 9 A. & E. 540.t S. C. 1 P. & D. 402. {t) 1 W. Blac. 58, supra. Brideoak's case, H. 12 Anne, cited in 1 W. Blac. 57. (m) R. t. Suffolk (J.), 5 N. & M. 144.f S. C. 3 A. & B. T25,t per Patteson, J. R. T. Blaokwall Railway, 9 D. 558. {ii) R. V Middlesex (J.), 9 A. & E. 540.t S. C. 1 P. & D. 402. See post, tits. "Office," (Officer ministerial (inferior)), " Treasurer of County." (mi) R. t. Heathcote, Port. 290. S. C. 10 Mod. 51, 61. See tit. "Quarter Ses- sions," (Justices, &c.) R. t. Dyer, 2 A. & B. 606.f S. C. 4 N. & M. 550.t R. v. Middlesex (J.), 1 P. & D. 402. S. C. 9 A. & B. 540.-t- (x) See Stat. Appendix. [y) R. T. "Westoe, (Churcli-wardens), 5 A. & E. 789.-J- Lawrence v. Hooker, 5 Bing. 6. See post, tit. " Quarter Sessions," (Justices). (z) Ante, p. 4. (a) Ante, pp. 3, 4, 9. (4) 3 Bl. Com. 110. E. v. Bristol Dock, 12 East, 429 ; 2 Selw. N. P., Tth edit., 1062. Wilkins t. Mitchell, 3 Salk. 229. S. 0. Ld. Eaym. 340. E. v. Windham, Cowp. 378. R. T. Chester (Ep.), 1 T. R. 396. E. v. York (J.), IN. & M. Ill :+ 2 B. & A. 646 ; 10 A. & B. 544.t S. 0. 4 P. & D. 48. 70 tapping's mandamus. granted to give an easier or more expeditious remedy; but only where there is no other remedy(66,) being both legal and specific ;(c) and so long and uniformly has the Court adhered to this doctrine, and refused to grant, or, if granted quashed, the writ, in cases where there is a specific legal remedy, either at common law or by act of Parliament, that it has become a principle of the law of this subject.((^) This principle applies where there is another and a better remedy,(e) or where a specific remedy exists, notwithstanding it has been by circum- stances rendered unavailing,(/) for it is rare to grant the writ where thereis r*i Q-i any other remedy, (g) Thus, if a.statute prescribe *a particular remedy ^ no other remedy can be taken, and therefore, in such a case aman- damus will not lie. (A) But if the remedy be not equally convenient and effica- cious, the Court will grant the writ, and, therefore, where commissioners were liable for an indictment for not obeying an order of sessions, it did not prevent the interposition of the Court of B. E. by mandamus.(i) So it has been held that the usual power given in railway acts to justices to allow the proprietors of land to execute works, &c>, on refusual of the company, is not such a specific remedy as will oust the. Courtof B. E. of (bb) E. T. Stafford (Marquis), 3 T. R. 649. E. v. Margate Pier, 3 E, & A. 223. Bac. Abr. tit. " Man." (D.) (C. 2.) (c) E. T. Chester (Ep.), 1 T. E. 404. E. t. St. Katherine's Dock, 4 B. 4 Ad. 360.t S. 0. 1 N. & M. 124.t E. T. Canterbury (Archbp.), 8 East, 219. E. t. Eng- land (Bank), 2 Doug. 526. E. t. Nottingham Water Works; 1 N. & P. 480.t S. 0. 6 A. & B. 355 il W. W. & D. 166. E. T. Lincoln's Inn, T D. & E. 368,t per Holroyd, J. E. V. Worcester Canal, 1 M. & E. 533. E. v. Chester (Ep.), 1 T. E. 396. E. v. Bristol Dock, 12 Bast, 429. E. v. Coleridge, 1 Chit. 592. E. t. Clear, 1 D. &. E. 393.+ S. C. 4 B. & C. 899.t Com. Dig. tit. " Man." (D.) E. T. Norwich Bailway, 15 L. J. N. S. 24, Q. B. S. C. 3 D. & L. 385. (d) E. V. Chester (Bp.), 1 T. E. 396, 398. E. v. Stafford (Marquis), 3 T. E. 649. E. v. Barker, Burr. 1265. E. v. Eastern Counties Eailway, 10 A. & E. 543.f S. 0. 4 P. & D. 48. E. V. Gamble, 11 A. & E. 12.-f S. C. 3 P. & D. 123. E. v. St. Peter's, 12 A. & B. 512.f Wilkins v. Mitchell, 3 Salk. 228. S. C. Ld. Eaym. 348. E. V. Wyndham, Cowp. 3T8. E. v. Treasury Lords, 4 A. & E. 286.t S. C. B N. & M. 589.+ E. T. Blooer, Burr. 1045. E. t. Dursley, (Churchwardens), 6 N. & M. 335.1 S. 0. 5 A. & B. lO.-j- E. T. Severn Eailway, 2 B. & Aid. 646; E. v. St Paul (Parish), 1 M. & E. 596. E. v. Colchester, 2 T. E. 259. E. t. Canterbury (Archbp.), 8 East, 213. E. T. Dean (Inclosure Comrs.), 2 M. & S. 80. Com. Dig. tit. " Man." (A. B.) E. V. Oxenden, 1 Show. 263. E. v. Wheeler, Cas. t. Hard. 100, n. (1) ; 6 A. & B. 355.t S. C. 1 N. & P. 480.f E. v. Birmingham Canal, 2 W. Blac. '708 ; 1 W. Blac. 26, n. (o). E. T. Cambridge (V. C), Burr. 1659. E. t. Hopkins, 1 Q. B. 161.f S. C. 4 P. & D. 550. R. T. Victoria Park, 1 Q. B. 288.-i- S. 0. 4 P. & D. 639. E. T. London Eailway, 16 L. J., N. S. 42, Q. B. (e) E. T. Gamble, 11 A. & B. 69.t S. C. 3 P. ic D. 123. R. v. Pitt, '10 A. & B. 212.f (/) E. T. Margate Pier, 3 B. & A. 223. See also, 4 P. & D. 642. S. 0. 1 Q. B. 291.f (g) Anon., 12 Mod. 666, per Holt, 0. J. See E. t. Barker, Burr. 1265 ; CaS. t. Hard. 99, supra; 3 Bl. Com. 110. See infra, "Indictment." (h) Stevens v. Evans, Burr. US'?, per Dennison, J. E. v. Margate Pier, 3 B. & A. 223. In re Gateshead, (J.) 6 A. & E. 550,-|- n. {a\. (i) R. V. Dean Inclosure, 2 M. & S. 80; 11 A. & E. 12.^ S. C. 3 P. &D. 123, supra, where Lord Denman, C. J. said, that it was thought that the decision in 2 B. & A. 646 went quite far enough. E. v. The Bristol Dock, 2 Q. B. 64.+ S. 0. 1 G. & D. 286. E. V. Clarke, 1 D. & M. 690. S. C. 5 Q. B. SSI ;+ 12 A; & B. 530.+ Stra. 1082 ; 6 East, 356 ; and 4 A. & B. 286.f See post, 24. LEGAL PRINCIPLES, ETC. 71 its jurisdiction to command the company, by mandamus, to execute tie ■works.(y) The above principle prevails only where such other remedy is attaina- ble against that party to whom tlie mandamus should be directed, not where! the purpose is to call forth the exercise of a jurisdiction against one party by mandamus to another.(A) Whether the taking a private security be a remedy sufficient to nega- tive a mandamus was raised, but not settled. (?) If, however, there is no such specific legal remedy, the Court will grant the writ.(m) So if it be doubtful whether there be another effectual remedy,(m) or the Court does not clearly see its way to one,{o) the writ will be granted. The general' principle that the Court will not grant the writ where there is any other specific legal remedy must be understood sub modo, for if the other remedy be obsolete or inconvenient, as in the case of an assize for an office, the Court will grant the writ.(p) The offices to which such a proceeding is incident are generally such as are created by letters *patent.(g') Upon this point the Court has often said, in answer to rjKon-i those particular cases in which an assize lies, that though a party has such remedy, yet it is not obsolete, and therefore an exception has been made in those instances,(r) it being discretionary in the Court either to grant or refuse the writ in such cases, (s) The following is a list, alphabetically arranged, of those legal formulae, the existence of which, as prescribed remedies, bar the dispensation of the writ of mandamus : — Action. Where there is no specific legal remedy, the Court of B. E. will grant a mandamus to enforce the general law of the land, that there- by justice may be done. But where an action will lie for complete satis- faction equivalent to a specific relief, the Court will not so interfere. (<) Thus, where A. had pulled down a party wall, and thereby destroyed the internal decorations of his next neighbour's house, and afterwards rebuilt (J) R. T. Norwich Railway, 15 L. J., N. S. 24, Q. B. S. C. 3 D. & L. 385. (*) Richards v. Dyke, 3 Q. B. 267,f per Patteson, J. h) R. T. Dursley, (Churchwardens), 6 N. & M. 337.1 S. C. 5 A. & E. lO.f (m) R. T. Severn Railway, 2 B. & Aid. 646. R. T. Wiltshire Canal, 5 N. & M. 348.f S. C. 3 A. & B. 483.f Dr. Askew's case. Burr. 2186, 2191. R. v. Blooer, Bur. 1045. R. v. Barker, Burr. 1266. R. t. Cambridge, (V. C.) Burr. 1659, 1660. (n) R. T. Nottingham Water Works, 1 N. & P. 480.t S. C. 6 A. & E. 355.f S. C. W. W. & D. 166 1 2 B. & Aid. 646. (o) R. T. Birmingham, fRector) T A. & E. 259, 260.t (p) 1 T. R. 399 ; 3 T. R. 650, supra. Anon. Comb. 347 ; Stra, 1082, n. (1). R. V. Oxenden, 1 Show. 219; Burr. 1265. Bac. Abr. tit. "Man." (0. 2.) See tit. " College," (Master, Restoration.) See also Town Clerk of Oion's case. Comb. 244. R. v. Westminster (Dean), Comb. 244 ; 3 T. R. 652, per Grose, J. (q) R. V. Chester (Ep.), 1 T. R. 404. B. v. Severn Railway, 2 B. & A. 646, 648. See post, tit. " Office." (r) 3 T. R. 646. (s) R. V. Blooer, Burr. 1043, 1046; 3 T. R. 651, perKenyon, C. J. (il) R. V. England, (Bank) 2 Doug. 526. B. v. Chester, (Ep.) 1 T. R. 396. R. v. 72 tapping's MANDAMUS. the wall, but neglected to replace the decorations, the court held that it was not competent for the person so injured to enforce, by mandamus, the reinstatement of his apartments under stat. 14 Geo. 3, c. 7», s. M, because his remedy was by action.(«) So the Court has refased a visitor to exercise his visitatorial power over the temporalities of a cathedral church concerning the intermediate profits during the vacancy of a stall, such being a matter proper for an action at law.(D) It has been decided that a remedy by the following actions is sufficient for the Court to refuse the writ, namely, an action on the case,(4o)or special assumpsit : thus it was refused *o compel the Bank of England to transfer stock, because such action was the proper and specific remedy,(a;) so also an action of debt,(y) or those of trover *or detinue, (a) Thus t*^-^^ the Court of B. K. will refuse to grant a writ of mandamus to command the delivery up of muniments belonging to one as annexed to his office, against one not claiming them ex officio, for the former may bring detinue or trover for them. So such Court will not command churchwardens to deliver a vestry book to a vestry clerk, (a) A remedy by ejectment is also a bar to the issuing of the writ.(6) And in the case of an office, it is sufficient to bar the dispensation of the writ, if by refusing to pay the/ees thereof, or by bringing an action against the officer if he take them,(c) the title to the office may be tried. Amercement. A remedy by amercement has also been held to he a sufficient remedy to discharge the writ. Thus, a rule for a mandamus obtained by the Conservators of the Bedford Level, against persons hable ratione tenurse to repair the banks of the Ouse, was discharged, on a pre- liminary objection, that by stat. 15 Car. 2, c. 17, the applicants were Commissioners of Sewers, and might, therefore, put in force against the defendants another remedy, namely, amerce those who neglected to repair, (c?) Hopkins, 4 P. & D. 550. S. C. 1 Q. B. 550.f E. v. Severn, Railway, 2 B. & Aid. 648. R. T. Ponsford, 1 D. & L. 116. R. v. Stoke Damerel, 5 A. & E. 589.t S. C. 1 N. & P. 56. Ex parte Robins, 1 D. 566 ; 1 W. W. & H. 578 ; 3 Jur. 103. E. v. York, (J.) 1 N. & M. Hl.-|- R. v.' Whitstable Fishery, 1 East, 353. R. v. Hull Railway, 8 Jur. 491. S. C. 13 L. J., N. L. 25T, Q. B. See tit. " Compensation," (Company.) (a) 1 D. & L. 116 supra. S. C.12 L. J., N. S. 313, Q. B. [v) R. T. Dunelmensem, Burr. 567. (w) Savill's case, Sid. 443. E. v. Chester, (Ep.) 1 T. R. 398 ; 2 T. R. 188 n. (J). E. v. England,- (Bank) 2 Doug. 524. R. t. Dr. Askew, Burr. 2186. R. t. Water- works, (Nottingham), 1 N. & P. 485.f S. C. 6 A. & E. 355.+ But see Stra. 1082. Bac. abr. tit. » Man.'^' C. 2. See tit. " College," (Master.) (x) Savill's case, Sid. 443 ; Doug. 526, supra, Com. Dig. tit. "Man." (B.) (y) R. T. Hull Railway, 6 Q. B. 1G.\ S. C. 8 Jur. 491. S. C. 13 L. J., N. S. 257, Q. B. ■ See Infra, " Pees Withholding," and tit. " Office." (z) R. V. Hopkins, 1 Q. B. 161.+ S. C. 4 P. & D. 550. (a) Anon., 2 Chit. 255.f ' (i) R. T. Chester. (Ep. 1 Wils, 209, per Law, C. J. R. v. Stainforth Canal, 1 M. & S. 31. R. T. Agardsley, (Manor,) 5 D. 19, and cases there cited. (c) E. v. Stoke Damerel, (Minister) 5 A. & E. 589.+ S. C. 1 N. & P. 56.+ 2 H. & W. 346. See post, tit. " Office " Jf^ ?• n ?T^.\^ F\^ °- ^22- S- C- 11 A. & E. 72.t And see 5 A. & E. 584. S. C. 1 N. & P. 56.f supra. LEGAL PRINCIPLES, ETC. 73 Appeal. The Court will not grant the writ if there be a remedy by appeal,(e) exclusively vested in any person or corporation. (/) Case. Where the sessions have granted a case for the Court of B. R. such a course, in general, estops an application for a mandamus to com- mand such sessions to hear.((/r) Distress. Where there is a power to distrain, such remedy must be resorted to, and the Court will refuse to interfere in any case for which *such a proceeding is an available remedy :(A) and where a remedy ^ ^^n -i as by distress is expressly given by act of Parliament, it seems that the writ will be granted to command the issuing of such distress, notwithstanding there may be a remedy by indictment, (i) Ecclesiastical Jurisdiction. The Court cannot interpose and grant the writ, where its object is purely Ecclesiastical jurisdiction and remedy; nor correct errors in its proceedings. Thus it lies not to command the ad- mission of a proctor, nor the making of a church-rate, independent of statute ; nor as to the mode of burial of dead ; the setting-up of bells ; the purchase of books, vestments, &c., necessary for divine service, (/) for the Court of B. E., being without judicial knowledge on such subjects, has no jurisdiction. Equity. Where a legal right exists, it is no answer to an application for a mandamus, to show that there is also a remedy in equity ; for when the Court refuses to grant the writ, because there is another specific remedy, it means a specific remedy at law.{k') But if the Court of Chancery have full jurisdiction, as in a matter of title to an estate, and be a fitter tribunal for the investigation, the Court will refuse the writ. Thus, where under stat. 11 Geo. 4 & 1 Wm. 4, c. 60, s. 8, the Court of Chancery, upon a Master's report, made an order («) R. T. Appleford, 2 Keb. 864, per Hale, 0. J. R. v. Cambridge, (U.) 8 Mod. 150. S. C. Ld. Raym. 1334. S. C. Stra. 55t. S. C. Fort. 202. See R. t. East India Company, 4 M. & S. 279. R. v. Weolby, Stra. 1259. R. v. Harrison, 16 L. J., N. S. 33, M. C. R. T. Gray's Inn, 1 Doug. 353. R. T. Lincoln's Inn, 4 B. & 0. 855.f Bac. Abr. tit. " Man," C. 2. See tit. " Quarter Sessions." (/) Gude'a, Cr. Pr. 180. {g) See tit. " Quarter Sessions," (Case.) (A) R. T. Loudon Railway, 15 L. J., N. S., 42, Q. B. See tit. " Compensation," (Company.) See infra, "Execution." (i) R. V. Hants, (J.) 1 B. & Ad. 658.f R. v. Robinson, Burr. 799, and cases there cited. See tit. " Distress." (/) See tits. " Proctor," " Churclirate," "Burial," "Courts Superior;" (q. b.) ; Sel. N. P. 1087, 11 edit, and infra, tit. "Equity." R. v. St. Peters, 5 T. R. 364; 4 M. & S. 250. R. V. Taylor, 1 Burn's Ecc. Law, 258. R. v. Coleridge, 2 B. & A. 806, per Abbott, C. J. Lee v. Oxenden, 3 Salk. 229, 4 ; 1 Salk. 38, 6. {k) R. T. Stafford, (Marquis) 3 T. R. 651, 652, per BuUer, J.; g East, 219. R. v. London Assurance Company; 5 B. & A. 901. S. 0. 1 D. & R. 510. R. v. Renuett, 2 T. JR. 198. R. T. Whitstable Fishery, 7 East, 353. Bac. Abr. tit. " Man." See also "Wilkins t. Mitchell, 3 Salk. 229. S. C. Ld. Raym. 348, and note. See post, tit. "Application." 74 tapping's mandamus, declaring that the heir of W., legal tenant in fee of copyhold premises, could not be found; that W. held as trustee, and that B. was entitled to the equitable fee, and appointing Gr. trustee to convey or surrender the legal estate; the Court refused to command the lord by mandamus, to accept G.'s surrender, on the ground, assuming the statute to apply to copyholds, that the Court of Chancery could compel the performance of whatever was requisite, and was better able than the Court of B. R. to r Mtnq n regulate the rights of the *parties.(Z) So also as the examination of the accounts of a trading company, may be effectually entered into in the Court of Chancery, and as the Court of B. E. is a very unfit tribunal for such purpose, such latter Court will refuse to interfere by mandamus with such a case.(m) So where it appears by the affidavits on showing cause, that the right respecting which the mandamus is sought, is already the subject of a suit in equity between the parties, the Court will not interfere and grant such writ, (re) While upon this point, a few words may be advantageously said as to the important subject Ids pendens. It is a principle of law, that where a matter is in con- troversy before a competent jurisdiction, the Court of B. E. will not in- terfere by mandamus, (o) Such a fact will, therefore, found a good return. Thus, where a mandamus was moved for to license one to teach in a school, it was refused, because a caveat in the Spiritual Court was de- pending. So a mandamus to swear in a deputy registrar of the Consistory Court of York, was refused, because there was a matter in the case in controversy in Chancery ;(p) but on the contrary, where the matter is not being discussed before a competent tribunal, such lis pendens will .not form a good return, (j) Error. So if a writ of error lie, the Court will not grant a manda- mus, (/•) as it is a specific legal remedy. Execution. Where the writ of fi. fa., ca. sa., &c. are applicable as executions, the Court wiU refuse the writ.(s) Thus, where the prosecutor {l\ R. T. Pitt, 10 A. &. E. 2'?2.-|- S. G. 2 P. &. D. 385. See tit. "Manor," (Sunen- (der). (m) R. T. England (Bank), 2 B. & A. 620. See tit. "England," (Bank). {n\ R. V. Wheeler, Gas. t. Hard., by Lee, 98. S. G. Gmm. 155. (o) R. V. London (Ep.), 1 WUs. 11. S. G. Stra. 1192. Anon., 5 Mod. 374. But see 1 T. R. 403, citing Stra. 893-6 ; Fitz. 194. And see R. t. "Wheeler, Gas. t. Hard. 100, n. (1) ; 1 Mod. 218, citing Raine'a case, 5 Mod. 54. See tits. "Administration," "Will," (Lis pendens). Ip) See Vincent's case, P. 13, G. 1. (?) R. T. Harris, 1 W. Blac. 450. S. C. Burr. 1420. See tit. " Return." (r) Exparte Morgan, 2 Chit. 250 ; 3 A. & B. '?21.+ And see tit. " Gonrts Inferior," (New Trial,) (Judgment,) &c., R. v. Gonyngham, 1 D. & R. 529.-|- S. G. 5 B. & A. (s) R. V. Victoria Park, 1 Q. B. 288.-|- S. G. 4 P. & D. 639. R. t. Hull Railway, 13 L. J., N. S., Q. B., 25T. Wilkins v. Mitchell, 2 Salk. 228. S. C. Ld. Raym. 348. See post, tit. " Company," (Execution). LEGAL PBINOIPLES, ETO. 75 seeks only the payment of debt and costs, for this, an execution by j^. fa. is a perfect remedy in its nature, and if in such a ease the writ were to be granted, because there happened to be no ^chattels seizabje, it _ ^n i -, would be difficult, on principle, to refuse it, in any case where the sheriff should return nulla bona.(<) Fees, witTiholding. Where the case is doubtful on the merits, and the applicant can try his right to the office, &c., by maintaining an action for, or withholding the fees thereof, the Court will refuse the writ.(M) Feigned Issue. A feigned issue when prescribed as the specific legal remedy, is sufficient to prevent the granting of the writ.(t)) Indictment. It is true, as before stated, («;) that a mandamus will issue where there is a legal remedy, in cases where that remedy is not so con- venient, complete, or beneficial as a mandamus would enforce, but such doctrine is applied to those cases only where the remedy is not in its nature so complete, without reference to any circumstances peculiar to the case in which it inigKt be used, (a;) Thus a mandamus has been granted to compel a corporation to reinstate and lay down a railway constructed under the authority of an act of Parliament, although an indictment would have lain for the non-repair ; for the only direct effect of an indict- ment in such a case, would have been the punishment of the defendants by fine, and not the procuration for the prosecutors of the benefit which they sought, and were entitled to.(y) So in aU cases where the relief is sought against an artificial person or corporation ; for if it be convicted upon an indictment, the Court can only impose a fine upon it, which fine may, it is true, be levied by distress upon its tangible property; yet cases may occur where such its property may be so small, that it may submit to the payment of the fine, and stiU not do the thing required. In such a case, the remedy is clearly neither so speedy nor so effectual as that by mandamus.(z) So in cases in which commissioners or other public officers are in- dicted for not obeying an order of sessions directing them to do certain public acts, as to set out a road, as a public road, an indictment would not be a specific remedy, i. e. such a remedy as the case demands ; for i<) 4 P. & D. 642. S. C. 1 Q. B. 291,-f- R. v. Margate Pier, 3 B. & A. 223. u) E. T. Stoke Damerel (Minister), 5 A. & E. 584.f Ante, p. 21. v) Bac. Abr. tit. "Man." C. 2. E. y. Street, 8 Mod. 99 ; 2 Chitt. 255.f w) Ante, p. 19. x) E. T. Victoria Park, 4 P. & D. 642. S. 0. 1 Q. B. 291,-f- per Denman, O.J. R. v. Nottingliam (Waterworks,) 6 A. & B. 355.f S. 0. 1 N. & P. 480.-f; (y) R. v. Severn Railway, 2 B. & A. 646. , R. T. Eastern Counties Eailway, 10 A. & E. 566.t S. 0. 4 P. & D. 48. (2) E. T. Severn Railway, 2 B. & A. 649. See ante, p. 18, 19. 76 tapping's mandamus. r imK 1 an indictment is only a proceeding in posnam for the *past, and '- ■' not a remedy for the future, and therefore not so efficacious a remedy as mandamus. (a) Again, the procedure by indictment does not terminate the question, for it may be delayed by certiorari, and the prosecutor is not entitled to costs from the county; whereas a mandamus is a festinum remedium,(6) and the Court has a discretionary power as to the costs by stat. 1 Wm. 4, c. 21, s. 6.(c) So where an indictment is merely a concurrent remedy, the Court will grant the writ.(c?) Thus where a remedy as by distress is expressly given by act of Parliament, it seems that a mandamus will be granted to com- mand the issuing of such distress, notwithstanding there may be a remedy by indictment, (e) The test, however is, whether the writ or the indictment is the more effectual remedy. (^f) Therefore, in all cases where an indictment is a remedy equally convenient, beneficial, and effectual in its nature as a mandamus, or in other words is the 'proper remedy, the Court will not grant such writ. iThus an indictment is the specific remedy to compel the repair of a public road, and for such purpose is a remedy well known to the law, and in constant use.(gr) So in many other cases, the remedy by indictment has been treated as a sufficient and a specific remedy. Thus the Court of B. E. wiU not grant a mandamus to command the treasurer of a county to obey an order of the Court of Quarter Sessions, there being no collusion on the part of such sessions, for the proper remedy in case of his refusal to obey it, is by indictment. (A) r *26 1 * S**"*"^ Impedit. It is clearly settled, that if a quare impedit lie, and be the proper remedy, a mandamus does not, and will therefore be refused, (i) Thus it has been refused to command a bishop (a) 2 B. & A. 649. R. v. Dean Inclosure, 2 M. & S. 80. And see R. v. Jeyes, 5 N. & M. 104.f S. C. 3 A. &. E. 416,f where it is stated that Lord EUenborough— 2 M. k S. 80 — ^wasthe first who settled that an indictment is not always sufficient to withstand a mandamus ; 5 A. & E. 811,+ u. (ih 10 A. & E. 566.+ S. C. 4 P. &D.48. u \ I, I (4) Seep. 4, n. (J). ■ (c) 3 A. & E. 421.f See tit. " Costs." (d) R. T. Severn Railway, the authority of which wag doubted in 11 A. & E. 69.f S. 0. 3 P. &. D. 112 ; 2 B. & A. 650. R. v. Bristol Dock, 2 Q. B. 64.t S. 0. 1 G. & D. 286, 289; 2 M. & S. 84. Ex parte Robins, 7 D. 566. 1 W. W. & H. 678. 3 Jur. 103. (e) E. V. Hants (J.), 1 B. & Ad. 658.f R. v. Robinson, Burr. 799, and cases there cited. See supra, " Distress." (/) 2 B. & A. 644 ; 5 N. & M. 104.+ S. 0. 3 A. &. E. 416.+ R. v. Dean Inclosure, 2M. &S. 84. ' (g) See tit. "Highway," (Setting out). R. v. Chester (Ep.), 1 T. R. 404. R.v. Severn Railway, 2 B. & A. 648. R. v. Dean Inclosure, 2 M. &. S. 20. R. v. Margate Pier, 3 B. & A. 223. Bac. Abr. tit. " Man." ^^■hlk f T^' 5 N. & M. lOl.t S. C. 3 A. & E. 416.+ R. v. Bristow, 6 T. R. 168 ; 1 Chit. 650.tR. T. Johnson, 4 M. & S. 515, cited in R. v. Payn, 1 N. & P. ^- P-: i ^u P^^vt ^^- ^ S- 20, supra. See tit. " County," (Treasurer). M R. V. Chester (Ep.), 1 T. R. 396, 399, n.(rf); Stra. 108~ " ~ — ' - quis), 3 T. R. 649. R. v. St. Peter's Exeter, 12 A. & E. 527 See tits. " Canons," " Curacy," (Augmented), (Perpetual). LEGAL PRINCIPLES, ETC. 77 to license the curate of an augmented curacy where there is a cross nomi- nation, Ibecause the party has another specific legal remedy by quare impe- dit.(y) So on a Commission of charitable use, it was agreed between the lord of the manor of A. and the inhabitants of W. within the manor, that certain copyhold lands should be let for the maintenance of a stipendiary curate of the chapel of W., to be nominated by a majority of the inhabi- tants, and to be allowed by the said lord, and by him presented to the ordinary for a license to preach; the usage of nominating, &c. had been pursuant to the agreement ; the lord having refused to allow and present the nominee of a majority of the inhabitants, the latter prayed a man- damus, which the) Court of B. E. refused, holding that their right was either a mere trust, and then their remedy was in equity, or a legal right, and properly the subject of a quare impedit.(fe) In one case, however, the writ was granted to admit to a canonry ; but it does not appear that there was a disturbance of the right of patronage. Quo warranto. The Court will refuse to grant the writ of mandamus if it appear that the applicant has a remedy by information in the nature of a quo warranto. Thus a rule for a mandamas to admit a recorder was refused, because it appeared there was a recorder de facto, and therefore that the applicant had such a remedy, (m) For the consequence of grant- ing a rule in such a case, would be that a second person would be admitted to an office already filled by another, both claiming to be duly elected.(m) So where persons declared to be duly elected municipal officers have accepted the office, and made the proper *declaration ; it then p ^27 i being prima facie full, they can only be removed by a quo war- ran to information; therefore a mandamus does not lie to admit other can- didates who are alleged to have had a majority of votes, (o) unless such election be clearly void.(p) So if a party have been ousted of an office by the election of another person to that office (the election not being merely colourable,) but prima facie fide bona fide, his remedy is not by mandamus, but by an information in the nature of a quo warranto. (2) For if the election be merely doubtful, and therefore fit to be tried upon an (/) 1 T. R. 396, supra. Com. Dig. tit. "Man." (B.) Bac. Abr. tit "Man." C. 2. See tit. " Curacy," (Augmented). (k) R. T. Stafford (Marquis), 3 T. R. 646. See tit. "Trust." (l) Clarke v. Sarum (Ep.), Stra. 1082. The authority of this case is questioned in a note to the 3rd edition, and also denied in Bowell v. Milbank, 1 T. B. 399, 11. (d). R. T. Chester (Ep.), 1 T. R. 306, and Powell v. Kilburn, 3 Wils. 355. But see Bac. Abr. tit. " Man." C. 2. See tit. " Canons." (m) B. V. Colchester (Mayor), 2 T. R. 259. R. t. Winchester (Mayor), 1 A. & E. 220.t S. C. 2 N. &. P. 274. R. v. Oxford (Mayor), 1 N. &. P. 479.1 S. C. 6 A. & E. 467.f B. V. Chester (Mayor), 1 M. & S. 102. R. t. Atwood, 4 B. & Ad. 481, 482,t and cases there cited. Bac. Abr. tit. "Man." C. 2. See tit. "Recorder." n) R. V. Bedford Level (Corp.), 6 East, 360. 0) 2N./' " -"■ " " ^ ■ -' ■ (0) 2 N. & P. 274. S. C. 7 A. & E. 215,1 supra. B.t. Derby (Councillors), 2 N. & P. 589. S. C. 7 A. & E. 419.t (p) See tit. " Office," (Election). (?) R. T. Oxford (Mayor), 1 N. & P. 479.f S. C. 6 A. & B. 349.t per Coleridge, J.; 4 T. R. 699; 3 A. & E. 467,t supra. See tit. "Ofice" (Election). 78 TAPPING'S MANDAMUS. information in the nature of a quo warranto, the Court ought not, nor will it grant a mandamus ; but if it be a mere colourable election, and clearly void, it ought to and will grant it.(r) There are, however, numerous cases in which the Court has granted a mandamus, notwithstanding a remedy existed by quo warranto informa- tion, (s) Thus, if one be ousted from an office and another elected in his stead, and such election be merely colourable, a mandamus will go to permit the ousted party to exercise his office ; but as the law holds such colourable election to be void, the mandamus will not he to restore but to permit the exercise of the office, (i) The Court will however, in some cases, grant a mandamus, although the title of the officer to whom the mandamus is directed is questioned by the pendency of an information in the nature of a quo warranto, for it may be collusive ; but if the prosecutor of the quo warranto be also the applicant for the mandamus, it is otherwise, (m) It seems also, that > it has been considered that a quo warranto information and a mandamus may be concurrent remedies. (i») If, however, a quo warranto does not lie, then mandamus will.(io) Quality of Prosecutor's Right to the Writ. The prosecutor must be clothed with a clear legal(x) and equitable P ^no -| right to something which is properly the subject of the writ, (y) as a legal right by virtue of an act of Parliament, (a) But what- ever the quality of the right may be, the Court will see it clearly substan- tiated by affidavits before they will grant the writ, (a) and if they are not (r) R. T. Banks, Burr. 1454. E. r. Colchester (Mayor), 2 T. E. 260. See tit. " Office," (Election). U) R. T. Stoke Damerel (Minister), 1 N. & P. 57.f S. C. 5 A. & E. 584.f [t] R. T. Oxford, 6 A. & E. 349.f S. C. 1 N. & P. 474,1 and cases there cited. R T. Colchester (Mayor), 2 T. R. 260. (m) R. t. Grampond (Mayor), 6 T. R. 301, 302, and see R. v. Dr. Hay, Burr. 2295. (v) R. T. Bedford Level, 6 East, 367, per Lawrence, J., and see 2 B. & A. 649. See " Indictment," p. 25. (w) 3 A. & E. 472,-]- snpra. (x) R. T. Nottingham Water Works, 1 N. & P. 480-1 S. C. 6 A. &. B. 355.t W. W. & D. 166. R. V. Lincoln's Inn, 7 D. & R. 368,-|- per Holroyd, J. R. v. Worcester Canal, 1 M. & R. 533. R. v. Chester (Ep.), 1 T. R. 396. R. v. Bristol Dock, 12 Bast, 429. R. T. Coleridge, 1 Chit. 592.-}- E .v. Clear, 7 D. & R. 393.+ S. C. 4 B. & 0. 899,t Com.|Dig. tit. " Man." (D). R. v. Jotham, 3 T. R. 575. R. t. Bridgewater, 1 N. & P. 466.-}- S. C. 6 A. & E. 339.-f R. t StaflFord (Marquis), 3 T. R. 651. R. v. London Assurance Company, 5 B. & A. 901.f R. v. Portsmouth (Mayor), 3 B. & C. 152.f S. C. 4 D. & E. 767.t R. T. WestLooe (Mayor), 3 B. & C. 677.+ S. C. 5 D. & K. 590.t R. V. Barnard's Inn, 5 A. &. B. 24.f E. v. Canterbury' (Archbp.), 8 East, 216. Ex parte King, 7 East, 90. E. v. North Eiding (J.), 2 B. & C. 290.+ R. v. Eastern Counties Railway, 10 A. & B. 557.i- S. C. 4 P. & D. 48. As to the applicants for the writ, ?ee tit. " Application," post. {y) R. Y. Wheeler, Cas. t. Hard. 100. S. C. Cunn. 155. E. v. Stafford (Marctuis), 3 T. E. 646. E. t. Chester (Ep.), 1 T. E. 396. E. v. Chester (Ep.), 1 W. Bl. 25, n. o) E. J. Ottery St. Mary, 3 G. & D. 383. S. C. 4 Q. B. 157.+ E. t. West Riding (J.), 3 N. & M. 88.t Ex parte Ricketts, 4 A. & E. 999.+ S. C. 6 N. & M. 523.+ ''> E. V. Treasury Lords, 4 A. & E. 981.f See tit. " Act of Parliament." ) E. T. Heyward, 1 M. & S. 628 ; see post, tit. "Application," (Affidavits). w THESUBJBCTS, ETC. 79 SO satisfied, they will refuse it. (J) Thus where a charter does not require the members of a corporation to be resident, the Court will not by man- damus command such corporation to meet and consider the propriety of removing from their offices the non-resident corporators, unless their ab- sence has been productive of some serious inoonvenience.(c) So where a decree in Chancery had, in 1741, declared the right of voting to be in those inhabitants who paid rates and assessments ; and the usage since that decree had been in accordance with it ; an election having been made by such inhabitants, at which the votes of non-rated inhabitants were ten- dered and refused, the Court refused to grant a mandamus for a new elec- tion, as the parties applying for it had made out no case to show that the term " inhabitants" used in the charter had a wider signification. ( . Application. — Those for whose benefit a statute is made, although not specifically named, should be the parties, applicants for the mandamus, (v) Thus the Court granted a mandamus to appoint over- seers for a hamlet upon an affidavit that there were poor belonging to it, notwithstanding that the stat. 13 & 14 Car. 2, c. 12, does not empower any individual to enforce the appointment, (w) The application to enforce an act of Parliament is, for the most part, ex debito justitiae.(a;) But the Court of B. K. will not grant a man- damus to command commissioners appointed under a local act, neither on the application of a company ordering them to perform a contract made with the company, nor on the application of certain rate payers ordering them to provide for the execution of the powers under the act ; where no inconvenience is being sufiered by the inhabitants, (y) It is, however, no ground for refusing the writ, that the period of time referred to in the powers of the act of Parliament under which the defen- dant should have acted, has expired, (z) Administration, Letters of]. This title is arranged as follows :— When granted - - - - 32 Durante minori setate - 35 Cum testamento annexo 35 Keturns ----- 35 Returns, Lis pendens 35 Administration Bond 36 Production, &c. 36 Distribution - 36 -], wJien granted. — The Court of B. R. had always been in the constant habit, in cases of complete intestacy, of commanding by man- damus, the due granting of letters of administration, (a) But the Court (r) R. T. Everet, Cas. t. Hard. 261 (s) Ex parte "Williams, 4 Jur. Ill, ter Sessions," (Justices.) R. T. Jukes, 8 T. R. 625. See tit. "Quar- (t) R. V. Middlesex, (J.) 9 A. & E. 540.i- S. C. 1 P. & D. 402. R. v. Northmch Saving's Bank, 9 A & B. 729.f S. C. 1 P. & D. 477. M R. T. Birmingham Canal, 2 W. Blac. 708. ft>) R. T. Cumberland, 1 M. & S. 193. ^^{w) 1 M. & S. 193. R. v. Westmorland, 1 Wils. 138. R. v. Kent, (J.) 14, Bast, (x) Ante, p 30, n (/), and post, tit. "Application." rJ a J'^llT^l"^' (Commissioners) 4 Jur. 1060. See post, tit. " Contract." rJ^ \ m rL n '^ ^l^ '"! ?• " Compensation," (Company, Application.) («) 3 Bl. Com. HI. Bac. Abr. tit. "Man." (D.) bffley v. Best, 2 Keb. 243, cit- ADMINISTRATION. 83 will not thus interfere except where the party applying is entitled to the letters by act of Parliament, or where there has been unreasonable delay in the *proceedings,(6) together with a refusal by the Spiritual _ ^go -i Court to grant them.(c) But when either of these circumstances ^ occurs, the Court of B. R. will command the granting of the letters to those entitled to have them, as to the next of kin,(rf) on a suggestion, as before stated, of intestacy.(e) And it wiU be granted as well to command the ordinary(/) as the pre- rogative or other Ecclesiastical Court. (gr) But as the ordinary, &c., has in some cases the proper right and dis- cretion of judging of the fitness of the person to whom he will grant administration, and as such person is only to be considered a trustee of the assets without having any profitable interest, (^) the mandatory part of the writ in those cases merely commands a grant of letters of administration according to the statute. Thus, as the statute enacts that it must be granted to the widow or next of kin, so it follows that it may be granted to either in the discretion of the ordinary, &c. But if the widow re- nounce, (t) or there be no widow, then the next of kin are entitled ex debito justitiae,(y) and on being refused, &c., may have a mandamus.(/«) It therefore follows that the Court of B. E.. will not command the grant, &c., to a particular person,(Z) as to A. and B. nest of kin, &c., as the effect' of ing Frenche's case, H., 22 Car. 1. Fenwicke v. Agar, M. 1658, where a mandamus for such purpose was granted as it is said una voce ; also citing The Countess of Berkshire's case. Anon., Holt, 656 ; 5 Mod. 374; 1 Salk. 250, 251. And see S. C. 2 Keb. 393. S. G. 1 Lev. 187. Dunkin v. Brown, 3 Keb. 350 ; Williams, Exors. 335. Trem. PI. Cor. 501, where see form of writ. See tit. "Will." Vb) Anon., 2 Barn. 348. (c) Kaine's Case, Ld. Raym. 262. See tit. "Application," (Demand and Refusal). \d] Anon., 2 Sid. 114. Dunkin's case, 3 Keb. 348 ; Jones, 225, 226. Pierce t. Perks, 1 Sid. 281. Luskins t. Carver, Sty. 8. Com. Dig. tit. " Man." (A.) ; 1 Sid. 372. S. C. 2 Keb. 243, 393. S. C. 1 Lev. 187, supra. R. v. Dr. Hay, 1 W.Blac. 640. R. v. Horsley, 8 East, 405. Williams, Exors. 335. R. v. Patrich, 2 Keb. 172, per Keeling C.J. (e) R. V. Raines, 12 Mod. 136. S. C. 12 Mod. 205. S. C. Salk. 299. S. C. Carth. 457. S. C. 3 Salk. 162, 233. S. C. Holt, 310. S. C. Ld. Raym. 361. S. C. 3 P. Wms. 337, n. [b) ; Fitz. 125 ; 3 Atk. 566 ; 2 Atk. 126. Bac. Abr. tit. " Man." (D.) (/) Boon's case, cited in R. v. Patrick, 2 Keb. 66. And see S. C. 2 Keb. 165, per Moreton, J. R. v. London (Ep.), 1 Wils. 13. Pierce v. Perks, 1 Sid. 281. Anon., 2 Sid. 114; Jones, 225, 226. Ryley's Plac. Pari. 553. [g) R. V. Raines, 12 Mod. 136, and cases there cited. Gray v. Tench, Comb. 454. Lord Suffolk's case. Gas. t. Hard. 8. S. C. 2 Kel. 156, pi. 128. See tit. " Courts, Inferior." (h) R. T. Dr. Bettesworth, 1 Bar. 425. See ante, pp. 12, 13. (i) Anon., Stra. 552, cited in 8 East, 408, per Lawrence, J. Lord Suffolk's case, Cas. t. Hard. 8. S. 0. 2 Kel. 156, pi. 128. And see Lord Londonderry's case, Stra. 857. S. G. 1 Barn. 280 ; Andr. 366. Anon., Freem. 372. R. v. Bettesworth, 1 Barn. 424, 425. R. v. Bettesworth, 2 Barn. 420. R. v. Bettesworth, Wm. Kely, 139, 156. Wms. Exors. 335, 336. Gray v. Tench, Comb. 454. (/) R. V. Dr. Hay, 1 W. Blac.640. And see Lovegrovev. Bethell, 1 W.Blac. 668 ; Stra. 552, n. (1). (/c) R. V. Horsley (Inhabs.), 8 East, 408, per Ellenborough, C. J. Anon., Stra. 552. Fawtry v. FWtry, Salk. 36. Blackborough v. Davis, Salk. 38. S. 0. Ld. Raym. 684. S. C. Com. 96. S. C. 1 P. Wms. 41. S. C. 12 Mod. 615. ' [1] Anon., 7 Mod. 140. Stewart v. Eddy, 7 Mod. 143 ; Ld. Raym. 262. Anon., Stra. 552. Com. Dig. tit. "Man," (A). 84 TAPPING'S MANDAMUS. such a course would be to take from the ordinary, &c., the power and dis- cretion of judging which degree of relation is next of kin, or of the prior- ity of classes, inter se, and this in cases where the subject-matter does not P ^04 -1 belong to the temporal Courts. (to) So for the *same reason the '- writ must not command the letters, &c., to be granted to the wi- dow, (ra) For, as before shown, they may be granted either to the widow or to the next of kin.(o) Neither will the Court command it to be grant- ed to two next of kin.(p) But the Court will grant a mandamus " to J. S. or next of kin, accord- ing to the statute."(2) So it lies to command a grant of administration to the husband of his deceased wife's estate ;(r) and this though she has made a will of property devised to her after marriage, with express power given by the testator for her so to do, without her husband's interference — but otherwise where he has resigned or parted with all interest in his wife's fortune. (s) So it lies to command a grant, &c. to the father in preference to the sister of the intestate.(i) After administration has been granted to one, the Court will not com- mand it to be granted to another, whether of the same or of a nearer degree of kinship, as such a course wonld not only interfere with the dis- cretion of the ordinary,(it) and because the letters, though granted to an improper person, are not void, but merely voidable, but also because there is a remedy by citation by which a repeal of the letters may be obtain- ed.('y) So where the applicant has a right to letters, &c., by the rules only of the Ecclesiastical Court, the Court of B. R. will not command the grant- ing of them;(w) and, in such a case will allow the Ecclesiastical Court to impose reasonable terms, as requiring a return to a commission of appraise- (m) Blackborough v. Davis, 1 P. Wms. 45, 46, per Sir B. Shower. (n) Anon., 11 Mod. 137. Blackborough t. Davies, Salk. 38. S. C. Ld. Eaym. 684. S. C. Com. Kep. 96. S. 0. 1 P. Wma. 41. S. C. 12 Mod. 615. Smith's case, Stra. 892. Barker's case, Andr. 24. Stewart t. Eddy, 1 Mod. 143. Anon., Stra. 552. Pierce v. Perks, 1 Sid. 281. Offley v. Best, 1 Sid. 372. S. C. 2 Keb. 243, 393. S. C. 1 Lev. 187. And see Luskins v. Carver, Sty. 7, 8. Fortre v. Portre, 1 Show. 351. S. 0. Salk. 36. S. C. Holt, 42. (0) Sand's case. Fortre t. Fortre, 1 Show. 351; and in Amhurst's case, 1 Vent. 188. M 1 P. Wms. 45. S. C. 1 Salk. 251, snpra. (?) Anon., 7 Mod. 140. Steward v. Eddy, 7 Mod. 143. (r) Portre v. Fortre, 1 Show. 351. S. C. Salk. 36. S. 0. Holt, 42. E. v. Bettes- worth, Stra. 891, 1118; Wms. Exors. 335. (a) R. v. Bettesworth, 7 Mod. 313. S. C. Stra. 891. S. C. 1 Barn. 424. S. C.Strs. 956, 1111, 1118. Brook T. Turner, 1 Mod. 211. Com. Dig. tit. "Man." (D. 4). (t) Ooplestoue v. Coplestone, 2 Show. 307. 3 Co. 40 ; Prec. Ch. 527. Blackborough V. Davis, 1 Salk. 38; 2 Vern. 125. {u) Blackborough v. Davis, 1 Com. Rep. 96. S. 0. 2 Com. 108. S. 0. 1 Salk. 38. S. C. 1 Salk. 251, S. 0. 12 Mod. 615. S. C. Holt, 43. S. C. Ld. Raym. 648..S. C. 1 P. Wms. 41, 45. 3 Bac. Abr. 381. Com. Dig. tit. " Man." (B.) But see Gray v. Tench, Comb. 454, contra. (v) Blackborough v. Davis, 1 Com. 96. S. C. 2 Com. 108. S. C. 1 P. Wms. 43. Allen V. Diindas, 3 T. E. 128. But see Anon., 1 Freem. 372 ; Wms. Exors. 335, n. (0). (w) Anon., 2 Barn. 334, 348, 361. ADMINISTRATION. 85 ment, &o., the Judge, &o., having power to object to the security which any person shall oiFer who prays administration. (x) So the Court of B. R. will not command the Spiritual Court to put their seal to letters of administration, which have been decreed to the pro- secutor, *the Court saying it could not oblige the Spiritual Court |-h< ok -i to execute its sentences, (y) ,] durante minori setate. — As the writ of mandamus is granted to oblige the doing of justice to the party who sues out the writ, it does not lie to command a grant of letters, &c., durante minori aetate, it being discretionary with the ordinary to whom he shall grant it :(z) nor will it, for the same reason, go to grant administration, with the will annexed, during minority, neither to a certain person, nor generally. (a) -,j cum testamento annexo. — But the Court of B. R. has, by man- damus, commanded a grant of letters, &c., cum testamento annexo, to the next of kin;(6) yet the Court will not command a grant, &c., to the resi- duary legatee, because not within the statute. . Return, lis pendens. — A return of lis pendens, is no answer to the writ, if the consanguinity be not denied ;(c) but if it be denied, the return will be good.(d) So a return is good, which alleges, that the de- fendant had admitted in a suit, that by deed before marriage, he had agreed that his wife might make a will, which she did, and that suit was depending for administration, with such will annexed, for the defendant's (husband's) consent appears.(e) So a return that^administration is already committed, and that there is no lis pendens, is goodj(/) or that there is a will in litigation,(5') and if such a fact appear by affidavit, the Court [x) Anon., 2 Barn. 334, 348, citing Lord Londonderry's case, Stra. S. 0. 1 Barn 280. Anon., 2 Barn. 361. See ante, pp. 12, 13 ; and see tit. "Discretion." (y) Tremain's case, Oomb. 158. See tit. " Seal," (Affixing). \z) See Ante, pp. 12, 13. Smith's case, Stra. 892. S. C. Anon., 1 Barn. 370, 425. S. C. Andr. 24. Com. Dig. tit. " Man." (B.) Barker's case, Andr. 24, 366; Fitzg. 163. Bac. Abr. tit. " Man." (D.) But see contra, 1 Barn. 3'70, per C. J. (a) R. V. Bettesworth, Stra. 956. S. 0. 1 Barn. 234. S. C. 2 Kel. 139. Barker's case, M. 11 Geo. 2 Andr. 24. Com. Dig. tit. "Man." (B.) Wms., Exo'rs. 3Y4. Bac. Abr. tit. " Man." (D.) (b) Luskins T. Carver, Sty. T, 8, citing Countess of Barkshire's case, H., 20 Jac. ; St. Burien's case. Dunkin v. Mun, Raym. 235. But see contra, B. v. Bettesworth. W. Kel. 139, 156 ; and Anon., 2 Barn. 361, per Page, J. S. C. Stra. 956; Wms. Bxors. 362. Bac. Abr. tit. "Man." (D.) (c) R. T. Dr. Hay, 1 "W. Blac. 640. S. C. Burr. 2295. Anon. Stra. 552. R. t. Bettesworth, Stra. 891, 956, 1111, 1118. Stewart v. Eddy, 7 Mod, 143. Anon., Andr. 24. Smith's case, Stra. 892. See generally as to Lis pendens, ante, p. 23, and post, tits. " Churchwarden," (Return Lis pendens), " "Will," (Return Lis pendens.) (d ) LoTegrove t. Bethell, 1 "W. Blac. 668. Com. Dig. tit. " Man." (A.) And see R. T. Dr. Harris, 1 W. Blac. 430. Anon., Holt, 656; 5 Mod. 3'74| 1 Salk. 250, 251. (e) R. V. Bettesworth, T., 12 Geo. 2, Stra. 1111. Com. Dig. tit. "Man." (D. 3.) (/) Blackborough v. Davis, 1 P. "Wms. 43, per Holt, 0. J. Sand's case, 1 Sid. 1T9. ig) R. V. Raines, 12 Mod. 136. S. C. 12 Mod. 205. S. C.Salk. 299. S. C. Carth 457. S. 0. 3 Salk. 162. S. C. 3 Salk. 233. S. C. Holt. 310. S. C. Ld. Raym. 361.' S. 0. 3. P. "Wms. 337, n. (6.) Fitzg. 125. Steward t. Eddy, 7 Mod. 143. Gray t. Tench, Comb. 454. Anon., 7 Mod. 140 ; Ld. Raym. 262. Blockborough v. Davis, 1 86 tapping's mandamus. will *supersede the writ; or if it appear on the affidavits in support t "3 of the application for the writ, will deny it.(h) ]. Administration Bond ; Production, &c. — Where the produc- tion of the original administration bond, given to the Archbishop of Canterbury, on the grant of administration, is material, in a suit brought by the creditors of the intestate, in the name of the archbishop ; and the record keeper of the Prerogative Court refuses to allow the bond to be taken out of his office, as being contrary to the practice of the Prerogative' Court, the proper course is to proceed by a mandamus to the Ecclesiasti- cal Court, upon the discussion of which, the validity of the objection to produce the bond,' may be gone into;(i) such a mandamus issues ex debito justitiae-O') ]. Distribution. — The writ of mandamus is also grantable to command a distribution to those entitled(^) of an intestate's personal estate, according to the stat. 22 & 23 Car. 2, c. 10,(Z) and, as by such statute, there can be no representation after brother's and sister's children, so a mandamus for letters, &c., to the issues of such children, will be refused. (?) Admiralty, Cotjkt or]. See tit. Courts Inferior. Admiralty, Lords op]. See tits. Contract: Halffay; Pensim; Treasury (Lords of). Advocate op Doctors' Commons.] It has been settled that a man- damus does not lie to command the Archbishop of Canterbury, to issue his fiat to the Vicar General of his province, to make out a receipt under his seal, commanding the Dean of the Arches to admit a Doctor of Civil Law, graduated at Cambridge, to be an advocate of the Court of Arches, for the Court of B. E. has no authority to administer a legal remedy, except to enforce a legal right,(m) and it would seem, in analogy with the P. "Wms. 47. Pierce v. Perks, 1 Sid. 281. Offley v. Best, 372. S. C. 1 Lev. 18T. R. T. Dr. Hay, 1 W. Blac. 640. LovegroTe v. Bethel, 1 W. Blac. 668. Wms. Bxors. 336. But see contra. Walker v. Woolaston, 2 P. Wms. 576, 589. S. 0. Stra. 917. S. 0. Pitz. 202. S. C. 1 Barn. 423, 467. WiUis v. Rich, 2 Atk. 285. Impey V. Pitt, 2 Show. 69, not. See ante, p. 23. (h) Anon., 5 Mod. 374. Frederick v. Hook, Garth. 153. R. v. Hav, Burr. 2295. Com. Dig. tit. " Man." (B.) ( i) Canterbury (Archbp.) t. Tubb, 3 Biug. N. C. 787.f S. C. 4 Scott, 543. {}) Canterbury, (Archbp.) t. House, Cowp. 140. Bac. Abr. tit. "Man." (D.) [k] Pett's case, 1 P. Wms. 25. S. C. 1 Salk. 250-1. Blackborongh v. Davis, 1 Salk. 251. S. C. Holt, 43. (2) See supra, tit. "Act of Parliament," Pett v. Pett, 1 Com. 87. S. 0. Ld. Raym. 571. S. 0. 12 Holt, 259. S. C. 1 Salk. 250. S. C. 3 Salk. 138. S. 0. 2 Bq. Abr. 435, pi. 16. S. C. 12 Mod. 409. S. C. 1 P. Wms. 25. Bowers v. Littlewood, 1 P. Wms. 594. Gibs. Cod. 481; 4 Burn's Bccl. Law, 370; 2 Tern. 233; Free. Chan. 28, Caldicot v. Smith, 2 Show. 286 ; LovelasB, 77. Carter v. Crawley, Raym. 496. (m) R. V. Canterbury (Archbp.), 8 Bast, 213. See also R. v. Lincoln's Inn, 7 p. & R. 364, per Abbott, C. J. ; and 7 D. & R. 364, n. (a). Bac. Abr. tit. " Man." (C.) See tit. "Inn of Court." ALDERMAN. 87 rule as to Inns of Court, that no one has an inchoate right to be admitted a member of the College of Doctors of Law ; and, therefore, that a man- damus will not in any case lie to command such an admittance. *Ai'FrLiATiON.] See tit. Bastardy. Alderman.] Although the office of alderman be not a place of profit, but of freedom and government merely,(») yet the remedy by mandamus has been, by several statutes, made applicable to the office of alderman. (o) This subject is arranged as follows : — Alderman - - Election . - - Application Rule ... Service Eeturn and admit - Admit - - - Swear - - . - Present and swear Admit and swear - 37 Alderman. 37 Enforcing duty . - 38 37 Removal - 38 37 Restoration - . - 38 38 Returns .. - 39 38 General - . - 39 38 Non-residence - . - 40 38 Erasure of Corporation 38 Books, &c. - . - 40 38 As to summons - - 40 .] Election. — It seems to be now settled, that a mandamus will not be granted to command a corporation to fill up the office of alderman where the number is indefinite, (p) But where the number of the alder- men is definite, and there is a vacancy, then it lies to command the pro- ceeding to an election of, and to elect an alderman, (g') But the Court wiU not, nor has it the power, on the motion of the defendant, to give any directions respecting, or to prescribe the time of election, for that must be governed by the constitution of the city.(r) The Court will, however, in order to ensure such election, grant the writ to command the alder- men, &o., to attenda corporate meeting for the purpose of such election. (s) The Court of B. R. has, by such writ, commanded the Court of Alder- men of London, to return certain persons to the Court of Aldermen, as the persons chosen by the wardmote, &c., and also, if upon a false return, of persons not chosen by the wardmote, they refuse to do justice to the parties injured, after complaint made.(<) Affplication, Rule. — The application for the rule may be made (n) Exeter (City), v. Glide, 4 Mod. 33. (o) See Stat. H Geo. 1, c. 4 ; 5 & 6 Wm. 4, c. 76 ; and 1 Vict. c. 78, s. 26, App. See tits. " Office," " Act of Parliament." {p) R. V. Fowey (Mayor), 2 B. & C. 588, SSO,-}- per Abbott, 0. J. But see p. 596, Best, J., contra. S. C. 4 D. & B. isg.f And see R. v. Pateman, 2 T. R. 777. (q) See Stat. 6 & 7 Vict. c. 89, App. R. v. Evesham (Mayor), 7 Mod. 166. S. C. Stra. 949. S. C. 2 Baj-n. 236, 265. R. v. Bridgewater (Mayor), 2 Cliit. 256.+ R. v. Fowey (Mayor), 4 D. & R. 139.^ S. C. 2 B. & C. 588.-|- B. v. Attwood, 4 B. & Ad. 482.f R. T. Salway, 9 B. & C. 432.f See tit. " Office," (Election). (r) 7 Mod. 166. S. C. Stra. 949. S. C. 2 Bam. 236, 265, supra. But see stats. App. (s) B. V. Eirke, &o., 5 B. & Ad. I089.t \t) B. V. Heathcote, 10 Mod. 59. S. C. Fort. 253, 283 ; Salk. 670. 88 tapping's mandamus. immediately upon the default of the Municipal Corporation, &c., in „ *going to the election ;(w) but the Court will not, as before, stated, '■ name a day for the election in the rule, but will leave that to the proper officer, and if he do wrong, the parties may then go to the Court to oblige him to act rightly. («) Service. — The rule should be served on all parties, who are bound to attend and assist at such election.(w) .J Beturn and Admit — The writ has also been granted to com- mand a return to the Court of Aldermen, of one chosen alderman, and also to the Court of Aldermen to admit him.(x) .] Admission. — It lies also to command admission to such office. (y) .] Swear. — It lies also to command the swearing in ef an alder- man. (3) .] Present and swear. — So the writ has been granted to com- mand the bailiff and jurats of a borough to present and admit to the office of alderman. (a) .] Admit and Swear. — So; it has been granted to admit and swear into such office. (J) .] Enforcing Duty. — The writ has been granted to enforce the duty of the office of alderman. (c) .] Removal. — It lies in some cases to command a municipal corporation to assemble and consider . the propriety of removing from their offices certain aldermen. For the cause of the writ in such case is connected with the administration of justice. (ci) .] Restoration. — ^It.lies to restore to the office of alderman one improperly removed therefrom, (e) But it does not lie to restore A., (a) R. V. Cambridge (Mayor, &c.), 4 Q. B. SOl.j- See stat." 6' & 'T Tict. c. 89, App., Sis to notice and practice. \v) R. v. Bridgewater (Mayor); 2 Chit. 256.f . R. v. Evesham (Mayor), 1 Mod. 166. S. C. Stra. 949. S. 0. Barn. 236, 265. See tit. "Burgess." (w) R. V. Powey (Mayor, &c.), 4 D. & R. I39,f per Abbott, C. J. \x) R. T. Montacute, 1 W. Blao; 61. S. 0. 1 Wils. 283, citing iR. v. London (May- or), Bac.Abr. tit. " Man." (C.) (y) R. T. Norwich (Mayor), 2 Salk. 436. S. C. Holt. 444, where see returns to auch a writ. (z) Anon. 2 Show. 183. (a) R. V. Ld. Montacute, 1 W. Blac. 61. S. 0. 1 Wils. 283, citing R. v. Clithero (Mayor.) (*) R. v. London (Mayor), 9 B. & C. l.f S. G. 4 M. & R. 46, R. v. London (May- or), 3 B. & Ad. 255, 266.t S. C. 2 N. & M. 126.f Trem. PI. Cor. 465, where see a form of writ. See tit. " Town Clerk." (c) R. T. Portsmouth (Mayor), -3- B. & C. 155.+ See tits. " Mayor," '" Corpora^ tion" (Municipal), "Office." {d) R. T. Portsmouth (Mayor, &c.), 3 B. & C. 153.-|- S. 0. 4D.&R. Te^.f ' R. t. Truro, H. T. 1821. R. v. Monday,, Cowp. 530. R. t. Heaven, 2 T. R. 'r'72; BuU. N. P. 199. See also 5 D. & R. 414t ; 5 D. & R. i%l.\ R. v. Totness (Mayor), 5 D. & R. 481.-|- See R. v. West Looe (Mayor), 5 D. & R. 414.+ See tits. " Capital Bur- gess " (Removal), " Councilman " (Removal), " Office " (Removal). («) Shuttleworthv. Lincoln (Corporation), 2' Bulst. 122, also cited in Stamp's case, Raym. 12. R- v. Gloucester (Mayor), 3 Bulst. 189. S. O. I Roll. 409. Had- dock's case, Raym. 435. R. v. The Baily, &c., 1 Keb. 33. Wigan (Town), v. Pilk- ALDERMAN. 0» elected alderman, &c., in the place of B., afterwards restored by manda- mus, though the place of B. be afterwards vacant, for A. must be elected de novo.(/) L J • So it lies to- restore an alderman to his precedency in a corporation. (p') But it lies not to restore a poor alderman,(fe) poverty having been held to be a good ground for deprivation from magistracy. •. Returns. — Formerly, it was a good return to a mandamus to restore to the office of alderman, that the prosecutor had not taken the statutory oaths, (i) So, formerly, it was a sufficient return, that the pro- secutor was turned out by the commissioners acting by virtue of the Act of Corporations. (/) But inasmuch as an alderman may be properly amoved from his office for any matter contrary to the duty of such office, so such matter will be good as a return. (A) As an alderman cannot be removed at pleasure, so the return of a custom to do so will be bad. (2) But it has been held not to be a good return, that the prosecutor lends money to young men by the hands of his wife, for such is merely a collateral cause, and not trench- ing to things incident to the place of alderman. (m) Nor can he be re- moved for publicly or ^privately speaking scandalous words of the r^A(\-i mayor,(n)if not spoken of him as mayor. ington, 1 Kebi 59T. , Cripps t. Mainstone (Mayor), 1 Keb. 812, citing 'Warren's case, Cro. Jac. 540, and Estwjck's case. Sty. 43. R. v. Rippon (Town), 2 Keb. 15. T. Wiggon (Mayor), 1 Sid. 92. R. v. Barker, Burr. 1268, per Ld. Mansfield. R. V. Shrewsbury (Mayor), 2 Barn. 394. S. C. Stra. 1051. S. C. W. Keb. 282. S. 0. 1 Mod. 201. S. 0. Andr. 85, 104, 171, 320. R. t. Oxford (Mayor), Palm. 451. S. C. Noy. 92. S. C. Latch. 229 ; 2 Dyer, 332 b., 333, pi. 28. Lumley's case, E., 3 Car. B. R., there cited. CoTentry's case. Latch. 123. S. C. Poph. 176. Taylor's case, Poph.- 133. R. T. Doncaster (Mayor), Say. 31. Anon. Sty; 151. R. v. Rippon (Mayor), 2 Salk. 433. R. v. Andover (Mayor), 3 Salk. 229. R. v. Taylor, 3 Salk. 231— 8. R. T. Raines, 3 Salk. 233, 11, s. 16. Com. Dig. tit. " Man." (A.) R.T.London (City), Skin. 293, 301. S. 0. 4 Doug. 36K Smith's case, Carth. 217. S. C. 4 Mod. 52, 53. S. 0. 1 Show. 263, 274, 280. S. C. 12 Mod. 17. S. C. Holt, 168, 310; Trem. 511. R. V. Stafford (Mayor), 2 Keb. 264; March, 288, pi. 237. R. v. Brayfield, 2 Keb. 488. R. v. Jay, 3 Keb. 714. R. v. Leicester (Mayor), Burr. 2087, 2089 ; Braithwaites, 1 Vent. 19. R. v. Sanchar, 2 Show. 66, 67. S. C. 2 Jones, 121 ; Trem. PI. Cor. 511, 512, 517, 523, 544, where see forms of writ. Exeter (City), v. Glide, 4 Mod. 33. S. C. 1 Show. 258, 364. S. C. 1 Comb. 197. S. C. Holt, 169, 435. S. C. 12 Mod. 28, 251. S. C. Ld. Raym. 223. Bagg's case, 11 Rep. 99. Enfield t. Hills, Sir T. Jon. 116. R. v. Thacker, Sir T. Jon. 121. (/) Shuttleworth t. Lincoln (Corp.), 2 Bulst. 122. Com. Dig. tit. " Man." (B.) {g) See R. v. Barker, Burr. .1269, 1270. R. v. Dublin (Dean), Stra. 542. R. r. Canterbury (City), 1 Lev. 119, also cited in Dr. Walker's case, Cas. t. Hard. 214. See tit. " Precedence." (A) R. V. Andover (Mayor), 3 Salk. 229, 3. But see R. v. Liverpool, Burr. 723. (i) R. v. Loudon (Mayor), 12 Mod. 17. R. v. Exeter, Comb. 197. For the form of a return to a writ to restore, &c., ?ee, R. v. London (Mayor), 4 Dong. 360.f R. T. Thacker, Sir T. Jones, 121. See tit. "Office," (Return Okths}. (y ) R. V. Cooper, 1 Keb. 777, and Prin's case, there cited. (k) R. V. Philingham, 1 Keb. 777. R. v. Exeter (Mayor), Comb. 197. Bagg's case, 1 Roll. 173, 224. ■ S. C. llRep. 93, b. See tit, " Office," (Restoration Return). (I) Warren's case, Cro. Jac. 540 ; 2 Dyer, 332, 6, n. 2; Roll. 112,, cited in R. v. Oxford (Mayor), Latch. 231. See also Cripps v. Maidstone (Mayor), 1 Keb. 812. See tit. " Town Clerk" (Restoration Return). (m) R. v. Gloucester (Mayor), 3 Bulstr. 189. Bragg's case, 11 Rep. 93. (n) R. T. Oxford (Mayor), Latch. 229; Cro. Jac. 540, supra. R. T. Exeter (Mayor), Comb. 197. See tit. " Office" (Restoration Return). 90 tapping's MANDAMUB. But it is a good return, that the prosecutor is a common drunkard, for if he be ebriosus common, and not by accident, he is an unfit person for government; and this, therefore, is a good cause to remove him.(o) . Non-residence. — If an alderman absent himself from the place for which he is appointed, it is good cause for removal, because residence is incident to his office. And in a return of such a cause, the words deseruit and reliquit have been held to mean an absolute leaving. Qj) The nature of the office of alderman requires that the person holding milst be both a citizen and an inhabitant of the place where chosen ; his very name imports it ; therefore, as non-residence makes him incapable of doing his duty, so a return that "recessit elongavit et habitationem suam reliquit et deseruit, et amovebat seipsum et familiam suam ad A. extra civitatem, &c., et officium suum voluntarie reliquit et neglexit," (setting forth wherein), and that he had notice of several Courts held, but did not attend them, has been held to be good.(g') So where the return states that, the prosecutor has totally left, &c., it is good, but con- tra if it merely state the absence to be for a limited and reasonable time.(»') . Erasure, &c. of Corporation Boohs. — So it is a good return that the prosecutor, contrary to his duty and oath of office, spoliavit et dilaceravit quaedam recorda, &c. of a Court, and which offence was after- wards presented; notwithstanding the presentment be not shewn.(s) . As to Summons.— ''BmI before the judgment of amotion can be legally pronounced, the party must have been summoned for his apparent misconduct, and such summoning must be shewn upon the face of the return, as an excuse or justification might have been prbved.(<) If, however, it appear that the prosecutor was not an inhabitant within the city at the time of the amotion, &c., there is no need of an averment of summons, for the difference is, where there is an opportunity of summon- ing him and where not.(M) Alehouse.] License. — It does not lieto command justices to license a r*4n *^^'^*'^^11®'' *° sell ale, notwithstanding it was suggested their refusal proceeded from a mistaken view of their jurisdiction,(j)) and also, (o) R. V. Gloucester (Mayor), 3 Bulstr. 189. S. 0. 1 BoU. 409 ; 2 Roll. Abr. 456, See tit. " Office" (Restoration Return). (p) Exeter (City), v. Glide, Holt, 169, 435. S. 0. 4 Mod. 33: 3 Bulst. 189; 1 Co. 409. See tit. " Office" (Restoration Return). {q) 4 Mod. 33, supra. . ^''^ ,?• "^- I-eit^ester (Mayor), Burr. 2087. R. v. Exeter, Comb. 197. Com. Dig. tit. "Man." (D. 4). (s) Wigan (Town), v. Pilkington, 1 Keb. 597. See tit. " Office" (Restoratioa ^ i/L^9^?" ^=^'i" ?°^*' ^- ^■' ''^^^S ^O'J- 135, 833. R. V. Shrewsbury (Mayor), I l^l- |- C- 2 Barn. 394. R. v. Heaven, 2 T. R. 112. R. y. Olialk, ti Raym 225. S. C. Salk. 428. S. C. 5 Mod. 254, 257. R. v. Brayfield, 2 Keb. 488. R. V. Lyme Regis, Doug^ 149, 160; 12 Mod. 29. Exeter (City), v. Glide, 4 Mod. 33, / ?°f,' M^PPor*""" " "■"c? *"• " Offi=«" (Restoration Summons). [u) 12 Mod. 29, supra See post, tit. " Office" (Restoration Return). (v) R. V. Parringdon (J.), 4 D. & R. 735.t Anon. 1 Barn. 402. ' ALE-TASTEE, ETC. 91 notwithstanding a very strong case of partiality, &c. was made out j for it is a matter entirely within their discretion. (w) The proper course in such a case, is to move for a criminal information. (x) Nor does it lie to command justice to rehear an application for an ale- house license which they have refused, though' it he suggested that their refusal proceeded from a mistaken notion as to their jurisdiction ;(y) nor to rehear an application at any other period of the year than within the first twenty days of September, though the justices may have refused the license under a misapprehension of the law.(») It lies, however, to command justices to receive the information and complaint of one who prosecutes as well for himself as for the poor, &c., against another for selling ale and beer by retail without being duly licensed, and to proceed to hear and adjudge thereon. (a) So it lies to command justices to enter continuances upon an appeal against a convic- tion by two justices, under the Alehouse Act, 9 Geo. 4, c. 61.(6) Ale-tastee.] Swearing in. — It lies to swear in an ale-taster, as the ale-taster of Honiton ; the having such office appearing to be a condition precedent to his being chosen portreve, who is the returning officer for Members, of Parliament. (c) Alimony.] A writ of mandamus hag been granted, commanding a husband to grant his wife alimony, but it is presumed, that at this day a writ for such purpose would not be awarded, (t?) Allegiance Oath.] See tit. Manor {Leet Resiant). Alms.] See tit. Charity. Amicable Assurance Company.] Director, Swearing in. — It lies to command the swearing in of a director of a chartered company, as the Amicable Assurance Company.(e) *Answer in Chancery.] See tit. College {Seal). r*421 Apparitor GtENEEAL.] It lies for the office of apparitor general of (w) Anon. 1 Barn. 402. Giles's case, Stra. 881. S. 0., and cited in K. v. Can- terbury (Archbp.), 15 East, 127. Com. Dig. tit. "Man." (B.), Andr. 180. See ante, pp. 12, 13, 14. (x) B. T. Nottingham (J.), Say. 217. E. v. Young, &c.. Burr. 561. And see Burr. 1317; Burr. 1318,; 1 T. R. 692 ; and Salk. 45, tit. "Alehouses." M R. V. Farringdon Ward (J.), 4 D. & R. 735.f (2) R. V. Surrey (J.), 5 D. & K. 308 sf and see 4 D. & R. 735.f But see tit. " Quarter Sessions." (a) R. V. Drake, 6 M. & S. 116. See tit. "Quarter Sessions." (*) R. T. Cheshire (J.), 3 P. & D. 33, n. (a). ic) Ravenhil's case, Stra. 608. Com. Dig. tit. "Man." (A.) See tit. "PortreTe." Id) R. v. Patrick, 2 Keb. 167, per Windham, J. See ante, p. 29. (e) Anon. Str. 696. Com. Dig. tit. " Man." (A.) See tit. " Company." 92 tapping's MANDAMUS. the Archbishop of Canterbury, (/) he being the messenger who serves the process of the Spritual Court. His duty is to cite offenders to appear, to arrest them, and to execute the sentence or decree of the Judges, &c.(^) But it will not lie' to command him to execute his duty,(A) for he is a servant of his Court, and punishable there. Appeal.] See tit. Quarter Sessions (^Appeal). Apprentice.] As to admitting apprentices to freedom, &c., see titles Franchise; Freedom. The writ has been granted to command the Surgeons' Company of London to receive an apprentice, if duly qualified. (t) As to pauper ap- prentices, see tit. Poor. Approved Men op GtniDPOED. J See tits. AsHburton, &c. ; Guild- ford, &c. Approver of Guns.] See tits. Gunmakers' Compani/; Office. Arbitrator.] Umpire, Appointment. — It lies to command an arbi- trator, under an act of Parliament, to appoint an umpire, (y) Archdeacon.] Admission — It lies to admit to the office of aroli- deacon,(^) and as a dean and chapter who have power to make bye-lawB, cannot by virtue of that power make a bye-law, that an archdeacon shall take the oath of canonical obedience, and to keep the secrets of the chapter, before he is admitted into his office, so the refusal to take such an oath at such time is not a good return to such a mandamus.(Z) But a return to such a writ of non fuit electus, is good.(wi) .] Restoration. — ^It lies also to restore to the office of archdea- con, (n) .] Liability/ of. — An archdeacon being within the general rule on this subject, is not liable to an action for swearing in, &o. a wrong r*4Q"| person *under the authority of a mandamus, (o) As to the oflce of archdeacon's register, see tit. Registrar. _ (/) Foulke's case, cited in E. v. Dr. Ward, 1 Barn. 295, in S. C. Stra. 897 ; and m R. V. Canterbury (Archbishop), 8 East, 218. ig) See Stat. 21 Hen. 8, c. 5. (A) See tit. " Office." Bac. Abr. tit. " Man." (D.) And see tit. " Office" (Officers, Ministerial, Inferior). (i) R. T. Surgeons' Oompany, Burr. 892, where see form of writ and return. b) R- T. Goodrich, 2 Smith, 388. See tit. " Act of Parliament." See tit. "Award." ..^1*^ ^"^' ^™i*y Chapel (Dean), 8 Mod. 21, and see Gastrell v. Jones, 2 Boll. 449; 6_Oom. Dig. tit. " Serement" (B.) R. t. Patrick, 2 Keb. Ill, per Keeling, 0. J., Register, 307, 331. See tit. " Office." (l)U. (m) Hereford's case, 1 Sid. 209, 210. S. C. 1 Keb. 655, 660, 716. . ^IK J "^^ ,^™*'ert, 12 Mod. 3. S. 0. Garth. 170, nom. Lambert's case, where it IS stated to be the offiee of " Register," &c. (o) R. V. London, (Mayor) 10 Mod.' 53, 54, citing 1 Roll. 108, and see stat. 6 4 7 Vict. c. 67, s. 3, App. 'IS 1 ASHBTJRTON, EIGHT MEN OP, ETC. 93 Armourers and Braziers.] See tits. Company; Freedom (^Com- pany.) Articles oe Peace.] See tit. Peace, Articles of. AsHBURTON, Eight Men of.] Restoration. — A mandamus has been granted to restore to the office of one of the " eight men of Ashbur- ton ;'\p) it having been cited that a mandamus had been granted to swear one of the " twenty-four men of Tiverton," they having no other name. And the Court, in granting the application in the principal case, ordered the mandamus specially to recite therein so much of the office as would make it appear to be the proper subject of a writ of mandamus. (g') In another case,(r) a mandamus is stated to have been applied for to "swear in one who was elected to be one of the eight men of Ashburn Court;" which was (according to that report) denied for its uncertainty, for it ought specially to have expressed what the office was, and what was the place of the " eight men," that it might appear to the Court to be such a place for which a mandamus lay, and the Court further remarked, that though such a writ had been granted for one " of the approved men of Guildford," yet it was specially set forth what his office' was.(s) Assessors.] See tit. Burgess Roll. Attorney.] A mandamus will be granted in respect of the office of an attorney of an inferior Court, it being one of public concern, because it regards the administration of justice, and also because there is no other remedy. (<) This title is arranged as follows : — Attorney. To practice Admission - •.] To Practice.^-lt will be granted to allow one duly entitled. Attoeney. 43 Eestoration - . - - 44 44 Delivery up of Rolls, &c. 45 to practice in an inferior Court,(M) as the inferior Court of Reading ;(«) *Havering Court, Essex ; the Stepney Court, &c., and the Lord ^ ^ .^ ., Mayor of London's Court ;(w) but the Court of B. E. will not lend '■ its assistance to an attorney of a superior Court to allow him to practise (p) E. T. Exeter, (Dean) 2 Show. 21t. S. C. 2 Mod. 316; 3 Bac. Abr. 530. Trem. pi. Cor. 467, 468, where see form of -writ. (g) See R. v. Guildford, (Approved Men of,) 1 Lev. 162. S. 0. Raym. 152. M 2 Mod. 316. R. v. Exeter. (Dean.) (s) See tits. " Guildford," (Approved men), "Tiverton," (twenty-four-raen of.) {t) Lee's case, Garth. '169, 110. White's case, 6 Mod. 18 per Holt., C. J. Leigh's case, 3 Mod. 335. See tits. " Courts, Inferior." (m) R. V. Barker, Burr. 1268. See R. v. Raines, 3 Salk. 233, 13. E. v. London, (Mayor), 16 L. J., N. S. 185 ; Q. B., where see form of writ. M 1 Vent. 11 1 1 Sid. 410. 1 Mod. 23; Bac. Abr. tit. " Man." 0. (w) 16 L. J., N. S. 185, Q. B. A writ of error is, however, pending against this decision. 94 tapping's mandamus. in such inferior Court as he may do so of right, unless the number he limited to the exclusion of others by act of Parliament, charter, prescrip- tion, &o., and then he will require an appointment, (a;) .] Admission. — It lies also to admit an attorney of the Court of the Sheriffs of York.(y) So of the Marshal's or other GoM.vi.jz) But if the Court of B. R. has no jurisdiction or power to enforce admittance, &c., •the writ will be refused. Thus a rule for a mandamus to the principal and ancients of Barnard's Inn to admit an attorney into the Society was discharged, as it was not shown that the Court had the requisite authority over the Inn.(a) But it seems a mandamus should not issue to the Judges of an inferior Court, commanding them, in the first instance, to admit an attorney of B. R. to practise there, but that the mandamus, if any lies, must be to examine whether he is capable and qualified to be admitted according to the stats. 2 Geo. 2, e. 23, and 6 G-eo. 2, c. 27. (i) .J Restoration. — So it will be granted to restore an attorney to his place in an inferior Court.(c) Thus it lies to restore an attorney of the Sheriff's Court of York.((i) So to restore an attorney within the liberty of St. Martyn le Grand.(e) So to restore an attorney of the' Borough Court of Southwark,(/) or of the Court of the Corporation of Colchester.(5') So it was granted after many arguments and much deli- beration, to restore an attorney of the town Court of Canterbury, it not being such an office with which the commissioners for corporations had power to intermeddle. (A) *So it has been granted to restore an ■- J attorney improperly suspended from practising in the Courts of the County Palatine of Chester. But a return of suspension for speaking (a;) Gilman t. Wright, 1 Sid. 410. S. 0. 1 Ventr. 11 S. C. 2 Keb. ill, 584. Hurst's case, Rayra. 56, 94. S. C. 1 Sid. 94. S. 0. 1 Lev. 75, citing Underwood's case. Easting's case, 1 Sid. 410. S. C. 1 Mod. 23. Anon., March, 141. K. v. York, (Sheriffs,) 3 B. & Ad. 775 jf But see 16 L. J., N. S. 186, Q. B. (y) R. V. York (Sheriffs), 3 B. & Ad. 770.f (2) See 1 Sid. 93, 152. Ray. 56, 94; 1 Lev. 75, supra. Com. Dig. tit. "Man." (A.) (a) See ante, pp. 10, 11. E. v. Barnards Inn, 5 A. & E. 17.+ (b) R. V. York (Sheriffs), 3 B. & Ad. 770, 781.+ And see 1 Mod. 23. S. 0. 1 Sid. 410. S. 0. 1 Vent. 11 Supra. (c) Leigh's case, 3 Mod. 333, citing Hurst v. Canterbury, (Mayor), 1 Sid. 94. S. C. 152. S. C. 1 Lev. 75. S. C. Raym. 56, 94. See R. v. Rushworth Eely. 288. R. V. Raines, 3 Salk. 232, 13. Anon., March, 141. R. v. Oxenden, 1 Show. 219; Keb. 549. Bac. Abr. tit. "Man." C. (d) R. V. York (Sheriff's), 2 Show. 154. (e) Collin's case, 1 Keb. 549, also cited in Hurst's case, 1 Sid. 152 ; and see 1 Lev. 75. See also, R. v. Canterbury, (Archbishop), 8 East, 216. The writ should be directed to the steward. Bac. Abr. tit. " Man." (/) Underhill's case cited in Hurst's case, 1 Keb. 287, and in S. C. 1 Lev. 75. S. 0. 1 Sid. 152. (g) R. V. Colchester (Town), 2 Keb. 188. (A) Hurst's case, Raym. 94, 56, (the applicant having been improperly removed by the Commissioners for Corporations- acting under the Statute of Corporations.) aK/oQ^ /^' h ^- ^- ^ ^''^- ®* ("*'°S Underwood's case) S. C. 1 Keb. 349, ii>% dB7, (iwysden saying, that as the wi-it was groundedon Magna Charta, that none should be disseised of liberties or franchises, that therefore? the mandamus 2^^ Bac'X tft. " M'an'' b!"'' '''" '" ^- " ^-t-^-^^. (Arclibishop), 8 East, AWARD, ETC. 95 « contemptuous words of the presiding Judge is good.(t) So it has been granted to restore one of the attorneys of the Marshalsea Court. (y) .] Rolls delivery, &c. — The Court will not grant a mandamus to a manor steward being an attorney to deliver up Court rolls, &o., there being another remedy. (A;) AxJDiToa OP Chamberlain's and Bridgem aster's Accounts.] Admission. — It lies to command an admission to the office of auditor of chamberlain's and bridgemaster's accounts, if duly elected.(0 Auditor of Churchwarden's Accounts. See tit. Olmrcliwarden. Auditor or Overseer's Accounts.] See titles Churchwarden; Overseers. Auditor oi" Parish Accounts.] See titles Churchwarden; Over- seer (accounts ;) Parish (auditor.') Augmented Curacy. See tit. Curacy (augmented.') Autrefois Acquit.] See tit. Courts Inferior (Records.) Award]. Enforcing. — It lies to enforce the payment by a company, of money which an arbitrator has awarded to be paid by its treasurer. But it was so held expressly on the ground that the action on the award could only be against the treasurer, and that his body and goods were exempted from execution by the statute incorporating the company, (m) Bailife.] The writ lies for the office of bailiff of a borough, (ji) ], election. — It lies on stat. 11 Geo. 1, c. 4, s. 2, to go to the *election of bailiffs, and to command the holding of a Court for j. ^ < g -, that purpose.(o) , application, &c. — See stat. 6 & 7 Vict. c. 89, (p) as to the neces- sary steps to be taken, before making the application, in order to obtain costs. (j) Parker's case, 1 Vent 331, and see "Mandamus," 2 Lent. 1014, for form of such return which in 1 Vent. 331, supra, -was held to be good. Trem. PI. Cor. 516, where see form of writ. U) Underwood's case, Ann., 1651, cited in Hurst's case, 1 Sid. 94. \k) R. T. Earle, Burr. 1197. But see tits. "Corporation, Municipal" (Insignia,) "Manor" (Rolls.) (l) R. T. London (Mayor), 1 T. R. 423. (m) R. T. St. Katherine's Dock, 4 B. & Ad. 360.f S. C. 1 N. & M. 121,f also cited in R. T. Nottingham Water Works, 6 A. & E. 365. See tits. "Inclosure," " Arbi- tration," "Money," Company" (Execution.) (n) R. 3 Rol. 456, 1. 20, 32. Com. Dig. tit. " Man." (A.) Scarborough's case, Stra. 1180 ; and see also Stra. 1003, 1157 ; see stats. 9 ^n. c. 20 ; 11 Geo. 1, c. 4, and 1 Vict. c. 78, s. 26, App. See tit. " Office." (o) See stat. App. R. v. Woodrow, 2 T. R. 732. Scarborough's case, Stra. 1180. E. T. Maiden, (Bailiffs), 2 Salk. 431. S. 0. Ld. Raym. 481. [p] Appendix. 96 tapping's mandamus. ,J admit and swear.— It lies to admit and swear into the office of bailiffs of a corporation (g) or of a town.(r) ,] restoration. — It also lies to restore to the office of bailiff if improperly disfranchised, (s) Bailiff of Manor.] See tit. Manor (Bailiff.) Bank op England.] Transfer of stock. — ^The Court will not grant a mandamus to command the Bank of England to transfer stock, because there is a remedy by an action on the case if they refuse, which action would afford a satisfaction equivalent to a specific relief, (i) ,] accounts. — Nor will the Court command the Bank of England, at the instance of one of its members, to produce an account of the income and profits of a certain period, with an account of the charges of manage- ment, for the purpose of enabling the next general Court to consider the state and condition of the company, and to declare a dividend, in the absence of any parliamentary direction that such accounts should be pro- duced. For such an application is in effect made by one on behalf of several partners to compel his co-partners to produce their accounts of profit and loss, and to divide those profits, if any there be ; a subject over which the Court of Chancery has alone jurisdiction.^^) Bankrupt.] Further examination. — It lies to command commis- sioners of bankrupt to issue their warrant for a further examination of a bankrupt, on a suggestion that he is desirous of fully disclosing his estate and effects, although the bankrupt had been previously, after repeated examinations, finally committed by the commissioners for not having satis- factorily answered, (i;) But it has also been decided, that where a party has been committed for not having answered satisfactorily before the com- P ^ . » 1 missioners he may have a habeas corpus to bring him before the commissioners for further *examination, but cannot, by a man- damus, throw the expense of bringing him up on the state. (tc) . J Certificate. — ^It does not lie to command the commissioners of bankrupt to sign a certificate of a bankrupt's conformity, because a dis- cretion is vested in the commissioners, of which the Court cannot enforce the exercise in any particular way.(x) . (?) ^- V. Ipswich (Bailiffs), 1 Barnard. 407. Vaughan v. Lewis, Cartli. 22'7. See tit. "Corporation," (Municipal.) (r) R. T. Clithroe (Town), 6 Mod. 133. U) Tompson t. Edmonds, 2 Eol. Ab. 456, pi. 4, T., 4 Jac. B. E. (<) E. T. Bank of England, \ Doug. 524. See also E. v. Nottingham Water Works, 6 A. & E. 364.+ Bac. Abr. tit. " Man." C. 2. See Ante, p. 20. («) E. v. England (Bank), 2 B. & A. 622. See R. v. Wilts. Canal, 3 A. &K 482.+ See ante, p. 22. See tit. " Company" (Duties, &c.). («) In re Bromley, 3 D. & E. 310.+ And see R. v. Surrey, 6 Tr. R. T7. See tit. "Insolvent." ' •" (w) Ex parte Bagster, 2 M. & R. 467. {x) In re King, 7 East, 90, n. (a), and cited in 15 East, 126, and 9 East, 88. See ante, pp. 12, 13. ' ' ' BASTARDS, ETC. 97 Babnabd's Inn, Attorney OF.]. See titles ^«oraey ; Inn of Chan- cery. BAROn, CoTJRT.] See tit. Manor (Barori.y Baron and Feme.] See titles Administration; Alimony. Barrister- at-Law.] Bee tit. Inn of Court. : Bastards.] It lies to- command justices of the peace to proceed gene- rally in all matters as to bastard children, -within their jurisdiction. (2^) Thus it has been granted to command -justices of the peace to take the examination of a pauper touching the reputed father of a bastard child of ■w-hich she -was pregnant, and also to issue their summons to such putative father, commanding his appearance before them, to answer for ha-ving dis- obeyed an order of bastardy made upon him under stat. 49 Geo. 3, c. 68, s. 3.(z) And also to command them to hear and determine an applica- tion for a bastardy order which they have improperly refused to pro- ceed with, (a) but not to make an order of maintenance on a particular parish. (6) So it lies to command them to receive and enter an application for an order of maintenance upon the putative father of a bastard under stats. 4 & 5 Wm. 4, c. 76, s. 72; 7 & 8 Vict. c. 101, and 8 Vict. c. 10. (c) .] Appeal. — It lies also to command justices at quarter sessions to cause continuances to be entered, and to hear an appeal against an order of afSliation of two magistrates, under stats. 49 Geo, 3, c. 68, s. 5, and 7 & 8 Vict. c. Wl,(d) or any appeal against such an order which they ought to have heard ;(e) but not if the sessions have no jurisdiction, or *have properly dismissed the appeal, on the ground of a defective notice of appeal or otherwise.(/) L J An appeal does not lie to command the justices at sessions to enter con- tinuances and hear an appeal against an order of affiliation duly made by ly) B. T. Surrey (J.), 2 Show. T4. Bott's Poor Law, by Const, 46, 61, 20T. (2) R. T. Martyr, 13 East, 55. (a) Ex parte Wallingford Union, 9 Dowl. 987. B. v. Walker, 14 L. J., N. S. 120, M. 0. S. 0. 3 D. & L. 131. (5) R. T. Middx. (J), 4 B. & A. 298. See B. v. Eye (Corp.), 4 B.-& A. 211. B. T. Truro (Mayor), 3 B. & A. 590 ; 2 Chitt. 251. -f (c) B. V. Oambridgesh. (J.) ■ B. t. Salop (J.) R. T. Gloucestersh. (J.), 1 P. & D. 249. S. C. T A. & E. 480.+ S. C. 9 A. & B. 338.-|- B. v. Bridgman, 15 L. J., N. S. 44, M. 0. B. v. Chesh. (J.); 15 L. J., N. S. 114, M. 0. B. v. Hincliffe, 16 L. J., N. S. T8, M. C. (d) R. T. Salop (S.), 4 Bi & A. 626. B. v. Plintsh. (J.), 15 L. J., N. S. 50, M. C. Ex parte Lowe, 15 L. J., N. S. 99, M. 0. S. 0. 3 D. & L,. 131. B. v. Chesh. (J.), 15 L. J., N. S. 114, M. C. S. C. 4 D. & L. 94. ie) Ex parte Becke, 3 B. & Ad. 'r04.-|- B. v. Lincolnsh. (J.), 3 B. & 0. 548.-1- E. T. Oxfordsh. (J.), 1 B. & 0. 2l9.\ R. v. Gloucestersh. (J.), 2 D. & E. 426.t B. v. Oxfordsh. (J.), 5 D. 116. R. v. Lincolnsh. (J.), 5 D. & R. 3i1.f • (/) 2 D. & B. 426,f and cases supra. See tit. " Quarter SeBsions." See ante, p. 29. April, 1852 — 7 98 tapping's mandamus. two justices at petty sessions, under atat. 2 & 3 Vict. c. 85, s. 1, as no appeal lies in such case. (5') 1 Costs. It however lies to command justices to make an order upon certain guardians of the poor to pay costs incurred in resisting an application made by such guardians under stats. 4 & 5 Wm. 4, c. 76, s. 73 and 2 & 3 Vict. c. 85, s. 1, for the maintenance of a bastard child, if the application has been fully heard. (^) For in all cases in which the Court of Quarter Sessions dismisses an application under stat. 4 & 5 Wm. 4, c. 76, s. 73, for an order of bastardy, on the ground that it is not made by the proper parties, it is bound to award to the person intended to be charged his costs of resisting the application, and, on refusal, a mandamus lies to command them so to do.(i) .] Enforcing order of affiliation. — So the Court will, by writ of mandamus, command a justice or justices to enforce an order of affilia- tion. (/) But it lies not to command a justice to convict under stat. 5 Geo. 4, c. 83, a single woman for having run away and left her bastard child, as that statute applies to legitimate and not to illegitimate children. (A) Bedford Level.] Receiver ; Restoration. — ^It lies to command the conservators of the Bedford Level to restore their receiver, if improperly removed, they being incorporated by stat. 15 Car. 2, and thereby required to appoint a collector and receiver. (?) .] Registrar, admit and swear. — The writ will be granted to command the Bedford Level Corporation to admit and swear into the office of registrar of such corporation, his duty being a public one, that is, to register titles and deeds relating to lands within the level ; as to which he takes an oath^pf office. It has also been settled that an information in the nature of a quo warranto does not lie against him, he being a mere r *4Q T servant of *the corporation, and his office not affecting any franchise or other authority held under the Crown. (m) As to Drainage, see tit. Drainage. Bermudas — Company of Traders to.] Restoration of Member.— [g] R. T. West. E.(J.), 4 P. & D. 668. S. C. 1 Q. B. 325.+ (A) R. T. Ld. Hastings, 1 D. & M. 132. S. C. 6 Q. B. 141.+ S. 0. 13 L. J., N. S. Ill, M. 0. R. T. Exeter (Recorder), 3 G. & D. 16T. S. C. 5 Q. B. 342.+ S. 0. 13 L, J., N. S. 7, M. 0. See tit. "Poor," (Costs). (i) 3 G. & D. 167. S. 0. 5 Q. B. 342,+ supra. R. v. Monmoutsh. (J.), 12 L. J. R., N. S., M. C. 126 ; and see T & 8 Vict. 101, s. 1, 9. U) R. T. Codd, 1 P. & D. 456. S. 0. 9 A. & E. 682.+ R. v. Martyr, 13 East, 55. (&) R. T. Maude, 2 D., N. S. 58. S. C. 11 L. J., N. S. 120,M. C. See tit. " Quar- ter Sessions," " Justice." (I) Anon., 1 Barn. 195. In this case, however, the applicant was not turned ont by the then directors, and upon that point (which is not clear,) the mandamus was granted. See tit. " OfSce" (Restoration.) „,C™^ ^'rJ- ^^'^ord Level, 6 East, 356, and cases there cited. Bac. Abr. tit. "Man." C. B I S H P, E T 0. 99 It lies to command the restoration of one to be a member and assistant to the company of traders to the Bermudas, (n) Births, Registrar of.] See tit. Registrar of Births. Bishop.] Absolution. — See such title. — — .] Chrism. — ^It has been granted to command a bishop to give oil to a priest with which to baptize, (o) .] Confirmation. — See such title. .] Consecration. — It does not lie to command the consecration of a bishop. (p) .] Sacrament. — See titles Sacrament ; Prebendary. .] Visitation'. — See tit. Visitation. . ] Application ; Costs. — If an application for a writ of mandamus for any cause be made against a bishop without good foundation, it will be discharged with costs. (2) But if the point raised be new and doubtful, the Court will not, in its discretion, inflict costs, (r) Blacksmith's Company, Clerk op.] Delivery of Books, &c. — It lies to command the delivery, by the late clerk of the Blacksmiths' Com- pany, of all books, papers, &c., which he had obtained possession of by rea- son of being such clerk, and from which office he had been removed. (rr) Blue Coat School.] Restoration of Scholar. — It lies not to restore a blue coat, he being but an almsman, and under the jurisdiction of a visitor.(s) Bond.] See tit. Compensation (^Bond). Bond — High Constable's.] See tit. Constable. Books, Records, Official Papers, &c.] Deliver^/. — The party enti- tled *to a public office has a right to the books and papers apper- taining to such office, and the Court will command the delivery ■- J of them over by mandamus. But one who has a legal right to an office is not entitled to have books delivered by one who has an equitable right, and, therefore, a writ for that purpose would, in such a case, be refused. (<) So that where two persons are contending for an office, for («) Trott's case, 2 Keb. 693. See tit. " Company," " Corporation" (Municipal), "Franchise," "Freedom." (0) See tit. « Chrism." (p) Dr. Robert's case, 2 Keb. 102, per Windham, J. (q) R. V. Chester (Ep.), 1 T. R. 396, 405. R. T. Oxford (Bp.), 7 East, 600, 606. See tit. " Costs." (r) R. T. Canterbury (Aichbp.), 15 East, 159. (rr) R. V. "Wildman, Stra. 619. S. C. 1 Barn. 402. The rule should be for the delivery, &c., to the company, and not to the new clerk. See tit. " Books," &c. (s) E. V. Wheeler, 3 Keb. 360. See tits. "Charity," "Charter House School," "College," " School," "Visitor." (t) Town Clerk of Nottingham's case, 1 Sid. 31. E. t. Wheeler, 1 Bam. 99. 100 tapping's mandamus. wMch quo warranto will not lie, the right to it may always be tried by a mandamus to give up papers relating to it.(«) .] Deposit. — So the writ lies to command a public ofl&cer to deposit a public document where it is directed to be deposited according to act of Parliament.(w) .] Form of Writ. — The writ to deliver books, &c., may be direct- ed not only to him who has them, but also to all those who were assistant in carrying them away, (to) Books op Borough.] See tit. Borough (Books). Books op Company.] See tit. Company {Books, dscj Books op County.] See tit. County {Accounts, Boohs, &c.) Borough.] This title is arranged as follows : — BOEOUSH. BoBonoH. Borough ofScers - 50 Bate— Defaulters - 51 Borough fund - 50 Bate Books - - 62 Rate - - - 51 Inspection, &c. - 52 Appeal against 51 Delivery - 52 .] Bcyrough Officers. — As to the election, &c. of such officers, see post, tit. Offi/x, &c., and stat. 6 & 7 Vict. c. 89. (a:) . J Borough Fund. — The writ lies to command a municipal corpo- ration to pay out of the borough fund certain sums incurred in respect of the expenses or costs of carrying into effect the provisions of stat. 5 & 6 Wm. 4, c. 76. Thus fees which a justice's clerk in a borough is author- ized to take, by a table regularly allowed and confirmed under stat. 5 & 6 Wm. 4, c. 76, s. 124, in respect of charges against persons apprehended . ^ and brought *before the borough justices by constables appointed L -'by the watch committee, and disposed of by such justices; and which fees the clerk to the justices cannot recover from such persons or other parties, either on account of their not being specifically imposed on them by act of Parliament, or from their inability to pay, are " expenses necessarily incurred in carrying into effect the provisions of the act" under section 92, and a mandamus will go to direct their payment out of the" "borough fund.(y) But a mandamus will not lie, to command the pay Com. Dig. tit. "Man." (A.) (B.) ; 3 Bl. Com. 110. See tits. " Attorney," " Black- miths' Company," " Company," " Corporation, Municipal" (Insignia), " Insignia," " Records," "Seal." See ante, pp. 27, 28. («) R. T. Hopkins, 1 Q. B. lei.f S. C. 4 P. & D. 551, per Pollock, arg., and see there form of writ and return. {v) R. V. Payne, 6 A. & E. 402.+ S. C. 1 N. & P. 524,+ per Coleridge, J. See tit. " Act of Parliament," " Attorney." (w) R. V. Holfqrd, 2 Barn. 350. Anon., 1 Barn. 402. So in the Roman lav it is a rule that " Is damnum dat, qui jubet dare : .ejuB vero nnllaiculpa>esti cui paxeiw necesse sit." D. 50, It, 169. (x) Appendix. (y) R. T. Gloucester (Mayor),. 1 D. & M. en. Si C. 5 Q, B. SSa-f; S. 0. 13 L. B K U G H, 101 ment over of money to the treasurer of a borough, under stat. 5 & 6 Wm. 4, e. 76, 3. 92, unless the application be made either by the treasurer or after he has been required to demand the payment; and this, although the party applying for the writ be ultimately entitled to the money. («) .] Rate. — ^The Court will, in some instances, order the making of a borough rate,(a) but it will not order the payment of past expenses, which would render a retrospective rate neoessary.(6) But such an ob- jection can only arise upon the return, for until that time there is nothing to shew, but that there are funds in the hands of the defendants. (6) So / the Court will, for a proper purpose, command a corporation to enforce payment of the existing borough rates, or cause to be collected another rate ; but such a writ must shew that the existing borough fund is insuf- ficient, or it will be informal, and such an objection may be used as an answer to a rule for an attachment against those who refuse compliance. (c) .] Appeal against Rate. — It lies to command a recorder, &c. to enter continuances and hear an appeal against a borough rate, where an express power of appeal is given,(ci) as by stat. 5 & 6 Wm. 4, c. 76, s. 92,(e) and the subject-matter is not of Ecclesiastical jurisdiction. (/) .] Defaulters. — So it lies to command justices to issue a distress warrant to levy a borough rate,((/3 but where the legality of such a war- rant is not clear, the Court will not, by mandamus, command the justices to issue it. (A) So it lies to command magistrates to issue a warrant of distress for non- payment of *paving and lighting rates of a borough. (i) But the r^co -i Court of B. K. wiU not grant a mandamus to justices of Middle- '- sex commanding them to issue such distress warrants for rates made in any district within the metropolis, but will leave the commissioners, or other persons having the control of the pavements of the district, to their remedy by action, under stat. 57 Geo. 3, c. 29, s. 38. (y) J., N. S. 233, Q. B. But see R. T. Cambridge (Mayor). 14 L. J., N. S. 82, Q. B. B. T. Lichfield, 16 L. J., N. S. 333, Q. B. See R. v. Poole (Mayor), 1 G. & D. 728. S. C. 1 Q. B. 616. (z) R. T. Frost, 8 A. & E. 822.t S. C. 1 P. & D. 75. \a) See tits. " County Rate," " Poor rate," &c. (6) Woods T. Reed, 2 M. & W. Ill* cited in R. T. Gloucester, 1 D. & M. 681. S. C. 5 Q. B. 862.+ (c) R. T. Poole (Mayor), 1 G. & D. T28. S. C. 1 Q. B. 616.t (d) R. T. Ipswich (R.), 8 D. 103, citing R. v. Surrey (J.), '2 T. R. 504. B. v. Bath (R.), 1 P. & D. 622. R. v. Bond, 6 A. & E. SOS.f R. T. Poole (R.), 1 N. & P. TSe.-j- See tits. "Poor Rate," "Quarter Sessions." (e) R. T. Bond, 6 A. & E. SOS.f R. v. Bath (B.), 9 A. & E. 8'?2.i- E. v. Carmar- hen (R.), t A. & E. TSS.f (/) R. T. St. Saviour's, T A. & E. 925.1 S. C. 3 N. & P. 126. S. C. 1 N. & P. 4"96.+ See tit. " Church-rate." ((/) R. V. Trecothicls;, 2 A. & E. 405.t R. v. Poole (Mayor), 1 G. & D. 728. S. C. 1 Q. B. 616.f See tit. "Compensation," (Office Payment). (A) R. T. Dyer, 2 A. & E. eil.f S. C. 4 N. & M. SSO.f R. v. Barker, 6 A. & E. 391.t 2 A. & E. 644.-t- S. C. 4 N. & M. 394.t But see tit. "Quarter Sessions," and stat. 6 & 7 "Vict. c. 67, s. 3, App. ii) R. T. Hughes, 3 A. & E. 425.t S. C. 5 N. & M. 94 jf but see 5 N. & M. 12S.t \j) R. V. Middlesex (J.), 5 N. & M. 126.t 102 tapping's mandamus. .J Rate Books, &c. ; Inspection, &c. — The Court will, under cer- tain circumstances, command inspection and copy of the i;ate books; (A) but the Court must see an interest and right before it will grant ii,(l) for although the applicants be not strangers as to the documents of which they require inspection, yet they will not be entitled to it, unless some sufficient reason be assigned for allowing it.(m) There must also be a demand previously to the application to the Court, (m) .] Rate Books, &c. ; Delivery. — So the writ lies to command the delivery over of all books, minute books, records, &c. ; and if there be just cause of detention, it must appear by the return. (o) As to freedom, see titles Corporation (Municipal'); Franchise; Freer dom ; Freeman. BoEOTJGH CotrnT.] See titles Courts Inferior ; Corporation Muni- cipal. Bowling Green.] See tit. Nuisance. ' Bkidewell.] Governor, Restoration. — It has been granted to restore to the office of governor of Bridewell in the City of London, it being a royal foundation. (j3) Bridge.] See titles Highway ; Railway. Bridge House Estates.] Clerh, Restoration. — ^It lies to command the corporation of London to restore to the office of clerk and comptroller of the Bridge House Estates, if improperly ousted or suspended from his office it *being an ancient office for life, quamdiu se bene gesserit L J in the disposal of the Court of Common Council. The duty being, to superintend and take care of certain estates which are appropri- ted by the corporation to the support and repair of London Bridge, some of the estates having been granted to the corporation for that express purpose, (g') But the writ will not be granted, (although the applicant have been irregularly suspended,) if it appear by his own shewing that there was good ground for the suspension had the proceedings been regular.(r) {h) See tits. " Books, Records, &c." " Company," " County Bate." [l] E. T. Leicester (J.), 4 B. & C. 891-1 S. C. 7 D. & E. 3'70.+ E. v. St. Maryle- bone, 5 A. & B. 268.t S. C. 6 N. & M. eocf E. v. Stafifordsh. (J.), 6 A. & E. SS.f S. C. 1 N. & P. 60, 27'?.f This case further restricts, and, to some extent, over- rules R. T. Leicester (J.) E. v. Tower Hamlet (Com.) 3 G. & D. 94. S. C. 3 Q. B. evo-t (m) E. V. Mlaidstoue (Mayor), 6 D. & E. 334,f cited in 3 G. & D. 94 ; and see 3 Q. B. 6'72.f {n) E. T. Nottingham (J.), 3 A. & E. SOCf S. C. 5 N. & M. leo.f See tit " County Accounts." As to demand and refusal, see post, tit. "Application." (o) E. v. Ingram, 1 "W. Bla. 49. See R. T. Wildmau, Stra. STg. Sheriff of Not- tingham's case, 1 Sid. 31. E. v. Green, 6 A. & E. 548.f S. C. 1 N. & P. BSl.f See tits. "Books, Records, &c.," "Company." {p) R. T. Boulton, 3 Keb. 464. See the exceptions to the return in this case. See tit. " Office." (?) E. T. London (Mayor), 2 T. R. 17'7. E. t. London Assurance Company, 5 B. & A. 900. Bac. Abr. tit. " Man." C. See tit. " Office." (r) 2 T. E. \in, supra. E. t. Cambridge (Chancellor), 6 T. E. 99, 100, where one BURQESS, ETO. 103 Bkidgemaster's Accounts, Aifditor op.] See tit. Auditor, &c. Bristol.] Steward of Sheriff's Court of, Admission. — It lies to command the corporation of Bristol to admit to the office of Steward of the Sheriff's Court of the City of Bristol.(s) .] Steward of Tolzey Court of Restoration. — It lies to command the restoration to the office of Steward of a Court of Record, as to the office of steward of the Tolzy Court of Bristol.(0 BtriLDiNG Act.] Where a party had, in pursuance of stat. 14 Geo. 3, c. 78, pulled down and rebuilt a party wall, but had not restored the interior decorations of the adjoining house which had been on the old wall, it was held that a mandamus was not grantable against him at the instance of the tenant of the adjoining house, but that the remedy was by action. (m) As to commanding justices, to set out evidence, &o., on the record a conviction, under stats. 14 Geo. 3, c. 78, and 8 Geo. 4, c. 23, s. 1, see tit. Conviction. Burgess.] The writ lies for the office of burgess. («) *This subject is arranged as follows : — [*54] BURBEBS. Election - - - 64 Application - - 54 Admission . - - 54 Swearing in and admission - 55 Enrolling and swearing in - 55 Restoration - 55 Returns - - - 55 Capital BnKGESS. Election - - - 55 Election and swearing in 56 Application - - 56 Rule . - - - 56 Capital Bubgss — Restoration - 56 Removal . - - 59 Chief Buegess Election - - - 56 OOMMOU BUBGESS. Restoration - 5Y Free Bubgess. Election - - - 5V Admission, swearing in, &c. - 5T Inn Bcbgess op Wigan. Restoration - - - 5V Peiitcipal Bubgess. Election - - - - 57 ]. Election. — ^The writ has been often granted to command a municipal corporation to proceed to the election of a burgess,(«)) in the room of one deceased. (x) But the Court wiU not fix a day for such elec- tion, but will leave that to the proper officer, and if he do wrong, the parties may then go to the Court and oblige him to act properly, (y) of tlie reasons assigned for refusing was, that the applicant had another remedy. And see R. v. Dr. Gaskin, 8 T. R. 209. R. v. Whltestable (Freefishers), Y East, 353, 354, n. {a). See tit. " Office " (Restoration). («) R. V. Bristol (Mayor), 1 D. & R. SSa.-j- See tits. "Courts Inferior," "Manor Court Leet," " Office," " Steward." it) R.T. Griffiths, 5 B. & A. TBI. [u] R. T. Ponsford, 12 L. J., N. S. 313, Q. B. See ante, p. 20, and tit. " Act of Parliament." («) Clerk's case, Oro. Jac. 506. Stamp's case, Raym. 12. R. v. Tidderley, 1 Sid. 14. R. T Wilton (Burgesses), 5 Mod. 257. Com. Dig. tit. " Man." (A.) See stat. 9 Anne, c. 20, s. 1, App. See tit. " Office." (w) R. T. Bridgenorth (Mayor), 2 Chit. 256.f See tits. " Corpotation, Munici- pal," " Office," and stat. 6 & 7 Vict. 89, Appendix. (x) R. T. Evesham (Corp.), Kely. 243. \y) 2 Chit. 256, supra, Stra. 948. See tits. "Alderman," "Office." 104 tapping's mandamus. So it has teen granted to command a corporation, &o. to enter an ad- journment to some subsequent convenient day, and on that day to hold a meeting and receive ^nd examine certain proofs offered by applicants for the office of burgess, and to hear and determine the matter of such appli- cations, (a) .] Application — ^Where the application is for a mandamus to proceed to the election of a burgess in the room of one deceased, the mo- tion is of course, and ex debito juststise, so that the Court cannot nor will impose any terms upon the applicant, (a) ]. Admission. — ^When the applicant has an inchoate right by birth or servitude to be admitted a burgess, the Court of B. B. will grant a mandamus to command the perfection of siich right ; but such right must clearly appear. Thus Trherd the inhabitant of a borough applied for a mandamus to the mayor and and steward of the borough to enrol and swear him at a Court Leet thereof as a resiant and burgess, but did not make out an inchoate right in every inhabitant to be a burgess, or that any such connexion existed between the corporation and the CoBrt Leet as would make swearing and enrolment at the latter, the means of perfecting such right; therefore the Court refused *the writ.(S) L -• So a burgess being an officer within the stat. 12 Geo. 3, c. 21, s. 1, is thereby entitled to a mandamus for his admission.(c). * .] Swearing in and Admission. — So it has been granted to com- mand the lord and steward of a manor to swear in and admit certain bur- gesses presented by the jury of the Court Leet.(<^ ) .] Enrolling and Swearing in. — ^It lies to command a corpora- tion to enrol and swear in the prosecutor as a resiant and burgess at the next Court Leet to be holden for the borough, if it would confer upon him a valuable franchise, as the privilege of voting at the election of Mem- bers of Parliament.(e) .] Restoration. — So it will be granted on a proper case being shewn to restore to the office of Burgess. (/) («! B. T. Carmarthen (Mayor), 1 M. & S. 696. (ffl) Kel. 243, supra. R. T. Grampound (Mayor), 6 T. R. 302. See tit. "Applica- tion," and Stat. 6 & T Yiot c. 89, Appendix, where the practice is given. (6) R. T. West Looe (Mayor), 3 B. & C. 681, 684.t S. 0. 2 D. & R. 181, 182.t S. C. 5 D. & R. 590.f E. T. Lord Montacnte, 1 W. Blac. 61. R. v. Physicians (Col- lege), Burr. 2186. Anon. Lo£Ft, 148. R. v. Doncaster (Mayor), 7 B. & 0. eSCf S. C. 5 M. & R. 545. R. v. Malmesbury (Aldermen), 3 G. & D. 482. S. 0. 3 Q. B. 5V7.t S .0. 11 L. J., N. S. 318, Q. B. Bac. Abr. tit. "Man." (C.) (c) See Stat. App. as to notice of application and costs. R. v. Lord Montacute, 1 "W Blac. 64. S. C. 1 Wila. 283. See tits. "Act of Parliament," " Office." Id) R. T. Beaufort (Duke), 5 B. & Ad. 442.+ S. C. 2 N. & M. 815+ where see form of writ. ' (e) R. T. West Looe, 5 D. & R. 590.^ S. 0. 3 B. & 0. 677,1 supra. See tit. "Ale- .S/'^^'n'^}^^' '^<"^b.396. R. T. Wilton (Mayor, &c.), 5 Mod. 257. S. 0.2Salk. ;^^ T> -; ^ u ^^y™- 225, nom. R. v. Chalke. R. t. Pomfret (Mayor), 10 Mod. of- ^■■.I-JT''"'^^'^^**"^-^^. S. O. Lord Raym. 1275. S. C. Holt, 449. K.v. ^ '^^-.T., 1 \^^o..-^*SS'^ ''^=^' ^1 ^«P- 93 *• Colchester's case, 1 BoUe, 335. S;/' ^"^'^^?,??' ^ ^'^- }t- ?■■ 1- ^''^=«' 1 K^''- 20, pl. 56. R. T. Phiulngham, iKeb. ; o;""- •^ll^°'^0"g'i (Bahffs), 1 Keb. 308. Taylor's case, Poph. 133. R. t. Liver- pool (Mayor), Burr. 730. B. v. Derby (Mayor), 2 Salt. 436 18 BTTEGESSES. 105 . Returns. — But to such a writ, it is a good return, that the pro- secutor was de facto elected, but that not having received the Sacrament according to stat. 13 Car. 2, c. 2, his election is void, for it is a precedent qualifieation.( g) So it is a good return, that the prosecutor has totally deserted the borough.(^) Capital Burgess.] Election. — It lies for a capital burgess.(i) Thus it lies to command a proceeding to the election of a capital Bur- gess, (y) So in a case where two vacancies were occasioned by the deaths of two capital burgesses, and, this, though there was a quo warranto infor- mation *depending against the mayor, questioning his title. (A;) _^p.„. But the Court will not fix the time of election. (Z) ^ -' .J Election, and smearing in. — It also lies to command, both the election and swearing in to such o£iee.(m) . Application. — The application should in every case be supported by an affidavit, stating the whole of the facts,(m) but the rule is granted as of course, unless some special reason be assigned to induce a refusal of it.(o) . Rule. — The rule is absolute in the first instance.(j>) .] Restoration. — ^It lies to command restoration to the office of Capital Burgess,(g') and a return to such a writ, that he wrote a libel on one of the aldermen, and that therefore he consented to be turned out, is bad, for a common council cannot try a libel, and a resignation by parol must be certain. (r) .J Removal. — It does not lie to command a municipal corpora- (g) B. T. Buckingham (Corp.) 10 Mod. Vl3. E. v. Pomfret (Mayor), 10 Mod. 107^ 108. R. T. Aldborough (Borough), 10 Mod. 100. See tit. "Office" (Restoration). {h) B. T. Truebody, 11 Mod. 75 ; Ld. Raym. 1275. S. 0. Holt, 449 ; 1 Dough. 144, 569. Gity of Exeter t. Glide, 4 Hod. 36. S. C. 1 Show. 258 ; 1 Show. 364. R. v. Leicester (Mayor), Burr. 2087, and Burr. 530. See tit. " Office" (Restoration Re- turns). (i) Devises' case, 2 Eeb. 725. See ante, p. 53, and stat. 6 & 7 Vict. c. 89, App. (/) Illchester's case, 2 Chit. 257,t n. (a). Anon. 1 Bam. 227. R. v. Doncaster (Mayor), 1 Barn. 264. R. T. Esham (Mayor), 2 Barn. 265. R.v.Evesham (Borough), Str. 948. (H) R. V. Grampound (Mayor), 6 T. R. 301. R. v. Truro (Mayor), 3 B. & A. 592. \l) Ante, p. 54. Stra. 948 ; 2 Chit. 256,f supra. See tit. " Office." \m) R. T. Truro (Mayor), 3 B. & A. 590. (») 1 Barn. 227, supra. See tit. " Application" (Affidavits). (o) R. V. Grampound (Mayor), 6 T. R. 303, 309. [p) Anon. 1 Barn. 227. See tit. "Rule." (?) R. V. AUborough (Baliffs), 1 Keb. 308. S. C. 10 Mod. 100. R. v. Truebody, Holt, 449. R. v. Gloucester (Mayor), Holt, 450. R. v. Lyme Regis (Mayor), 1 Doug. 79, 134, 177. R. V. Grampound (Mayor), 7 T. R. 699. R. v. Doncaster (Mayor), Burr. 738. R. v. Lane, 11 Mod. 270. S. C. Fort. 275. S. 0. Ld. Raym. 1304. R. v. Vicars, 11 Mod. 214. R. v. Carlisle, 11 Mod. 378. S. C. 8 Mod. 19, 99. S. C. Fort. 200, 201, 204. S. 0. Stra. 385 ; Ld. Raym. 415, 1283 ; Fitzg. 190. Exeter (City) v. GIide,4 Mod. 37. Morris' case, 7 Wm. 3, M. T., there cited. (r) 11 Mod. 270. S. C. Fort. 275. S. C.Ld. Raym. 1304. As to what are the sub- jects of return to Such writ, see 11 Mod. 214, and 11 Rep. 93, b., supra. As to re- turns of resignation, see 11 Mod. 270 ; Ld. Raym. 563. S. C. Salk. 433. See a form of return, 1 Doug. 177. As to the dismissal of a burgess, see Bull. N. P. 204. See tit. " Office " (Restoration Returns). 106 tapping's mandamus. tion to assemble themselves together within their borough, and considei the propriety of removing certain persons by name from the office o; capital burgess on the ground of non-residence within the borough, il there be vested in such corporation, a discretionary and not a compulsorj power of amotion, because in such a case the Court of B. B. has no au- thority to interfere and order an amotion, unless the corporation be miB- governed, (s) Chibi' BtrKGESS.] Election. — ^It lies to command a municipal corpo- ration to convene a meeting and elect chief burgesses,(<) and to such a mandamus a return, which after stating objections to the titles of seve- ral of the remaining burgessess, alleged that they were not within the P j,p._._ borough eight legally ^elected chief burgesses, by whom the elec- L J tion of others could be made, and, that, therefore, such election could not be proceeded with, was held insufficient. (m) Common Burgess]. Restoration. — ^It lies to restore to the office of common burgess. («) Free Burgess.] Election, &c. — It lies to command the Mayor, &o., of a borough, to proceed to the election of a competent number of free burgesses of the borough, or to hold a meeting for the purpose of consi- dering the propriety of proceeding to such an election. (w) .] Admission and swearing in. — So it lies to command the ad- mission and swearing in of a free burgess to his office, if duly quali- fied, (x) Inn Burgess oi' Wigan.] Restoration. — So it has been granted to command the inn burgesses of Wigan to attend a Court Leet, to make a jury.(y) It has been granted to restore an inn burgess of Wigan to his office. (z) Principal Burgess.] Election. — It has been granted to command a corporation to proceed to the election and swearing in of a principal burgess in accordance with a charter, and of stat. 11 Geo. 1, c. 4, s. 2, although the day of election had elapsed.(a) (s) E. T.West Looe, 5 D. & R. 414, -f- citing and confirming. E. v. Portsmouth Mayor), 4 D. & R. reT.f And see 5 D. &R. 481. See tits. "Alderman" (EemoTaJ), 'Office" (Deprivation). • ^ ' (t) E. T. Monmouth (Mayor), 4 B. & A. 496. See ante, p. 54, and stat. 6 & T Vict. c. 89, App. {u\ 4 B. & A. 496, supra. («) R. T. Buckingham (Mayor), 10 Mod. 1T3. See tit. "Office" {Restoration). (w) R. T. Fowey (Mayor), 2 B. & C. SS^.f See ante, p. 54, and stat. 6 & 1 Vict. C. 89, App. J i. ; [x) R. v. Doncaster (Mayor), 5 M. & R. 545. S. C. T B. & C. 630.+ E. v. West Looe (Mayor), 2D. & R. 178-1 S. C. 3 B. & G.m\.\ See tit. « Office "VAdmission). (y) Eector of Wigan's case, Stra. 1207. S. C. Wils. 76. And see 1 V. Blac.64, n. (Z . See txt "Jury." (,■) r.^. Holmes, Burr. 1641. {a) See stal. App. R v^ Thetford (Mayor), 8 East, 2T0. Scarborough's case, S.tra. "el\ yicl ZZXv ' " '"'"• ^"^- '''' "''■ ^'^ '''''' P ''' ''°^''^'' BURQESSES. 107 UtJRGESS Eoll]. This subject is arranged as follows : — Burgess Roll. Insertion of Name - 51 Inspection, &c. - - - 58 Restoration of name - - 58 Application - - - 58 BuEGtESS Boll — Writ - - 59 Return 59 Costs - - - - 59 Assessors - - - 59 Election - - 59 .] Insertion of Name. — It lies to command the insertion of a name in the burgess roll of a •borough(6) under stat. 1 Vict. c. 78, although no burgess *list, or an imperfect one has been made p^Ko-, out.(c) Thus where the overseers of one of several parishes in a L J borough omitted to make out the burgess list required by stat. 5 & 6 Wm. 4, 0. 76, s. 15, so that at the revision Court of the mayor, there was no list in which the name of the claimant for the parish could be inserted. It was held, that this intermediate defect in his title to be on the general burgess roll, which is made up of the several parish lists, did not preclude the Court from issuing a mandamus, to command the inser- tion of his name under 1 Vict. c. 78, s. 24, for the statute gives jurisdic- tion as well where the claim of a party has been rejected as where his name has been expunged. (cZ) And the Court will make absolute a rule for a mandamus for such purpose, although the year for which such burgess roll was made out, have expired since the granting of the rule nisi, and the mayor be dead to whom the rule was directed, and notwithstanding, no application has been made to the present mayor.(e) .J Infection. — The writ lies to allow the burgess to inspect the voting papers deposited with a town clerk, and to compare his own with those produced, and to take copies, and make corrections. (/) .J Restoration of Name. — The Court will not grant a manda- mus under stat. 7 Wm. 4 and 1 Vict. c. 78, c. 24, to reinstate a name which has been expunged from the burgess roll, unless the applicant prove his title, although his name may have been expunged upon an in- valid notice of objection, for the Court is bound by such statute to in- quire into the title, (gr) (J) See stat. App. R. v. Hythe (Mayor), 5 A. &. E. 832.^ S. C. 1 N. & P. 239.t R. T. Harwich (Mayor), 1 P. & D. 134. S. 0. 8 A. & E. 919.t R. v. Bridgenorth (Mayor), 2 P. & D. 317. S. C. 10 A. &. E. 66-1 R- v. Eye (Mayor), 2 P. & D. 348. S. 0. 9 A. & E. 6'70,t vhere see the direction of writ. R. v. Litchfield (Mayor), 1 G. & D. 28. S. C. 1 Q. B. 453.f S. C. 11 L. J., N. S. 122, Q. B. And see 2 Q. B. 693.-I- S. C. 2 G. & D. 10. B. T. New Windsor (Mayor), 13 L. J., N. S. 337, Q. B. S. O. T Q. B. 908.t S. C. 14 L. J., N. S. 319, Q. B. Com. Dig. tit. "Man." (A.) See ! Townsend's case, 1 Lev. 91. R.T.Dover (Mayor), 16 L. J., N. S. 97, M. C., where see form of writ. (c) 1 G-. &D. 28. S. C. 1 Q.B. 453.t S. C. 11 L. J., N. S. 122, Q. B. And see B. T. DoTor (Mayor), 16 L. J., N. S. 101, M. C. (d) R. v. Lichfield (Mayor), 1 G. & D. 28. S. C. 1 Q. B. 453.t S. C. 5 Jur. 889. S. 0. IIL. J., N. S. 122, Q.B. (e) B. v. Eye (Mayor), 2 P. & D. 348. S. C. 9 A. & E. 670.-(- (/) R. V. Arnold, 4 A. & E. 657.f The rule is not absolute in the first instance. [g) B.T. Harwich (Mayor), 1 P. & D. 134. S. 0. 8 A. & E. 919,f 1 G. & D. 28. 108 TAPPING'S MANDAMUS. So, where the name of certain burgesses duly qualified in other re- spects were objected to, and expunged from the burgess lists on revision, on account of non-payment of the shilling required by stat. 2 Wm. 4, e. 44, s. 56, and in the succeeding mayoralty, before fresh assessors were elected, application was made for a mandamus to restore the name, on a suggestion that the objection was invalid, it was held, (before stat. 7Wni. 4 and 3 Vict. c. 78,) that the Court had no power to grant the writ in such a case. (A.) . Application. — The application for the writ must be made be- fore the end of the term foUovring the rejection or expunging of the name;(*) as it would seem that the statutes regulating this subject, oon- t6mplated a *speedy remedy, and to impose on the Court the duty L J of inquiry into the prosecutor's title by affidavit. (_/) . Writ. — The writ is not in any case peremptory in the first in- stance. (A) . Retv/rn. — ^When the writ is not to receive a claim for insertion, but to restore a name improperly expunged, the return must state the grounds of disqualification, with certainty and particularity, so, that if the disqualification be the non-payment of rates, the return must set forth the times when they were made, and how the prosecutor was assessed to and became liable to pay them.(Z) . Costs. — The Court has refused to a ward costs against a mayor in an application to insert a name in a burgess list, where it did not ap- pear that the mayor had acted improperly, (m) Assessors]. Election. — It lies to command the election of assesBors to assist in the revision of the burgess lists, pursuant to stat. 7 Wm. 4 and 1 Vict. c. 78. (m) Burial.] It lies to command the rector, officiating curate, church- wardens and sexton of a parish to do every act necessary to be done in order to due burial in the churchyard, or other usual burial ground of the parish of the corpse of the late parishioner, because burial in the parisli churchyard in the prescribed mode, which usage and custom has sanc- tioned, is a common law right inherent in the parishioners, and by award- S. C. 1 Q. B. 453,t supra. And see stat. 7 Wm. 4 and 1 Vict. c. 78, s. 24. App., as to time within which the application is to be made, and as to coats of application. {K\ 5 A. & E. 832.+ S. 0. 1 N. & P. 239,f supra. See ante, p. 10. U) Stat. 1 Vict. c. 78, s. 24, App. See tit. "Application " (when made). ( n R. T. Dover (Mayor), 16 L. J., N. S. 101, M. C. K. v. Eye (Mayor), 9 A. \ K670.t S. 0. 8 L\ J., N.'S., Q. B. 142. ' 3 \ 3 >^ * ® 9^- & E. 670, 675, 677, 679.-t- S. C. 2 P. & D. 348, supra ; 1 G. & D. 28. b. 0. 1 Q. B. 453,f supra. See stat. 1 Vict. c. 78, s. 24. See tit. "Peremptory Mandamus." ^ {V) R. T. Dovor (Mayor), 16 L. J., N. S. 97, M. C. See tit. " Office" (Restoration (m) R. v. Lichfield (Mayor), 6 Jur. 624. See tit. " Costs." . Vl^ V. Weymouth (Mayor), 7 Q. B. 46.-}- S. C. 14 L. J., N. S. 353, Q. B. See stat. 6 & 7 Vict. c. 89, App. ' CANAL COMPANY. 109 ing the writ in tMs case the Court of B. R. acts in aid of the Ecclesias- tical Court, for that Court would compel the burial but not in so speedy a manner as by mandamus, (o) But the mode of burial being purely of Ecclesiastical cognizance, this Court will refuse a mandamus to inter the body of a parishioner in a par- ticular and unusual manner, as in an iron coffin.(p) So, it does not lie to command the burial of the corpse of a parish- ioner in *a vault, or in any particular part of a churchyard, as the rector has a right to exercise his discretion as as to place. (g) •- J Neither does it lie to command the overseers of the poor of a parish to remove from an hospital within the parish, and cause to be interred the body of a deceased pauper, because they are not bound either by common law, or by stat. 43 Eliz. c. 2, to bury a pauper settled in the parish, and who dies there, unless such pauper, die in a parish house, (r) As to detention of corpse, see tit. Corpse. Butchers' Company.] Clerk, RestoraUon. — It does not lie to re- store to the office of clerk of the Butcher's Company in London, (s) The Court in its judgment said, that if it be an office of freehold, an assize may be had, or an action on the case, and if it be not an office of free- hold, then it is private service, which does not concern the public. (<) Bye-laws.] See tit. Corporation Municipal. Calls.] See tit. Company. Canal Company.] Duties, &c. — The writ will be granted to com- mand ay canal company to enrol according to its act of Parliament, all contracts, agreements, sales, conveyances, and assurances, relating to certain purchased land; and after a lapse of sixty-five years from the time of such purchase, during which time no application has been made to the company, the Court will refuse to grant such a mandamus on the refusal of the company, so to enrol, &c.(m) So it will be granted to com- (o) B. T. Coleridge, 1 Chit. 588.-|- S. C. 2 B. & A. 806, 808,-|- per Abbott, C. J. Ex parte Blackmoor, 1 B. & Ad. 122.f E. t. Stewart and Another, 4 P. & D. 349. Anon. 3 A. & B. 552.f See Andrews v. Cawthorne, Willes, 536. Degge's Parson's Law, pt. 1, c. 12. Burn's Eccl. L., tit. " Burial," 258. Com. Dig. tit. " Cemetery," (B.) Dean, &c., of Exeter's case,! Salk. 334. And see R. v. Exeter (Ep.), Palm. 51. The Complete Incumbent, 381, ed. 1T95. Bac. Abr. tit. " Man." (C. 2). [p) See note (o), supra, ante, p. 22. R. v. London (Ep.), 1 WilS. 11. R.v.Thet- ford (churchwardens), 5 T. R. 364. R. v. Canterbury (Archbishop), 8 East, 212, 219. See tit. " Charch-rate." {q) Ex parte Blackmoor, 1 B. & Ad. 122.f (r) R. V. Stewart, 4 P. & D. 349. S. C. 10 L. J., N. S. 40, M. C. Anon. 3 A. & E. 552.-t- («) R. v. White, 3 Salk. 232. S. 0. 6 Mod. 18, also cited in R. T.London (Mayor), 2 T. R. 182, n. (i). Bac. Abr. tit. " Man." (C.j See tit. " Poor." (<) But see tit. " Masons' Company," &c. R. v. White, Ld. Raym. 1004, where it' says the mandamus was granted,- the Court saying it was the same as a town clerk. See tits. " Company" (Clerk of PrivateJ, " Office." («) B. T. Leeds Canal, 3 P. & D. 174. S. C. 11 A. & B. 316.-|- See tit. "Act of Parliament," " Application." 110 tapping's mandamus. mand a company to maintain and repair ceitain parts of the banks of their canal,(v) and this although there may be another remedy by indict- ment ; for if such breach of contract also cause a public nuisance that fact'cannot dispense with the necessity of a specific performance of the obligation contracted by them on obtaining their &ct.(w) .] Compensation. See tit. Compensation, ( Company.') .] Tolls. — ^It also lies to command such a company to establish an uniform rate of tolls along the whole line of their canal, &a.(x). *Canon]. Admission, dsc.^— "Li Iks to admit to acanonryor '- -■ prebend, and to institute, induct and inyest therein. (2^) But it does not lie to command the admission of a canon to his stall, on a custom to choose a supernumerary, when all the stalls are full, until a vacany should happen, (a) the mandamus being refused, because the Court held such custoia to be ridiculous and void. .] Restoration. — ^It lies not to command a visitor to restore a canon whom he has deprived, for a visitor has an absolute power within his jurisdiction. (a) Canons, Kesidentiart]. Election. — ^It lies to command the filling up a vacancy among the canons residentiary in proper time, and on such a mandamus the Court will compel an election at the peril of those who resist. (6) But there must not exist a remedy in the Spiritual or other Courts, or one by quare impedit.(c) .] Elecion as Dean. — It lies also to command the proceeding to the election and admission of one to be dean, and, if necessary, to elect, collate and admit him to be a canon residentiary, (c?) Canterbury — Court or the City op.] See titles Attornei/ ; Cmrts Inferior. Capital Burgess]. See tit. Burgess ( Capital). [v) E. V. Bristol Dock, 2 Q. B. 64.f S. C. 1 G. & D. 286. R. v. Bristol Dock, 6 B. & C. 181.f S. C. 9 D. & R. 309.+ R. t. Severn Railway, 2 B. & A. 646,t and see R. V. Manchester Railway, 3 G. & D. 269. S. 0. 3 Q. B. 528.+ See tit. "Kail- way." (w) 2 Q. B. 64.f S. 0. 1 G. & D. 286. See ante, p. 24, and tit. "Act of Parlia- ment." 'i- I (x) Clarke v. Leicestershire Canal, 6 Q. B. 899,f and see tit. " Tolls." (y) Clarke v. Sarum (Ep.), Stra. 1081. S. C. Andr. 20. 185. See tit. "Preben- dary, Coxe's case, E. T. 1659, cited in R. t. Stenhowe, 2 Show. 199. U^ R. T. Stenhowe, 2 Show. 199. S. C. Skin. 45. S. C. Sir T. Jon. 199. (a) R. T. Chester (Ep.), 1 Wils. 296. S. C. 1 W. Bla. 21. Broadoaks or Bride- oak s case, H., 12 Anne, there cited, per Wright, J. Philips and Bury, Ld. Kaym. ,,?-^' 2 "^^ ^- 346. S. C. Skin. 447, 4^5. Show. P. C. 35. See tit. "Visitor." (6) Chichester (Ep.) t. Harwood, 1 T. R. 652, per BuUer, J., also cited iuE.T. btenhowe, 2 Show. 200, n. (a), 3rd ed. Chichester's case, Lofft, 253. See tit. "Prebendary." ' ' T y l^o^I'^^^P;,^^' 2®- ^- ''■ St- Peter's, Exeter, 12 A. & E. 525.+ S. 0. 9L. O.J JN. 0. oOSj Q. B. "^lln" ^' ^*' ^^^^^'^ "^^e^er, 12 A. & E. 512.t S. C. 4 P. & D. 253. See tit. OEKTIORARI, ETC. Ill Capital Citizens.] See tit. Citizen {Capital.) Carriers.] Appeal. — It lies to command justices at quarter sessions to enter continuances and hear an appeal against a conviction under stat. 50 Geo. 3, c. 48, s. 4, for carrying more luggage than allowed by the aot.(e) As to the carriage of goods, see' tit. Railway (Goods.) Cathedral Stall.] Admission. — It lies to command an admission to a cathedral stall, and to a voice in the chapter. (/) *Case. See titles Quarter Sessions {Case); Poor {Case), and ante, p. 21. '- -' . Certificate.] Where a power is delegated to grant a certificate, the Court will by mandamus, enforce the due granting thereof. (^) Certiorari.] Where a statute does not allow a removal of proceed- ings by certiorari, the Court will not, by means of a mandamus to justi- ces, &c., commanding them to hear, &c., bring them under review,. (A) But it would seem that it wUl be granted to command justices, &c., to amend their return to a certiorari, by commanding them to return the information on which a conviction is founded, and also to set forth on the face of the conviction, the evidence given touching the entry in the con- viction mentioned; but in such a case there must be proof that evidence was in fact taken, but that it has been set out in the words used by the witnesses, (i) " Chamberlain.] The writ of mandamus lies for the office of cham- berlain(y ). .] Election. — Thus it will be granted to command the proceed- ing to an election of chamberlain under stat. 11 Geo. 1, c. 4, s. 2. (A) .] Admission. — ^It also will be granted to command the bailiffs or other proper officers of a corporation to admit to the office of chamber- lain. (Z) fe) E. T. Essex (J.), 4 B. & A. 276. See tit. "Quarter Sessions," (Appeal). (/) R. T. Dublin (Dean), Stra. 536. S. 0. 1 P. Wms. 348, cited in B. v. London (Ep.), I Wils. 13. See tits. "Dean," " Prebendary." \g) R. v. Canterbury, (Mayor), M., 1 Geo. 1 cited in R. v. London (Bp.), 1 Wils. 13. S. 0. Stra. 1192. But see E. t. Divisional Justices, 1 Al. & Nap. See tits. "Act of Parliament," " Ship," (Certificate, &c.) (A) Ex parte Pratt, 2 N. & P. 102. E. T. "West R. (J.), 1 A. & E. 563.f S. C. 3 N. & M. 802,f cited in E. v. Sheffield Railway, 11 A. & B. 196.f and in R. t. Chelten- ham Commissioners, 1 Q. B. 41'1.-)- See tits. "Game Laws," "Quarter Sessions." (i ) R. v. Wilson, 3 N. & M. VSS.f In re Rix, 4 D. & R. 352.f E. v. Wamford, 5 D. & R. 489,t also cited in 3 N. & M. 'r56.t See tit. " Conviction." (y) Scarborough's case, Stra. 1180. Com. Dig. tit. "Man." (A.) See tit. "Office." (h) Note (y), and post, tit. "Office" (Election), and stat. 6 & 7 Vict. 89, App. (I) R. T. Bridgnoth (BaUiffs), 1 Barn. 53. 112 tapping's mandamus. As to tte office of auditor of chamberlain's accounts, see tit. Avdiior, (Ssc. Chancery, Inn of.] See tit. Inn of Ghcmeeri/. Chapel.] Enrolment. — The writ will be granted to command the enrolment of a chapel under the act for liberty of conscience, (m) Chapelwabdens.] Swearing in. — ^It lies to command the swearing in of chapelwardens by administering to them the declaration required by Stat. 5 & 6 Wm. 4, c. 62, s. 9, and the rule (in analogy with the case of churchwardens) was made absolute in the &st instance, although other persons also claimed to have been duly elected.(») *Chaplain.] Appointment. — ^It lies to nominate and appoint L J a chaplain to perform divine service where the office is a free- hold, with a permanent fund for payment ;(o) and the Court will grant the writ even when it is not clear that the cure is not already full.(^) It lies also to command the guardians of an union to appoint a chaplain pursuant to an order of the poor law commissioners, such chaplain being an officer within the meaning of the stat. 4 & 5 Wm. 4, c. 76, s. 46, in- terpreted by sect. 109. (g') So it lies to command the appointment of a chaplain, pursuant to the terms of a charter, (r) .] Admission. — It lies also to command the admission of a chap- lain, (s) And it lies generally to admit a chaplain where there ia no vis- itor, or no visitatorial power in being, as were the visitatorial power is Buspended by the union of the office of visitor with that, to which the mandamus is to be directed. (<) .] To perform Duties, &c. — It also lies to command justices to permit the chaplain of a county lunatic asylum to perform the duties of his office. But not if he have been subsequently dismissed by such jus- tices, inasmuch as by stat. 9 G-eo. 4, c. 40, ss. 80, 32, they have the dis- cretionary power of appointing and dismissing such chaplm<('u) i fm) B. T. Green, Skin. 670. See tit. " Dissenters." (») Ex parte, Duffield, &c., 6 N. & M. 865.f S. C. 3 A. & E. 617,1 citiiig R. f. Middlesex (Archdeacon), 3 A. & E. 615.f S. C. 5 N. & M. 494.+ Ex parte Pen- ruddock, 1 H. & W. 34T. See tit. "Churchwardens." (o) R. T. Davie and Others, 6 A. & E. 374.+ See tit. '^Parson." As to chaplain of College, see tit. " CoUege" (Chaplain). {p) Note (o). a ^ r ; (?) 4 P. & D. 593.f S. 0. 1 Q. B. 130,-|- supra. R. v. Poor Law Commissioners, 9 A. & E. 911,f there cited and distinguished. {r) R. T. Sandford (Governors), 1 N. & P. 328.^ S. C. "W. W. & D. IJT. E. t. Braintree Union, 4 P. & D. 593. S. 0. 1 Q. B. 130.+ See tit. " Charter," and ante, p. 11. ' o ('^■■^■,7;^S^'^^''' ^""■- l^er. Per Mansfield, C. J. R. v. Chester (Ep.), Stra. 791 See tit. " Office" (Admission). ^ {t) Stra. 797. S. 0. 1 Bam. 52, supra. Com. Dig. tit. "Man." (A.) Seeabo Andrews, 181, and stat. 2 Geo. 2, c. 29. See tit. " Visitor." («) R. V. Middlesex Lunatic Asylum (V. J.), 2 G. & D. 300. S. C. 2 Q. B. 433.t S. C. 11 L. J., N. S., 30, M. C. CHARTERS, ETC. 113 ]. License. — It also lies to command a bishop or other officer to license one to be the chaplain of a gaol, if a proper and fit person to be such chaplain, and he have been refused without cause.('w) Charity]. It lies in some cases to enforce a legal right under a pri- vate institution, as a charity,(«;) as to command a visitor to hear an ap- peal. (x) But where the right is equitable merely, the Court of B. K. will not interfere by mandamus. Thus the Court refused to command the trustees of the Rugby charity to pay increased alms of the claim- ants on the funds, *although the applicants were at an advanced age, and would probably be dead before relief could be had in I- J Chancery. (y) So it lies to command the delivery to churchwardens, or one of thetn, of a key of the coffer or chest containing the writings, accounts, and moneys of and relating to a private charity, but the legal right of the churchwardens to the same must be made out.(2) Thus where in pursu- ance of the will of a private person, his executor by deed, conveyed land to trustees for the benefit of the poor of a parish, the deed provided that a chest to which there should be attached three locks and three keys, should remain in the parish church for keeping all writings, accounts, &c., and the trust moneys remaining unexpended; that one of such keys should be kept by the receiver, the second by the parson, and the third by the churchwardens. It was held that a maodamus lay to the trustees to command the delivery of one key to one of the churchwardens although the application concerned the trust of a charity which was but a private endowment ; the claim of the churchwardens, however, being not merely equitable but legal. Charters.] This writ is the proper remedy to enforce obedience to the Queen's charters, and, in such cases, is demandable ex debito jus- titiae,(a) but not to supply a casus omissus from such charter.(i) As to chartered companies, see titles Amicable Assurance Company } Company. Charter House School.] Restoration of Scholar. — It lies not to (») E. v. Bath (Ep.), 1 D. & M. lli. S. C. 5 Q. B. 147.1 S. C. 12 L. J., N. S. 324, Q. B. See tit. " Lectureship." R. v. Blooer, Burr. 1045. Lord Eaym. 1205, 1206. R. V. Exeter (Ep.), 2 Bast, 462. R. v. Oxford (Ep.), 1 East, 345.' (w) R. V. Ottery St. Mary, 3 G. & D. 382. S. C. 4 Q. B. 157.-|- S. C. 12 L J., N. S., 1 18 Q. B. Ex parte Rugby Charity, 9 D. & R. 214.-|- See tit. " Institutiona" (Private). (x) R. V. Worcester (Ep.), 4 M. & S. 415. See tit. " Blue Coat School." \y) Ante, p. 27. Ex parte Rugby Charity, 9 D. & R. 214.f (z) 3 G. & D. 382. S. C. 4 Q. B. 157.t S. C. 12 L. J., N. S. 118, Q. B. See tit. "Church" (Keys). (a) Ante, p. 1 1, BulL N. P. 199. Cas. temp. Hard. 99 ; Burr. 2189 ; 8,East. 270} Bac. Abr. tit. "Mandamus," 257. See tits. "Acts of Parliament," ^'Chaplain." (b) Ante, p. 31. Bagg'a case, 11 Rep. 99. R. v. Arnauld, 16 L. J., N. S. 50, Q. B. April, 1852.— 8 114 tapping's mandamus. restore a boy to the Charter House, he being but an almsman, and unde the jurisdiction of a visitor. (c) Chester Court of County Palatine of.] — See tits. Attorney/ 'Courts' Inferior. Chiee Burgess.] See tit. Burgess (^Gliief). Chrism.] The Court has by mandamus, commanded a bishop to giy( the chrism, i. e. oil, with which to baptize the parishioners' children, al though the archbishop might have been appealed to.(c^) [ *65 ] *Church.] This subject is arranged as follows : — CauBOH. Keys - - - 65 Burial - - - - 65 Church Trustees - - 65 Duty, &c. - - 65 Church-rate - 65 Making - - - - 65 Chdroh — ^Eates in nature of Churclb. rate - - - ' - 66 Returns - - - 6f Recovery of rate - - - 6J Loans - - - - -61 Rates for payment - 6if Returns - - - 68 .] Keys. — A mandamus lies to command the delivery of the keys of a church.(e) Aa to burial in a church, &c., see tit. Burial. .] GhurcJi Trustees, Duty, &c. — It lies to command trustees under certain acts of Parliament for building a church, &Cr, to attend,, in pursuance of the act, a meeting of the auditors of accounts of the parish, and bring with them, and produce at such a meeting, the book or boob containing an account of all moneys received, and of all moneys paid dur- ing the last half-year.(/) .] Church-Rate, making. — The writ will not, at common law, be granted to command the making, by churchwardens, of a church-rate, not only because it is a subject purely of ecclesiastical cognizance, but also because all that can be legally required of them is that they shall call * meeting of the parishioners, for the purpose of considering the propriety of making a rate j for they have not a legal capacity to make a rate with- out the sanction of the vestry.(5') The Court will, however, grant it to (c) R. V. Wheeler, 3 Keb. 360. See tits. " Blue Coat School," « Charity," "Col- loge." M) R. r. Exeter, (Ep.), Palm. 51, temp. 26 Edw. 3, where see form of Writ, cited in E. V. Coleridge, 2 B. & A. 807 ;f and in R. v. Patrick, 2 Keb. 165, per Mofeton, J.; and in Mr. Amherst's case of Gray's Inn. 1 Vent. 187, cited in R. v. Dublm (Dean), 8 Mod. 28. See tits. " Bi&hop," " Confirmation," " Sacrament" See ante, p. 21. , (e) Anon., 2 Chit. 255.t The Court advised a new key to be got, but attlie time said that if the granting the writ would prevent a breach of the peace, it should be granted. See tits. " Charity," " Corporation, Municipal'' (Insignia, to.) {/) \- "■ St. Pancras, 5 N. & M. 222-1 S. C. 3 A. & E. 535.+ -See also 6 A. » ?.i J^- \''^- ^ ^- ^"''■■t See tits. " Corporation, Municipal" (Duties, te.) (g) R. V. Thetford, 5 T. R. 364 (1 Vent. 367 ; 1 Mod. 79, 194, and' cases there CHTTRCH. 115 command churcliwardens of a parish, or of two united parishes, to assemble a meeting pursuant to a stat. as the 10th Ann. c. 11, for the purpose of ascertaining and agreeing as to the moneys and rates to be assessed for the repair of the church,' &o.(^) It has also been decided that the Court will, by mandamus, command the chapelwardens of a parish to assess a rate for the purpose of levying the proportion of a church-rate, by custom, payable by the inhabitants of the chapelry.(i) But where the majority at a vestry meeting held in pur- suance *of a monition from the Consistory Court to take steps for ^ ^r.„ -. repairing a church, refused to make any church-rate, and there- upon the churchwardens and the minority made a rate, the Court refused a mandamus to the chapelwardens of a township in the parish to compel them to raise their customary proportion of the rate so made.(y) So where a township being part of a parish is called upon by mandamus to pay a definite customary proportion of a church-rate laid for the whole parish, it must appear that the inhabitants of the township were summoned to con- sider the rate, for if the custom require such summons, fulfilment of that requisite is essential, and, if it do not, it is a bad custom. (A;) .] Rate, in the nature of a Church-rate. — The writ, however, lies to command the laying and raising of a rate in the nature of a church- rate, when authorized and required by statute, &c. Thus in a case in which James 1, had granted a rectory to a corporation in trust for a parish, and to pay certain stipends, and bear all charges issuing out of such rec- tory, and afterwards the stat. 22 & 23 Car. 2, absolved the parishioners from the payment of tithes, and enacted that a rate should be made yearly by the parish officers for the payment of stipends, and for church repairs, and by a subsequent stat. 56 Geo. 3, c. 65 (local) it was enacted, that the wardens, overseers, and inhabitants in vestry might make a rate to a largo amount. It was held, on the vestry refusing to make a rate for the above purposes under the last mentioned act, that the Court had jurisdiction to issue a mandamus to command such vestry so to do, because the making of such a rate is not a matter of ecclesiastical cognizance, it being expressly required by act of Parliament. (Z) And the Court will grant such a writ, notwithstanding the act contain a clause reserving all ecclesiastical jurisdic- tion, if it appear from the rest of the act that the temporal Court was cited). R. V. St Margaret's, 4 M. & S. 250. See E. v. Coleridge, 2 B. & A. SOe.f R. V. Wilson, 5 D. & R. 602. R. v. Chester (Ep.), 1 T. R. 396. R. T. St. John (Churchwardens), 16 L. J., N. S. 54, M. C. (h) R. f. St. Margaret's, 4 M. & S. 249, 252 ; and see 5 T. R. 364. Supra, also 5 A. & E. 584.-J- S. C. 1 N. & P. 56.t R. v. St. Margaret's, 8 A. & E. 889. S. P. 1 P. & D. 116. See tit. "Act of Parliament." (i) R. T. Thomas, 3 G. & D. 485. S. C. 3 Q. B. 589.-|- S. C. 11 L. J., N. S. 295, Q. B. R. T. Dalby, 3 Q. B. 602.f See tit. " Custom." (J) R. V. Thomas, supra. R. v. Pickles, 3 Q. B. 599,t n. (a). S. C. 12 L. J., N. L. 40, Q. B. . (k) R. T. Dalby, 3 Q. B. 602.f (l) R. v. St. Saviour's (Wardens), 1 N. & P. 496.t S. C. 3 N. & P. 126. S. C. 7 A. & E. 925,-f- where see form of writ, Return, &c.; and see ante, p. 22. See tit. •'Act of Parliament." 116 tapping's mandamus. intended to have at least concurrent jurisdiction; for if an act of Parlia- nient impose a temporal duty, it is incumbent upon the Court of B. E. to enforce a performance of it,(m) so that where such an act directs a body created by it to levy church-rates, the Court of B. R. will command it, by mandamus to levy the rate, and will not confine the writ to the ordering it to assemble for the purpose of determining whether it will levy the rate or not, as in those cases where the legal capacity to make such a rate remains as at common law.(w) The Court will not require the making and levying of a rate which is illegal, &c. Thus, inasmuch as a rate to reimburse churchwardens, such sums as they have expended, or might thereafter expend, on the parish church, would be bad on the face of it, as in part retrospective, the r *67 1 *^''"'''' •'f •^- ^- "^^^^ ^°^ grant a mandamus commanding them to make such rate.(o) .J Returns. — A return to such a writ, shewing the state of the church, is good.(^) So inasmuch as churchwardens are by law bound to supply estimates to the parishioners in vestry, of the probable amount required for a church-rate, therefore where a local act substituted a special vestry for the parishioners at large, and authorised them to make church- rates, poor-rates, and highway-rates, and the Court of B. R. had issued a mandamus to the select vestry to make a church-rate, it was held that the return of a refusal of the churchwardens to supply any estimates was a sufficient excuse for disobedience to the writ, and, therefore, a good return, as the local act contained nothing to alter the general duties of church- wardens. (5) .] Recovery of Rate. — The writ lies to command justices, &c., to meet and examine into a complaint by one churchwarden against an inhabitant for refusing to pay a church-rate, and to hear and determine such complaint,(r) although in a parish where there are several church- wardens, each usually acting for a separate district, for one churchwarden may legally lay a complaint, under stat. 53 Geo. 3, c. 127, s. 7, against a resident in his district for non-payment of church-rates. (.s) So it lies to command quarter sessions to enter continuances, and hear an appeal against a church-rate. (/) So it lies to command justices to issue their distress warrant to enforce the payment of a church building-rate, levied in pursuance of a local act.(M) It was, however, before the passing of the late stat. 6 & 7 TvA. (m) R. V. St. Margaret, 1 P. & D. 116. S. C. 8 A. & E. 889.+ S. C. 2 P. 4R 510. S. C. 1 W. W. & H. 6'?3. See ante, p. 30. (re) 8 A. & E. 899.t S. C. 1 P. & D. 116. Supra, see ante, p. 65. (o) R. V. Haworth, 12 Bast, 555. Ip) 7 A. & E. fST,! note, per Lord Denman, C. J. See post, tit. "Return." (?) R. V. St. Margaret's, 2 P. & D. 510. (r) R. y. Wrottesley, I B. & Ad. 648.+ R. v. Freeman, 2 Ld. Ken. 19. B' '■ Lancash. (J.), 10 L. J., N. S. 103, M. C. (s) R. y. Fenton, 1 G. & D. 11. S. C. 1 Q. B. 480.t (i) R. V. StaiFordsh. (J.), 6 N. & M. i11.\ S. C. 4 A. & E. 844.+ See tit. " Appeal." («) R. V. Buckinghamsh. (J.), 1 N. & P. 503,t and cases there cited. CHURCHWARDEN. 117 c. 67, s. 3, a rule with the Court to refuse the writ in those cases where the jurisdiction of the justices was doubtful ; and it has been held not to bo BufiScicnt freedom from doubt, that the rate sought to be enforced has been confirmed in the Consistorial Court,, although it did not appear that such question was any longer depending,(t;) for if the validity of the rate had at any time been questioned, the Court would not interfere. But at such last-mentioned statute in terms grants an entire. indemnity to those who legally execute the command of a mandamus, it is apprehended that the Court will in future be more liberal in its dispensation of the writ. .] Loans, &c. ; Rate for Payment. — The writ has often been granted to command churchwardens to make and raise one or more rates, for the repayment of principal money, with interest, borrowed on the cre- dit of the *parish and church-rates, under and conformably with ^ ^„r. -. the Church Building Acts, 58 Geo. 3, c. 45, and 59 Geo. 3, c. '- ^ 134,(jo) for the making of such a rate is authorized and required by such acts ; and, therefore, although it be raised for the purpose of repairing the church, and in the nature of a church-rate, yet, in fact, as the inhabitants have assented to borrow money on the credit of the rates, the making a rate to pay a debt is not a matter of ecclesiastical cognizance, but a tem- poral duty, (a;) .J Returns. — The return to such a writ may consist of any facta which traverse the supposal of the writ, or which shew illegality in the security charging the rates, either by means of fraiid, or by the absence or impropriety of any of the statutory requisitions, &c., or that the loan was not raised at the time the repairs were done for the laying of the rates ; for the repayment, &c., should commence immediately, and be continued, so as to pay off the debt by ten annual instalments. (,y) So any special agreement with the prosecutor, if an answer to the writ may be properly the subject of a return. (2) But it is no answer to such a writ, that the applicant may proceed at law upon a bond given as a collateral security, for that does not affect the rates, (a) Chtjrch Kate.] See tit. Church. Churchwarden.] The writ of mandamus does not lie where the place (») R. T. Sillifant, 4 A. & E. 354.t S. C. 5 N. & M. 641,f but see tit. " Quarter Sessions, Justices," and stat. 6 & 7 Vict. c. 6T, s. 3, App. {w) E. V. Brancaster (Churchwardens), 2 N. & V. 580. S. C. T A. & E. 458,t where see form of writ, pleadings, &c. R. v. Duraley (Churchwardens),' 5 A. & E. lO.f S. C. 6 N. & M. 333.t E. T. Pembroke (Churchwardens), 5 A. & E. 603.f S. C. 1 N. & P. 69.-|- And see R. v. Brighton (Churchwardens), 1 N. & P. 115.\ S. C. 6 A. & B. '794.1 See tit. " Parish." (x) R. V. Lambeth (Churchwardens), 2 B. & Ad. 651.^ And see IP. & D. 123, per Lord Denman, C. J. See ante, p. 66. (y) R. V. Dursley, 5 A. & B. lO.f S. C. 6 N. & M. 333.t R. v. Lambeth, 2 B. & Ad. eSl.-j- R. v. Carpenter, 6 A. & E. 1M.\ S. C. 1 N. & P. 775. See post, tit. " Return." (z) See R. v. Pembroke (Churchwardens), 5 A. & E. 603.f S. C. 1 N. & P. 69.t (a) 5 A. & E. 13,j- per Coleridge, J. 118 tapping's mandamus. is one of mere service ; but in the case of a temporal office, as tliat of churchwarden, it does,(6) he being both a public and a temporal officer,(c) his office being one of temporal trust, and concerned in the execution of justice, and whereof the common law takes notice, (d) for he has, amongst other things, the ordering of the goods of the church, (c) His office has also been enlarged by sundry acts of Parliament.(/) It has, however, been held that the writ does not lie for churchwardens r *fiQ 1 *V^^ ^^ ^y order of the bishop, parson, or ecclesiastical law, but ^ only of those elected according to the custom, &c.(^) This subject is arranged as follows : — CnUBCHWARDENS. Election Appointment Admission Swearing in - Returns Pauperism Labourer Incapax. Iniiibition .] Election. — The writ lies to command the rector and Church- CHUKCHWABDEjf — Lw pendens T: 69 Non fuit electus - - n 10 Eule - IS 10 Form of writ 13 70 Restoration n 10 Accounts ■t 11 Allowance 11 Reimbursement u 12 Inspection, &c. n 12 Auditors of accounts 74 wardens of a parish to convene a vestry for the purpose of electing church- wardens j(^) also for electing churchwardens for the remainder of the year.(t) So it has been granted to command the inhabitants of a parish liahlc to contribute to the church-rate, to meet and assemble together with the minister, in order to elect churchwardens ;(_/) and where, to such a man- damus, the return stated an immemorial custom in the parish to have no churchwarden, and that the duties appertaining by law to the office had been from time out of mind discharged by the overseers of the poor, it was held, that inasmuch as overseers had not existed time out of mind, lb) R. T. Raines, 3 Salk. 233, 11, 13. See post, tit. " OflSoe." (c) See R. T. Canterbury (Archbp.), 8 East, 218 ; 4 Vin. Abr. 525, pi. 4, in maig. Anon., Preem. 21. He's case, 1 Vent. 143, 267. And see Hurst's case, 1 Lev. J5, and 2 Sid. 112. R. v. Rich, Comb. 147. Bishop's case, 2 RoU. 71. Cas. t. Hard. 379. (d) Estwick T. London (City), Sty. 42. And see Sty. 458, citing 12 Hen. I Leigh's case, 3 Mod. 335. R. v. White, Ld. Raym. 1379. (e) R. V. Kingscleere, 2 LeT. 18. (/) Anon., 1 Vent. 267. Hughs v. Needham, 3 Keb. 418. See tit. "Act of Parliament." (if) 6 Hen. 7, 14, cited in R. v. Apleford, 2 Keb. 863. See R. v. Patrick, 2 Keb. 67. See tit. " Custom." (h) R. T. Dr. D'Oyly and Others. R. T. Hedger, 4 P. & D. 52. S. C. 12 A. & E. 139,t contra, Anon., Stra. 686. Com. Dig. tit. "Man." (B.) R. t. Westminster, 5 A- o d' f^l'J ^' "' ^^'■™'"gliam (Rector, &c.), 7 A. & E. 254.+ R. v. Wix (InhabB.), ,7,,^ ^ , •■'' S'""er T. Freston, Str. 52. See tits. "Office," (Election,) "Over- seer," "Parish," " Sidesman." I V 1/ ^ (i) R. V. Lambeth, 3 N. & P. 416. S. C. 8 A. &. E. 356.t S. C. 9 L. J., N. S. 113, (J) R. V. Wix (Inhabs.), 2 B. & Ad. 197.+ Sutter v. Freston, Str. 52. OHTJUCHWARDEN. 119 and as there were necessary duties appertaining to churchwardens, and there must have been some persons hound by law to discharge those duties, the custom set out in the return was bad. (A;) So the writ will be granted where there is an election de facto, bnt which is void. So, if the election be so improperly conducted that the proceedings are merely prima faci void, the Court will, in order to try its validity^ grant a mandamus to convene a meeting to elect, &c., because, for the office of churchwarden, quo warranto doe? not lie.(?) But in one case where, although it was stated that the doors were closed during the election, yet it did not distinctly appear that any rated inhabitant was excluded from *voting, the Court refused to grant a mandamus for a r^KirA-i fresh election ; but if such exclusion had appeared, the Court would ^ have granted the writ, without inquiring strictly whether the number of per- sons excluded were, in fact, such as to affect the result of the election. (m) So it has been granted to command parish officers to produce the rate and other books at the scrutiny of a poll which had been taken at the election of churchwardens, (re) .] Appointment. — The writ has been granted to command justices of the peace to appoint churchwardens and overseers of the poor in an ex- tra parochial place, upon an affidavit that there was much occasion for such officers, in order that poor-rates to relieve the poor, might be made.(o) .J Admission. — The Court of B. E. is in the constant habit of granting the writ, in order to command the admission of a churchwarden to the duties of his office ;(p) and if two be elected, both must be admit- ted, and cross mandamuses will be granted for that purpose,(2) because the office is not the subject of a quo warranto information. (r) .] Swearing in. — So, in like manner, the writ is constantly grant- ed to command the swearing in of a churchwarden ; for, although it has been resolved that he may execute his office before he is sworn, yet it is convenient he should be so sworn. (s) So it has been granted to swear in (k) 2 B. & Ad. 191,\ supra. , (l) R. v. Birmingham, 7 A. & E. 254.f R. t. Derby (CounciUors), 1A.&JS. 422.^ See tit. " Office," (Election). Ante, p. 27. (m) R. V. Lambeth, 3 N. & P. 416. S. C. 8 A. & E. 356.f (n) R. T. Fall, 1 G. & D. 118. S. C. 1 Q. B. 636.t See post, tit. "Office." (o) Anon., P. 2 Geo. 2; 1 Barn. 155. (;;) R. T. Williams, 8 B. & C. eSl.f S. C. 3 M. & R. 402 ; see form of writ. R. v. Middlesex (Ajrchdeacon, kc), 5 N. & M. 494.-t- Anon., 2 Chit. 254.f Trem. PI. Cor. 469, where see form of writ. (y) R. T. Harris, Burr. 1420. S. C. 1 W. Blac. 430, where see form of writ. Com. Dig. tit. "Man." (D. 4). See infra. "Swearing in," and tit. " Office," (Admission). Tr) See ante, p. 26, 29. (s) 3 Bl. Com. 111. Northampton's case, Carth. 118. R. t. ReeSj Carth. 393. S. C. 5 Mod. 325. S. C. Comb. 417. S. C. 12 Mod. 116. R. T. Henchman, Cas. t. Hard. 130. Carpenter's case, Raym, 439, where see direction of writ, and see return. Anon., 1 Vent. 115. R. v. Dr. Harris, 1 W. Blac. 429. S. C. Burr. 1420, where sec form of writ. Patrick's case, Raym. 111. Anon., Freem. 366. R. v. Twitty, 1 Mod. 83. S. C. 2 Salk. 433. S. 0. Holt, 442. Love v. Dr. Bentlv, 11 Mod. 134. StoughtOQ T. Reynolds, Cas. t. Hard. 274. S. 0. Fort. 168. S..G. Stra. 1045. Hubbard v. Pen- rice, Stra. 1246. R. v. Harwood, 8 Mod. 380. S. C. Ld. Raym. 1405 ; the authority of the report of this case in 8 Mod. Ls impugned, and that in Ld. Raym. 1405 upheld ; 120 TAPPING'S MANDAMUS. a second *churcli warden, (0 whether chosen by the parishioners',(K) t^lj either by an election according tocustom,(t;) or by the parishioners, who of common right may make the election. (w) The writ for this purpose will be granted against a bishop, his deputy, an archdeacon, or other competent judge in that behalf, whose duty it is to swear in, &c. ;(x) and this, although there be another churchwarden peaceably in possession of the o£5ce, for such second churchwarden is not otherwise enabled to try his right to the office, (y) it not being the sub- ject of quo warranto(2). The duty of swearing in, is ministerial merely. (a) .] Return, Pauperism, Labourer, &c. — It is because the duty of swearing in a churchwarden is ministerial merely, that no excuse for the nonperformance of it, can be the subject of a valid return to a writ com- manding it. Thus, a return that the prosecutor was a " pauper lactarius (a poor dairyman) et servus et minus habilis et idoneus ad exequendum officium praeJictum," has been held to be bad. So a return that the pro- secutor is " servus," has been held not to be good, upon the principle that the person whose duty it is to swear in, is, for that purpose, a minis- terial officer merely, and cannot refuse to exercise his office,(6) nor inquire see R. v. Williams, 3 M. & R. 405, per Bayley, J. R. v. Chester (City), 5 Mod 11; Fitz. 195 ; Ld. Ray m. 1495. Parish of St. Balaunce's case, Palm. 50 ; the report says, "a special ^rrit was prayed, — ^it.is however clear, that such writ was a mandarauB, as it contained the alterative clause, ' vel coram nobis significet quare non,' &c.," ante, p. 6. R. v. Rice, 5 Mod. 325, and cases there cited. S. C. 12 Mod. 116. S. C.3 Salk. 90. S. C. Comb. 417. S. 0. Cxjrth. 393. S. C. Ld. Raym. 138. Leigh's case, 3 Mod. 335; Burr. 1421. S.C. 1 W. Blac.430. R. v. Simpson, 8 Mod. 325. S. C.Strs. 609. R. V. White, Ld. Raym. 1379 ; March, 101. R. v. Oxenden, 1 Show. 219. R. v. White, 8 Mod. 325. R. v. Ward, 1 Barn. 381. Morgan v. Cardigan (Archdeacon), 1 Salk. 166. S. C. Ld.Raym. 138. Anon., 2 Chit. 254.t Ex parte Lowe, 4 D.15. E.t. Chester (Archdeacon), 1 A. & E. 342.f S. C. 3 N. & M. 413. Ex parte Wingfield,3 A. & E. 614.t R. V. Middlesex, 3 A. & E. 615.f S. C. 5 N. & M. 494 ■[• Ex parte Duf- field, 3 A. & E. 617.t See Campbell v. Maund, 5 A. & E. 876.^ R. v. Litchfield (Archdeacon), 5 N. & M. 42.f Trem. pi. Cor. 469, where see form of writ. Bac. Abr. tit. " Man." (C). See tits. " Chapelwardens," " Sidesman." [t) Dr. King's case, 1 Keb. 517, citing Warner's case, 15 Car. 1, Rot. 44. S. C. 1 Keb. 521. See tit. " Office" (Swearing in). (») R. V. Patrick, 2 Keb. 66, citing Sutton Tallance's case, T. 17 Jac, March, 15 Car. 1, and H. 17 Car. 1, there cited. See also 2 Lut. 1010, where see the sugges- tion, writ, and traverse. (y) PolhiU V. Blany, 2 Keb. 753. R. v. Guy, 6 Mod. 89, and cases there cited. The Bishop's case, 2 Roll. 106, 107. Evelin's case, Cro. Car. 551, 589. S. C. Jonea, 439. S. C. 2 Roll. Abr. 234. And see R. v.Rushworth, W. Kely. 287. S. C. 7 Mod. 217; March. 22, 66; Noy, 31. Catten v. Barwick, Stra. 145. Hubbard v. Penrice, Stra. 1246. Anon., 1 Vent. 267. Hughs v. Needham, 3 Keb. 418. Per Glyn, C. J., in 2 Sid. 112. (w) Morgan v. Cardigan, 1 Salk. 166. S. C.Ld. Raym. 138; Noy, 139. WardT. Brampston, 3 Lev. 362. Dawson v. Fowle, Hard. 378. (x) R. V. Winchester, 7 East, 573. R. v. Dr. Harris, 1 W. Blac. 429. S. 0. Bun. 1420. R. T. Williams, 3 M. & R. 402. Hughs v. Needham, 3 Keb. 418. (y) See Dr. King's case, 1 Keb. 517. S. C. 1 Keb. 521. See supra, "Admission." Iz) See tit. "Office" (Election), ante, p. 69. (a) R. V. Rees, 12 Mod. 116. S. C. Ld. Raym. 138. R. v. Williams, 8 B. & C. eSl.f 8. C. 3 M. & R. 404. R. T. White, Ld. Ravm. 1379, cited and approved upon this point in R. v. Simpson, Stra. 609, 894. R. V. Harris, Burr. 1420. S. C. 1 W. Blac. 430. (6) 12 Mod. 116. S. C. 3 Salk. 90. S. 0. 5 Mod. 325. S. C. Comb. 417. S. C. CHURCHWARDEN. 121 *into the ability, &o., of the party elected ; nor return that such party is incompetent to act; nor try the validity of the votes; for, it is t '^1 argued, why should such ministerial officer be judge, rather than those who are most concerned in interest, namely the parishioners? and it is not to be presumed, that the ordinary, archdeacon, &c., will take more care to put a fit and able person into this office, than they who have the power to choose, and are answerable for, him.(c) .] ■. Inhibition. — So a return by an archdeacon, that before the coming of the writ, he received an inhibition from the bishop, with a signification that he had taken upon himself to act in the premises, is bad.(rf) .] . Lis pendens is not a good return to such a writ. Thus, •where the Ecclesiastical Judge returned cross causes, depending before himself, contesting the right of election, and that ho could not admit and swear them until it should have been judicially determined that they were duly elected; such return was adjudged bad, on the ground that both writs ought to have been obeyed, for such a course would not prejudice the right of either claimant. («) .] Non fuit electus. — So to such a mandamus to swear in, &c., it would seem that formerly a return of quod non fuit electus generally, because the ordinary could not judge of the election, was bad.(/) But it has since been held, that if the writ contain the usual suggestion that the prosecutors were duly elected, &c., the officer may, at the peril of an action, return, that the prosecutor was not duly elected, and thus raise the question in an action for a false return,(i;') and such a return cannot Carth. 393. S. C. Ld. Eaym. 138. S. C. 1 Salfc. 165, 5, 166. Bac. Abr. tit. "Man." (C). Assuming, for the sake of argument, the ordinary to be the judge of the fit- ness of him elected churchwarden, yet the returns above stated would, it is appre- hended, be insufficient in substance, for pauperism is no ground of disqualification : thus the Roman Law, Inst. 1, 26, s. 3, " suspectum enim eum putamus, qui mori- bus talis est, ut suspectus sit : enimvero tutor vel curator, quamvis pauper est, fide- lis tamen et diligens, removendus non est quasi suspectus." The same rule obtains in equity, a trustee not being removable simply on account of poverty. See tits. "Administration," "Will." (c) R. V. Rice, 5 Mod. 326. S. C. 1 Salk. 166, and cases there cited. R. v. Dr. Henchman, Cas. t. Hard. 130, n. (a) ; Burr. 1423. S. C. 1 W. Blac. 430. The strict- ness of the doctrine, as stated in the text, would seem by subsequent cases to have been somewhat relaxed ; see infra, " Non fuit electus." (d) R. V. Simpson, Stra. 609. S. C. 8 Mod. 325. S. C. Ld. Raym. 1379. R. v. Df. Henchman, Cas. t. Hard. 130, n. (i). See also Stra. 640. R. v. Dr. Ward, 1 Bar- nard, 381. Com. Dig. tit. "Man." (D. 4.) See tits. "Inhibition," " Registrar," (Re- turn. (e) See ante, p. 23. R. v. Harris, Burr. 1421. S. C. 1 W. Blac. 430. E. v. Eeynell, T. 8 & 9 Geo. 2; Cas. t. Hard. 130, n. (1). Carpenter's case, Raym. 439. R. v. Middlesex, 5 N. & M. 494 ;t F. g. 195 ; Ray. 440. Com. Dig. tit. " Man." D. 4. See tits. "Administration" (Return, Lis pendens), " Office," (Election), "Will," (Re- turn, Lis pendens). (/) Com. Dig. tit. "Man." D. 3, 4. R. v. White, Ld. Raym. 1379. S. 0. 8 Mod. 325. R. V. Williams, 8 B. & C. 681.f R. v. Harris, Burr. 1420. See Stra. 894, 895. (ff) R. V. Williams, 3 M. & R. 402. S. C. 8 B. & C. 681.t R. v. White, Ld. Raym. 1379. S. C. 8 Mod. 380, 325, n. (a). R. v. Harwood, Ld. Raym. 1405. Anthony v. Leger, 1 Hagg. 10, cited in R. v. Middlesex, 5 N. & M. 494,f n. (a), c. Com. Dig. tit. "Man." D. 4. See tits. "Return" (Traverse), "False Return," (Traverse.) Cas. 122 TAPPING'S MANDAMUS. be quashed for insufficiency. (A) For it seems that where the ordinary knows that the party applying to be sworn, &c. has no legal title to tie p:^Yq-I office, it is- *less objectionable to return non debito mode electne, than to administer an oath under circumstances which render it idle and inoperative, (i) In fact, such a return may now be considered to be good, As to the form of the traverse ; if the writ be to admit two chnrch- wardens " debito modo electi," the return will be sufficient if it say, " non fuerunt debito mo.do electi," for both must have been so elected, or the writ is insufficient. (/) So, if the writ be generally "to swear thoBe that are chosen," a general return that " they were not chosen," is good. So, if the writ set forth specially that they were chosen " debito modo," a return that they were not chosen "debito modo," is good; but gaeha return to a general writ has been held to be bad,(A) for a return of "not duly elected" cannot be made to a writ which merely states that " they were elected."(Z) But if the writ recite that " they have been duly elected," then, as before stated, such a return is good.(m) . Rule. — The rule for a mandamus to swear in a churchwarden is absolute in the first instance, where there is no rival candidate (though others claim to have been elected,) and no reason is assigned for the re- fusal to administer the oath, because a mandamus to swear in merely, does not confer any title.(M) But the applicant should be prepared with an affidavit of his due election, demand, and refusal, and of notice to the defendant of the application to the Court; the ground of refusal need not, however, appear by the affidavit in support of the rule.(o) . Form of writ. — The same writ may command the admission of two churchwardens. (j>) t. Hard. 130, n. (1). E. t. Comvall (Corp.), H Mod. 174, n. fe). R. v. LMnbert, 12 Mod. 3. Austin v. Gervas, 2 Barn. 242. B. t. Twitty, 2 Salk. 434. Fitz. 195. Stra. 895. S. C. 1 Bam. 412. (h) 3 M. & K. 402. S. C. 8 B. & C. 681,+ supra. See ante, p. 6, and post, tit. "False Return." (i) B. V. Middlesex, 5 N. & M. 49'7,-f- n. (a). Cas. t. Hard. 130, n. (1) j Ld. Raym. 1405, and also 1379. See ante, n. (g). (/) R. V. Twitty, 2 Salk. 434. S. C. 7 Mod. 83. S. C. Holt, 442. Com. Dig. tit. " Man," D. 3. B. t. Chester (City), 5 Mod. 11 ; Fitzg. 195, Ld. Raym. 1495. R. V. Lyme Regis (Mayor), Doug. 79, 80. Hubbard v. Penrice, Stra.' 1245 ; bnt see B. v. Guise, 3 Salk. 88. S. C. Ld. Raym. 1008. S. 0. 6 Mod. 89. See tit "Return," "Traverse," post. (*) See n. (y), supra. R. v. Guy, 6 Mod. 89. S. C. Ld. Raym. 138, 559, 1008, Com. Dig. tit. " Man." (D.) {I) R. T. Guy, 6 Mod. 89. S. C. 3 Salk. 88. S. C. Ld. Raym. 1008. R. t. Twitty, 7 Mod. 83. S. C. 2 Salk. 434. R. y. Taunton, Cowp. 413. R. v. Hench- man, Cas. t. Hard. 130. Com. Dig. tit. " Man." (A.) See post, tit. " Return." (m) R. T. Williams, 8 B. & C. 681, 682, 683.t S. 0. 3 M. & R. 402. R. v. Twitty, 2 Salk. 434. See post, tits. " Return," " Plea," " Traverse." (») R. T. Litchfield, 5 N. & M. 42.t S. C. 1 H. & W. 463 ; Anon., 2 Chit 254.+ Ex parte Lowe, 4 D. 15, and n. (a). Ex parte Winfield, 3 A. & E. 614.+ Ex parte Duffield, 3 A. & E. 6l7.t Anon. 2 Chit. 254.+ Ex parte Penruddock, 1 H. ftW. 347. See tit. Ind. " Effect of Mandamus." (o) 3 A. & E. 614 ;t 3 A. & E. 618,+ supra. See tit. "Application" (Notice), (Demand and Refusal.) (p) B. V. Twitty, 2 Salk. 434. See Ind. tit. " Mandamus" (Mandatory Clause). ' CITIZEN. 123 .] Restoration. — The writ will also be granted to restore a church- warden who had been improperly removed from his ofl5ce.(g') .] * Accounts, Allowance. — It lies to command justices to , ^,,. -, examine and allow churchwardens' accounts, in pursuance of stat. 50 Geo. 3, c. 69, s. !.(?•) .] Reimbursement. — ^Inasmuch as a rate to reimburse church- wardens such sums as they had expended, or might thereafter expend, on the parish church, would be bad on the face of it, as in part retrospec- tive, therefore the Court of B. K. wiU not grant a mandamus to make such rate.(s) .] Accounts, Inspection, &c. — ^It lies to command churchwardens to allow an inspection of their accounts, under stat. 17 Geo. 2, c. 38, s. 1, but the applicant must state and show some public ground for desiring such inspection ; and this, notwithstanding sect. 14 of the act, imposes a penalty upon churchwardens wrongfully refusing an inspection.(<) So it lies to command quarter sessions to hear and determine a complaint against ex-churchwardens for not signing, passing, and delivering their accounts, pursuant to stat. 17 Geo. 2, c. 38. But the defendants may show that they have, in fact, signed, &c., their accounts.(M) .] Auditors of Accounts. — So it will be granted to command churchwardens to assemble the parishioners in the manner required by their parish act, in order to elect auditors of their accounts.(v) Citizen.] Admission. — ^By stat. 12 Geo. 3, c. 21, s. \,{u>) it is en- acted, that where any person entitled to be admitted a citizen, &c., of any city, &c., shall apply to the mayor, &c., to be admitted, and the mayor, &c., shall not admit him within one month after notice, a mandamus shall issue to compel him so to do, and he shall pay all costs. See, however, the important provisions of the subsequent statute of 6 & 7 Vict. c. 89(a3) on this subject. .] Restoration. — ^It lies also to restore a citizen to his franchise (?) The Protector and Craford, Sty. 45T, per Glyn, 0. J. ; and see R. v. Patrick, 1 Keb. 610. S. C. 2 Keb. 66. Evelin's case, 1 Cr. 397; 2 Inst. 623 ; 2 Sid. 112 ; Vent. 143 ; 3 Mod. 335 ; 5 Mod. 325 ; Bac. Abr. tit. " Man," C. See tit. " Office" (Restoration). (»■) R. V. Cambridge (J.), 8 D. 89. See tits. " Act of Parliament," " Highway" (Surveyors' Accounts), " Orerseers." (s) R. T. Haworth, 12 East. 555. See ante, tit. " Church" (Rate); (t) R. T. Clear, V D. & R. 393.-|- S. C. 4 B. & C. 899.t R. t. Clapham, 1 Wils. 305. R. v. Bletshow, 1 Bott. 300. Com. Dig. tit. "Man." (D.) See tits. "Act of Parliament," "County" (Accounts). (tt) B. T. Worcestersh. (J.), 3 D. & R. 299.t See R. v. Carrocke, 1 Bott. P. L. 299 ; Show. 295. (v) R. T. St. Pancras, 1 A. & B. SO.f See tits. " Act of Parliament." " Parish." \w\ See stat. App. \x) See stat. App. R. v. Ld. Montacute, 1 W. Blac. 64. S. 0. 1 Wils. 283. See tits. " Franchise," " Freedom," " Freeman," " Office," (Election) ; and see stat. 6 & 7 Vict. c. 89, App. 124 tapping's mandamus. if he be improperly deprived.(y) Thus, if he be disfranchised for refus- ing to stand to the award of two aldermen as to an action.(2) .] Capital; Restoration. — So it lies to restore to the office of capital citizen. (a) *CiTY.] See tits. Borough; Corporation {Municipal) ; Franchise; L J Freedom; Freeman. City Works, Clerk of.] — It lies for the office of clerk or surveyor of the city of London works. (6) .J Restoration. — It lies also to restore to such office, it being one for life, with fees and profits, also an ancient office, and one of public benefit, the sworn duty being to. survey and view the walls and gates of the city, and to employ men in repairing the breaches and defects as often as they shall happen, and to cleanse the fountain heads, and to have the custody of the keys of all the conduits. He is also sworn in to duly ex- ecute his office by a particular oath, and he also takes the oath to govern- ment.(c) Clerk or Butchers' Company.] See tit. Butcher^ Company. Clerk of City Works.] See tit. City Works, (^Clerk of). Clerk of the Crown.] See tit. Secondary of Cleric of the Crown. Clerk of Gustos Brevium.] See tit. Cmtos Brevium. Clerk of Dean and Chapter.] See tit. Bean and Chapter. Clerk of the Fines in the Marches of Wales.] See tit. Marches, &c. Clerk of Guardians of Poor.] See tit. ffuardians of Poor. (y) Middleton's case, 3 Dyer, 332 b. 333, pi. 28. Although it would appear from this report that the case was moved in the C. B., yet the writ was awarded from the Court of B. R., per Dodderidge, J., 3 Dyer, 332 n. Bagg's case, 11 Rep. 93. S. C. 1 Roll. 173, 224. Philips v. Bury, 4 Mod. 122. S. C. 2 T. R. 355. h) Middleton's case, 3 Dyer, 332 b. 333, pi. 28, and cases there cited. [a) R. V. Carlisle (Mayor), Fort. 200. [b) R. y. Lee, 1 Show. 252, citing Cock's case, 2 Sid. 112 (which book, per Dol- bin, J., " is fit to be burned, being taken by him when a student, and unworthily done by them that printed it:" per Somers, S. G.) See Middleton's case, 1 Sid. 169 ; 5 Com. Dig., Bvo. edit. 21. [c) Le Case del Clark de City Works de Londres, 2 Sid. 112. This point was not, however, determined in this case, for the Court not being fully advised as to the nature of the office, left the case to be moved again ; but see R. v. London (Mayor), 3 T. R. 182, n.(6), cited also in Mr. Leigh's case, 3 Mod. 334, u. [g) See B. T.Lon- don (Aldermen), 2 Barn. 398 ; Bac. Abr. tit. " Man." C, as to the further duties of the office. COLLEGE. 125 Clerk of Justices.] See tit. Justices {Clerk). Clerk op Land Tax Commissioners.] See tit. Lcmd Tax Com- missioners. Clerk of Masons' Company.] See tits. Masms' Company ; Com- pany [Clerk). Clerk of Parish.] See tit. Parish Clerk. *Clerk of Peace.] See tit. Peace ( Clerk of). r*~fi1 Clerk op Private Companies.] See tit. Company ( Clerk). Clerk op Turnpike Trustees.] See tit. Highway ( Clerk). Clerk op Vestry.] See tit. Vestry Cleric. Clerk op Vill.] See tit. Vill. Clerk of the "Waters, London.] See tit. Mint. Clothmakers' Company.] See tits. Company; Freedom (Com- pany). Colchester Corporation Court of.] See tits. Attorney: Courts Inferior. Colchester, High Steward of.] Swearing in. — It lies to com- mand the swearing in of tlie high steward of Colchester, for he is a pub- lic officer.(c/) Colleg^.] This subject is arranged as follows : — College College Chaplain - . - 76 Swearing in 79 Fellows « . 77 Restoration 79 Election - _ . - 77 Member - 79 Admission _ _ 77 Admission 79 Expulsion . - 77 Oaths - - 80 Apjjeal . - - 78 President 80 Restoration . - 78 Provost - 80 Librarian _ « - 79 Scholarship - 80 Admission . - - 79 Seal 80 Master - _ _ - 79 Vice Master - - 80 Appointment - - - 79 Election, &c., or - - 79 Admission - . - 79 Visitor 80 Jurisdiction of - 80 Deprivation - - - 81 (rf) Anon., M. 1652; Sty. 355. See tita. "Stratford-upon-Avon Stewrad," " Steward." 126 TAPPING'S MANDAMUS. A college is a civil corporation, of which, if no visitor be specially appointed, the founder, and his heirs are clothed with that office. .] Chaplain. — The writ does not lie, either to command the admission or restoration of a College chaplain, because he is under the dominion of the visitor, (e) to whom an appeal must be made. .] *Fcllows, Election. — The Court has both granted(y) and refused the writ of mandamus to command the visitor to deter- mine the disputed election of a fellow, (gf) .] Fellows' Admission. — The Court of B. K. will, it seems, grant a mandamus to admit to a fellowship of a College, and has often done so. (A) Thus the stat. 1 Geo. 1, s. 2, e. 13, concerning the abjuration oaths, orders visitors to admit others in the room of nonjuring fellows, and on a refusal to admit, the Court will, in such a case, grant the writ,(i) and therefore the Court requires the fact and jurisdiction of the visitor, if any, to be shewn on the return, and will not supersede such a writ on motion and affidavits ;(/) but if by the return it appear there is a visitor, the Court will not grant a peremptory mandamus ; although formerly in the case of colleges that were of royal foundation, and no visitor was ap- pointed, the Court granted the writ ; but in the case of private founda- tions, it was always doubted whether the writ could be awarded, admit- ting that no visitor was appointed by the statutes. (A) And the peremp- tory writ will be denied where a visitor is returned, although such return does not show that there was a visitor at the time of refusal to admit, &c., or that his authority extended to admit or refuse admission to fellows.(/) .J Fellows, Expulsion. — Although there is a judgment of Lord Hale,(m) in which he states, that the writ of mandamus is the legal instrument whereby to remove fellows from their fellowships, by virtue of the original jurisdiction and authority which the Court of B. R. has, to enforce the execution of the laws, and for the preservation of good gov- ernment; yet inasmuch as we shall see,(«) that the Court has no juris- (e) R.T. Chester (Ep.), Stra. 1%1. Prohurst's case, Garth. 168; Andr. Ill; Bac. Abr. tit " Man." C. 2. R. v. St. Catherine Hall, 4 T. R. 233. See tits. " Chaplain,^' " Office" (Restoration Return), "Visitor." / (/) R. T. Blythe, Mod. 404 ; but this case was never decided, 5 Mod. 423, n. [a]. , S. C. 5 Mod. 421. (g) R. v. Patrick, 2 Keb. 166, per Windham, J., where it is stated that there were no precedents for such a writ. (A) Trem. PI. Cor. 483, where see form of writ. Woolverton's case, P. 2 Edw. 2, memb— , cited in R. v. Patrick, 2 Keb. 172. Bentley v. Ely (Ep.), 1 Barn. 453. R. V. St. Peter's Coll. 9 L. J., N. S. 321, Q. B. H) R. T. Ely (Ep.), 1 W. Blac. 52 ; 1 Wils. 266, S. C, and see the stat. App. [j) R. V. Whaley, T. 13 Geo. 2 ; Stra. 1139. S. C. t Mod. 308, also cited in 1 Mod. 356, n. (/) ; 2 Keb. 863. See post, Dr. Patrick's case, 1 Lev. 65. See tits. " College," (Visitor), infra, "Visitor." (4) R. V. AH Soul's Coll., Sir T. Jon. 175, and cases there cited. Anon., 2 Barn. 43'7. Dr. Bently v. Ely (Ep.), 1 Barn. 453, per Page, J. Bac. Abr. tit. "Man." C. 2. [1] R. V. Allsop, 2 Show. 117. S. C. 2 Jones, 174. Dr. Robert's case, per Dol- ben, J., 2 Show. 170. R. v. Canterbury, (Archbp.), 7 Mod. 220. See "Visitor," infra. (m) Comb. 280. See tita. " Office," (Removal,) " University." (») Infra, p. 78. ^ " '' ooLLEas. 127 diction to restore a fellow upon undue expulsion, it seems that no sound reason can be given wliy it should be allowed, to expel one not duly admitted, or unduly continued after a good admission ; indeed, the later authorities seem clearly to have decided, that the Court of B. R. has no such jurisdiction. (o) *But the writ will be granted to command the Vice-Chancellor, ^ ^-q -, or other proper functionary, to receive, hear and determine an appeal, upon the expulsion of a fellow.(p) .] Fellow, Restoration. — Many of the older cases shew, that the Court of B. E. has often granted the; writ of mandamus to fellows of col- leges for various purposes, and the books furnish many dicta that they, qua fellows, had a locus standi as applicants for the writ. (5) Thus, the Court often assumed and exercised the jurisdiction of commanding, by writ of mandamus, the restoration of a fellow unlawfully deprived, not- withstanding the existence of a visitor, and this so early as the reigns of ijdw. 2, and Edw. 3.(r) But the Judges, at an early period, began to doubt the correctness of those, cases, which afiBirmed this jurisdiction,(s) and ultimately overruled them.(<) So that it is now clearly established, that the writ does not lie to restore a fellow to his fellowship in those cases where there is a visitor who has jurisdiction, and to whom an appeal can be made, and before whom, and no one else, the matter is examinable ; for when a man accepts a fellowship, he does so subject to the rules of the college, and the private laws of the founder ; colleges being corporations, or foundations which, like Inns of Court,(M) in no way concern the public, and as they are governed by the particular laws of the founders, the Court of B. R. cannot notice their private ordinance, nor grant the writ for the purpose of, in any way interfering. (?;) (0) R. v. St. John's Call., Comb. 2T9. S. 0. Holt, 436. S. C. 4 Mod. 233, 23C. S. C. Skin. 359, 368, 393, 454, 546. R. v. Dr. Gower, 3 Salk. 230, 1 ; Andr. 183 ; Com. Dig. tit. "Man." (B.) ; Bac. Abr. tit. "Man." (D.) (p) Usher's case, 5 Mod. 452. R. t. Ely, (Ep.), 1 Blac. Rep. 58. S. C. 1 Wils. 266. See tits. " Courts Inferior," " Visitor." (?) Per Glyn, C. J., in City Works case, 2 Sid. 112. The Protector v. Craford, Styles, 457 ; 50 Edw. 3,- p. 2, memb. 8. Woolverton's case, cited in Patrick's case, Raym. 110; 1 Keb. 834; 26 Edw. 3, per Hale, C. J. ; 2 Keb. 199, and 1 Mod. 82. Anon., Freem. 21, per Hale. R. v. Blythe, 5 Mod. 404, per Rokeby, J. ; P. Corody, 6 ; the very sending the writ shews a right to the jurisdiction till the contrary be shewn; 21 Edw. 1, C. B. Rot. 318; March. 181; Patrick's case, Raym. 110, 111. Dr. Lewes's case, also there cited ; Trem. PI. Cor. 4l8, where see form of writ ; Bac. Abr. tit. "Man." C. 2. (r) See previous note, and Dr. Witherington's case, E. T., 13 Oar. 2 ; 1 Lev. 23. S. C. 1 Keb. 2. Patrick's case, Raym. 110. («) Appleford's case, 1 Mod. 82 ; Raym. 31. h) 3 Mod. 265 ; 1 Lev. 23 ; Carth. 92 ; Com. Dig. tit. " Man." (A.) (B.) («) R. V. Gray's Inn, Doug. 353. (v) Parkinson's case. Comb. 143. S. C. Holt, 143. See Apleford's case, supra, who was not restored, because it appeared upon the return that he was properly ex- pelled, and 1 Sid. 71, Dr. Widrington's case, both there cited. Dolben, J., Comb. 143, said that the writs in Widdrington's and Goddard's case were both obtained by surprise, although Ld. Holt's MS. of those cases does hot so express it ; and the Court was so clear that it had no jurisdiction thart; it would not put the college to make a return. See 2 Keb. 863, Widdrington's case, Raym. 31 ; Comb. 143, 444. 128 tapping's mandamus. r *7q 1 *J^s'*'l'e'' w'l' *^^ '^"'^ ^^ granted for the profit or privileges of '■ a fellowship only, if the prosecutor be not removed from his place ;(w) because he has a remedy by action. (a;) .] Librarian, Admission. — The writ will be granted to command the admission of a college librarian, appointed by the person in whom such power is vested by the college statute3.(y) .] Master. — So the writ lies for a master of a college, if there be no visitor. (z) .] Appointment. — So it has been granted to command the ap- pointment of one of several persons nominated to the mastership of a college, where the duty of appointing is ministerial merely, and not visit- atorial. («) .] Election or Admission — But it has been held that a manda- mus does not go to elect or admit to such an office, the remedy being by appeal to the visitor, and also because such master may have an action on the case, for not admitting him.(&) .] Sweariny in. — It has, however, been held, that the writ lies to command the swearing in of one elected master of a college, but there did not appear to be a visitor for the purposes of the master, and the rule was made absolute, no cause being shown. (c) .] Reatoration. — A mandamus does not lie to a college where there is a visitor ; so that it lies not in such a case to restore to the mas- tership of a college ;(rf) for if the master of a college be wrongly ousted, S. C. Garth. 92 (and Ailoff's and Dr. Robert's case there cited). S. C. 1 Show. ^4, and 74, n. [b] [c). S. C. 3 Mod. 265. S. C. Holt, 143. Philips v. Bury, 454. S. C. 4 Mod. 112, 124. S. C. 2 T. R. 346. R. v. St. John's Coll., 4 Mod. 236; Andr. 111. See St. John's Coll. v. Toddington, Burr. 19.5. S. C. 1 W. Blac. 1\. K. v. Dr. Windham, Cowp. 378. R. v. Chester (Ep.), 1 W. Blac. 22. Brideoak's case cited in 1 W. Blac. 25. R. t. Ely (Ep.), 2 T. R. 290. R. v. Catherine Hall, 4c., 4 T. R. 233, 241, et notis. R. y. Alsop, 2 Show. 170. See also Dr. Goddard's case, 1 Lev. 19. S. C. 1 Sid. 29. S. C. 1 Keb. 75, 84. Dr. Robert's case, 2 Keb. 102, 864 ; and Dr. Merrit's case, where like writs to the College of Physicians were denied. Widdrington's case, Ray. 31, 68. S. C. 1 Sid. 71. S. C. I Lev. 23. S. C. 1 Keb. 2, 50, 61, 79, 131, 150, 234, 458 ; Jones, 174, 175, accord., per Wyndham, J., in R. T. New Waterworks, 1 Lev. 123; and see Patrick's case, 1 Lev. 65. S. C. Raym, 101. S. C. 2Keb. 65. See R. v. Raines, 3 Salk. 233, 11, 14. Clare's case, 1 Keb. 14. Kenn's case, Co. 7, 44; 13 Ass. 2 ; 8 Ass. 8 Edw. 3. R. v. New Coll., 2 Lev. 14. S. C. 1 Mod. 82, nom. Apleford's case. S. C. 2 Keb. 799, 861; Raym. 112; Com. Dig. tit. " Man." (A.) (B.) (w) Dr. Goddard's case, 1 Keb. 75, 84, per Twisden, J.,, which was recognised in R. v. Middleton, 1 Keb. 625. See tit " Office-Suspension." (x) Ante, p. 18, 20. (y) Canterbury (Archbp.) v. Trinity Coll., 1 Barn. 194. (z) Patrick's case, Ray. 101, and cases there cited. Com. Dig. tit. " Man." (A.) See tit. " School," " Visitor." (a) R. V. Ely (Kp.), 2 T. R. 290. See Philips v. Bury, 2 T. R. 346. But seetits. "Office," "Visitor!-' (i) Patrick's case, 2 Keb. 167, per Twisden, J. See tit. "Visitor." Ante,^- (c) R. V. Chester (Ep.), l Barn. 52. See Patrick's case, 2 Keb. 167, per Twis- den, J. irl''','^j;"/'\*"'''''^''*^^'^^"^^-6^- S.O. Raym. 101. S. C. 1 Sid. 346. S.C.I „.fr„ „ (where it is said Dr. Withrington's case should not have been granted), 294, 298 551, 610, 665. S. C. 2 Keb. 167, per Twisden, J. Dr. Widdrington'l case, 1 Lev. 23. R. v. New Coll., 2 Lev. 14. See tit. " Visitor." COLLEGE. 12& an assize will lie ; but not if he be ousted by his proper ordinary or visitor. (e) .] Member, Admission. — So a mandamus will not lie to com- mand the heads of a college to admit a member, unless he have an in- choate right to be entered.(/) .] * Oaths. — The Court has granted the writ to command _ ^q^ -, the master of the college to take the oaths of the fellows, as pre- scribed by stat. 1 W. & M. c. 8.((;) As to granting the writ, on a re- fusal to take the oaths, pursuant to stat. 1 Geo. 1, c. 2, s. 18 ; see that stat. Appendix. .] President. — It does not lie to command the senior fellow of a college to be president thereof, if there be a visitor, (/t) .] Provost. — See titles Eton College; Prebendary; Provost of College. .] Scholarship. — It lies to command the president of a college to admit a person chosen to a scholarship ; for such person being but a nominee, and therefore not on the foundation, is not until admission, under the jurisdiction of the visitor.(i) But if it be doubtful whether the -visitor have power to refuse, the Court wiU grant the writ and order the statutes to be returned, (y) .] Seal. — The writ lies to command the provost of a college to aflSx the college seal to a presentation by the college, it being a purely ministerial act. (A;) So it has been granted to command the warden of a college to affix the common seal of the college to an answer of the fel- lows, &c., in Chancery, contrary to his own separate answer put in.(Z) .J Vice Master. — A mandamus to deprive the Vice Master, as general visitor of a college, has been refused, (m) (e) Canon's case, Dyer. Dr. Widdrington's case, 1 Lev. 23. The writ of assize is an obsolete remedy, see ante, p. 19. (/) R. T. Lincoln's Inn, 7 D. & E. 368,f per Littledale, J. See tits. "Inn of Court," (Admission), "Scholarship," "University" (Member, Scholar). Ante, pp. 27.28. (g) R. T. St. John's Coll., 4 Mod. 233, &c., supra. See tit. " College" (Master). See tit. "Office" (Restoration, Return, Oaths). (A) R. T. St. Catharine Hall, 4 T. R. 235. Patrick's case, Raym. 101. S. C. 1 Lev. 65. S. C. 2 Keb. 65, &c. Trem. PI. Cor. 4T2, where see form of writ. See tit. " Visitor." \i) R. V. St. John's Coll. &c., 4 Mod. 260. S. C. 4 Mod. 368, 369, n. (J). S. C. Comb. 238. S. C. Holt, 436, 437 ; 2 T. R. 290, 6 ; Com. Dig. tit. " Visitor," (A. 15), et seq. See supra, "Member," (Admission), and post, tit. " Visitor." (J) Note (i), supra. See tit. "College," (Visitor), infra. (k) R. T. Dr. Bland, 1 Mod. 355, Lee, C. J., saying, he saw no difference between this and the Salisbury (Ep.) case. R. v. Barker, Burr. 1265.' S. 0. 1 W. Blac. 352. See R. T. Cambridge (U.), Burr. 1663, per Ashton, J. R. v. Cambridge (U.), 1 W. Blac. 547. S. C. Burr. 1647. See R. v. Dr. Windham, Cowp. 377. R. v. Surrey ,(J.), 2 Show. 74, n. {d), 3rd edit., and see 1 W. Blac. 551. S. C. Burr. 1647. See tits. " Corporation Municipal," " Hospital," (Seal), " Seal," " Universit;^" (I) R. T. Dr. Windham, Cowp. 377. Case of L. H. Steward of Cambridge, 1 W. Blac. 547. R. t. Cambridge (IJ.), Burr. 1663, per Aston, J., and see 7 Mod. 356, R. T. Dr. Bland. Com. Dig. tit. "Man." (A.) ; Bac. Abr. tit. " Man." (D.) (m) R. V. Ely (Ep.), Andr. 176 ; 1 W. Blac. 54. S. C. 1 Wils. 206. See tits. "Office," (Deprivation,) "Visitor." Apbil, 1852.— 9 130 TAPPING'S MANDAMUS. •.] Visitor; Jurisdiction. — Although the Court has often stated that it will in cases of colleges, grant the writ in the first instance, and upon the return decide whether it has jurisdiction or not,(n) yet such dicta are merely applicable to cases in which the existence or not of a visitor has been left in doubt upon the argument of the rule ;(o) for if r *oi -I the aflidavits of the prosecutor *admit the existence of a visitor, or such a fact be alleged by the defendant and be uncontradicted' by the other side, the Court will in its discretion refuse to make the rule absolute. (^) As to deprivation of Visitor, see supra ( Vice Master), ante, p. 80. CoMMissiONEE.J Election, ds. — The writ has been granted to certify the election of a commissioner appointed under a local or other act of Parliament, and to command a proper meeting to be holden to swear him to the duties of his office; but riot if the office be one which may be sub- ject to an information in the nature of a quo warranto, and the election be disputable. (3) The Court of B. K. has also power to send a writ of mandamus to perJ sons acting under a commission, to know for what cause a deprivation, &c. was made and notwitstanding the commission be determined.(r) Commissions.] See tit. Militia. Common Burgess.] See tits. Burgess ( Common) ; Office. Common Councilman.] See tits. Councillor; Office. Commoner.] Election. — As to the election^ &c. of a commoner, see Stat. 6 & 7 Vict. c. 89.(s) .] Admission. — It lies to admit to the office of commoner of a borough but not unless the prosecutor can shew that he has a perfect right to such admission. (?) .] Restoration. — ^It lies also to command a municipal corporation to restore one to the office of commoner of a borough, if duly entitled.(«) Common Pleas Court.] See tit. Courts {Superior). (n) R. v. New Coll. &c., 2 Lev. 16. Spelman's Gloss. V. Visitor, cited in E. T. Patrick, 1 Keb. 834 ; Raym. 101, 102, 103. (0) See tit. " Visitor." (p) 10 Mod. 55, per Eyre, J. ; 3 A. & E. 285.f (q) B. T. Beedle, 3 A. & E. 467,1 where see direction of writ. B. v. Oxford (May- or^ 6 A. & E. 351, 352.f B. t. Kelk, 15 A. & E. 559.f And see tits. "Act of Parliament," " Compensation," (Company), " Drainage," " Office." (Election.) \'') ■?• "■ E™' ^°^' ^^^- (*) Appendix. (t) B. T. Malmesbury, (High Steward), 4 Jnr. 222. See tit. "Office," (Admis- sion). («)EmeryT.Malmesbury (Aldermen), 3 ,Q. B. 577.+ S. C. 3 G. & D. 482. See tits. "Burgess," "Franchise,'' " Freedom," " Freeman," "Office," (Restoration). COMPANY. 131 *CoMPANT.] This subject is arranged as follows : — [*82] Company. Registration Compensation Directors - - . Swearing in - Duties, &o. Shares ... Company — Calls - - . 83 82 Execution ... 83 82 Books, &c.. Inspection, &c. of - 83 82 Delivery, &c. 83 82 Clerk of . . . . 84 82 Restoration 84 82 Direction of Writ to 84 .] Joint Stock, Registration. — ^The writ does not lie to command the registrar of Joint Stock Companies, under stat. 7 & 8 Vict. c. 110, to return a change of the name of a company, after complete registrar tion.(w) .] Compensation. — See tit. Compensation. .] Directors, Swearing in. — The writ will be granted to command the swearing in of a director of a chartered company, (w) .] Duties, &c. — A company, though in the^nature of a private body of undertakers, is compellable by mandamus to do what its public duty and general interests require, and that has been held even in a case where the prosecutor might have proceeded by indictment, the Court saying, that the remedy by mandamus is never more beneficial than when enforcing the performance of a duty.(a;) So it will lie to command a company, which has power under certain circumstances to elect whether or not it will do a certain act, to perform such act after it has elected to do it.(a;) But the Court of B. R. will not interfere with the mere private trans- actions of a company. Thus a mandamus to the London Insurance Com- pany to permit a transfer of stock to be made in their books was refused, because the company, although incorporated by charter, was a mere pri- vate partnership, and that a mandamus being a high prerogative writ, is confined to cases of a public nature, (y) .] Shares. — Nor does it lie to command the transfer of shares in . a public company, standing in the name of a bankrupt, into the names of his assignees ; the Court in giving judgment, holding that it was not a case in which the Court would interfere by mandamus, and that though perhaps several exceptions to the contrary might be found, yet the writ of mandamus was confined in principle to cases where the matter was of public and general importance, and not to cases of mere private right, especially where there is another remedy either by action or suit in equity : and that the Court had refused in a similar, though much stronger, case to grant a mandamus. («) {«) In re Sheffield Insurance Company, 16 L. J., N. S., Q. B. 407. (w) See tits. "Amicable Assurance Company," " Office," (Swearing in) ; Str. 696 ; Com. Dig. tit. " Man." (A.) (z) R. T. Severn Railway, 2 B. & Aid. 646. R. T. Wilts Canal, 3 A. & B. 482.f S. C. 5 N. & M. 344.-|- ( y) R. V. London Insurance Company, 5 B. & Aid. 899,f cited in R. v. Wiltshire Canal, 5 N. & M. 347.t S. C. 3 A. & E. 483.f See also tit. " Bank of England." (a) Ante, p. 18, 22. R. v. Amicable Assuran6e, Stra. 696, where the Court 132 tapping's mandamus. . *But the Court will command the company to enter upos its I- -^ books the probate of a deceased shareholder, leaving any question as to the validity and efifect of the probate, to be raised by the return.(a) .] Calls, Paymertt. — Where thfe directors of an incorporated company authorized to make calls on the shareholders, had made calls ■which had not been paid, and the original directors had all ceased to be so. and no new directors had been appointed, the Court refused a manda- mus to command the company to enforce the payment of the calls that had been made. (6). .] Execution. — Where an act of Parliament incorporating a com- pany, directs that actions in respect of claims upon the company shall be brought against the treasurer, but that his efl'ects shall not be taken ia execution, a mandamus will issue to the directors, &c. of the company, commanding them to pay the money recovered in such action, (c) So if It be clearly established that such directors are evading the payment of its debts and the due satisfaction of judgments recovered against it, on the ground that they have no corporate assets actually in possession, the Court of B. R. would not perhaps be going beyond the principle which regulates its extraordinary interposition by mandamus, if it compel them to exercise that power with which the Legislature has trusted them for this purpose, in order to put themselves in funds to answer the demands of their creditors, (c^) .] Books, Accounts, &c.; Inspection, Delivery, &c. — It lies to command a company to allow a proprietor to inspect all books, accounts, papers, and writings belonging to the company, and kept in pursuance of their act or charter, &c., and to take copies thereof or extracts therefrom,, such right being conferred on the proprietors by such act, &c. ;(e) but if no Parliamentary direction on the subject be shewn, the Court will refuse the writ.(/) A special reason for desiring to see the accounts must in some cases be stated, as where there is only a right of limited inspection, pg^-j and if necessary, it must be shewn that when demand of inspection was made, the object for *which it was wanted was stated, for before granted a ma.ndamns to that Society to swear in a director. E. v. England (Bank) 2 B. & A. 620.f R. V. London Assurance, 1 D. & R. 510.f S. C. 5 B. & A. 899.J- See tits. "Bank of England." "Corporation," (Trading). (a) R. V. Worcester Canal, 1 M. & R. 529. See post, tit. "Retnrn " (h) R. T. Victoria Park, 4 P. & D. 639. S. C. 1 Q. B. 288, 293,t and note (J), ibid, this case being distinguishable from that of St. Katherine's Dock 4 B. & Ad. 360.t S. C. 1 N. & M. 121.t R. t. Nottingham Old "Worts, 6 A. & E. 335.+ S. C. 1 N. k P. 4S0.f See the judgment of Pattoson, J., 6 A. & E. 369, 370.+ R. v. Market Street Commissioners, 4 B. & Ad. 333 n.(a).f Corpe v. Glyn, 3 B. & Ad 801,+ See infra "Execution," and ante, p. 16. (c) Ante, p. 23, 24. R. v. St Katherine's Dock, 1 N. & M. 121.+ S. 0. 4 B. & Ad. 360.+ Wormwell v. Hailstone, 6 Bing. 676. ^^' •^■,T;J'°'°"*' ^^''^' 4 P. & D. 463. S. 0. 1 Q. B. 292.+ See tits. "Compen- sation," (OfHce, Payment), "Money." (e) R. T. Wiltshire Canal, 5 N. & M. 344.t S. C. 3 A. & E. 483.+ R. v. London Insurance, 5 B & Aid Sgg.f See tits. " Books, &c.," "Corporation Municipal," (Bopks &c.) " County," (Accounts), "Manor," (Court Rolls Inspection.) ^ 1. ^/l^ ilo /« °f-f°f/?'!' M- ^ ^^^- ^20- B- T- Clear, TD. & R. 395.+ S. 0. 4 B. & C. 899.t See tits. " Act of Parliament," " Bank of England " COMPANY. 133 I tlie Court of B. E. will allow such a mandamus to issue, the motive of the party- desiring inspection, &c. must appear, in order that the Court may see that the motive is a proper one.(g') It is, however, sufficient to shew that legal proceedings are bona fide contemplated. (/i) There must be a demand and refusal previously to the application for the writ..(i) It is a rule as to mandamus for the inspection, &o. of documents, that itlies only to inspect those which are kept for the use of a body of persons of whom the applicant is one.(y ) Thus where parties hold books, &o. as trustees the Court will grant inspection to persons interested, and that without any specific reason assigned. (7i;) It lies also to command the ex-clerk of a company to deliver the com- pany's books to his successor. (Z) .] Clerk op Private. Restoration. — The writ has been refused to command restoration to the place of clerk of a company, as of the Com- pany of Butchers in London, although it be an office instituted by charter and a freehold, for it is not a public office(m) but a private one, for which a mandamus does not lie ; and although the clerk have a freehold in such office, for he may have an assize or an action on the case.(m) From a review, however, of the older cases, it would seem that the mandamus should have been granted, for it has been said that the writ has been granted for clerks of private companies since Lord Holt's time.(o) So in White's case, supra, it is stated(p) that the mandamus was granted, the Court there alleging as the ground of its judgment, that it was the same case with that of a town clerk.( q) A mandamus 'cannot be directed to the clerk of a private company, being too inferior an officer.(r) [g) R. v. Clear, 7 D. & R. 393.+ S. C. 4 B. & C. 899 ;+ 5 N. & M. 351.f S. C. 3 A. &B. 483,1 supra. See post, tit. "Application," (Demand and Refusal). Ante p. 16. (A) R. T. Tower Hamlets, 3 G. & D. 95. S. C. 3 Q. B. 6T0,t citing R. v. Tower, 4 M. & S. 162.t (t ) See tit. "Application," (Demand and Refusal), and see T D. &R. 393.f S. C. 4 B. & C. -899,1 as to its form. (/) R. V. Westover (Orerseers), 1 N. & P. 222-1 S. C. 5 A. &E. '7S6.f Southamp- ton (Mayor) T. Graves, 8 T. R. 590. R. v. EI7 (Ep.), 2 M. & R. 127. S. 0. 8 B. & C. 112.+ (k) 3 A. & B. 482.1 S. C. 5 N. & M. 344. See tit. "Books, &c." \l) R.T. Wildman, Stra. 879; 1 Barn. 402, 405, 406. See 3 Bac. Abr.tit. "Man." A. ; S. C. R. T. Wheeler, Gas. t. Hard. 99. S. 0. Cunn. Rep. 155. R. t. Ingram, 1 W. Blac. 50 ; Com. Dig. tit. " Man." (A), See tits. " Blacksmiths' Company," " Books, Records, &c.." "Town Clerk," (Rolls, &o). (m) White's esse, 6 Mod. 18. S. C. 3 Salk. 232. S. C. Ld. Raym. 1004. R.T.Lon- don (Mayor), 2 T. R. 177, 182, n. (4). See tits. "Butchers' Company," "Office." in) Ante, p. 18, 19. 0) R. T. London (Aldermen), 2 Barn. 398 ; Fitz. Nat. Brev. 218. p) White's case, Ld. Raym. 1004. q) See Audley's case, Poph. 176. r) R. V. Wiltshire Canal, 5 N. & M. 349,f per Littledale, J., citing R. v. Jeyes, 5 If. &M. lOl.f See tit. "Office." (Ministerial Inferior). 134 tapping's MANDAMtJg. [ *85 ] *CoMPENSATiON.] This subject is arranged as follows :— COMPEirSATION. Company Assessing Judgment Payment Costs Application Affidavits •.] Company/. — It is clearly sgttled, that where individuals, or a - 85 Compensation. Office . - 8> - 85 Assessing - - 87 - 86 ' Bond - - 88 - 86 Payment - - - 88 - 86 Eioters - - 88 - 9,1 Sheriffs - - 89 - 81 company are empowered to take, and do take lands in pursuance of their act, &c., they can, after an election so to take, be obliged by mandamus to proceed to a due valuation of them.(s) Thus it lies to command com- missioners acting under stat. 35 Geo. 3, c. 106, to hear, report, and adju- dicate upon a complaint, and claim for compensation under such statute.(() So it lies to command a magistrate to hear a complaint against a company, for having taken possession of certain land, and to have the amount of compensation settled according to the terms of their act.(it) .] Assessing. — So the writ lies to command a railway or other company, incorporated by act of Parliament, to issue a warrant or other statutory process, and summon a jury for the purpose of assessing com- pensation or damage incurred in pursuance of its act.(i;) So it lies to command the sheriff to execute the warrant or precept, and impanel tlie compensation jury;(to) but where an inquisition has been duly taken, the (s) R. V. Stainforth Canal, 1 M. & S. 33. R. v. Hariiam Roads, 4 Jur. 50. See tits. "Act of Parliament," "Canal Company," " Company," " Drainage," " Eail- way." [t) R. v. Thames Commissioners, 8 A. & E. 901.f See tits. "Act of Parliament," " Commissioner." lu) R. V. Bingham, 4 Q. B. SYT.-j- See tit. " Quarter Sessions," (Justices). (v) R. V. Stainforth Canal, 1 M. & S. 33. R. v. Bagshaw, 1 T. E. 363. Re Palmer, 9 A. & E. 463.f S. C. 1 P. & D. 492. R. v. Bristol Dock, 12 East, 429. R. T. Nene Outfall, 9 B. & C. 815.-f R. v. Livei-pool Railway, 6 N. & M. 186.f S. C. 4 A. & E. eSO.f R. V. London Dock, 6 N. & M. 390.t S. C. 5 A. & E. 163.f E. T. London Railway, 2 P. & D. 243. S. C. 10 A. & E. 3.f Ex parte Farlow, 2 B. & Ad. 341, 348.f R. v. Eastern Counties Railway, 1 G. & D. 5S9.t S. G. 2 Q. B. 347.t S. C. 11 L. J., N. S. 66, Q. B. R. v. London Railway, 2 G. & D. 444. S. C. 3 Q. B. 166.t S. C. 11 L. J., N. S. 187, Q. B. R. r. Leeds Railway, 5 N. &M. 246.f S. C. 3 A. & E. 683.t Ex parte Parkes, 9 D. 614; 5 Jur. 435 ; 1 Wol. P. C. 158. R. T. Nottingham Waterworks, 5 jSf. & M. 498.f R. v. Hungerford Market, 2 N. & M. 340.t S. C. 1 A. & B. ees.f Re London Railway, 4 N. & M. 458.t S. C. 2 A. & E. 678.f R. v. Hungerford Market, 4 B. & Ad. 327.+ S. C. 1 N. & M. 112 ;t 4 B. & Ad. 592.t S. C. 1 N. & M. 406-1 4 B. & Ad. 596.t S. 0. 1 N. 4 M. 548 ;t 3 N. & M. 622.f S. C. 1 A. & E. 676.f E. v. Market Street Gominis- sioners, 4 B. & Ad. 333,t n. (a). R. v. Northern Railway, 8 D. 329. S. C. 9 h. I, N. S. 53, Q. B. R. T. Wilts Canal, 8 D. 623 ; and see R. t. The Eastern Counties Railway, 2 D., N. S. 948, as to second hearing and trial. R. v. Birmingham Canal, 4 Jur. 318. R. v. Eastern Counties Railway, 5 Jur. 365. R. v. North Midland Railway, 2 Rail. Gas. 1. R. v. East Lancashire Railway, 16 L. J., N. S. 127, Q. B. Ex parte Reynal, 16 L. J., N. S. 304, Q. B. [w) R. T. Middlesex (Sheriff,) 3 G. & D. 549. S. C. 13 L. J., N. S., Q. B. 14. S, C. nom. ^alkerv. London Railway, 3 Q. B. 549, 744.t S. C. 5 Q. B. 365 f S. C. B S t-t "Sh -ff '?' ^' ""' •^''^'^™ Counties Railway, 12 L. J., N. S. 271, Q- COMPENSATION, 135 Court of B. R. *will not grant a new precept on the ground of _ ^^p , misdirection, or the improper rejection of evidence, or that the ^ Terdiot was against evidence, and the damages grossly insuffioient.(x) .] Judgment. — It lies also, to command the entering up by the proper officer, of judgment, for the compensation money awarded,(y) hut not otherwise, that in the terms in which the verdict was given by the jury, even although it appear by affidavit, that in considering the amount of damages, to be assessed by them, they took into consideration matters not properly within their jurisdiction,(2;) and notwithstanding it appear upon the face of the proceedings that the jury assessed separate damages, in respect of matters foreign to their jurisdiction, and although such find- ing be a nullity, and cannot be enforced. .] Payment of. — The writ does not lie to command payment of such compensation, when assessed in those cases where an action lies, as where it arises upon a statutory obligation. (a) So where a power to dis- train exists,(a) the writ will be refused. (6) But in all those cases in which there does not exist a specific legal remedy, whereby payment of the compensation may be enforced, the writ of mandamus lies to command it,(c) or to enforce generally the inquisition of the compensation jury; or other instrument by which it is awarded ;(«Q but not the costs of the inquisition, or of title, unless specially ascer- tained, (e) .] Costs. — So if the company refuse to pay the compensation awarded, or the costs; a mandamus will be granted to compel them so to do, although the statute make the verdict and judgments records of the Quarter Sessions. (/) It also lies to command a coroner to review his taxation of a bill of costs, *in respect of an inquisition taken before him for assessing _ ^q- -, compensation under a Railway Act.((/') (x) R. v. Eastern Counties Railway, 2 D., N. S. 945. S. C. 12 L. J., N. S. 271, Q. B. citing R. v. SheflSeld Railway, 11 A. & E. 194.f S. C. 3 P. & D. 111. See tits. "Courts Inferior," (Rehearing, &c.), " Quarter Sessions," (Rehearing, &c.) [y) Amhurst's case, Ray. 214. S. C. 1 Vent. 187. S. C. 2 Keb. 871. See tits. " Courts Inferior," (Judgment), " Judgment," " Quarter Sessions." (z) R. V. West Riding (J.), 3 Nev. & M. 802.f See tit. "Judgment." (a) Ante, p. 20. R. v. Hull Railway, 13 L. J., N. S. 257, Q. B. S. C. 8 Jur. 491. S. 0. 6 Q. B. 70.t (6) Ante, p. 21, 22. R. t. London Railway, 15 L. J., N. S. 42, Q. B. S. C. 3 D. & L. 399. See tit. " Distress." (c) R. V. Thames, 5 A. & E. 804,f where see form of writ; 6 A. & E. 355, 367.t S. C. 1 N. & P. 480,t supra. R. v. Swansea Harbour, 1 P. & D. 512. S. C. 8 A. & E. 439.f R. V. Great Western Railway, 1 D. & M. 471. S. C. 6 Q. B. 59V.t R. V. Deptford Pier, 3 A. & E. 910.f See tit. " Company," (Execution), ante, p. 18. {d) 1 P. & D. 512. S. C. 8 A. & E. 439,f supra, and see 8 A. & E. 910,f supra, and see R. v. West Riding (J.), 3 N. & M. 802.t (e) R. T. London Railway, 15 L. J., N. S. 42, Q. B. S. C. 3 D. & L. 399. See tit. " Costs," and infra (Costs). (/) R. T. Nottingham Old Waterworks, 6 A. & E. 355,t and see 8 A. & E. 447, 448.t R. T. York (J.), 1 A. & E. 828. S. C. 3 N. & M. 685,f and see R. v. Gardner, 6 A. & E. 112.-f- See tit. " Costs." (^) R. T. Gardner, 1 N. & P. 308 ;t 6 A. & E. 112,i- S. C. 136 tapping's mandamus. .] Application. — The application should be made to the Court within a reasonable time after the land, &c. is taken, or elected to be taken, by the company, especially if the parties hare another remedy.(^) So the Court will refuse it if the company be proceeding bona fide, al- though considerable delay may have taken place on its part;(i) but it is no ground for refusing the writ in such a case, that the period of time to which the powers of the act of Parliament, under which the defendant ■should have acted, have elapsed. (y) .] Affidavits. — The affidavits should, if possible, show that the prosecutor has a good title, and is ready to convey, &c., or that he has endeavoured to get a good title, but could not.(A) .] Office Assessing. — It lies also to command a municipal corpo- ration to assess compensation for the loss of a corporate office under stats. 5 & 6 Wm. 4, c. 76, s. 35, and 5 & 6 Vict. c. 111,(0 and also to com- mand the Lords of the Treasury to hear and determine the merits of an appeal on a claim to be allowed compensation for the loss of such an office ;(m) but the Court will not decide as to the principle on which the decision is to be founded. («) Also, if the lords have in fact heard and determined the appeal under s. 66, the Court will not interfere, though it may be satisfied that comp?nsation has been awarded on an erroneous -principle. (o) So the Court will refuse a writ to command the Treasury Lords, to hear, &c., if it appear that the subject-matter is not within their jurisdiction. (p) The Court of B. E. will grant a mandamus to enforce the order for compensation of the Lords Commissioners, but not at the instance of one whose office is not within the contemplation of the act,(j) for the Court will not interfere *in any such case, except when L J the right is quite clear, (r) And where a town councilj in obedi- (h) Ante, p. 18. E. v. Stainforth Canal, 1 M. & S. 32. R. v. Cockermonth In- closure, 1 B. & Ad. 380.f R. t. Leeds Canal, 11 A. & E. 316.-J- S. C. 3 iP. & D. 1Y4, and see 4 B. & Ad. 327,1 and 3 A. & E. 221, 222.t See post, tit. "Applica- tion."- H] Ex parte Parkes, 9 D. 614. I/) 8 A. & E. 911,t supra. See tits. " Act of Parliament," " Affidavits." \lc) R. v. Deptford Pier, 8 A. & E. 910.t See tit. "Application" (AffidaTits). (l) R. v. Cambridge (Mayor), 12 A. & E. '?02.f S. C. 4 P. & D. 294, where see form of writ and pleadings. R. t. Manchester (Borough), 16 L. J., N. S. 21, Q. B., where see a form of writ. R. v. Warwick (Corp.), 10 A. & E. 386.f S. 0. 9 L. J., N. S. 265, Q. B. R. v. Manchester (Mayor), 5 Q. B., 402.f Ex parte Harvey, 3 N. & P. 159. R. T. Warwick (Corp.), 3 P. & D. 429. E. ,. Stamford (Mayor), 6' Q. B. 433.t (m) R. T. Treasury Lords, 10 A. & E. 3'74.f S. C. 2 P. & D. 498 ; and see 10 A. & E. 385.f R. T. Treasury Lords, 10 A. & B. iTg.f S. C. 2 P. & D. 369. See tit. " Treasury Lords." (n) 10 A. & E. l'79,t supra. (o) 10 A. & E. 179.1 S. C. 2 P. & D. 369, supra. See tit. "Quarter Sessions" (Appeal). Ip) 10 A. & E. lT9.t S. C. 2 P. & D. 369, and 10 A. & E. 3^4.+ S. 0.'2 P. * D. 498, supra. Ante, p. 16. (?) R. T. Bridgewater (Mayor), W. W. & D. 129 ; 6 A. & E. 339.+ S. C. 1 N. * P. 466,t supra. R. v. Poole (Corp.), T A. & E. T35, tZi, 743.+ S. C. 3 K. & P. 119. R. T. Treasury Lords, 10 A. & E, 183.-|- See also R. v. Treasury Lords, 10 A. ; ^^°J h r ^'''^'"'''^'■I'eu (Mayor), 11 A. & E. 13.+ R. v. Cambridge (Mayor), 12 A. & ii. TOS.f (r) R. T. Jotham, 3 T. R. 575. Ante, p. 27. COMPENSATION. 137 ence to a mandamus, assessed compensation for the loss of certain offices of profit under the provisions of stat. 5 & 6 Wm. 4, c. 76, and the Lords of the Treasury, on appeal, assessed a larger amount of compensation, it was held that the assessment, under the writ, estopped the town council from denying the claim to compensation, and therefore the Court of B. R. was right in granting a mandamus calling upon the town council to execute a bond according to the provisions of the act, to secure the amount assessed by the Lords of the Treasury.(s) .] Bond. — So the writ lies to command a municipal corporation to prepare and execute a bond under its common seal, to secure the pay^ ment of an annuity, &c., ascertained and awarded by the Lords of the Treasury for the loss of a corporate office, over which they had jurisdic- tion.(«) For wherever the Lords of the Treasury make an order on the town council of a borough for compensation, the Court of B. E. will, on a neglect or refusal by them to comply therewith, enforce its fulfilment by mandamus, (m) .] Payment. — So it lies to command a muTjicipal corporation to enforce paymeat of the existing borough rates, or to make and cause to be collected another borough rate, and therewith pay instalments on a compensation bond ; but such a writ must show that the corporatioh has, or professes to have, no other means of payment, (ij) So the Court on a proper case will grant a mandamus to restore to the office, or for compensation for the removal.(i«) But the Court will refuse such a writ where the refusal of the town council to award compensation has been confirmed by the Treasury Lords, or where the right to com- pensation is purely nominal.(a:) .J As to damage done by Rioters, see tit. Riots. * .] Sheriffs. — It lies also to command compensation to sheriffs on abolition of fees under stat. 55 Geo. 2, c. 50, s. 10. (y) '- ^ Sandwich (Mayor) t. R., 16 L. J., N. S., Q. B, 432. R. v. Norwich (Mayor), 3 Q. B. 285.t S. C. 2 G. & D. 605 ; 11 L. J., N. S. 246,' Q. B. R. T. York (Mayor), 3 Q. B. 550.f S. C. 2 G. & D. 580. S. 0. 11 L. J., N. S., 326, Q. B., where see form of writ. S. C. 6 Jur. 1082. R. v. Newbury (Mayor), 1 Q. B. rsi.f S. C. 1 G. & D. 388. S. 0. 2 G. & D. 109, where see form of writ. S. C. 2 Jur. 821. E. t. Sandwich (Mayor), 2 G. & D. 28. S. C. 2 Q. B. 895 ;t 1 N. & P. 466.t S. C. 6 A. & E. 339,f supra. R. v. Poole (Mayor), 3 N. & P. 119. S. C. T A. & B. YSO-t R. T. Cambridge (Mayor), 4 P. & D. 294. S. 0. f2 A. &E. 702,1 where see form of writ, &c. S. C. 10 L. J., N. S. 25, Q. B. R. t. Norwich (Mayor), 8 A. & E. 633.f R. t. Swansea Harbour, 11 A. & B. 68.f R. T. York (Mayor), 8 D. 502. R. t. Liverpool (Mayor), 3 N. & P. 280. S. C. 8 A. & B. l'76.t R. v. Swansea (Mayor), 3 P; & D. 16. S. C. 9 L. J., N. S. IT, Q. B. K. T. Carmarthen (Mayor), 3 P. & D. 35. S. C. 9 L. J., N. S. 25, Q. B. R. v. Sand- wich (Mayor), 11 L. J., N. S. 132, Q. B. Sandwich (Mayor) v. R., 16 L. J., N. S. 432, Q. B. See tit. "Lectureship," (Compensation). (a) 1 N. & P. 466.t S. C. 6 A. & B. 339,t supra. See tit. " Act of Parliament." [v) R. T. Poole (Mayor), 1 Q. B. 616. S. C. 1 G. & D. '728. See tits."-" Borough Rate," " Company," (Execution), " Money." {w) R. Y. Newbury (Mayor), 1 G. & D. 388. S. 0. 1 Q. B. Wl.f See tit. " Of- fice" (Restoration). {x) Ex parte Lee, 7 A. & E. 139.t S. C. 2 N. & P. 63 ; W. W. & D. 4^1 ; 1 Jur. 474, cited in R. v. Warwick (Corp.), 3 P. & D. 430. See ante, p. 15. (y) R. T. Middlesex, (J.), 3 B. & Ad. lOO.f See tit. " Sheriffs." CoNSTABLS — Allowance - 90 Payment - 90 Reimbursement - 90 High Constable. Beimbursment by - - - 90 Bond - - - - 90 138 tapping's mandamus. Gqnfirmation.] The -writ has been granted to command a biehop to confirm children. (z) Consecration.] See tit. Bishop. Constable.] It lies for a constable, he being a known officer cor cerned in the peace, and appointed to, administer justice in relation to the public, (a) This subject is arranged as follows : — Constable. Admission - - - 89 Appointment - 89 Swearing in - - - 89 Restoration - - - 90 Accounts - - - - 90 .] Admission. — The writ lies to command the admission of a constable to his office.(6) •] Appointment. — So a mandamus will be granted to command the lord of a manor to hold a Court Leet, for the purpose of appointing a high constable of a hundred, although the day on which the Court had usually been held for sixty years past, had gone by, it not being sworn that the Court was held on that particular day by prescription, (c) .] Swearing in. — So it lies to command the swearing in of a constable. ((i) Thus, it lies to command justices to swear in constables ap- pointed at the leet during their absence, and who could not, therefore, be sworn in at such Court, (e) So it lies to command the steward of a Court Leet to swear in a constable appointed by him ; but if he be not a stew- ard by patent he cannot hold a Court without the lord's direction; 80 that it would appear by affidavits in support of the application, in what *way the steward is appointed, in order to obviate an answer to >- ^ the application, that since the writ, there has been no Court held at which to swear, &c.(/) .] Restoration — So it lies to restore a constable improperly de- (z) Case of St. Burian's Dean, cited in R. v. Patrick, 2 Eeb. 66. S. C. 2 Keb. 165, per Moreton, J. ; Pitzh. N. B. 200, A. See Middleton's case, 1 Sid. 169, pffi Windham, J. See tits. " Abbot," " Bishop," " Chrism." [a) R. V. Kingscleere (Churchwardens), 2 Lev. 18. Estwick v. London (City), Sty. 42 ;Anon. Poph. 12, 13 ; see also Stamp's case, Raym. 12. Anon. Freem. 21; Bac. Abr. tit. " Man." 0. See tit. " Office." (b) Adm. Noy. '78, dub. Constable's case, 1 Buls. 174, which was a writ of res- titution; Com. Dig. tit. "Man." (A.); Bac. Abr. tit. "Man." (C.) (c) R. T. MilTerton (Manor), 3 A. & E. 284.+ S. C. 1 H. & W. 282. See tits. "Man." (Leet), "Office" (Appointment). [d ) Patrick's case, Raym. HI. R. v. Oxenden, 1 Show. 219. Constable's case, Comb. 285 : Scriv. on Copyh. TlS, n. (a) 4th edit. : Trem. PI. Cor. 4'?1, where see form of writ. See tit. " Office" (Swearing in). U) Anon. 2 Barn. 129 ; and see 1 Salk. l75. (/) Comb. 285, supra ; Scriv. on Copyh. fl5,n. (u), 4th edit. ■ CONSTABLE. 139 prived of his office, ((/) of which there are precedents as ancient as the times of Edw. 2, 3, and Hen. Q.Qi) .] Accounts, Allowance. — It lies to command justices at sessions to enter continuances, and hear an appeal against the allowance by them of the constable's accounts, under stat. 18 Geo. 3, c. 25, s. 5;(i) or against the allowance of a certain iteta in such accounts, (y) .] Payment. — The Court will not interfere to command a con- stable to pay money levied by him in his official capacity, and over which the Court of Quarter Sessions, has an equally effective jurisdiction. Thus, where a constable had levied money under a distress and sale, but afterwards had rescinded the sale, under the idea that it was erroneous, and had restored the money to the purchaser, and the goods to the owner, the. Court refused to interfere. (A;) .] Reimbursement of. — It has been granted to command the treasurer of a county to reimburse constables certain extraordinary char- ges in providing carriages for the king's forces under stat. 1 Geo. 1, c. 34, on the expedition into Scotland. (?) But it was held not to lie to com- mand the treasurer of a county to reimburse constables under the stat. 17 Geo. 2, c. 5, ss. 16, 17, relating to rogues and vagabonds, &c., until such accounts had been allowed by the Quarter Sessions, (m) High Constable.] Reimhursement. — It has been held not to lie for the purpose of procuring the reimbursement to a parish, upon which the high constable had levied excessive rates, in disobedience of an order of sessions for the Court of B. R. will not command the magistrates in ses- sions to do that which may occasion costs, for which they have no means of reimbursing themselves. (?i) .] Siffh Constable's Bond. — ^It lies to command justices, or the *clerk of the peace, to put in suit a high constable's bond, given *rq-i-i under stat. 12 Geo. 2, c. 29, butnot if the condition be not strictly in alccordance with the statute, otherwise the Court would be lending its assistance to enforce an illegality, (o) (g) Middlecot's case, 10 Eliz., cited in Awdley's case, Poph, lYS. See note 28 to Middleton's case, 2 Dyer, 332 b. 333, pi. 28 ; Latch. 123 ; Noy. T8. But see Con- stable of Stepney's case, 1 Buls.'lY4; and London (City) t. Eastwick, Sty. 33, which were writs of restitution ; Bac. Abr. tit "Man." (C.) See tit. "Office" (Restitution). (A) Ante, p. 2, Poph. IIS, supra. (i) R. V. Manchester (J.), D. & R. 454. S. C. nom. R. v. Laucash. (J.), 5 B. & A. T55,t citing R. v. Pascoe, 2 M. & S. 343. U') R. V. Laneash. (J.), 5 B. & A. TSS.f (k) Morley v. Stacker, 6 Mod. 83 ; the Court saying that if the mandamus went,i and he should disobey it, the Court could only fine him for the contempt, which the justice of the peace, who granted the warrant, could do as well. R. v. Nash, Ld. Raym. 989. S. C. 1 Salk. 147. See tit. " Office" (Ministerial, Inferior). (I) Hunt's case, H. 3 G., and E. 4, G. ; Stra. 42, 93 ; Com. Dig. tit. " Man." (A.) (m) E. v. Brie, Burr. 1197, 1198 ; Bac. Abr. tit. "Man." C. 2. See tit. " County" (Treasurer.) (n) 4 N. & M. 312,f supra. See ante, p. 17. See tit. " Quarter Sessions" (Jus- tices). (o) Ante, p. 16. In re Lodge, 2 A. & E. 123.f S.C. 4 N. & M. 312,f nom. Ex parte Carlton High Dale (Inhabs). 140 tapping's mandamus. Contract.] The writ does not lie to command a public board, as tie Lords Commissioners of the Admiralty, to carry a contract into eSeat.{p) But it has been granted to command an overseer to pay a sum of money in pursuance of a parish contract, (g) Conviction.] Appeal. — The writ has in numberless cases been granted to command inferior jurisdictions to enter continuances, and hear an appeal against a record of conviction, where a right to appeal is given, &c.(r) .] Judgment, dec. — So it lies to command the Quarter Sessions or justices to enforce a conviction,(s) if clearly good, but not if its validity be doubtful ;(<) as to commit to prison in pursuance of a conviction,(ii) or to command the issue of a distress warrant for the levying of a penalty under a conviction, (jo) There must, however, be a legal and formal con- viction. (a;) So that the Court has refused to command a magistrate to enforce a conviction, where it was returned that, notwithstanding the defendant was convicted of a penalty, yet that the conviction was invalid in law, and that there was not an offence for which the penalty was pay- able or could legally be levied, (y) So where justices, having made a con- viction, refused to take any steps to enforce the conviction, under an idea that they would thereby render themselves liable to a penalty under the Habeas Corpus Act, this Court in its discretion refused a mandamus to the justices to compel them to issue a warrant of commitment or of dis- tress, upon the conviction. (iz) It is submitted, however, that as the stat. 6 & 7 Vict. c. 67, s. 3, in- r*Q9T demnifies* for all acts done under a peremptory mandamus, that the Court will not now require so strict proof of the correctness of a conviction. (a) As to a mandamus for the costs of a conviction, see tit. Costs. . Record. — The writ also lies to command justices or the Court [p) Ex parte Pering, 4 A. & E. 949.t S. C. 6 N. & M. 477.1 See tits. "Act ot Parliament" (Application), "Patent." (q) R. v.Beeston, 3 T. R. 692. See tits. "Money," "Overseer," "Parish." (r) R. T. Staffordsh. (J.), 12 East, 571. R. v. Hants (J.), 1 B. & Ad. 654.t K.T. Middlesex (J.), 6 M. & S. 279. R. v. Oxfordsh. (J.), 1 M. & S. 446. R. f. WestEi- ding (J.), 3 M. & S. 493. .R. v. Middlesex (J.), 6 M. & S. 279. R. v. HiintingdonBli. (J.), 5 D. & R. 588. R. v. Bedfordsh, (J.), 3 P. & D. 21. R. v. Chesh. (J.), 3 P. 4D. 23, n.(a). R. v. Bolton (Recorder), 14 L. J., N. S. 33, M. C. See tits. " Courts, Infe- rior" (Appeal), "Quarter Sessions" (Appeal). is) R. V. Warwicksh. (J.), 2 A. & E. 768.f R. v. Broderip, 7 D. & R. SGl.f S.C. 5 B. & B. 239. R. v. Middx. (J.), 2 H. &W. 222. R. v. Robinson, 2 Smith, 274. El parte Thomas, 16 L. J., N. S. 57, M. C. See tit. " Quarter Sessions" (Justices). U) But see stat. 6 & 7 Vict. c. 67, s. 3, App., which alters the law in this respect (») R. v. Twyford, 5 A. & B. 430,f but the right to convict must be clearly shewn. (w) R. T. Broderip, 5 B. & C. 240.+ S. 0. 7 D. & R. 861.+ R. T. Hughes, 3 A, 4B. 428.t R. V. Mirehouse, 2 A. & E. 637.+ (a;| R. V. Jones, 2 Barn. 239. (2^) R. V. Robinson, 2 Smith, 274; but see stat. 6 & 7 Vict. c. 67, s. 3, App. (z) Ex parte Thomas, 16 L. J., N. S. 57, M. C. Ante, p. 12, 13. (a) See stat. App. ' if) CORONEKS, 141 of Quarter Sessions to complete the record of a conviction. (J) Thus it lies to command the insertion in a record of a conviction under stat. 14 Geo. 3, c. 78, of the evidence given on the hearing of the information upon which the > conviction was founded, as nearly as possible in the words used by each of the witnesses examined in pursuance of stat. 3 Geo. 4, c. 23, it being suggested that they had omitted many points of the evi- dence material to the defendant's case.(c) So the like writ has been granted as to convictions under the Gatne Trespass Act.(cZ) Copyhold Cotjet.] See tit. Manor ( Gopylwld Court). Coroners.] It is clear that the writ of mandamus is applicable to the office of coroner, (e). -. Election. — Thus it will be granted to command the proceeding to an election of coroners, under stat, 11 Geo. 1, c. 4, s. 2.(/) .] Duties, &c. — It lies also to command a coroner to proceed with an inquisition super visum corporis, if duly assembled and properly holden.(g') But not if such inquisition be irregular, for as an inquisition resulting from such an inquiry might be quashed, so the Court will not grant, but on the contrary, refuse, a mandamus to command the doing of an useless act. Thus, as a coroner's duty is judicial, and he can only take an inquest super visum corporis, so an inquest in which the jury are not sworn by the coroner himself, and super visum corporis, is abso- lutely void. Therefore the Court will not, after an adjournment by the coroner of such an inquest, grant a mandamus to compel him to proceed in it ; for (as before stated), the only result of such a proceeding would be, that the inquest, if proceeded in, would be bad, and the record might be quashed. (A) . ] Payment of Fees, &c. — It also lies to command the Quarter Sessions to make an order for the payment to a county coroner of a sum of money out of the county rate, due to him under stat. 25 Geo. 2, c. 29, s. 1, for his own fees and for money expended for the duly taking certain post mortem inquisitions,(i ) as for mileage. (y) *13ut the writ will be refused, if the justices at Quarter Ses- sions (who have a discretion) be of opinion that, under the cir- '- -■ cumstances, there is no ground to suppose that the deceased has died any other than a natural, though a sudden, death, and therefore that the (5) R. V. Jones, 2 Bam. 240. See tit. "Quarter Sessions" (Records). (c) In re Bix, 4 D. & R. 352,f citing also R. t. Marsh, 4 D. & R. 260.f (d) R. T. Kiddy, 4 D. & E. 1Zi.\ R. v. Warnford, 5 D. & R. 489.t (e) Scarborough's case, Str. 1180 ; .and see R. v. "Woodrow, 2 T. R. 732 ; Com, Dig. tit. "Man." (A). (/) See stat. App. See tit. "Office." See also stat. 6 & 7 Vict. c. 89, App, (g) R. V. Parrand, 1 Chit. 745.f S. C. 3 B. & A. 260. (A) Ante, p. 15, 16. ( i) R. T. Oxfordsh. (J.), 2 B. & A. 203. R. T. Warwicfcsh. (J.), 8 D. & E. 147. S.O. 5 B. & C. 439. R.V. Kent (J.), 11 East, 229. R. v. Carmarthensh. (J.), 16L. J., !' N. S., M. C. 167. {} ) Supra, 5 B. & C. 430.t S. C. 8 D. & E. 147.f 142 tapping's mandamus. inquisition has not been duly taken; and the Court of B. E. sees no rea- son to interfere with that iudgment.(7(;) So it lies to command the payment of the fees of a coroner of a borough or franchise ; although if such franchise do not contribute to the county rate the coroner will not be entitled to the fees given by stat. 25 Geo. 2, 0. 29, or to any fees to be paid by the county. (Z) As to a coroner's duty in reference to compensations, see tit. Compen- sation (^Company). CoRPOKATiON Municipal.] This subject is arranged as follows :— CoBPORATioN, Municipal. Duties, &c. - - - - 93 Insignia Books, &c., Delivery 94 Books, &c., Inspection - - 94 Rule - - - 95 Compensation - - 95 CoRPOBATioN, Municipal. Freedom Affixing Seal By Laws Franchise - 96 .J Duties, &c. — It is within the jurisdiction of the Court of B. R., to command by mandamus, that all the officers of municipal corpora- tions should do their duty in their respective offices,(m) they being public officers. Thus it lies to command them to assemble, and keep Courts or a Hall, and there to transact the business of the corporation,(M) as to sign the corporation leases, &c.(o) So, the Court of B. R. will in like manner order the doing of every act necessary to the due holding of such Courts. Thus, it will command the steward, &c., to attend with the public books at the next corporate as3embly,(_p) or to deliver them up, if improperly r *Q1 T '^®*^i'^s'^)(3) *^'id to command the reception of a vote for the elec- L -■ tion of municipal officers. (»•) But it will not command the entry of certain resolutions in the minnte books of the corporation, for in order to their validity, they should be entered, when passed, and not afterwards, (rr) (h) Ante, p. 12, 11 Bast, 229, and 16 L. J., N. S., M. 0. 167, supra. (l) R. T. West Riding (J.), 1 T. R. 48, cited in R. v. Oxford (Ep.), 1 East, '351. (m) 8 Mod. 28 ; and see stats. 9 Ann. c. 20, st. 11 Geo. 1, c. 4, and 1 Vict. c. !8,' s. 26, App. See tits. "Company," " CounclUor," (Duties), "Franchise," "Free- dom," "Office." («) R. V. Kingston-upon-HuU (Mayor), 8 Mod. 210. S. C. Stra. 578. S. 0. U Mod. 382. See stat. 11 Geo. 1, c. 4, App. Andr. 184; Barn. 82; Bac. Abr. tit, "Man." (D.) See tits. " Courts, Inferior," "Manor" (Court Leet). The rule for this purpose must be general, and not add " to admit all those to their freedom who have a right to be free, &c. ;" for several interests cannot be comprised in one writ, 8 Mod. 210; Salk. 433. See post, tit. "Writ" (MandatoiT Clause). (o) R. V. Liverpool (City), 1 Barn. 82 ; Andr. 184. Dr. Walker's case, Cas.t Hard. 214. \ j j^ > (/>) Calne's .case, Str. 948, where see form of affidavit. S. C. 2 Barn. 235. There must be an affidavit of a refusal to produce. R. v. Wildman, Stra. 879 ; Com. Kg' tit. 'Man. (A.) ; 3 Bl. Com. 110. See tit. " Church" (Church trustees). (a) R. V. Ingram, 1 W. Blac. 50. See tit. " Books," &o. fr) R. V. Leeds (Mayor), 4 P. &D. 632. See post, tit. " Vote." o ^Tl *^® payment of a certain sum for costs, (u) as the costs of a writ of mandamus, (t)) (o) R. V. England (Bank), 2 B. & A. 622.f See tits. " Bank of England," " Com- pany," (Dutlea). Ante, p. 12. {p) See tit. " Equity, pp. 22, 23," and see tits. " Accounts, &c.," " Bank of Eng- land." (q) Anon., Ld. Eaym. 989. (r) See ante, p. 16. B. t. Fox, 2 Q. B. 246,+ where see the form of the writ. S. C!. 11 L. J., N. S. 41, Q. B. S. 0. 1 G. & D. 566, nom. In re Bailiff of Waie- field. S, C. nom. In re Jewison, 5 Jur. 989. See E. v. Scott, 2 Q. B. 248,t an indictment for detaining a body. So 25 Geo. 3, Young and Others were indicted for detaining a body from burial, 1 Chit. 595. See post, tits. " Attaohment," " Peremptory Writ." (») Jones V. Ashburner, 4 East, 465, per Lord Ellenborough, C. J., also cited in R. V, Coleridge and Others, 1 Chit. 595.| {f) R. V. Long, 1 G. & D. 367. S. 0. 1 Q. B. 740. See tits. " Highway,;' (Be- pairs. Costs), "Money," (Payment), "Overseer," "Poor," (Costs), " Quarter- Ses- sions," (Justices.) '■"""" ".in COSTS. 147 But the Court will not grant the writ for such a purpose if there be another remedy whereby they can be recovered. Thus, the writ will not be granted to command the treasurer of a town or county to obey an order made by a Judge of assize, for payment by him of the costs, &c. of the prosecutor of, and witnesses in an indictment for a misdemeanor under stat. TGleo. 4, c. 64, s. 23, both because there exists another reme- dy, viz. by indictment, and that the treasurer is too inferior an officer to be the subject of the writ.(tc) Neither wiU the writ be granted to com- mand the payment of the costs of a former mandamus. Nor for costs given by statute, if it provide specific legal means whereby they may be obtained, (x) As to the procedure by mandamus for the costs of a sheriff's inquisi- tion, and of the costs of title to property taken by railway, see tit " Gom- pensation'' (^Company). (j/) .] Enforcing Payment. — So it lies to command justices of the peace to enforce the payment of costs, by issuing a distress warrant to levy the same.(z) The writ also lies to command the Court of Quarter Sessions to issue a distress warrant for costs awarded on the quashing of a conviction, or, in other words, to allow the means of enforcing their own order to that party in whose favour such order is made, (a) The order must, however, be specific and certain in every respect, especially as to the amount of the costs. Thus where a Judge of assize, after the trial of an indictment for nonrepair of a road, under stat. 5 & 6 Wm. 4, c. 50, s. 95, made an order that the costs were to be paid by the parish, but did not insert therein the amount either then or at any subsequent time; the Court of B. R. refused to enforce such an order by manda- mus,(S) and stated, that it would not call upon a party to pay costs "generally;" that the amount must be 'properly ascertained and in- serted, because the writ must follow the rule, and if that be general the defendant cannot know how he is to perform it, that is, how much he is to pay. *CotiNCiLLOB ; Councilman.] Common or Town. — The writ p^qq^ lies for the office of common councilman, (c) because it is an office L -• (w) Ante, p. 18—23. E. v. Jeyes, 5 N. & M. lOl.f S. C. 3 A. & E. ilS.f See tits. "Cgunty," (Treasurer), "Office." (Ministerial Inferior). [x) E. T. Nottingham Old Waterworks, 6 A. & E. 355.f S. C. 1 N. & P. 480.f See ante, pp. 18 — 23. (y) E. V. London Eailway, 15 L. J., N. S. 43, Q. B. S. C. 3 D. & L. 399. (z) E. T. Martin, 1 D. & M. 386. S. 0. 2 Q. B. 1037,1 n. (as). See tit. " Quarter Sessions," (Justices). As to the indemnity for any act done under the authority of a mandamus, see stat. 6 & T Vict. c. 67, s. 3, App. (a) E. v. Hants (J.), 1 B. & Ad. 654, 658.t See tits. " Conviction," " Courts In- ferior," (Judgment, Bxecutiony &c.) (J) See ante, p. 27. E. v. Clark, 1 D. & M. 687. S. 0. 5 Q. B. 887,t it was said in this case, that it was not clear that a mandamus would be the proper remedy. E. v. London Eaijway, 15 L. J., N. S. 42, Q. B. S. C. 3 D. & L. 399. (c) Bstwiok's case. Sty. 32, cited in Stamp's case, Eaym. 12 ; 2 EoU. 456, 1. 35 ; Com. Dig. tit " Man." (A). And see stats. 11 Geo. 1, c. 4, and 1 Vict. c. 78, s. 26, App. 148 tapping's MANDAMUS. which concerns puhlic government ■,{d) but the officer has no freehold in his office as an alderman has.(e) This subject is arranged as follows : — Councilman, &c. Election - - - - 99 Admission - - 100 Returns - - - 100 Admission and swearing in - 100 Returns - - 100 CoiraciLMAH, &c. — Duties, ^c. - loi Return - - - loi Restoration - - lOl Form of Writ loi Returns - - - 101 Removal - - - - 102 ] Election. — The writ lies to command the holding of a general assembly of aldermen and common councUmen, to proceed to their election in pursuance of an act of Parliament or charter.(/) But not if there be no vacancy or a disputed one, or the office be de facto fuU upon an election not merely colourable. Thus, where a town councillor, elected under stat 5 & 6 Wm. 4, c. 76, had had, during his term of office, his name expunged from the burgess roll by the overseers, for alleged nonpayment of rates, bnt continued to exercise his office ; the Court refused, on affidavit of those facts, and of the alleged default, to issue a mandamus to the mayor or aldermen of the ward to proceed to a new election, because the vacancy should have been first ascertained and adjudged by judgment on a jao warranto information. (gf) For where a councillor's name has been thus expunged, quo warranto is the only proper mode whereby to try his title to the office, and not a mandamus to command the mayor to hold a fresh election. (A) But if a councillor be ousted, and another elected in his stead, and such election be merely colourable, and therefore void, the Court will grant a mandamus to permit the ousted party to exercise his office, but noi *to restore him to it. But if such ouster and election be bona fide, the ^ -' Court will not grant a mandamus in favour of the party displaced, the proper proceeding being, as before stated, by quo warranto a^mi the party holding the office de facto. {€) (d) R. o. Physicians (College), 2 Show. 178, per Pemberton, C. J. See tit. " Office, (Public). (e) 5 Mod. 11, per Eyre, J. See tits. " Alderman Office," (Freehold). (/) See ante, p. 11. R. v. Chester (Mayor), 1 M. & S. 101. See R. v. Sdwaj, 9 B. & C. 432, 435.t R. T. Phippen, 7 A. & E. 965.f S. 0. nom. R. t. Bicketts, 3 N. & P. 151. S. C. 2 Jur. 966. See tits. '■ Corporation Municipal," (Duties, &c.), "Courts Inferior," (Holding, &c.), "Office," (Election). Before application is made for the writ it would be well, if it be intended to pro- ceed under stat. 6 & 7 Vict. c. 89, App., to see that all the requisitions of such statute have been fully observed. (^) See ante, pp. 26, 27 ; 7 A. & E. 966,-j- supra. R. v. Oxford (Mayor), 6 A- & E. 349.t S. C. 2 N. & P. 474.f R. v. Winchester (Mayor), 7 A. & E. 215.t S. C. 2 N. & P. 274 ; W. W. & D. 525 ; 1 Jur. 738. R. v. Birmingham (Rector of),I A. & E. 255.f R. Y. Derby (CounciUors), 7 A. &E. 419.+ S. C.'2 N. 4 P. 589. S. C. W. W. & D. 671. See tits. "Burgess RoU," " Office," (Election.) (A) R. T. Ricketts, 3 N. & P. 151. R. v. Winchester, supra. K. v. Oifori (Mayor), 1 N. & p. 474.t S. C. 6 A. & E. 349.t See ante p. 26. (i) See ante, p. 26. R. t. Oxford (Mayor), 6 A. & E. 349.+ S. 0. 1 N. & P- «4T R. V. Colchester (Mayor), 2 T. R. 259. R. v. Beedle, 3 A. & E. 467.+ And see. A. & ii. 257, 421,f supra. See tit. " Office," (Election). COUNCILMAN. 149 The writ lies, however, to command a town clerk to allow inspection of the voting papers, delivered at the election of councillors, under stat. 5 & 6 W. 4, c. 76, and to make extracts therefrom(y). {< .] Admission. — ^The writ also lies to command an admission into the office of common or town councilman, and to vote therein. (/c) But not if there he no vacancy in the office, or a disputed one, or the office is de facto full on an election not colourable. (Z) . Returns. — A return to such a mandamus may traverse all or any of the suggestions for the writ, as that the prosecutor was not a burgess, that he was not eligible to the office of common councilman, that he was not elected, &c. &c. ; and such returns have been held out to be in- consistent, and therefore good, if pleaded together, (m) But a return that the prosecutor was not duly elected a common councilman of London, because those who voted for him had not paid the orphan tax in pursu- ance of stat. 5 & 6 Wm. & M., c. 10, is bad, because a freeman of London is not deprived of his right of voting for a common councilman by not having paid such tax, if it be not demanded of him.(ji) .] Admission and Swearing in. — The writ has also been granted to command the admission and swearing in of a common councilman, duly elected, (o) And also to command the administering of the solemn declaration required by statute, in order to qualify for the office. (^) . Returns. — It was formerly held to be a good return to a man- damus to swear in, &c., that the prosecutor had to take the necessary oaths pursuant to stat. 23 Car. 2.(§') .] *Duiies, &c. — The writ lies also to command the recep- p^-. r.-, -. tion, &c. at a corporate meeting of the council, of the vote of one who has been duly elected councillor, and who is duly qualified for and has accepted such office ; and also to permit him in other respects to ex- ercise such office. (r) (/) R. v. Arnold, 6 N. & M. 152.f See tits. " Accounts," " Books, &c.," " Cor- poration Municipal," (Inspection), "Manor," (EoUs Inspection,) "Vote." [Tc) See R. t. Dublin (Dean), Stra. 539, per Eyre, J. R. t. Cambridge (Mayor), 2 T. R. 456. R. T. Winchester (Mayor), 7 A. & B. 215.f S. 0. 2 N. & P. 274. R. y. Leeds (Mayor), 7 A. & E. 963.+ S. C. 3 N. & P. 145. S. C. 10 L. J., N. S. 112, Q. B. {I) See ante, p. 26; V A. & B. 215,+ supra, where see other cases. See supra, Election, and tit. " Office," (Admission). (m) 2 T. R. 456, supra. See post, tit. "Return," (Traverse). In) Warden v. Rous, 7 Mod. 323. See post, tit. " Return," (Certainty). (o) Anon., 2 Barn. 24. Gay v. Cross, 7 Mod. 37, and cases there cited. Warden v. Rous, 7 Mod. 323. R. v. Love, 12 Mod. 601. Fludier v. Lombe, Cas. t. Hard. 307. Bac. Abr. tit. "Man." (C.) See tits. "Alderman," "Office," (Admission) (Swearing in), " Town Clerk." {p) R. V. Derby (Councillors), 7 A. & B. 419.f S. C. 2 N. & P. 589. S. C. W. W. & D. 671. See tit. " College," (Oaths), and post, tit. " Restoration Returns), (q) 12 Mod. 601, supra. R. v. Slatford, 5 Mod. 317. R. v. Oxford (Mayor), 2 Salk. 429. R. V. St. John's Coll., 4 Mod. 233. See tits. "College," (Oaths), " Office," (Restoration Return Oaths). (r) R. V. Leeds (Mayor), 11 A. & E. 512 jf 5 Jur. 548. And see stats. 11 Geo. 1, c. 4, and 1 Viet. c. 78, s. 26. See tits. " Alderman," (Duties, &c.) " Corporation Municipal." (Duties), " Vote." 150 tapping's mandamus. So the writ has been granted to command a freeman to take upon him- self the office of common councilman, although he had not taken the Sacrament within a year before his election. (s) .] Return. — A return of a bye-law that persons who refuse to fill the office become subject to the payment of a fine certain, and that the defendant had paid the fine ; is bad, if it do not state such payment to be in lieu of service. (<) .] Restoration. — The writ lies to command a restitution to the office and privileges of a common councilman or councillor, if unlawMly deprived. (m) But if the applicant be" merely suspended from his office, the Court will not, it seems, grant a mandamus to restore hmi.{v) Form of writ. — The restitution of one person only must be sought by the same writ, unless the two or more make but one Thus, in a case where nine were sought to be restored by the same writ, Holt, C. J., in quashing the writ, said, " the amotion of one is not the amotion of another, their interests are several, and they may have been removed for several difierent causes, one for one fault, and another for another."(M)) .] Returns. — The return of a custom to remove ab libitum is good, because the office of councillor, unlike that of alderman, is merely collateral to the corporation; such custom however must be returned r*102T ^'^^^ certainty, (a;) *But a return that the prosecutor had Spofen scandalous words of the mayor, &c., is bad, unless the words so' spoken had relation to the duty, &c. of such officer : Lord Hale required; returns of this nature to be sworn, which was the course pursued in Med- dlicot's case.(y) So a return that the common councilmen should be (s) See ante, p. 12. R. v. Walker, 6 M. & S. 2'7T. K. v. Bower, 1 B. & C. 585.+ S. C. 2 D. & R. 842.f See tlta. " Alderman," (Duties), " Corporation Municipal,'' (Duties), "Office." (Enforcing Duties.) (t) 1 B. & C. 585.f S. 0. 2 D. & R. 842,t supra. See tits. " Corporation Mu- nicipal," (Bye-law), " Return," (Certainty). (m) Estwick'a case. Sty. 32, (this was a writ of restitution,, ante, p. 3). Jaye's case, 1 Vent. 302. S. C. 3 Eeb. 714. R. v. Raines, 3 Salk. 233, 234, 16. E.T. Liverpool (Mayor), Burr. 723, approved in R. v. London (Mayor), 2 T. E. 181. Auon.,_ 2 Salk. 436, 19. R. v. Coventry (Mayor), 2 Salk. 430. S. C. Ld. Eaym... 391. Bret's case. Comb. 214. R. v. Chester (Mayor) Comb. 307. S. C. 5 Mod. 10. S. C. 3 Salk. 230. S. C. Holt, 438, and cases there cited. Warren's case, 2. RoUe, 112. S. 0. Cro. Jac. 540, and cases there cited ; also cited in note to Mid- dletou's case in Dyer, 332 b. R. v. Tyther, 2 Eeb. 250. William's cas6, 2 Keb. 558. Earle's case, Carth. 173. R. v. Chichester (Mayor), 1 Show. 273, and cases there cited. R. v. Oxford (Mayor), 6 A. & E. 349.t S. C. 1 N. & P. 474.f See Cowp. 502; 2 T. R. 541, 560. Trem. PI. Cor. 506, where see form of writ. See tit. "Office," (Restoration). M R. V. Tyther, 2 Keb. 250. But see tit. " Office," (Suspension). (w) Anon., 2 Salk. 436, 19, and cases .cited. R. v. Chester (Mayor), Comb. 308. S. C. 5 Mod. 11. See post, tit. "Writ," (Mandatory Clause). (x) 2 Salk. 430, supra, and cases there cited. Warren's case, 2 Roll. 112. S. C. Cro. Jac. 540, also cited in note to Middleton's case, 2 Dyer, 332 b. Dighton's case, i ?*;3,?^ ' ^ ^°^- "' P«'' ^y^S: J- See tits. " Alderman," "Custom," "Of- ffice," (Will), " Town Clerk." (3^) Jay's case, 1 Vent. 302. S. C. 3 Keb. 714. R. v. Raines, 3 Salk. 233, 16. urL ,fT^' ^ ^^l'^- ^^^' *2^- See tits. " Alderman," (Restoration Return Libel), " Office," (Restoration Return Libel). COUNTY. 151 chosen yearly, and that before the coming of the writ they had heen so chosen, had continued for a year, and had been afterwards duly amoved from their offices by the election of others, is bad for uncertainty; for it should have shown the time when they were elected, in order that the Court might see that such oflScers had not been amoved before the year expired, (z) .] Removal. — The writ does not lie to command a municipal corporation to assemble and consider the propriety of removing certain persons by name from the office of councillor, if there be vested in such corporation a discretionary and not a compulsory power of amotion ; be- cause in such case the Court of B. R. has no jurisdiction, unless the cor- poration be misgoverned.(a) County.] This subject is arranged as follows : — County. Accounts, Books, &c., delivery 102 Inspection - - 102 Rate - - - - 103 OoDNTY. — Appeal Treasurer - Election Duties - 103 - 103 - 103 103 .] Accounts, Books, &c.. Delivery, &c. — The writ will be granted to command a county treasurer to deposit with the clert of the peace, in pursuance of stat. 12 Geo. 2, c. 29, certain books, containing entries of the county expenditure, notwithstanding that the receipts, tradesmen's bills, gaoler's accounts, and copies of the county rate, had previously been deposited with the clerk of the peace, and also that the books contain the discharges of the treasurer and ex-treasurer by the justices in sessions ; provided the sessions be party to such illegal detention by thte ■ treasurer, by refusing to interfere,(6) because thereby the public are kept from that to which they have a right. .] Inspection, &c. — The writ has been granted to allow an in- spection *of county accounts;(c) but not till after application p;j;i/vo-. for such inspection has been demanded of, and refused by the justices assembled in Quarter Sessions.(cZ) («) E. V. Chester (City), 5 Mod. 10, and cases there cited. See post, tit. " Re- turn," (Certainty). (a) Ante, p. 12, 13, &c. R. v. Totness (Mayor), 5 D. & R. 481.-f- E. v. West Looe, 5 D. & E. 414.+ And see 4 D. & R. TeT. See tits. " Alderman," (Removal), " Office," (Removal). (6) Ante, p. 2*1. R. v. Payn, 1 N. & P. 524.+ S. C. 6 A. & E. 392.+ S. 0. W. W. k D. 142 ; 1 Jur. 54. S. C. 3 P. & D. 623. S. C. 11 A. & E. 955.1 See tits. "Accounts," "Books, &c.," "Corporation Municipal," (Insignia), "Manor" (Rolls). (c) Bac. Abr. tit. "Man." (D). See tits. "Accounts, Books, &c.," " Manor Rolls'" and post, tit. " Application." R. v. Nottingham (3.), 3 A. & E. 500.f S. C. 5 N. & M. 161,f citing E. v. Leicester, 7 D. & E. 3T0.f S. C. 4 B. & C. 891,f but which was much shaken by E. v. St. Marylebone, 6 N. & M. 600,f and overruled by E'. v. Staffordsh. (J.), 1 N. & P. 211.^ S. 0. 6 A. & E..84,f where see form of writ and return. And see 5 A. & E. 2'75.j- {d) R. V. Leicester (J.), 7 D. & B. 3!r3,-j- n. ;(a) ? D. & R. TbS.f. S. 0. 152 tapping's mandamus. .] Rate. — ^It would seem that the writ lies to command the mak- ing of a county rate ; but not to command justices to make a rate to reimburse two of the inhabitants their charges, in defence of an indict- ment for not repairing a bridge.(e) The writ lies also to command the Court of Quarter Sessions to make an order for a petty constable of a division to levy a certain sum, by rate upon the owners and occupiers of property within the division, liable to be rated for the relief of the poor, for the purpose of reimbursing him the money which he had paid for the proportion of the said division towards the county rate.(/) .J Rate, Appeal. — The writ lies to command the Court of Quar- ter Sessions to enter continuances and hear an appeal against a county rate.(^) So it lies to command a recorder to enter continuances and hear an appeal against a rate in the nature of a county rate. (A) .] Treasurer, Election. — The writ lies to command the Court of Quarter Sessions to elect a county treasurer, both though there be an absolute vacancy, or the office be full by a void election. (i) .] Treasurer, Duties, &c. — The writ of mandamus will not, in general, lie against a county treasurer, as such, both because he is a min- isterial officer, the servant of, and amenable to the justices, whose com- mands he should not resist, and also that the specific legal proceeding applicable to him, on his default, &c., in his official duties, is an indict- ment, which being the ordinary remedy, must be followed. (_/) Thus, the writ does not lie to command a county treasurer to pay the keeper of r*1 041 ^^ *county gaol the salary granted to him by the sessions, the remedy being by indictment.(A) This doctrine has been soundly established by a recent case, in which the Court of B. E. refused to direct a county treasurer, by mandamus, to pay a prosecutor's costs, ordered by a Judge of assize, under stat. 7 Geo. 4, c. 64, ss. 23, 24 ; Lord Denman, in giving judgment, said, that the first question was, whether the Court should in- terfere by mandamus, " in the ease of an inferior officer, amenable to others, and be pointed out that in E. v. Bristow, supra, which was also the case of a. county treasurer. Lord Kenyon had objected to descending (e) Anon. Stra. 63. Com. Dig. tit. "Man." (B.) See tits. "Borough" (Bate), "Church" (Rate), "Highway" (Rate), "Parish" (Rate), "Poor" (Rate). (/) R. T. West Riding, 12 East. 116. See tits. " Quarter Sessions," " Constable." (g) R. T. Middlesex (J.), 1 P. & D. 402. S. C. 9 A. & E. 540.^ S. C. 2 W. W. 4 H. 100. R. T. Buckinghamsh. (J.), 7 B. & C. 3.+ R. t. "Westmoreland (J.), 10 B. t C. 226,t and see 10 B. & C. r92.f R. v. York (J.), 2 B. & 0. Ill.f R. T. Surrey (J.V 5 A. & E. roi.-j- See tit. "Quarter Sessions," (Appeal). (A) R. T. Stamford (Recorder), 2 P. & D. 12. See tit. "Recorder," m R. V. Herefordsh, (J.), 1 Chitt. TOO.f See tit. " Office" (Election). (/) Ante, p. 24. R. t. Payn, 1 N. & P. 528.+ S. C. 6 A. & E. 392.+ R- v. Jejcs, 5 N. & M. lOl.f S. C. 3 A. & E. 416, 422, 424.t S. C. 1 H. & W. 325. R. f. Shaff, 5 T. R. 549, which is a very early, if not the earliest, case of a mandamus agojnst a treasurer. R. t. Bristow, 6 T. R. 168. R. v. Surrey (Treasurer), 1 Chit. eSO.f R. T. Johnson, 4 M. & S. 515. See tits. "Newgate," " Office," (Inferior Officer). . x?)A?-.^; \^^ i 6 A. & E. 39t, 400.t S. 0. 1 N. & P. 524 3 A. & E. 419.t S. C 5 N. & M. 101,-j- supra. COURTS. 153 too low, and put, as an instance, the case of a constable. Littledale, J., in the same case, also pointed out the distinction between " a servant to the magistrates, and a principal, who pays over in his public capacity, "(f) If, also, any public officer refuse to execute any order received by him from his superior, or any competent authority, who, upon such refusal, may punish him by indictment for such disobedience, the Court will not proceed by mandamus against such officer, but leave the applicant to such remedy, not altogether because the officer is too low in degree, but be- cause he has received an order from competent authority, which can en- force a fulfilment of its commands, (m) Notwithstanding the Court has always refused to place itself in the situation of the magistrates in order to make their officer perform his duty J yet, if both the magistrates and the officer refuse to act, &c., the result of which is, that the public are kept from that to which they have a right, in such case the Court will interfere.(ra) CoTJNTY CouBT.] See tit. Court, Inferior. County Kate.] See tit. County {Bate). Court, Inn o?.] See titles Advocate of Doctors' Commons ; Inn of Court. Courts. J The Court will not grant the writ to any inferior Court, of competent jurisdiction, where there has been no defect of justice. (o) *This subject has been thus arranged : First, as to the several Courts Inferior, and what has been required of them; and, Secondly, of Courts Superior. [*105] l3t, ConKTS, Infebiob. - - 105 Jurisdiction of B. E. - 105 List of Courts - - - 106 Admiralty - - 106 Canterbury 106 Chester - - - 106 Colchester - - - 106 County - - 106 Delegates - - - lOt Ecclesiastical - - 107 Havering Court, Essex - lOt Lord Mayor's - lOT Manor - - lOY Marshalsea - - - lOT CouETS, Infbeme. Municipal - lOT Palace - lOT Petty Sessions - - 107 Quarter Sessions - 107 Reading, Court of 107 Requests - - - 107 Steward - - 107 Clerk of Papers - 107 Revising Barrister - 107 Saint Martin-le-Grand - 107 Sheriffs - - 107 South wark - - 107 Spiritual - - 107 (l) R. V. Jeyes, supra. (ot) 6 A. &E. 401, -j- per Coleridge, J. See tits. " Court, Inferior " (Judgment Execution), " Gustos Brevium." (n) 6 A. & E. 392.f S. C. 1 N. & P. 524,-j- supra, and see supra, " Accounts." (o) Ante, p. lOjGude's Cr.Pr. 180; Anon. 2 Bam. 441. See tits. "Manor" (Leet) "Quarter Sessions," "Courts, Inferior." As to Lis pendens, see ante, p. 23', and tits. " Administration " (Letters), " Church- warden " (Restoration), " Will " (Return Lis pendens.) 154 tapping's mandamus. GODKTS, InFHKIOB. CouETS, Infbeiob. ; Stannaries' Court - 108 Case - 109 Stepney Court - 108 Rehearing - no Thames Conservancy - 108 New Trial - - HO Tolzey - 108 Judgment and Execution - 110 As to what has been required Review of Judgment - Ill of Inferior Courts 108 Records, &c., Copies - Ill Holding Courts - 108 Alteration - Ill Returns - 109 Application - 112 Jury - 109 Form of Writ - 112 Tolt 109 2nd. Courts, Superior 112 Plaint - 109 Queen's Bench - 112 To proceed, &c. 109 Common Pleas - 112 Hearing - 109 Judicial Committee of Privy Appeal - 109 Council - 112 1st. CouKTS Inferior.] Jurisdiction of B. R.^—Ks the Court of B, R. has general jurisdiction and superintendency over all inferior Courts, whether civil or criminal, so it has the power to compel them to do any act, which by law they should do, whether the obligation arise from a charter, subsist by custom, or be created by act of Parliament : also to command them to execute faithfully all powers with which they are cloth- ed, whenever the same are either denied, or delayed, and to restrain them from intermeddling where they have no jurisdiction.(p) Such a writ does not, however, lie to the Superior Court, (g) [*106] . * Wherever there is a particular jurisdiction, created by act of Paliament, the Court of B. R. may command the execution thereof by mandamus, and remove their proceedings by certiorari, to see whether they have observed their authority ;(?•) because it is the duty of such Court to correct the errors of inferior jurisdictions, and to grant a mandamus in all cases to which such writ is applicable, in order to prevent a failure of justice, or a public inconvenience by a defect thereof,(s) when it is sus- pected, on strong grounds, that injustice has been done below;(<) there- fore, before the peremptory writ wiU be granted, manifest injustice must he shewn ; thus as that cannot be assigned for error, which is for the advan- tage of him who seeks to bring itj(M) so in order to support a mandamus, there must be an absolute defect of justice as respects the prosecutor.(9) So the writ will not be granted to command an inferior jurisdiction to {p) 3 Bl. Com. 110; Bac. Abr. tit. "Man." (D.), (B.) f Sty. 7, 8; Lev. 186; Comb. 158,450. Dr. Walker's case, Cas. t. Ld. Hard. 214. St.:Balaunoe's case. Palm. 50. S. C. 2 Roll. 106. R. v. Surrey rj.), 2 Barn. 410. R. v. Hewes,3 A. & B. 730,1 per Littledale, J. R. v. Surrey (J.), 2 Show. T4. Brooke v. Ewers, Stra. 113. Bldridge T. Fletcher,, 3 D. 588; 1 W. Bl. 640; Stra. 552. See tit. " Portreeve." (?) 4-nte, p. 11 ; Vern. 175; Bac. Abr. tit. "Man." (D.), (B.) See post, "Courts" (Superior), and see tits. " Act of Parliament," " Charters." (r) B. v. Glamorgansh. (Inhabs.), 12 Mod. 403. See tits. " Act of Parliament," " Commissioners," " Certiorari." («) Ante, pp. 10, 11. R. V. Carmarthen (Mayor), 1 M. & S. 696. (t) See post, tit. " Application." B. v. Cambridge (TJ.), 6 T. E. 104, per Kenyon, C J., citing Dr. Bentley's case, 3 A. & E. 730,+ supra, per Littledale, J. ; Coin. Dig. tit. " Man." (A.) 7\ c i c . (u) 5 Rep. 39 ; 2 Saund. 46 ; 2 Sid. 40. (v) 6 T. R. 110, supra, per Ashhurst, J. COURTS. 155 give effect to or sanction that which, though in part valid, confers a power to commit an illegality.(w) But though the writ be daily awarded to Judges of inferior Courts, to give judgment, or to proceed in the execution of their authority, yet it is never granted to aid a jurisdiction, but only to enforce the execution of it ; for it is not grantable where there is a specific legal remedy. (x) Thus, the writ will not be granted to compel obedience to an order of Bessions,(y) because the proper remedy is by indictment. The following is an alphabetical list of the Courts Inferior in respect of which the writ of mandamus has either been granted or denied : — .] Admiralty. — The Court of B. R. has refused to award a man- damus to the Judge of the Admiralty Court, to grant a monition as to a prize, because it is presumed the Judge will do right.(z) .j Canterbury Corporation. — See tit. Attorney. — — .] Chester Palatinate. — See tit. Attorney. .] Colfhester. — See tit. Attorney. .] County. — The writ baa been granted to command the sheriff to enter a plaint in the County Court, but not a plaint in replevin for damage feasant.(a) So it lies to command it to issue execution on a judg- ment by default, committed by the defendant, but not after the judgment has been set aside, though not at the instance of the parties, if it were so set aside before the rule for the mandamus was obtained.(J) * .] Delegates. — The writ does not lie to command the j-^-j q^t Court of Delegates to admit allegations, (c) .J Ecclesiastical. See infra, Spiritual. .] Havering Court, Ussex. — See tit. Attorney. .] Lord Mayor's Court. — ^It has been held that a mandamus will not lie to command the attorneys and officers of the Lord Mayor's Court in London, to proceed with and dispose of a cause there pending, (ci) But it has also been held, that the writ will lie to command the Mayor of London to enter up a judgment upon the Statute for Eebuilding Lon- don, (e) .] Manor. — ^As to mandamus to the Manor Courts. (/) .] Marshalsea. See tit. Attorney. (w) Ante, p. 16, n. (n). R. v. Conyers, 15 L. J., N. S. 301, Q. B. (x) Ante, p. 23 ; Bac. Abr. tit. " Man." (D.) See tit. " Company" (Execution.) (V) Ante, p. 24. B. t. Bristow, 6 T. R. 168. See tit. " County" (Treasurer.) (z) Ante, p. 105. Sayer v. Newton, T., 1 Geo. 2, cited in Dr. Walker's case, Cas. t. Hard. 21T. See tit. " Court, Superior" (Queen's Bench). See post, p; 112. (a) Bx parte Boyle, 2 D. & R. 13, 14.-J- See infra, " Plaint," and see tit. " County." (b) Eldridge v. Fletcher, 3 D. 588. See infra, " Judgment Execution." (c) Ante, p. 106. St. David (Ep.) v. Lacy, Ld. Raym. 544. }d) Buxton V. Singleton, 3 Keb. 432. See tit. " Attorney." (e) Amherst's case, Raym. 214. S. 0. 1 Vent. 187. S. C. 2 Keb. 871. R. v. Eushworth, W. Kel. 287. See Stra. 113 | Bac. Abr. tit. " Man." (D.) See infra,' " Judgment Execution." (/) See 2 D. & R. I76,t n. (a) ; 1 D. & R. 148,t and 6 T. R. 242 ; 1 Barn. 59, 68, per Page, J. See tit. " Manor" (Leet Baron). 156 tapping's mandamus. Municipal. See tit. Corporation Municipal (Duties, &c.)[g) Palace. See {h). Petty Sessions. See tit. Qtmrter Sessions {Petty Sessions). Quarter Sessions. See tit. Quarter Sessions. Beading Gov/rt. See tit. Attorney. Requests. — The writ lies to command the Court of Bequests in London, to hear and determine a suit instituted in their Court of Bequests by the Chamberlain of London, or any other person.(*) — — .] Requests, Steward. — ^But it does not lie to command the late steward of a Court of Bequests to pay over the suitors' money received by him in his official capacity, as the money is received to the use of the litigants alone, (j) .] Requests ; Glerh, Papers. — The writ lies, however, to com- mand the delivering up to. the clerk of a Court of Bequests of all papers, &e. relating to the office, when wrongfully withheld by a person, by rea- son of his supposed election to the office ; so that when two persons are contending for an office, the right to it may always be tried by a mandamus to give up the papers, (fc) .] Revising Barrister. See tit. Burgess Roll. .] Saint Martyn-le-Grand. See tit. Attorney. .] Sheriffs. See titles Attorney ; Bristol) Sheriffs' Court. .] Southwark Borough Court. See tit. Attorney. .] Spiritual. — As, where the Spiritual Court adjudicates cod- r*1 081 ^''^''y **° ^^^ Common Law, prohibition, de non procedendo lies, so where such Court omits or declines to do that which it ought to do, the Court of B. B. will command it, by mandamus, to do its duty. Thus, if the ordinary will not allow a will to be proved, whereby the lega- tees are deprived of their legacies, in such case this Court will command him to do justice to the party.(?) But with matters of purely Ecclesiastical cognizance, or the mere offi- cers of such Court, the Court of B. B. will not interfere by man- damus ;(m) there are, however, cases of the writ having been granted in ecclesiastical matters.(?i) So, where an act of Parliament creates a tem- poral duty, and merely saves the jurisdiction of the Ecclesiastical Court, [g) Stra. 113 ; 1 Vent. 187. S. C. Raym. 214. S. C. 2 Keb. SYl ; Cas. t. Hard. 214 ; Com. Dig. tit. " Man." (A.) ill) 1 D. & R. 52T,t and infra. (i) R. T. Requests (Court), Y East, 292, where see as to direction of writ. (/) R. v. 'Watson, 2 N. & P. 595. [k) R. T. Hopkins, 4 P. & D. 550. S. C. 1 Q. B. lei.f S. 0. 10 L. J., N. S. 63, Q. B., where see form of writ. See tits. "Accounts, &c.," " Books, &c." (2) St. Balauuoe's case. Palm. 50,51. Blackborough t. DaTis, 1 P. Wms. 46, per Holt, C. J. See tits. « Administration, Letters of," " Will." (m) Ante, p. 22. R. v. Coleridge, 1 Chit. 597,+ per Abbott, C. J. E. v. St. Margaret's, 8 A. & E. 889.t S. 0. 1 P. & D. 116. S. C. 2 P. & D. 510. See also tits. " Church" (Rate), and " Office" (Spiritual), " Common Pleas." (n) R. T. Canterbury (Archbishop), 8 East, 216. See R. v. Cambridge (V. C), Burr. 1660. See tit. " Bishop." OOUKTS. 157 the Court of B. E. is not thereby excluded from granting the writ, because the Ecclesiastical Court has concurrent jurisdiction. (o) .] Stannaries' Court See 2 Keb. 864, per Hale, C. J. .] St&pney Cowt. See tit. Attorney. .] Thames, Conservancy of. — The writ does not lie to command the justices of Berkshire to hold a Court of Conservancy, in pursuance of Stat. 17 Kich. 2, o. 9, for that part of the river Thames which lies in that county J because as all complaints are, by the statute, to be made to the sessions, such a provision is the prescribed legal remedy for the defect of justice. (jj) .] Tolzey Court of Bristol. See tit. Bristol. As to what has been required of Inferior Courts. .] Holding Courts. — The writ will be granted to command the holding a Court for the trial of causes, pursuant to charter, act of Parlia- ment, &c. Thus it has commanded the holding of a municipal or borough Court(2') at the instance of an inhabitant of the town, &c., notwithstanding he was not a corporator, and although the holding of such Court had been long disused.(i-) It has also been awarded for such purpose, although the Court has not been holden for two hundred years. (s) . ^Return. — ^A return of want of funds to hold the Court r*i oq-i is no valid answer to the Writ ;(<) but if any good reasons exist why the Court should not be holden, they may be returned. («) .] Jury. — As to jury, see tit. Manor (Leet). .] Tolt. — The writ will be granted to oblige an inferior Court to pay obedience to a tolt.(«) .] Plaint. — So the writ has been granted to command the steward of a manor Court to receive a plaint, and to issue process thereon, and to proceed to the hearing and determination of such plaint, pursuant to a charter, &c.(?o) (o) Ante, p. 11 ; 8 A. & E. 889, goi.f S. C. 1 P. & D. 116. S. 0. 2 P. & D. 510, supra: See tit. " Act of Parliament." (p) See ante, p. 18. Anon., 2 Baxn. 441. (?) E. T. Wells (Mayor), 4 D. ^62. R. v. Hastings (Mayor), 1 D. & B. 148.t 5 B. & A. 692,t («). S. 0. cited in R. v. Eye (Bailiffs), 2 D. & R. 115. Il6,f n. (a), and see 10 A. & E. 561 ;■)- Bac. Abr. tit. "Man." (D.) R. t. Havering, 5 B. & A. 691. See tits. "Borough," " Corporation" (Municipal), " Manor" (Leet), " Quarter Sessions." (r) 1 D. & R. 148,t supra ; 5 B. & A. 692, [n). R. v. Illchester (Bailiffs), 2 D. & R. '724. (s) E. V. WeUs (Mayor, &c.), 4 D. 562. In R. v. Hastings (Mayor), 1 D. & R. 148,f a nonuser for fifty-two years was held to be no answer to the writ. So as to a nonuser for thirty years, R. T. Havering, 5 B. & A. 691 ; Bac. Abr. tit. " Man." (D.) See tit. "Manor" (Leet Plaint). (t) R. V. Wells, 4 D. 562, supra; 1 D. & R. 148-1 S. 0. cited in R. v. Eye (Bailiff,) 2 D. & R. 175. 1T6, n.(a) See tits. " Act of Parliament," " Company," " Highway " (Fences), " Railway." lu) 1 D. & R. 148 ;f 2 D. & R. 1T5, 1T6,-|- n.(ffi), supra. See post, tit. "Railway." (v) Burgh V. Blount, 10 Mod. 350. (w) Ante, p. 11. R. v. Havering (Steward), E. T., 3 Geo. 4, cited in R. v. Byo 158 tapping's mandamus. .] To proceed, &c. — So the writ has been granted to command the Judges of a borough Court to proceed with a cause pending in their Court ;(a;) but an application for this purpose must be supported by affi- davit, as it will not be presumed that justice is delayed.(y) .] Hearing. — The Court of B. K. will, by mandamus, command all inferior jurisdictions to hear a case in the first instance, or to receive and hear an appeal which they have improperly refused to do, and will oblige them to do whatever is incidentally necessary to such hearing.(z) But it will not prescribe the mode of such hearing and determination.(a) Thus, a mandamus will be granted to make a rate, but not an equal rate; for in such cases the writ is granted merely to set such jurisdictions in motion when they have refused to act. (6) The writ will not, however, be granted to hear and determine, when the tribunal has, in fact, heard and determined, although erroneously. (c) So where there is a remedybj appeal, as in the Stannaries' Court,((i) the Court of B. R. will not, by mandamus, command a rehearing, because there is not a defect of justice. .j Appeal. See tit. Quarter Sessions (Appeal). .] *Oase. See titles Case; Quarter Sessions [Case) ; Poor .] Rehearing. — Where a tribunal of competent jurisdiction hag decided a case, the Court of B. R, cannot, by mandamus, command a re- hearing, and will refuse such an application ; otherwise it might as well call upon the Lord Chancellor to revise any decision he has made ; or upon any other Court to reconsider its judgment, (e) So where the prac- tices of a Quarter Sessions required the appellant to begin by proving his case, which the appellant refused to do, whereupon the appeal was dis- missed ; the Courts of B. R. refused a mandamus to rehear on this ohjec- tionj(/) and decided the general principle, that the Court of B. E. will not interfere to regulate the practice of an inferior Court, it being the (Bailiffs), 2 D. & R. 176, n. [a), and citing R. v. Hastings (Mayor), 1 D. & K. US.f See tits. "Manor" ^Leet Plaint), " Quarter Sessions" (Complaint). (x) Curser v.. Smith, 1 Earn. 59, 68, cited in Gas. t. Hard. 215. E. v. Monmonthsh. (J.), 4 B. & C. 846,-|- and see 1 M. & S. 442 ; 3 Keb. 432. See tit. "Quarter Ses- sions" Petty Sessions (Justices). (y) Curser v. Smith, 1 Barn. 57. See post, tit. " Application." (x) E. v. Hewes, 3 A. & E. 727,1 per Patteson, J. Ex parte Morgan, 2 Chit. 250-1 See also 4 N. & M. 583.t Doug. 191, 3 T. R. 504. E. v. PUntsh. (J.), 7 T. E. 200. Bac. Abr. tit. "Man." (D.) See tit. " Quarter Sessions" (Hearing). (a) Supra, n. (a). See post, tits. " Office" (Judical Officer), " Writ" (Mandatoiy Clause). [b] 3 A. &E. 732,f supra ; 9 A. & B. 546.^ E. v. Middlesex (J.) See tit. "Poor" (c) R. T. Treasury Lords, 10 A. & E. 179.f E. v. Treasury Lords, 10 A. & E. 374.t E. T. Old Hall (Mayor), 10 A. & E. 248.-J- Ex parte Smith, 4 N. & M. 683. S. 0. 1 H. & W. 282. See tits. " Quarter Sessions," " Compensation " (Office), (d\ Ante, p. 10, 21. E. t. Apleford, 2 Keb. 864, per Hale, 0. J. (e) 3 A. & E, 722,f per Denman, C. J., and Patteson, J. ; and see 4 B. & C. 846 ;t IM. & S. 442 ; and 3 Keb. 432. E. t. The Eastern Counties Railway, 2 D., N. S. 948. See tit. " Quarter Sessions " (Rehearing). (/) E. V. Suffolk (J.), 6 M. & S. 57, and see E. v. Monmouthsh. (J.), 1 B. & Ad. e97.-i- See tit. " Quarter Sessions " (Appeal). COURTS. 159 sole judge of its own practice •,(g) but where the practice of an inferior Court is contrary to law, the Court of B. E. will not sanction it, and therefore award a mandamus. (A) .] New Trial. — The Court of B. R. cannot, by mandamus, com- mand an inferior jurisdiction to grant a new trial, although it be alleged that injustice has been done; for- such a command would, in fact, be to try upon affidavits the truth of any allied irregularity in a judgment of such Court; besides, if the judgment be erroneous, a writ of error lies.(i) .] Judgment and Execution. — It is a general rule, that the Court of B. B. will not,- by mandamus, enforce the process of an inferior Court, the Judge of which has power to compel obedience to his pro- cess.(iV) The writ has, however, been granted to allow an applicant to enter up final judgment, and tax his costs, in a certain plaint duly entered by him in a Manor Court, and to issue a precept or warrant in the nature of a capias ad satisfaciendum thereupon ; but such an application will be refused, if the inferior Court had not jurisdiction. (y) So it has been granted to command the Judge of an inferior Court, as the Sheriff's Court of London, to examine and inquire whether a writ of inquiry or judgment was obtained by fraud or surprise, though strictly regular in form ; and if so, to set it aside. (A) So it has been granted to command the Sheriff's Court of London to proceed to judgment in a case before it;(Z) and a re- turn that the judgment is erroneous, *is not good, for it is sufficient -^.i , , , that the Court below has come to a judgment upon the principle '- ^ that res judicata pro veritate accipitnr.(m) So the writ lies to command a municipal Court to give judgment on a verdict, though it had granted a new trial, which it had not power to do ; the mandamus in such a case is in the nature of a procedendo ad judicium. (») But where, in the Palace Court, a defendant had suffered judgment to go by default, and that Court had refused to allow the plaintiff to sign final judgment, as by law it was contended he might do, the Court of B. R. refused a mandamus, to command the inferior Court to allow final i'4i 2 Chit. 250,-|- supra ; Bac. Abr. tit. " Man." (D.) See tit. " Quarter Sessions." See ante, p. 10. E. t. Bettesworth, W. Kel. 156. See tit. " Quarter Sessions" (Appeal). (i) Ante, p. 23.f Ex parte Morgan, 2 Chit. 250.-|- Ex parte Smyth, 3 A. & E. T21.+ See tit. " Quarter Sessions," infra (Judgment, &c.) (a) R. T. Oonyers, 15 L. J., N. S. 300, Q. B. Ante, p. 23, 24. (J) E. X. Danser, 6 T. E. 242. See Curser v. Smith, 1 Bam. 59, 68 ; Andr. 184, per Page, J. E. v. Oxenden, 1 Show. 219. WUkins v. Mitchell, 3 Salk. 228. S. C. Ld. Eaym. 348 ; Bac. Abr. tit. " Man." (D.) There must be an affidavit of the re- fusal. See tits. "Conviction," "Quarter Sessions" (Judgment). tk) E. V. Urling, Port. 198. (I) Bayley v. Boorae, Stra. 392 ; Andr. 183. E. v. Urling, Fortes. 198. Smith V. Ajidover (Bailiffs), M., 11 Geo. 1 ; Bam. B. E. 159; and see Cas. t. Hard. 214; Bac. Abr. tit. "Man." (D). (m) E. V. West Eiding (J.), 1 T. E. 461. R. v. Old Hall (Manor), 10 A. & E. 256. S. 0. 2 P. & D. 518. E. v. Richardson, 1 Wils. 21. (7j) Brooke v. Ewers, Stra. 113 ; And. 183. R. v. Day, Say. 202. Amherst's case, 1 Vent. 187. S. C. Raym. 214. S. C. 2 Keb. 871, also cited, Cas. t. Hard. 214; Com Dig. tit. "Man." (A.) See also 2 Chit. 250,f and 4 N. & M. 683 ;+ Bac. Abr. tit. " Man." (D). 160 tapping's mandamus. judgment to be signed, and left the plaintiff to his writ of error, which was another and a proper remedy in such case.(o) So, in one case, the Court refused to grant a mandamus to an inferior Court to execute a judgment there given, because there lay a writ de executione judieii.(oo) So the writ will not be granted to command an issue of execution on a judgment which has been set a8ide.(p) .] Review of Judgment. — The Court of B. R. will not by man- damus, command an inferior jurisdiction to review a judgment actually signed, (g-) .] Records, Copies, &c. — ^The Court of B. E,. will grant a man- damus to make up a record, for the purpose of enabling a party to plead auterfois convict, &c., or for any other proper purpose ;(r) and also to give a copy of such record, when made up, to the applicant's attorney, as the prisoner has a right to have the record of the proceedings which were had at Sessions correctly made np, and to make what use of it he can. So that if a prisoner be found guilty at a Sessions irregularly holden, he is entitled to have the record made up according to the fact.(s) .J Alteration. — The writ lies to command an inferior Court of Civil Jurisdiction to correct its proceedings, (i) But the Court of B. K. will not command an inferior Court of Criminal Jurisdiction to alter its records *in a matter which operates against the subject, &c. Thus L -^ it will not command the alteration of the minutes of a verdict in a criminal case according to the fact, nor cancel an alteration in such minutes on a representation that the verdict was erroneously entered at the trial.(w) . Application. — The granting of a mandamus to revise the sen- tence of another Court, is not of course ; nor is it of course to grant it in a doubtful case, where the Court below, assuming it to be a Court of competent jurisdiction, has exercised that jurisdiction and proceeded to sentence, and the applicant has appealed against that sentence, which has been affirmed on such appeal. («) (o) Ante, p. 22. R. v. Oonygham, 1 D. & R. 529.-i- S. 0. nom. Arden v. Ooi- nell, 5 B. & A. 885. Ex parte Morgan, 2 Chit. 250.^ See also 4 N. & M. 583.t Supra (New Trial). (oo) Ante, p. 22. Wilkins t. Mitchell,, 2 Salk. 228. S. C. Ld. Kaym. 348, and note there, contra, cited in Dr. Walker's case. Gas. t. Hard. 212, 21'? ; and seeB. T. Ely, (Ep.) 1 W. Blao. 5V. S. C. 1 "Wils. 266 | 1 Show. 219. (p) Ante, pp. 26, 27. Eldridge v. Fletcher, I H. & W. 199 ; 3 Bl. Com. UO. (?) See supra " Judgment Execution, &c." R. v. Monmouthshire (J.), 4 B. * C. 846.} R. T. Leicestershire (J.), 1 M. & S. 442. Buxton v. Singleton, 3 Keb. 432. See 3 A. &. E. 722f . See tit. " Quarter Sessions" (Review). [r) R. T. Middlesex (J.), 5 B. & Ad. lllS.-f R. v. Hewes, 3 A. & E. 731,1 P« Littledale, J., &c. See tits. "Books," &c." " Oonviction," "Quarter SessioM' (^f<=ff„^s), " Corporation," (Municipal), (Insignia), " Manor," (Leet). (s) See tits. " Prisoner," " Quarter Sessions" (Records). («) Ante. p. 11. E. v. West Riding (J.), 5 Q. B. 1.+ S. 0. 3 G. & D. 170. S. C. ID. & M. 590 ; and see 3 A. & B. 321.+ See tit. " Quarter Sessions," ^ cords). (m) 3 a. & E. '725.t supra. See tit. "Quarter Sessions" (Record.) (w) 6 T. R. 110, supra, per Grose, J. See post, tit. " AppUcation." COURTS. 161 — — ". Form of Writ. — ^The writ is always sent in general terms, to do its duty, and must not require such inferior Court to do a specific act in a particular mode.(w) Thus it will not be granted to command such inferior jurisdiction to do a particular thing, as to make an alteration in the clerk of the peace's minutes, as the Court of B. R. has no right to interfere, in this respect, with the practice of the Court below, (x) 2nd. Of Courts Superior. Courts.] Superior, Queen's Bench. — Though a mandamus(y) may issue out of Chancery to an inferior Court, yet, on a motion to the Lord Keeper to grant a mandatory writ to the Chief Justice of B. E., to com- mand him to^ sign a bill of exceptions, the Lord Keeper refused it, and observed, that he would not presume but that the Chief Justice of Eng- land would do what was just in the case. (2;) .] Common Pleas, Officers of. — The Court of B. R. cannot, by mandamus, meddle with the Court of Common Pleas as to its officers, &c., because the course of their Court is the law, and of that they are the Judges, it being one of the superior Courts, (a) .] Judicial Committee op Privy Council. — As to a man- damus to the Judicial Committee of the Privy Council, see tit. Privy Council. Crown.] It is clearly settled, that the writ of mandamus cannot, in any case, be granted against the King or Queen, both because there would be an incongruity in the Sovereign commanding itself, and also, because *disobedience to the writ must be enforced by attachment. (6) Neither will the writ lie to command the officers or servants of ■- ■' the Crown, as such.(c) Thus it does not lie to command the Crown or its servants, strictly as such, being the depositories of public money, &c., either to pay over money in its or their possession, in liquidation of legal (w) Ante, p. 109. R. v. Suffolk (J.), 5 N. & M. 144,f per Patteson, J. See post, tit. "Writ" (Mandatory Clause.) (x) R. V. Hewes, 3 A. & B. 1^\,^ per Littledale, J., and per Patteson, J., 732. Blackborough t. Davis, 1 P. "Wms. 46. R. t. Leicestersb. (X), 1 M. & S. 444. Ex parte Morgan, 2 Chit. 250 ;f and see 4 N. & M. 583.t R. v. Suffolk (J.), 6 M. & S. 5T; and see R. v. Monmouthsh. (J.), 1 B. & Ad. 897.f See tit. "Office" (Judi- cial). (V) Ante, p. 1, n. [a). (z) Rioter's case, 1 Vem. 1T5. See supra, tit. "Admiralty Court." [a) Adm. in R. v. Oxettden, 1 Show. 218. See tits.. " Proctor," Office" (Officers of Courts Inferior). Ante, p. 105. (i) R. V. Treasury (Lords), 4 A. & E. 286, 295.t- R. v. Pawell, 4 P. & D. 719. S. C. 1 Q. B. 352.f See tit. " Treasury Lords," and post, tit. " Application." (c) 4 A. & E. 286, 295,t supra. In, re Dte Bodfe, 6 ]>. 7T6. S. C. 1 W. W. & H. 332 April, 1852 — 11 162 tapping's mandamus. and valid claims ;(<^) or to deliver up goods wrongfully detained.(e) Nor does the writ lie to command the steward of a royal manor to admit a tenant, though such steward may have received his appointment from the Commissioners of Woods and Forests, under stat. 10 Geo. 4, o. 50, g, 14 J for such statute does not divest the Crown of its legal estate,(/) Curacy.] See tit. Curate. Curate.] The writ lies for a curate, (gr) This subject has been arranged as follows : — Cdratb Admission Licensing Restoration Augmented Cdracy License .1 Admission — -Thevi 1 13 Curate. 113 Perpetual Curacy 113 Nomination - 113 Admission - 114 Stipendiary Curacy • - 114 Nomination, &c. rrit lies to command the adn - 114 - 114 - 114 114 - 114 lission nf » curate to his chapel.(A) .] Licensing. — As to licensing a curate, see tit. Lecturesliip,(i) .] Restoration. — As mandamus is the most proper and effectual remedy to restore a curate to his chapel, in which he has a temporal right, therefore the Court will award the writ for that purpose.(y) By it the right to officiate in chapels, whether it depend on nomination or election, can alone be tried ; for chapels were not objects of attention in the days when the register was formed, and therefore there is no par- r*1 1 4.1 *i^il^' remedy *provided as to them. Thus the writ has been *■ granted to restore the curate of a chapel, being a donative, endowed with lands, he having been appointed, licensed, and in possession, but after- wards turned out by force ; (k) there being no other legal remedy, applicable to such a case, for neither ejectment nor trespass (assuming a curate has the legal property in his curacy and can bring these actions) would be a specific (d) 4 A. A:E. 286, 295,f supra. S. C. 6 D. ne.t S. C. 1 W. W. & H. 332, (e) R. V. Customs (Commrs.), 6 N, & M. 828.-t- S. C. 5 A. fc B. SSO.f See tit. " Customs." (/) R. .. Powell, 4P. &D. 719, S. C. 1 Q. B. 352.-i- See tit. " Manor," (Eoysl Manor.) (g) It has, howerer, been refused to command the licensing of a second curate, although it was shown that one was not .sufficient, &c.,the Court, in its judgment, said that there did not appear to be any such ofBce as a second curate; tlat there was no trace of any such ofBoe in ,the books, and that the Court could "Hj grant a mandamus for an office in fieri. Anon. 2 Chit 253.f Bac. Abr. tit, " Man. (C.) See tit. " OfBce" (Known to the Law). „ (A) R. T. Barker, Burr. 1268, per Ld. Mansfield, C. J. See tits. "Dissenters, " OfBce" (Admission). (i) 1 East, 345 j 1 T. R. 396 ,• 7 East, 600 ; Bac. Abr. tit. " Man." (C). See tit " License." (.;") R. T. Barker, 1 W. Blac. 299, 352. S. C. Burr. 1265, 1267. E. t- Blooer, Burr. 1043, also cited in R. v. Chester (Ep.), I T. B. 396, and in R. t. Stafford (Mar- quis), 3 T. R. 650. Bac. Abr. tit. "Man." (C). See tit. "Dissenters." (k) Burr. 1044, 1047, supra. CURATE. 163 legal remedy to restore him to his pulpit, and quiet him in the exercise of his function and office.(?) So the Court will grant a mandamua to command the restoration of the possession of a chapel or of a meeting- house(m) ; but not of a parochial church, bepause, there exists another specific legal remedy, viz. by quare impedit.(«) .] Augmented Curacy, License. — The Court will not grant a man- damus to command a bishop to license the curate of an augmented curacy, where there is a cross nomination, because in such case the party has an- other specific legal remedy, viz. by quare impedit.(o) The Court has in- timated, that the next rule obtained for this purpose without foundation will be dismissed with costs.(j9) .J Perpetual Curacy. — The Court will interfere by mandamus in the cases of perpetual curates, (j) .J Nomination. — The writ lies to command churchwardens to call a meeting of their parishioners, in order to nominate me to the bishop, in order to be liscensed by him as a perpetual curate of a curacy ; and that the churchwardens should join in such nomination. (r) .] Admission. — But with regard to admission, if a quare impedit lie, then a mandamus does notj for no case is proper for a mandamus, but when there is no other specific legal remedy.(s) .] Stipendiary Curacy, Nomination, &c. — The writ lies to command the presentment to the ordinary of the nomination and appoint- ment of a stipendiary curate, in order that he may obtain a license from such ordinary. (<) But not if there be another specific legal remedy^ either in equity or law, as by quare impedit. (m) CtrSTOM.] ^Presentment. — ^This writ lies to command the ten- ants of a manor to present a manorial custom. (t)) >- ■ -I {I) Ante, pp. 20, 21 ; Burr. 1044, 1047, supra. Com. Dig. tit. " Man." (A.) (ro) 1 W.Blac. 300,352. S. C. Burr. 1265, supra. See tits. "Chapel,"" Dissenters." (n) Ante, p. 26. R. v. Cambridge (U.), 1 W. Blao. 551. S. C. Burr. 1647. See tit. " Parson." (o) Ante, p. 26. R. v. Chester (Bp.), 1 T. R. 396. R. v. St. Peter, 12 A & E. 526.-|- Clarke T. Sarum (Ep.), Stra. 1082, n. (1), 3rd edit.f Bowell v. Millbank, ■ 1 T. R. 399, n. {d), per Mansfield, C. J R. r. Chester (Ep.), 1 W. Blac. 25, n. (o). And see Anon., 1 Dyer, 48, pi. 17, as to quare impedit by a party having the nomi- nation. if) 1 T. R. 396, supra. R. t. Canterbury (Arehbp.), 15 East, 169. See post, tit. " Costs." (?) See R. T. Canterbury (Arehbp.), 15 Bast, 132. R. v. Safford (Marquis), 3 T. R. 646. (r) Faulkner v. Elger and Another, 6 D. & R. 518.t See tit. " Churchwarden ■" (s) Ante p. 26. Bowell v. Milbank, 1 T. R. 399, n. (d), per Lord Mansfield, J. R. V. Chester (Ep.), 1 W. Blac. 25 n. (o). R. v. Chester (Ep.), 1 T. R 398 Clarke y. Sarum (Ep.), Stra. 1082, n. (1), 3rd edit. (t) R. V. Stafford (Marquis), 3 T. R. 646. R. ,. St. Peter, 12 A. & E. 526.+ See tits. " Lectureship," " License." (u) Ante, pp. 18—26; 3 T. R. 646, supra. R. t. Chester (Ep.), 1 T R 396 And see 1 W. Blac. 22. S. C. 1 Wils. 206. See tit. " Application." {v) R. Y. Montacute (Ld.), 1 W. Blac. 60. S. C. 1 Wils. 283. See tit. " Manor." See 1 B. & C. 565, f for return of such a custom. See tits. "Manor," (Custom Li- cense), "Presentment." 164 tapping's mandamus. .] Enforcing Observance. — As on the one hand the writ lies to enforce a legal custom,(io) so on the other hand the Court will not grant the writ to command the doing of an act in opposition to a longcontmued usage, (x) Where an application is made for a mandamus, and the question tnrns upon a custom, the existence of which the parties litigant desire to have tried, the Court will either grant the writ for that purpose, or direct an i8sue.(y) As to the certainty in stating a custom in a return. (2) Customs.] Duties of Commissioners. — The writ does not lie to com- mand the Commissioners of Customs, &c., although they act ■wrongftillj by withholding goods, or by the doing of any other tortious act ; foi:, to grant a mandamus in such case, would be in effect to grant the writ against the Crown or its officers, which legally cannot be. (a) Independ- ently of such objection, the Court will not compel the commissioners to deliver up goods placed rightfully in their custody, to secure the duty, on a suggestion that the full amount thereof has been since tendered or paid, and therefore the goods wrongfully detained ; for either the officer is jns- tified or not ; if, therefore, he be justified, there is no grievance, but if he be not, a mandamus is not the proper remedy, but an action is.(J) The Court has, by mandamus, commanded justices to proceed to judg- ment on an information of a seizure, under stat. 6 Geo. 1 c. 21. (c) As to registry of ship, see tit. Ship. Gustos Brevium.] Okrlc, Restoration. — The writ lies not to restore a clerk to his place in the office of the Custos brevium ; the Court say- ing, " that the master of the office is answerable for all his clerks, and hath power over *them, and they ^.re not officers, but mere ser- L -■ vants, and therefore there is no remedy to be had in law against \Am."(d) Gustos Kotulokum.] See tit. Peace ( Olerh of). (to) R. V. Pickles, 3 Q. B. 599,f n. (a). See tit. " Churchwarden." (x) R. V. Chester (Mayor), 1 M. & S. 101 ; 1 T. R. 423 ; 2 T. E. 2. See tits. " License," " Manor," (License). (y) E. V. London (J3p.), 1 T. R. 333. (2) Protector v. Kingston-upon-Thatnes, Sty. 4T9, 4'78, 481 ; and Wagfonert case there cited. R. v. Coventry (Mayor), 2 Salk. 430. E. t. Pickles, 3 Q.B. 599 ;(a)t and see post, tit. " Return," (ffl) R. V. Customs (Commiasioners), 1 N. & P. 536.f S. C. 6 N. &'M. 828.t S. C. 5 A. & E. 322,f per Littledale, J. ; also cited in R. v. Payn, 6 A. & E. 396.t S. 0. 1 N. & P. 524 ;+ 2 H. & W. 247. See tit. " Crown." R. V. Customs (Commissioners), 5 A. & E. 322,f per Lord Den- N. &P. 536.-I- S. C. 2 H. & W. 247. S. C. 6N. 4M. B28;t J n 1, p. 1184, (ed. 8.) Whitelegg T. Richards, 3 B. & B. 188,1 0. 1 N. & P. 524 ;f 2 H. & W. 247. See tit. " Crown." (6) Ante, p. 20. R. ~ .- - . man, C. J. S. C. 1 N. „.„..„.„..._.,. SelW. N. P. Replevin 1, p. 1184, (ed. 8.) Whitelegg v. mcnaras, o r.. » i.. "-„ in error. S. C. 2 B. & C. 45 ;t and see Barry y. Arnand, 10 A. & E. 656.t (c) R. T. Tod, Stra. 530. Com. Dig. tit. " Man." (A.) See tits. "Courts Infe- rior" (Judgment), " Quarter Sessions" (Judgment). „ {d) Whitechurch v. Paget, Sty. 208. See tits. " County" (Treasurer), "OfflWi (Officer of Courts). i \ n DEAN, ETC. 165 Cutler's Company, Court of Assistants in.] Restoration. — The writ lies to command a restoration of one to be one " in the Court of As- sistants of the Company of Cutlers."(e) Damages.] See titles Company; Compensation (^^ssessing) ; Courlt Inferior (^Damages). I Dead.] See titles Burial; Corpse. Dean.] The writ lies for the office or function of dean.(/) .] Ehclion, Admission, ar frnm cottovqI ngooa f^ot - 121 - 121 - 121 - 121 HnmniiR. sioners of Sewers are subject to the jurisdiction of the Court of B. B. by writ of mandamus.(r) {d) Ante, p. 10, and n. (/). (e) R. V. Bucks (J.), 3 N. & M. 69,f per Littledale, J. See also R. t. Middlesei (J.), 2 Keny. 163. See stat. 6 & Y Vict. c. 67, s. 3, App., and tits. " Quarter Ses- sions," (Justices, Warrant). (/) Ante, p. 21. R. v. Ha,nts (J.), 1 B. & Ad. 658.1 R. T. Robinson, Burr. MS, and cases there cited. See tit. " Act of Parliament." (ff) E. T. Ellis, 2 D. 361. See tits. " Quarter Sessions," (Justice), "Poor." ig) Ante, p. 21. See tit. " Compensation," (Company, Judgment); (A) 2 Rail. Cas. 599 ; 6 Jur. 216 ; 2 Q. B. 64.-}- S. C. 1 G. ft D. 286,' where see a form of writ to repair a dock. ' (»■) Ante, p. 12. R. v. Pagham Levels, 8 B. ft C. 35V, SBB.f Gardiffe Bridge se, 1 Salk. 146. S. C. Ld. Raym. 580, and cases there cited. See tits: "-Act of ^rliament." " CnmmiHHinnfir " case. Parliament,' DRAINAGE. 169 .] Swearing in. — So it lies to command the swearing in of such a commissioner, appointed under a Drainage Act.(y) .] Duties, &c. ; Reparation, &c. — ^The writ does not lie, at the instanpe of the Conservators of the Bedford Level, to command the land- owners to amend and heighten certain banks within the level which were liable to repair ratione tenurae, and which were alleged, but not admitted to be in a dangerous state ; because the stat. \p Car. 2, c. 17, s. 5, gives the conservators within the level the authority of Commissioners of Sewers, and therefore they have sufficient remedy by amercement, in their own hands.(^) But it lies to command the making of certain alterations and amendments in sewers, &c., under adequate words in a local act.(Z) .] Compensation. — The writ does not lie to command the sum- moning of a compensation jury, to assess damages for injury done by rea- son of works bona fide erected by Commissioners of Sewers, within the limits of their jurisdiction. (m) But it lies to command commissioners, for putting in execution an act of Parliament for draining, to issue their precept to the sheriff to impanel a compensation jury.(n) .] Reimbursement. — The writ lies to command commissioners, &c., to reimburse money properly expended in repairing damage done to a sea wall abutting on the prosecutor's lands, but not if it appear by affi- davit that the prosecutor has been guilty of laches ; as, by allowing the wall after it had *been previously presented for nonrepair, to be y^-. ni t out of repair at the time the accident happened, (o) .] Rate. — So the writ lies to command Commissioners of Levels, &o. to make a rate to reimburse an expenditor.(p) Thus it has been granted to command such commissioners to make a rate on all persons having or holding messuages, &c. within such level, who had had or might have hurt or disadvantage by inundations of the sea, for want of a sufficient wall there ; or who had had or might have benefit by prevent- ing such inundations ; and for repaying money advanced by certain per- sons beyond their proportions of the expenditure in making the new sea wall. (2) (y)R. V. Kelk, 4P. &D. 185: 1 a. &D. 127. S. C. 1 Q. B. eeo.f S. C. L. J., N. S. 362, Q. B. See tits. " Commissioner," " Office," (Swearing in). (k) Ante, p. 21. R. v. Gamble, 11 A. & E. 69, 72,1 and notes and cases there cited. S. C. 9 L. J., N. S. 2, Q. B. See R. v. Stoke Damerel, 5 A. & E. SSl.f S. C. 1 N. & P. 56-1 See R. v. Ouse Bank, 3 A. & E. 544.f See post, tit. " Applica- tion." (I) Ante, p. 11. R. t. Bristol Dock, 9 D. & R. 309.t S. C. 6 B. & 0. 181,t where see form of writ and return. See tits. " Act of Parliament," " Dock," " Nui- sance," &c. (m) R. V. Pagham Levels, 8 B. & C. 355,f and cases there cited. B. v. Tindall, 6 A. & E. 150.-|- See tits. " Compensation," (Company), "Jury." (n) Ante, p. 11. R. v. Nene Outfall, 4 M. & R. 647, and see tits. "Act of Parlia- ment," " Compensation," (Company). (0) Ante, p. 27, 28. B. v. Essex Conimissionera, 1 B. & 0. 477.f S. 0. 2 D. & B. 700.t See R. v. Capel, 10 A. & E. 404.f See Post, tit. " Application." (p) Ld. Raym. 1479. S. C. Stra. 763. See tits. " Churchwardens," " Expend- itor," " OTerseera," " Bate." (j) B. v. Somerset (Commissioners), 9 East, 111, where see a form of writ and 170 tapping's mandamus. -.J Returns. — To such a writ, a return by the commmissioners of " tarda," or that the writ was not delivered until within four days of the expiration of their commission, and that there was no time to make a rate, is a good return. So it is a good return, that they, the commis- sioners, had made a rate prior to the issuing of the writ, which, when collected, would be sufficient and applicable to repay the prosecutor, (r) .] Apportionment.f — So the writ lies to command an apportion- ment amongst certain parishes of a sum of money, which had been as- sessed by commissioners under a Drainage Act.(s) .] Books, Infection. — The writ lies, in some cases, to command inspection and copy, &c., of rate books, plans, &c. But where the Com- missioners of Sewers for the Tower Hamlets united two levels which had therefore had separate drains and sewers, and had been separately rated for drainage and sewerage, and then made a joint rate on the united levels ; an occupier of property within one of the levels so united, with the object of obtaining evidence in support of a motion to bring up the rate by certiorari and quash it, applied to the commissioners for an in- spection of all commissioners' plans, rates, presentments, decrees, account books, proceedings, and minutes, relating to the Tower Hamlets; but the commissioners merely gave inspection of all documents relating to the rate on the united level. The Court refused a writ to command them to allow inspection of the other documents and proceedings, though the commissioners had given the rate-payers notice of their intention to enforce the rate.(<) r*l 221 Durham.] ^Freemasons of, Swear, Admit, &c. — The writ lies to swear and admit into the place and office of a freeman of the Company or Fraternity of Freemasons, &c. of the City of Dur- ham. (m) East India Company.] Duties, &c. — The writ lies to command the Court of Directors of the East India Company to despatch to the govern- ment in council in the East Indies certain orders and instructions, in the form as altered and approved by the Board of Control, if the Board of return. S. C. 1 East, TO. R. v. Tower Hamlets,! B. & Ad. 236, 237.1 ^■''■ Capel, &c., 10 A. & E. 403, 404.-|- E. v. Hare, 13 East, 188. See ante, tit. "Con- stable." (r) Ante, p. 15 ; Stra. Y63. S. C. Ld. Kaym. 14'79, supra. Com. Dig. tit "Man." D. 3. See post, tit. "Return." is) R. T. Wliitaker, 9 B. & 0. 648.t See tits. "Parish," "Rate." [t] Ante, pp. 16, 27, 28. R. v. Tower Hamlets, 3 G. & D. 92. S. C. 3 Q.B. 670.t S. 0. U L. J., N. S. 231, Q. B. R. t. Merchant Tailors, 2 B. & Ad. US-t Burrell v. Nicholson, 3 B. & Ad. 649.f Birmingham Railway v. White, 1 Q. B. 282. f See tits. " Accounts," " Books, &c.," " Company," "Corporation Municipal," " County," " Records." («) Ante, p. 12. Green T. Durham (Mayor), Burr. 127. See tits. " Company," " Freedom," (Company Swearing in), " Freeman." EXCISE. 171 Control have such right of alteration, &c.{v) And it also lies to com- mand, on the refusal of the directors so to do, notwithstanding the board, by taking the initiative, may itself send out the same de- spatch. («;) Ecclesiastical Court.] See tit. Courts Inferior, and ante, p. 22. Equitable Right.] See tit. Trust, and ante, pp. 27, 28. Eton, Provost or.] Admission. — The writ lies to command an ad- mission to the office of Provost of Eton, if duly entitled. (a;) ■•■ Excise.] Commissioners; Permit. — The writ lies to command the Commissioners of Excise to grant and issue a permit for the removal of wine, spirits, &c. ; if the same ought, as of right, to b^ granted. But the Court will withhold the writ, if it do not appear that the officer has done wrong in refusing such permit, (y) .] Conviction. — The writ lies to command the Commissioners of Appeals in Excise Cases, to hear and determine an appeal against a con- viction by Commissioners of Excise, as upon an information exhibited for having a private still. (z) .] Judgment, &c. — So it lies to command the giving of judgment in an excise case. (a) * .] Exportation. — The writ lies to command a collector -^^^no-i of excise to administer an oath, under stat. 38 Geo. 3, c. 54, s. 4, touching the exportation of goods, in order to obtain a drawback, &c.(6) .] Commissioners of. — See titles Admiralty (^Lords of^ ; Pen- ExcoMMUNiCATE.] See tit. Absolution. (v) R. T. East India Company, &c. 4 M. & S. 2T8, 279. R. t. East India Com- pany, 4 B. & Ad. 530.f S. C. 1 N. & M. SSS.f Bac. Abr. tit. "Man." (D). See tits. "Act of Parliament," "Company," (Duties, &c.), "Corporation Municipal," (Duties, &e.) (w) Ante, p. 21. R. w. East India Company, 4 B. & Ad. 530.f S. C. 1 N. & M. 335.f As to enlarging the rule in order to enter and try an appeal, see 4 M. & S. 279, and the cases, supra. [x] Ante, p. 12. See R. v. London (Ep.), 1 Wils. 14. See tits. " College," (Pro- vost), " Office," (Admission). (y) R. T. Excise (Commissioners), 2 T. R. 381, 385. R. v. Excise (Commission- ers), 6 Q. B. 975,f and 9.81, n. (a). As to against whom the writ should issue, S. C. 14 L. J., N. S. 179, Q. B. See tits. "Commissioners," "Customs" (Commis- sioners). (a) R. T. Appeals (Commissioners), 3 M. & S. 132. See tits. " Conviction," " Courts Inferior." [a] R. T. Tod, Stra. 530. Bac. Abr. tit. " Man." (D.) See tits. " Courts Infe- rior," (Judgment), " Judgment," " Quarter Sessions " (Judgment). And see ante, p. 11. (J) R. V. Cookson, 16 East, 376. See tits. "Allegiance Oath," " Oaths." 172 tapping's mandamus. Execution.] See ante, p. 23, and titles Company ; (hurts Infeiiar (Judgment and Execution) ; Judgment. ExPENDiTOR.] See titles Drainage (Rate) ; Sewers. Faversham.] Free-fisherman, Restoration. — ^The writ lies to com- mand a restoration to the oiSce of freeman of the Company of Free- fishermen and Dredgemen of the Manor and Hundred of Faversham, it improperly removed. (c) Fees.] See ante, p. 24, and titles Constable; Coroner; Lectureship; Office ; Sexton. Fellows.] See titles College (^Fellows) ;. Universiti/ ; Visitor. Fishery, Private.] Appeal. — The writ lies to command justices to enter continuances and hear an appeal against a record of conviction, under stat. 7 & 8 Geo. 4, c. 29, for having unlawfully angled in a private fishery, (c?) Footway.] See tit. Highway. Forcible Entry and Detainer.] The writ lies to command jus- tices to put in execution the statutes of forcible detainer, (e) And also to issue their precept to inquire of a forcible entry.(/) But in a very recent cass, the Court of B. R. refused to grant a mandamus to command, magistrates to hear a complaint, and act summarily under such star p;^.|n,-] tutes-(^) Nor will *the Court compel the granting of a writ of restitution under stat. 8 Hen. 6, c. 9, for the statute gives a dis- cretionary power. (7i) Forest Law.] License (i). — See titles Courts Inferior ; Lectureship; License. (c) Ante, p. 12. R. v. Free Fishermen of Faversham, 8 T. R. 352. R. v; Bum- stead, 2 B. & Ad. 705.f Adley r. Reeves, 2 M. & S. 53. See tits. " Gompanyj'"' " Franchise," " Freedom," " Office" (Restoration). {d) Ante, p. 11. R. v. Oxfordsh. (J.)j 3 G. & D. 349. S. C. 4 Q. B. iW.f S. C. 12 L. J., N. S. 40, M. C. See tits. "Conviction," "Courts Inferior" (Appeal),' "Quarter Sessions" (Appeal). (e) Ante, p. 11. R. v. Montague, 1 Barn. '?2. R. v. Long, 1 Barn. 82. See tit " Quarter Sessions" (Justices). (/) Anon., 6 Mod. 139. S. 0. 6 Mod. 164. S. C. Holt, 407. Affidavits of the facts must be produced. (g) Ex parte Davy, 2 D., N. S. 24. S. C. 6 Jur. 24, Wightman, J., saying, in refusing the application, that no base had been cited for it. See ante, p. U, and tits. "Act of Parliament," " Quarter Sessions" (Justices), and stat. 6 & 1 Viotc. T3, s. 3, App. (h) Ante, p. 12, 13. R. v. Harland, 8 A. & E. 826 ;-|- and see tit. " Discretion." (i) R. V. Conyers, 15 L. J., N. S. 300, Q. B., where see a form of writ to an inferior Court to enrol a license. P R B E B M. 173 Franchise.] The writ lieain the cases of fraDchises of a public nature whether spiritual or teinporal.(_/) A franchise is in its own nature a freehold, and because it is juris publici, the law has a greater regard towards it than any other matter of a private nature. (/c) Thus the writ lies to command a meeting of the mayor, &c., to approve a candidate for a franchise. (Z) So it lies to command a mayor, &c., who disapproves without cause, to approve and admit him who has a right to be approved and admitted. (m) ■] Application.— r£he application for an admission to a franchise must shew an inchoate right and title to it, as by apprenticeship, mar- riage, &c., and thereupon the Court will interfere to aid him, and grant him the writ of mandamus to enforce the completion of his right, (ra) Free Burgess.] See tit. Burgess {Free}. Freedom,] This subject is arranged as follows : — Pbeedom. City. Admission - - - . 124 Restoration - 124 Company. Admission - - 125 Bule - - 126 Freed««. Company. Returns 126 Swearing in - - 126 Restoration - 126 Retnrn - - 12V .] City, Admission. — It is clearly settled, that a mandamus lies to command an inferior jurisdiction or oiEoer to do that, which it is its or his duty to do; as to command the mayor, &c. of a corpora- r:f:-i9f:-i tion to admit him *who has a right to a freedom, as the freedom '-"'-' of a city.(o) The rule is absolute in the first instance, (js) (J) Ante, p. 12; 3 EI. Com. 110. Bagg's case, 11 Rep. 98. Awdley's case, Latcli. 123. S. C. Poph. 176. And see stat. 12 Geo. 3, c. 21, App. See tits. " Citizen," " Corporation Municipal" (Franchise), " Freedom," " Freeman." (k) R. V. Buckingham (Corp.), 10 Mod. 173, 174. See ante, p. 12, n. (nj. (l) Ante, p. 14, 15. Green t. Durham, Burr. 127, where see form of return. Com. Dig. tit. " Man." (A.) (m) Green v. Durham (Mayor), Burr. 127. Com. Dig. tit. "Man." (A.) See tita. "Lectureship," "License." (n) R. T. West Looe (Mayor), 5 D. & R. 594, 598.-i- S. C. 3 B. & C. 677.t R. t. Physicians' Coll., Burr. 2186. See tits. " Burgess" (Admission), "Freedom" (Com- pany), " Freeman," "Office." See post, tit. "Application." And ante, p. 27, 28. (o) Ante, pp. 11, 12. Roger's case, T. 18 Car. 1 ; Rot. 23, cited in Dr. Dolbed'.s case, 1 Keb. 881. S. C. 1 Eeb. 872, per Twisden, J. B. v. Eye (Corp.), 1 B. & C. 85-1 S. C. 2 D. & B. I72.t R. v. Bosworth, Stra. 1112. R. t. Oakhampton (Mayor), 1 Wils. 332. Townsend's case, 1 Lev. 91. S. C. 1 Sid. 107. S. C. 1 Keb. 458, in which case a precedent of a like mandamus was produced, and a similar one was also. stated to have been granted, M. 32 Car. 2, B. R. R. t. Rush- worth, Kel. 287. R. T. Harrison, Burr. 1323. S. C. 1 W. Blac. 371. R. v. Lincoln (Mayor), 12 Mod. 190. S. C. Carth. 448. S. C. 5 Mod. 399, 402, where see form of writ. S. C. Ld. Raym. 203, where see a form of writ and return. See stat. 12 Geo. 3, c. 21, App. R. V. Coventry (Mayor), 3 Doug. 236. R. t. Kingston-upon- Hull, 11 Mod. 382. S. C. Stra. 578. See R. f. Osbom, 1 Com. 240. Com. Dig. tit. " Man." (A.) R. r. Ludlam, Stra. 675. S. C. 8 Mod. 267. See tits. "Citizen," "Corporation" (Municipal), "Courts Inferior," "Freeman," "Livery." (p) B. v. Coventry (Mayor), 3 Doug. 236. See post, tit. " Bule." 174 tapping's mandamus. .J City, Restoration. — So it lies to restore to priority of free- dom.(2) .] Company, Admission. So the writ lies to command admis- sion to the freedom of a company, (r) Thus the writ lies to command the admission of an Apprentice to his freedom of city or company, (s) and he is entitled to the writ, although he may have committed a breach of the covenants of his apprenticeship deed by marrying, &c. for it is clear that a mere breach of covenant, especially after waiver thereof, does not inew a forfeiture of freedom.(<) The Court of B. R. will also, on a proper case, command all inferior jurisdietions to do all necessary and proper acts for the perfection of the right to almission. Thus a writ of manda- mus has been granted to admit to an office for enrolling and entering all indentures of apprenticeship, and the freedoms of such apprentices. («) So it has often been granted to command the town clerk, steward, or other proper person to enrol indentures of apprenticeship in the public books of a company ; if such a proceeding be made necessary by a bye- law, &c., in order to obtain a freedom; but the apprenticeship must be such, and the apprentice must have complied with all the rules, as clearly to entitle him to such right.(!;) r*1 2n * ■-] R^- — The rule to admit to the freedom of a city, h. is absolute in the first instance, (w) The practice being, that where the writ is to swear or to admit, the Court will, in case the right appear plain, grant the writ upon the first motion, that is, absolute in the first instance. But where it is to restore one who has been removed, the practice is to grant a rule nisi only.(x) . Return. — A return that applicant would not take the usual oaths before admission, has been held good.(y) But as a Quaker should (j) Ante, p. 12. R. v. Trinity Chapel, 8 Mod. 28. Roll. Abr. 481. R. v. Can- terbury (City), 1 Lev. 119. See tit. "Office," (Restoration). (r) R. v. Rushworth, Kel. 28T. See tits. " Company" (Bermuda's Company), " Cutlers' Company," " Franchise," Freeman, " Livery." («) R. V. Lincoln (Mayor), 12 Mod. 190. S. C. Carth. 448. S. 0. 5 Mod. 399, 402. S. C. Ld. Raym. 203, where see a form of writ and return. Seestat. 12 Geo. 3, c. 21, App. R. v. Selby, 5 Show. 154. R. v. Cambridge (Mayor), 2 CMt, 144. R. V. Ludlam, 8 Mod. 267. S. C. Stra. 6'75. R. v. Harrison, Burr. 1323. Bac. Abr. tit. "Man." (D.) (() Townsend's case, 1 Lev. 91, a, precedent being produced of a similar case at Norwich ; a similar writ was also granted; M. 32 Car. 2, B. R. S. 0. 1 Sid. 107. S. C. Raym. 69. S. C. 1 Keb. 458, 470, 659. R. v. Selbye, 2 Show. 154; andsee Green v. Durham (Mayor), Burr. 127. Com. Dig, tit "Man." (A.), sed vide (D.)4. See tit. " Office," (Restoration Returns). [u) Ante, p. 11, 12. R. v. Gravcsend (Mayor), 2 B. & C. 602.f See tit. "Of- fice." (k) Ante, p. 27, 28. R. v. Marshall, 2 T. R. 2. R. v. Tappenden, 3 East, 185, where see form of writ and return. R. v. Coopers' Company, 7 T. R. 543, where also see form of writ, &c. (w) Ante, p. 125. R. v. Coventry (Mayor), 3 Doug. 236.t See post tit. "Enle." [x] 3 Doug. 236. u. (a). Bull. N. P. 199. See R. v. Truro (Mayor), 2 Chitt. 257,1 and cases there cited. See post, tit. " Application." (y) Stra. 1112; 12 Mod. 190. S. C. Carth. 448; Burr. 999, supra. SeetiU. " College" (Oaths), " Oaths," "Office" (Restoration, Return, Oaths). FREEMAN. 175 be admitted upon making a solemn affirmation merely, instead of the usual statutory oaths,(2) it has been held not to be a good return to say that such a person had not taken the oaths. (a) .] Swearing in, &c. — So the writ lies to swear and admit into the place and office of a reeman ; as of the Company or Fraternity of Freemasons ;(6) or Armourers and Braziers ;(c) or Scriveners' Compa- ny ;((?) or Russia Company ;(ej or Turkey Company ;(/) or Clothmakers' Company ;{()) or Joiners' Company ;(A) or of the Gunmakers' Company, &C.(i) But the Court will not interfere on behalf of a person who has not acquired an inchoate right to he admitted(y) by birth, servitude, &c. But if a bye-law of a company make it penal for a man to exercise any other trade but that of the company, he is thereby entitled to his free- dom of such company,( ) in order to avoid the penalty. .J Company, Restoration. — So the writ lies to restore to the office of freeman, or to the freedom of a company,(Z) as the Cutlers' Company, in all cases of illegal deprivation. -.] * Return. — And a return to such a mandamus should r*i27n state, that the body removing has proved the charge for which the prosecutor was removed. It is not sufficient to state merely that he was present when the charge was made, and did not deny it.(OT) Freeman.] This subject is arranged as follows : — Freeman. Presentation for admission - 127 Admission and swearing in - 127 Feeeman — Restoration - - 127 Form of writ - 127 Return - 128 -.] Presentation for Admission. — The writ lies not to command (z^ Supra, Burr, 999, 1004, 1005. R. v. Lincoln (Mayor), 12 Mod. 190, n. (a). S. 0. Garth. 448. S. C. 5 Mod. 399, 402. S. C. Ld. Kaym. 203. (a) R. V. March, P. 33 Geo. 2 ; Burr. 999 ; Com. Dig. tit. " Man." D. 4. (6) Ante, p. 12. Green v. Durham, Burr. 131. Wright v. Faw-cett, Burr. 2043, 2044. See a form of direction, Raym. 456, and post, tit. " Writ" (Direction). See tits. " OfBce" (Swearing in). (c) Smith V. Armourers' Company, Peake, N. P. Cas. 199. {d) R. V. Scriveners' Comany, 10 B. A 0. 511.t S. C. 5 M. & R. 543. See tit. " ScrivcHers' Company." («) De ia Oosta t. Russia Company, 1 Bam. 24. S. C. Fitz. 4. (/) R. V. Turkey Company, Burr. 943, 947, where see form of the writ and re- turn (in this case the prosecutor was a Quaker), Bac. Abr. tit. "Man." (D.) (g) R. V. Harrison, 1 W. Blac. 371. S. 0. Burr. 1322. S. C. where see aform of return. (h) See Burr. 1328, supra. (t) R. T. Gunmaker's Company, W. Kely. 280. (/) Ante, pp. 27, 28. R. t, Lincoln's Inn, 7 D. Com. Dfg. tit. " Man." (A.) See tit. " Franchise,' {k) See ante, p. 11. R. v. Ludlam, 8 Mod. 267. Grosscourt, 5 Mod. 104. Harrison v. Goodman, Burr. 12; Burr. 1323, supra. (I) R. V. Whitstable (Freefishers), 7 East, 353. R. v. Paversham (Freefishers), 8 T. R. 352. See tit. " Cutlers' Company," " Office," (Restoration). (ro) 8 f. R. 352, supra. See tits. "Franchise," "Office" (Restoration Return). , & R. 368,-|- per Littledale, J. ; " Freeman." S. C. Stra. 675. Robinson v. 176 tappinq's mandamus. the inquiry jury of a borough to present persons to be freemen, i by custom they must be presented by such a jury before they can be ad mitted by the bailiffs. Holt, 0. J., stating that the Court would grants mandamus to them who are to admit, but not to them who are presenl upon oath; the truth of a fact; not to a jury; for it is presumed, that a grand inquest will present as they ought, and so of an inquiry jury.(s) .J Admission and Swearing in. — The writ, however, lies to ad- mit and swear into the place or office of a freemen of a city or borough, under stat. 12 Geo. 3, c. 31.(o) But the applicant must be duly qualified, that is, have an inchoate right by birth, servitude, &c.(^) And by the stat. 12 Greo. 3, c. 21, any person entitled to be admitted a freeman, who shall apply to the mayor, &c., to be admitted, and also give notice specifying the nature of his claim may, unless admitted within a month, apply to the Court of B. E, for a mandamus for that purpose : if he be refused admittance, and a peremptory mandamus be afterwards granted, the mayor, &c. shall pay the costs, (g') .] Restoration. — The writ lies also to command the restoration of a freeman of a city, borough, or town, illegally disfranchised.(r) .J Form of writ. — The writ, as in all cases of franchises, shonld l-^,nQ, *be to re-admit or restore to the "privilege," and not to the " place and office" of freeman, (s) .] Return. — ^Although it is undecided whether a burgess having committed an offence indictable at common law, together with a breach of his oath and duty, can be disfranchised previously to conviction of the indictable offence, yet if it appear that an indictment would not have de- termined the matter, he may be disfranchised for the acts amounting to a breach of his oath and duty.(j) Freemasons op Durham.] See titles Durham; Freedom {0(m- fany, Swearing in). (n) Ante, p. 112. Olithero's case, Comb. 239, also cited in R. t. Montarate (Ld.), 1 "W. Black. 64. S. C. 1 Wila. 283 ; and see stat. 9 Ann. u. 20, s. 1. See tits. " Courts" (Superior, Q. B.), "Jury," "Presentment." (o) See stat. in App. as to notice of application, &c. Green v. Durham (Mayor), Burr. 137. Wright v. Fawcett, Burr. 2041, where see form of writ and returns. R. T. Doncaster (Mayor), T B. & C. 630.f R. v. Montacute (Ld.), 1 W. Blac.64. S. C. 1 Wils. 283. R. V. Stafford, 4 T. R. 689. R. t. Norris, 1 Barn. 385. Moore V. Hastings (Mayor), Gas. t. Ld. Hard. 353. R. v. Malmesbury (Alderman), 3 G. & D. 482. S. C. 3 Q. B. bll.f S. C. 11 L. J., N. S. 318, Q. B. ; Bac. Abr.tit "Man."(C.) See tits. "Alderman," (Election), " Citizen," "Franchise," "Free- dom" (City), "Oflice." (p) Ante, pp. 27, 28. B. v. Montacute (Ld.), 1 Black. 61; 1 Wils. 283, S. 0. (?) See stat. App. ; Com. Dig. tit. "Man," (A) ; but see stat. 6 & 7 Vict, 0.89, s. 5, App. See tits. " Franchise," " Freedom-," "Livery," " Ofaee." (r) Ante, p. 12. The Protector and Eingston-upon-Thames, Sty. 477; this was a writ of restitution ; see also R. v. Derby (Mayor), Cas. t. Ld. Hard. 152. See tits. "Company," "Franchise," "Freedom" (Restoration), "Office," (Restora- tion). (s) R. V. Morris, Ld. Raym. 338. See post, tit. "Writ," (Mandatory Clause). (i!) See tit. "Burgess." R. v. Derby (Mayor), Cases, t. Hard. 153, and cases there cited, as to disfranchisement ; but see tit. " Office," (Restoration, Return). GAME LAWS. 177 Fkiendly SociETrES.] Enrolment, &c. — ^The Court of B. R. will, by mandamus, oomtnand justices at Quarter Sessions to enrol and confirm the rules of a friendly society. But as the authority of such justices, tinder the stat. 10 G-eo. 4, c. 6, to inquire whether the tahles of payments and benefits in friendly societies can safely be adopted, does not extend to societies instituted before the passing of that act, the Court will not command the enrolment of the rules, &c. of such a society, (m) So it seems the Court will grant the writ to annul and make void all rules, &c., that are repugnant to the stat. 33 Geo. 3, c. 54, and to allow and confirm all such of them as are conformable thereto, (i)) .] Complaint. — The writ also lies to command justices to issue their summons to a friendly society, to hear and determine a complaint as to an expulsion from such society, and to make an order thereupon, (jo) But the Court has refused to grant such a mandamus for a society which had been acting on rules not enrolled for upwards of thirty years, on the doubt the Court entertained as to the existence of the society, although the originally enrolled rules had never been repealed. (as) The writ also lies to command justices to proceed to hear and determine a complaint of a friendly society against a member, for not paying a sum of money, pur- suant to the stats. 10 Geo. 4, c. 56, and 4 & 5 Wm. 4, c. 40.(y) Game Laws.] Conviction; Appeal. — The writ lies to command jus- tices *at. Quarter Sessions to enter continuances, and hear an ap- ^^-. ng, peal against an order of conviction under stat. 52 Geo. 3, c, 93, '• Sched. L. R. 12, of the said act, for using a greyhound for the purpose of killing a hare ; without having taken out a certificate. (z)^ But the Court will not command them to rehear an appeal, on the ground that they rejected admissible evidence, although an appeal be against a con- viction under an act, by which a certiorari is -taken away, (a) Gaming.] Conviction; Appeal. — The writ lies to command the («) E. V. Somerset (J.), 1 N. & M. 252.f See tits. " Act of Parliament," " Quar- ter Sessions" (Justices). (v) R, V. Staffordsh. (J.), 12 East, 280. («') ------ , o) R. V. Godolphin (Ld.), 3 N. & P. 488. S. C. 8 1. & E. SSS.f " Quarter Sessions" (Justices). (k) Ante, p. 10, 11. E. v. Godolphin (Ld.), supra. R. v. GUkes, 8 B. & C. 439.-J- S. 0. 2 M. & R. 454. Ex parte Morrish, Jac. Rep. 162. R. v. Witham Sav- ings' Bank, 3 N. & M. 416.t S. C. 1 A. & B. 321.-(- Battey v. Townrow, 4 Camp. 5. But see now indemnity clause in stat. 6 & 7 Vict. c. 6T, s. 3, App., and tit.' " Quarter Sessions" (Justices). (y) R. v. Shortridge, 1 D. & L. 856. S. C. 13 L. J., N. S. 70, M. 0., nom. E. v. Scott. The rule was drawn up upon notice of such rule to be given to such de- faulter. ' j (z) R. T. Salop (J.), 2 B. & A. 694.f Ex parte Pratt, 2 N. & P. J02. See tits. " Act of Parliament." " Conviction," " Quarter Sessions" (Appeal). (ffl) Ex parte Pratt, 2 N. & P. 102. See tits. " Certioriri," " Conviction," " Quar- ter Sessions" (Rehearing). Mat, 1862.— 12 178 tapping's MANDAMTJg. Quarter Sessions to enter continuances and hear an appeal against a con- viction for gaming, under stat. 12 Geo. 2, c. 28 (6). Gaol.] The writ lies to command justices to take into consideration the report of a prison visiting justice respecting certain abuses in a house of correction, and to take measures for rectifying the same.(c) As to the delivery up by gaoler of the corpse of a late prisoner, see tit. Corpse. Guardians of the poob.J This subject is arranged as follows : Gdabdians of Pooh. Guardians op Poob. Election - 129 Appointment - 129 Duties, &c. - 129 Admission ■ 130 Clerk to Guardians - 129 Restoration - 130 .] Election. — The writ lies to command a borough corporation to hold an assembly for the purpose of electing guardians of the poor, under the provisions of a local act.((;Z) So it has been granted to com- mand churchwardens to set aside a certain election of guardians, and to hold a vestry for the purpose of electing four persons to be such guardians^ and to proceed in their election.(e) .] Duties, &c. — See titles Alderman (Duties^; Church {^Church Trustees) ; Office ; Poor {^Poor Law Oommissioners). .] Clerh, Appointment. — ^It is doubtful, upon the authorities; ' whether the appointment of clerk to a board of guardians of the poor, be or be not an office for which a mandamus will lie; whether it be so or not, depends entirely upon the nature of the appointment in each particular case. *So that when an application as to such an office is made, the in- L -' strument instituting it should be brought before the Court.(/) If the appointment should be general, it will not be construed quamdiu se bene gesserit ; it not being a corporate office ; for the Court will look to the nature of the office, which, generally, it would be inconvenient to consider as a permanent one.(^) .] Clerh, Admission. — ^In one case, the question whether a man- damus would lie to command an admission to such office, and to permit the performance of the duties thereof? was raised, but not settled; the (i) R. T. Surrey (J.), 5 B. & A. 539. S. C. 1 D. & R. 160.-|- See tits. " Conviction," " Quarter Sessions " (Appeal). (c) R. T. North Riding (J.), 3 D. & R. 510.^ S. C. 2 B. & C. 286.t See tits. "Newgate," "Quarter Sessions" (Justices), "Prisoner." But see tit. "Present- ment." \d) Ante, p. 11. R. v. Norwich (Mayor), 1 B. & Ad. 311.t See tits. "Act of Parliament," " Churchwarden," " Corporation Municipal." (e) R. V. Clerkenwell (Churchwardens), 3 N. & M. 411.+ See tit. " Office" (Elec- tion). (/) R. V. Dolgelly Union, 8 A. & E. 561.-J- SrC. 3 N. & P. 542. See R. v. St, Nicolas (Guardians), 4 M. & S. 324. See tits. " Office" and post " Application." {g) R. T. St. Nicholas, supra. HALF-PAT, ETC. 179 Court having refused the writ upon the ground, that it camiot be granted at the instance of an applicant who complains that the person filling the office had been unduly elected ; because it was eflfected by the votes of guardians who were themselves not properly elected. (A) .] Restoration, — It has been, however, expressly decided, that the writ lies not to restore to the office of clerk and treasurer of the guardians of the poor of a parish, as of the parish of St. Nicholas, Roches- ter, notwithstanding he may be denominated an officer by stat. 49 Geo. 3, c. 40, and his place, an office ; for he is only the servant of a fugitive body, viz., the parish officers, and his appointment is no more permanent than theirs, (i) GuiLDEOED, Appeoved Men of.J Restoration. — The writ lies to restore to the place of one of the Approved Men of Guildford. (_/) Gtjnmakers' Company.] Approver of Guns, Restoration. — The writ lies not to command a restoration to the place of approver of guns, because the public is in no way concerned, nor is there any public law for it, but on the contrary, it is of a private nature. (A) As to admission, &c. to the Gunmakers' Company, see titles Company ; Franchise ; Freedom ( Compang). Half-pat. — The writ does not lie to command the Lords of the Admiralty to pay deductions from an officer's half-pay, nor even the half- pay itself, nor the arrears, there being no legal right to any one of them, each being, in fact, a mere voluntary donation.(Z). *Havering Court. J See tit. Courts Inferior. [ *131 ] Hearing.] See titles Courts Inferior; Quarter Sessions {Searing). Hedges.] See tit. Highway (JFences, Walls, Hedges, dsc.) High Constable.] See tit. Constable {High Constable). (h) 4 B. & A. 496. E. v. Dolgelly Union, 3 N. & P. 542. S. C. 8 A. & E. 561 jf 2 H. & W. 513. See tits. "Burgess" (Chief), "Office" (Admission). (i) R. V. St. Nicholas (Guardians), 4 M. & S. 324. But see 8 A. & E. 561.f S. C. 3 N. & P. 542, supra. See tit. " Office." (y) Mills' case, Raym. 162. S. C. 1 Ley. 162, nom. R. T. Guildford (Approved Men of). S. C. 1 Keb. 868, 880. S. 0. 2 Keb. 1. And see R. v. Exeter (Dean), 2 Show. 217, n. (a). See tit. "Ashburton" (Eight Men of). As to description, &c., of office, see tits. " Office," "Tiverton" (Twenty-four Men of). (k) Vaughan v. Gunmakers' Company, 6 Mod. 82. S. C. Ld. Raym. 989; also cited jn R. t. Morpeth (Ball), Stra. 59. Bac. Abr. tit. " Man." 0., sed qu. See tit. " Office " (Public). (I) See ante, p. 2T, 28. Ex parte Ricketts, 4 A. & B. 999.f S. 0. 6 N. & M. 523.t Flarty v. Odium. And see 4 A. & E. 995,f n. (e). See tits. "Admiralty" (Lordsof ), "Pension," "Treasury" (Lords of). Highway. 131 Appointment - 135 131 Swearing in - 135 132 Accounts - 135 132 Eeimbursement - - 135 133 Books, Delivery, &c. - - 136 133 Inspection - - 136 133 Clerk. 134 Admission - - 136 134 Restoration Miscellaneous matter - - 136 135 136 180 tapping's MANDAMUS. Highway.] This subject is arranged as follows :- HlQHWAT. Setting out, &c. - Fences, Walls, &c. Statute duty Bepairs - - - Obstruction Compensation Diverting, stopping up, &c. Toll-gates, Tolls, &c. - Bate ... Surveyors .] Setting out, MaJdng, &c. — ^The writ will be granted to com- mand inclosure commissioners under a local and personal act, to set out a road as a public one ; and a power to proceed by indictment against ^he commissioners, for not obeying an order of sessions directing them to set out the road as a public road, is not such a remedy as will determine the Court not to grant the writ.(m) So the writ lies to command a railway or other company to make a road, pursuant to their act;(ra) or to excavate or widen a road,(o) notwithstanding the road made be more commodiouB than that directed by such aot.(o) .] Fences, WaUs, Hedges, &c. — ^The writ lies to command the trustees for making a turnpike road through private grounds, to male proper fences, as required by stat. 4 Geo. 4, c. 95, s. 66, and a return of the want of necessary funds for that purpose, is no answer to such a writ.(^) So it lies to command district road trustees to repair a wall on the road side, but their liability must be clearly shewn.(g') Thus, although r*1 S91 trus**^^ under a *road act, turn a road through an inclosure, and make the fences at their ovra expense, and repair them for several years ; yet the Court will not compel them, by mandamus, to continne such repairs, unless there be a special provision in the act to that effect, (r) So the writ has been granted to command the reparation of hedges.(s) So it has been granted to command justices to issue their warrant in order (m) Ante, p. 24. Anon., Lofft. 189. R. v. Dean Inclosure, 2 M. & S. T9. K. r. Jeyes, 3 A. & E. 420.-J- B. v. West Riding (J.), 2 B. & C. 229.f K. v. SeTeni Railway Company, 2 B. & A. 649. See tits. " Act of FarUament," "Drainage," " Inclosure." (») Ante, p. 11. R. v. Birmingham Railway, 1 G. & D. 324. S. C. 2 Q. B. 4f,t where see form of such a mandamus. S. 0. 2 Bail. Cas. 694. K. v. Bristol M- way, 12 L. J., N. S. 106, Q. B. See tits. "Company," " Bailway." (o) E. V. Manchester Bailway, 1 G. & D. 338, where see form of writ. {P\ E- V. Luton Roads, 1 G. & D. 248. S. C. 1 Q. B. SeO.-j- And see R. v. Eas- tern Counties Bailway, 4 P. & D. 46. See tits. " Courts Inferior" (Holding Oonrt, Return). v » (?) See ante, p. 29. B. v. Llandillo Roads, 2 T. R. 232 ; and see 12 A. *B- 428.+ S. C. 4 P. & D. 154. But see infra, "Repairs," and post, tit. "Application- (r) Ante, p. 15 ; 2 T. R. 232, supra. («) Anon., Comb. 257, citing Sty., but Byre, J., said he did not see how it lay to hedges. HIGHWAY. 181 to levy the expenses of cutting a hedge, by the surveyors of highways, pursuant to stat. 5 & 6 Wm. 4, o. 50, s. 65 ; but not unless it appear by the affidavits in support of the rule, that a demand has been made of the expenses, from the persons sought to be charged, and the justices were informed of that demand.(2) .] Statute Duty. — The writ lies to command justices to receive and determine an appeal by the surveyors of the highways, 'against a con- viction for not having delivered in, pursuant to notice, to the trustees of a turnpike road, under stat. 17 Geo. 3, c. 106, a list, in writing, of the inhabitants, &c. in the said township, liable to do statute duty ; but not unless the appeal be properly entered. (m) So it lies to command justices to compel the performance of statute duty by those whose duty it is to do it;(u) or to command them to enter continuances, and hear the appeal of a road surveyor against an order of justices, for the performance of sta- tute work, and for the payment to the treasurer of a turnpike act, of a certain sum of money as composition for statute duty, (to) due in respect of the occupation of the parish tithes. (x) .] Repairs. — The Court of B. E. will not entertain an applica- tion for a mandamus to repair a turnpike road, and this notwithstanding the question be, which of two parties is liable to repair under certain local acts of Parliament ? because the best mode of proceeding is to indict the parish, who can then have the fine apportioned under stat. 3 Geo. 4, c. 126. Lord Denman, C. J., in giving judgment in such case said, he " knew no instance of a mandamus to repair a road," and in the same case, it was stated by the Court, that " if such applications were enter- tained, it would have to try questions of guilty or not guilty on the state of the roads, and all questions affecting the Iiability."(^) The writ lies to command the Quarter Sessions to receive and proceed *upon a general traverse to a presentment by a justice of the ^i^-i oqn peace, upon view of a highway being out of repair. («) The writ also lies to command justices to issue their warrant for levy- ing costs against a defendant, against whom an indictment had been pre- ferred, for not repairing a highway, pursuant to stat. 5 & 6 Vict. c. 5, ss. 94, 95, and at the trial of which the defendant was found guilty, and a \f) Ex parte Whitmarsh, 8 D. 431 ; 4 Jur. 823. See post, tit. " Application'' (Demand and Refusal). - («) R. V. West Riding, 3 T. R. T^e. See tits. '' Act of Parliament," "Coniric- tion," "Quarter Sessions" (Appeal). Ui) R. T. Marriott, 1 D. & R. lee.f fw) R. T. Lancash. (J.), 2 M. & R. 519. S. C. 8 B. & C. 593.i- \x) R. V. Buckinghamsh. (J.), 2 D. & E. 689.+ R. v. Lacy, 5 B. & C. 706.+ See tit. " Tithes." (2^) Ante, p. 25. R. v. Oxford Roads, 4 P. & D. 164. S. C. 12 A. & E. 427;+ 6 Jur. 216, n. R. v. Bristol Dock, 1 G. & D. 286. S. C. 2 Q. B. 64.+ But see R. v. Llandillo Roads, 2 T. E. 232, and supra ; " Fences," &c. R. v. Wilts. (J.), 8 D. 717, infra. (2) R. T. Wilts (J.), Burr. 1530, 1532. S. 0. 1 W. Blac. 467. Matthew v. Carey, Garth. 74; 1 Hawk. P. C. 217. Bac. Abr. tit. "Man." (D.) See tit. "Present- ment." 182 tapping's mandamus. valid order for the payment of the costs of the indictment had been made by the sessions, (a) .] Obstruction. — The writ lies to command a justice to hear and determine an information exhibited before him, by the surveyor of the pavements, under the provisions of a paving act, against a haokneyman, for taking his stand with his chariot, and plying for his fare there, and thereby obstructing a public thoroughfare. (6) It lies also to command justices to hear an appeal as to laying soil, &c. on a highway.(c) .] Compensation. — As to obtaining compensation for land taken for the purpose of a highway. See tit. Oompensation. .] Diverting, Stopping vp, &c. — The writ lies to command jus- tices at Quarter Sessions to enter an application made for enrolling an order made by two justices of the county, for diverting and turning a public footway, and to enter continuances thereon to the next general Quarter Sessions of the peace to be holden in and for the said county, and at such sessions to hear and determine such application. ((^) So it lies to command the Quarter Sessions to confirm a valid order of justices, for diverting and turning a footpath or highway, pursuant to stat. 55 Geo. 3, c. 68. (e) So it lies to command the Court of Quarter Sessions to enter continuances and hear an appeal against an order of justices for diverting certain public footways.(/) So it lies to command the Court of Quarter Sessions to enter continuances and hear an appeal against the confirmation of an order made under stat. 55 Geo. 3, c. 68, s. 2, for stopping up as use- less and unnecessary part of a public highway, (g-) or for diverting it. (A) So it lies to command the Quarter Sessions to enter continuances and hear an r*l Wi *PP^^^ against the *inclosure of a highway, upon ■ a writ of ad quod damnum, (t) So for stopping up a private road under an inclosure act.(y ) In all these cases the applicant must be fully entitled to the writ.(fc) .] Toll-gate; Tolls. — The Court wiU refuse a mandamus to com- mand the Quarter Sessions to hear an original complaint touching the (o) E. T. Martin, 13 L. J., N. S. 45, M. C. R. v. Clark, 13 L. J., N. S. 91, M. 0. See tits. " Costs." " Quarter Sessions," (Justices.) (6) Ante, p. 11. E. v. Eawlinson, 6 B. & 0. 23.f S. C. 9 D. & E. 1.\ And Bee Frost T. Williams, T A. & E. 779, 782.+ See tit. " Quarter Sessions." (Justices). U) E. T. North Eiding (J.), 7 Q. B. 154.-J- S. 0. 14 L. J., N. S. 91, M. 0. . td) E. T. Gloucester (J.), 6 N. & M. 115.-f- See tit. " Quarter Sessions." («) R. T. Worcestersli. (J.), 2 B. & A. 228. R. v. Surry (J.), 5 B. & C. 241.t R. V. SuflFolkJJ.), 6 B. & C. lll.t (/) E. T.We3tRiding(J.), 4B. &Ad. 685.+ S. 0. 1 N. & M. 426.+ R. v. Sur- rey (Jj, 7 D. & R. 857.t " ■ ^ ' {g) R. V. Essex (J.), 7 D. & E. 658.+ E. v. West Eiding (J.), 7 B. & C. 678.t S. C. 1 M. & E. 547. E. V. (J.), 1 Chit. 164. R. v. Pembrokesh. (J.), 2 East, 212. And see M. & S. 231. (A) R. V. Staffordsh. (J.), 3 East, 150. E. v. Townsend, 5 B. & A. 421. E.t. Staffordsh. (J.), 7 T. E. 81. (i) E. T. Essex (J.), 1 B. & A. 373. E. v. Bucks (J.), 2 M. & S. 230. And see post, tit. " Application," U\ E. T. West Eiding (J.), 3 D. & R. 306.+ See tit. « Inclosure." (A) Ante, pp. 27, 28. See post, tit. "Application." HIGHWAY. 183 conduct of the trustees of a turnpike road, in the erection of a toll-gate, after a lapse of twenty years from its erection, on the ground that the appli- cation is too late ; so that the applicant will he left to proceed by indictment for the nuisance ; or by an action of trespass, if his passage be obstructed. (f) It lies, however, to command the trustees of a turnpike road, to call a meeting under stat. 59 Geo. 3, for the purpose of establishing an uni- form rate of tolls, to be taken at all the different toll-bars and toll-houses on the line of road, and to do all necessary acts for the calling of such m eeting. (m) It lies also to command the hearing of an appeal on a conviction for non-payment of tolls.(ra) , .] Rate. — ^The ■writ lies to command justices to make a highway rate, pursuant to an act of Parliament, (o) It lies also to command jus- tices to receive an appeal, (^) made against a distress, or to levy a dis- tress, (§') for nonpayment of a sum of money due for a highway rate. Formerly, however, if the legality of the rate were not clear,(?-) or merely doubtful ; or if for any other cause, the issuing of such a warrant might have subjected the justices to an action, the result of which might be doubtful, especially if no indemnity had been offered to the justices, the Court always refused the writ. Thus, the Court has refused, by mandamus, to command a magistrate to issue a distress warrant for a parish highway rate, under stat. 13 Geo. 3, c. 78, ss. 45, 67, made upon the occupier of lands within his district, as it appeared that in the magistrate's belief and in fact there was, a reasonable doubt as to the liability of such occu- pier to contribute to the repairs of the parish highways, and that the magistrate was likely to be sued if the warrant were granted and acted upon, and this although the occupier had not appealed against the rate.(s) But see the late stat. 6 & 7 Vict. *c. 67, s. 3,(0 which, Y^,okt as it provides a full indemnity for all acts properly done in exe- cution of a writ of mandamus, it is apprehended the Court will not now so closely scrutinize the legality of the rate, &c. .] Surveyors, Appointment. — The writ lies to command justices to appoint road surveyors, (m) or to convene a vestry, and proceed to an (?) B. T. Cambridgeah. (J.), 1 D. & R. 325.f See also R. v. Lancash. (J.), 12 Bast, 366. See also tit. " Canal Company," and post, tit. " Application." (m) R. V. Bury Roads, 6 D. & R. 368.-J- See tit. " Tolls." (») R. T. Middlesex (J.), 12 L. J., N. S., 59, M. C. See tits. " Conviction," "Quarter Sessions," (Appeal). (o) R. V. Lancash. (J.), , 12 East, 368. R. t. The Padding Testry, 9 B. & C. 461.+ See tits. " Act of ParUament," " Borough" (Rate), " Church" (Rate), " County" (Rate), " Poor" (Rate]. >= \ n k j, i (p) R. T. Devon (J.), 1 M. & S. 410. R. v. Lancash. (J.), 8 B. & C. 596.+ See tits. " Drainage" (Rate), " Parish." (Rate). (j) R. T. Best, 16 L. J., N. S. 102, M. C. (r) R. v. Mirehouse, &c., 2 A. & E. 632.+ R. v. Greame, 2 A. & B. 614.+ See E. T. Cumberland (J.), 4 A. & E. 697.-|- (») R. V. Greame, 2 A. & E. 615 ; 2 A. & E. 632,f supra. R. v. Morgan, 2 A & E. 618,t n. (a). S. C. 3 N. & M. 68,t nom. R. v. Buckinghamsh. (J.) ; and see 1 B. & 0. 485.t R. v. Somersetsh. (J.), 1 H. & W. 82. (t) App., and see tit. " Quarter Sessions" (Justices). (m) R. t. Dr. Pettiward, &c. Burr. 2453. R. v. Middlesex (J.), 1 D. 116. Bac. 184 tapping's mandamus. election, (d) either for the whole of the year or for part, where the ap. pointment in due time has been neglected 5(10) and it also lies to com- mand parish officers to produce the rates, and rate and other books at the scrutiny of a poll, which has been taken at the election of surveyors of highways, (a;) .] Surveyors, Swearing in. — The writ also lies to command justices to swear in surveyors of the highways, (y) .J Surveyors, Accounts. — The Court will, when a surveyor of the highways has improperly allowed the time for producing and passing his accounts to elapse, command him, by writ of mandamus, to produce them.(a) But such writ will not be granted to command the Quwtet Sessions to enter continuances and hear an appeal against the allowance of the accounts of a surveyor of the highways, because no appeal lies to such sessions under stat. 5 & 6 Wm. 4, c. 50, s. 44, nor can the Court grant a writ to the Special Sessions to review their decision, by requiring them to re-examine such accounts, after they have once adjudicated and passed the accounts ; although it appear that improper items have been passed, and notwithstanding the justices who passed them admit and de- pose that they did not fully investigate the case, believing that an appeal lay from them to the Quarter Sessions ; the Court, in giving judgment saying, that to unravel the grounds and motives which may have led to the determination of a question once settled by the jurisdiction to which the law has referred it, would be extremely dangerous, and many authori- ties prove the Court of B. K. has not the power, and there are none to the opposite effect, (a) .] Surveyor, Reimhursement. — The writ has been granted to command the making of a rate to reimburse a survey of the highways, r*l ^Rl *^ ^'^'^ '^^ money he had expended in the execution of his office, L J under stat. .3 & 4 Wm. & M. c. 12.(5) .J Books, &c., Delivery of. — The writ lies to command a sur- veyor of highways to deliver to the churchwardens of a parish, under Abr. tit. "Man." (D.) See tits. "Churchwarden" (Appointment), "Office" (Ap- pointment). (t)) Ex parte Grossmith, 10 L. J., N. S. 359, Q. B. See tits. " Corporation Muni- cipal," " Pariah." (w) R. T. Denbighsh. (J.), 4 East, 142. R. v. Sparrow, Stra. 1123 ; 1 Const'i Bott. I'Zth edit., 1793. R. t. Baldwin, 7 T. R. 169. R. v. King's Newton (Inhabs.), 1 B. & Ad. 830.-J- See tit. " Churchwardens." [x) R. T. Fall, 1 G. & D. 118. S. C. 1 Q. B. 636.t See infra as to books, and tit. "Books," "County" "Treasurer). (y) R. T. Pettiward, Burr. 2452. Com. Dig. tit. "Man." (A.) See tit. "Office" (Swearing in). («) R. T. Lewis, 1 D. 530. R. t. Denbighsh. (J.), 4 East, 142. B. v. Sparrow, Stra. 1123. R. v. Norwich (Mayor), 1 B. & Ad. 310.+ See tits. "Accounts," "Church- wardens " /Accounts). (ffl) Ante, p. 10, 11. R, V. West Riding (J.), 1 G. & D. 198. S. 0. 1 Q. B. 62it S. C. 10 L J., N. S. 137, M. C. See tits. "Courts Inferior" (Rehearing), "Quarter Sessions" (Rehearing). (6) Hasell's case, Str. 211. R. v. "Wallingford, Kel. 209; Com. Dig. tit. "Man." (A.) See tits. " Churchwarden " (Reimbursement), "Drainage" (Reimbursement). H I a H W A Y. 185 Stat. 13 Geo. 3, c. 78, s. 48, all books of account in his custody, power, or possession, relating to the highways within the parish. And to such a writ, a return " that on and since the test of the writ, the defendant had not, nor has had the hooks, &c., nor any of them, &o.," is good; although it unnecessarily allege that the defendant had them not on a prior day, when it is surmised in the writ that they were demanded. The defendant is not bound to negative a possession intermediate between the demand and the test; and whether, under the circumstances, the books, &c. were in the power of A. is a question to be raised by a traverse to the return, or by an action for a false return, (c) .] Books, Infection, &c. — So the writ lies to command road trustees to grant inspection of books, &c. ; but the right to such inspection must be clear, either by act of Parliament or otherwise, and must appear upon the affidavits. (rf) .] Clerk, Admission. — The writ lies to admit to the office of clerk to turnpike trustees under the general turnpike acts ; but not if the office be full, as in such case the public suffer no inconvenience, (e) .] Clerk, Restoration. — So a mandamus to restore to such office will be granted on an illegal removal. (/) .] Miscellaneous Matters. — The writ lies to command a surveyor of the highways to pay the arrears of rent for land taken up in the for- mation of a road.(^) So it lies to command justices to convict a surveyor of highways in 5?., and to make an order upon him to limit and appoint a time for the repair of a road; but not if the magistrates have exercised their discretion not to convict.(A) So it lies to command justices to hear the appeal of a surveyor under stat. 4 & 5 Vict. c. 59. (i) The writ also lies to command the Quarter Sessions to enter continuances and hear an appeal against a conviction of one justice, under the Turnpike Act, 4 Geo. 4, *c. 95. (y) So to hear an appeal against an order made :|tr-iq7-i by commissioners under a local turnpike act; (A:) but where, by (c) B. T. Round, 5 N. &M. 42T.-|- S. C. 4 A. &E. 139,f where see a form of writ and return, 1 Har. & W. 546. E. v. Payn, 6 A. & E. 404 ;-f 1 W. W. & H. 99 ; 2 Jur. 47. R. T. Hopkins, 4 P. &D. 550. S. C. 1 Q. B. lei.f See tits. "Books, &c.," " Company," "Corporation" (Municipal), "County," "Drainage," and see post tit. "Return." (d) Ante, p. 16. E. v. Northleach Eoads, 5 B. & Ad. 9T8.t See note (o). (e) Ante, p. 12. E. v. Cheshunt Eoads, 5 B. & Ad. 438, 439,f note, [a) See also E. v. Dolgelly Union, 8 A. & E. 562.-f- See tit. " Office" (Admission). (/) Ante, p. 12. E.y. Wrexham Roads, 5 A. &B. 581.f See tit. " Office" (Eesto- ration.) (g) R. T. Baldwin, 3 P. & D. 124. S. C. 8 A.&E. 947.1 See tit. " Compenaation" (Payment). (A) Ante, pp. 12, 13. R. v. Wilts. (J.), 8 D. TIT ; and see supra, and tit. " Convic- tion." (j) E. V. Derbyshire (J.), T Q. B. 193.-|- S. 0. 14 L. J., N. S. 84, Q. B. See tits. " Act of Parliament," "Court Inferior" (Hearing), "Quarter Sessions" (Appeal). (yjE.v. Middlesex (J.) 2 D., N. S. T 19. R; t. Bedfordsh. (J.), 3 P.&D. 21. See tit. " Quarter Sessions" (Appeal). (ft) R. T. Worcestersh. (J.), 9 D. & B. 2U.f See tit. "Act of Parliament." 186 tapping's mandamus. Buch local act, an appeal when heard is final, in such case a mandamus will not be granted to command a rehearing of it.(if.) Hospital.] Sister, Restoration. — The writ lies not to restore to the place of sister in an hospital, she being but an almswoman at will, and under the jurisdiction of a visitor.(m) .] Surgeon, Swearing in. — ^The writ lies not to swear in a sur- geon of an hospital, because he is a mere private servant, and not a pnbKo officer, (n.) .] Restoration. — ^And for the same reason, the writ does not lie to restore to such a place.(o) .] Seal. — The writ lies to command the master of an hospital to affix its common seal to a deed of presentation, presenting to a vicarage with the gift of such hospital, (jp) Hospitaller.] Restoration. — The writ does not lie to restore an hospitaUer,(g') he not being an officer of public concern. HosTMEN OP New Castle.] See tit. New Castle Hostmen. Inclosttee.] A^eal. — The writ lies to command justices of the peace at Quarter Sessions to cause continuances to be entered upon an appeal against an order or adjudication made by a commissioner under a local inclosure act, where such power of appeal is given, and the appeal ought to be heard, (r) As to inclosure of highway, or making, &c., a highway under inclosure acts, see tit. Highway. (s) The writ has also been granted to command the surveyor and com^i^ sioner, under an inclosure act, to ascertain if there be any modus as to the *lands, the subject of the inclosure.(<) Also to command a com- L -' missioner, under an inclosure act, to effect an exchange if lie have (?) R. V. West Biding (J.), 3 N. & M. 86.t S. C. 1 A. & B. 606. See tits "Cer- tiorari," " Courts Inferior" (Rehearing), " Quarter Sessions" (.Rehearing). (m) R. V. Wheler, 3 Keb. '360; Bac. Abr. tit. "Man." C. 2. See tit. "Oface" (Freehold). (n\ Anon. 7 Mod. 118 ; Bac. Abr. tit. " Man." 0. ; and see tit. " Office." (o) Anon. Comb. 41. (p) R. T. Kendall, 4 P. & D. 603. S. C. 1 Q. B. 366 ;-|- when the writ is merely to afBx the seal, it may properly be directed to the Master alone. See tit. "College (Seal), " Corporation Municipal" (Seal), " Seal." (2) R- T. London Water Works, 1 Lev. 23, per Wyndham, J. See tit. "Office (Public). ' > V 1 , (r) R. V. Lancashire(J.), 1 B. & A. 630.+ R. v. Middlesex (J.), 1 Chit. 366.] "• V. Wilts. (J.V 13 East, 351. B. t. West Riding (J.), 2 B. & C. 228.t R- v. Gloa- cestershire (J.), 3 M. & S. 127. See tit. " Act of Parliament," "Drainage," " Quartei Sessions" (Appeal). W 1 B. & Ad. 3'78,-f- infra. And see tit. " Act of Parliament." (<) Anon., 2 Chit. 251.f In such case the rule nisi was ordered to be serredon the vicar or his impropriator. See tit. " Tithe." INN OF COURT. 187 power to, and should do bo.(m) And also to command Inclosure Commis- sioners to set out and appoint an oooupation road to two several allotments by them set out, and to make and publish their award as directed by the local aot.{y) Inhibition.] As to such a return, see tit. Churchwarden {Return) ; Registrar {ReturrC). Inn Bukgess of Wigan.] See tit. Burgess (Inn, &c.), pp. 54, 57. Inn of Chancery.] In analogy with the law of mandamus as to Inns of Court, so such writ does not lie to command one elected principal of an Inn of Chancery to attend before the benchers of the Inn of Court to which such Inn of Chancery is attached, for the purpose of enabling such benchers to decide upon the validity of his election ; unless it be clearly shewn that the benchers of such Inn of Court have, on some former occa- sion, exercised such jurisdiction in invituni.(w) As to the granting of the writ to command admission, &c., see titles Attorney ; Barnard's Inn; College {Member') ; Franchise {Freedom) ; Inn of Court {Admission). Inn of Court.] It is clearly settled, that the writ of mandamus can- not be issued against the Inns of Court as to any matter connected with their internal regulations, &c. ; because they are private and voluntary societies submitting to government, and also, that the ancient and usual way of redress for any wrong done by them as to admission, &c. of mem- bers, is by appeal to the Judges of the superior Courts of Common Law,(a;) who have a domestic jurisdiction over the Inns. .] Admission as Member. — The Court of B. R. will not grant a mandamus to command the benchers of an Inn of Court to admit an in- dividual to become one of its members, in order that he may qualify him- self to be called to the Bar ; because such a society being purely volun- tary, has a discretion as to the admission or rejection of applicants. (y) a. R. T. Flockwold Inclosure, 2 Chit. 251.t See tit. " Commissioners." R. T. Oockermouth Inclosure Act, 1 B. & Ad. 3t8.-j- See tits. " Act of Parlia- ment." "Award," "Highways." (w) Ante, p. 10. R. v. Allen, &c., 3 N. & M. ISi.f S. C. 5 B. & Ad. 984.+ See tit. "Inn of Court." (x) See ante, p. 21, and infra, "Admission to Degree, &c." Per Hale, C. J., in Appleford's case, 1 Mod. 84, citing R. v. Gray's Inn, Dougl. 353. See Townsend's case, Eaym. 69, and R. Physicians' (Coll.), 2 Show. 118, 119, n. (b), 3rd edit., per Pemberton, C. J. ; Bac. Abr. tit. "Man." C. 2. See tits. "Inn of Chancery," " Visitor." (y) Ante, pp. 12, 13. R. v. Lincoln's Inn, 4 B. & C. 855.f S. C. 7 D. & R. 351.f R. T. Barnard's Inn, 5 A. & E. 23.f B. t. Gray's Inn, Doug. 359. Protector v. Cray- ford, Sty. 457. Dr. Widdrington's case, Raym. 69; Com. Dig. tit. "Man." (B.) ; Bac. Abr. tit. "Man." C. 2. See tits. "Advocate of Doctors' Commons," " College" (Admission), "Distribution," " University" (Admission). 188 tapping's mandamus. r*1 1Q1 * -J Admission to Degree, due. — So the writ does not E ^ to command the benchers of an Inn of Court to admit to thi degree of barrister-at-law ; for the only mode of relief is by appeal to thi Judges of the superior Courts of Common Law, who have a domestii jurisdiction over the Inns.(«) •.] Restoration to Degree. — So the Court of B. K. has consti held, that a mandamus does not lie to command restoration to the degref of barrister-at-law, of which the prosecutor has been improperly deprived] the proper proceeding in such a case being, as before stated, by appeal tc the Judges, (a) Inquest.] The writ does not lie to command the jury of an inquest to find a particular fact.(6) Insanity.] See titles Lwnatic; Poor. Insignia.] See titles Corporation Municipal (^Insignia, &c.); Intig- nia, &c. ; Mayor ; Seal. ^ Insolvent.] The writ has been granted to command justices to direct the clerk of the peace to assign over the effects of a debtor, to a creditor, in pursuance of stat. 2 G-eo. 2, c. 22, but not to a particular creditor by name, because the justices are not so authorized by the statute.(c) So the writ has been granted to command justices to give judgment in a case, upon the statute for releasing poor prisoners.(d!) So the writ lies to command the commissioners of the Court, for tk relief of insolvent debtors, to receive and hear the petition of a person desiring and entitled to obtain the benefit of the act (1 Greo. 4, c. 119), and to proceed to an adjudication thereupon, (e) .] Discharge. — The writ has also been granted to command jus- r*1401 ^^^^^ *■" discharge a prisoner, in pursuance of an act of ParliaBiSiit, for the *relief of poor prisoners,(/) and it has also been granted [z] Ante, p. 21. R. v. Gray's lun (Benchers), 1 Dong. 353. Boorman's case, March. 11*1, which was a writ of restitution. Rakestraw & Brewer, 2 P, Wins. 511. Townsend's case, Raym. 69. S. 0. 1 Keb. 458. R. t. Lincoln's Inn, 4 B. 4 C. 856.-J- R. Y. Coll. of Physic, 2 Show. 179, n. (i), 3rd edit. See tits. " Adrocate of Doctors' Commons," " ITniversity" (Degree), "Visitor." (a) Ante, p. 21. Boorman's case, March. 111. R. v. Gray's Inn, Dong. 359. See Townsend's case, 1 Keb. 458. S. C. Raym. 69. Estwick's case, Sty. 42. Dr. Withrington's casp, 1 Keb. 122. See'tits. " College," " Physicians' College," " Cni- versity," " Visitor." '•' (i) Comb. 239 ; 1 W. Blac. 64. S. 0. 1 Wils. 283. See tits. " Coroner," " Court Inferior" (Rehearing), " Freeman," " Jury." (c) R. T. Surrey (J.), 2 Barn. 410, and cases there cited. See tits. "AotofPsi- hament," "Bankrupt," " Quarter Sessions" (Justices). (d) Trevaignon's case, Comb. 203. See tits. " Act of Parliament," "Quarter Sessions" (Justices), " Bankrupt." (c) Ex parte Deacon, 5 B. & A. 759. See tit. "Pension." See tit. " Act of Par- liament." ,-S0 ^- "^-.SniTey (J.), 2 Show. 74, T. 31, Car. 2, B. R.j Bac. Abr. tit. "Mao." (D.) See tit. "Act of Parliament." JUDGMENT. 189 to command the Marshal of the Queen's Bench Prison, to include in his list of debtors the name of the applicant, he being duly entitled, in order that he might take the benefit of the insolvent act, 34 George 3, o. 69 ;(g) so, it has been granted for the same purpose, under stat. 44 Geo. 3, c. 108, s. 1 ■,{K) also to command the making of an order, to cause a pri- soner in execution to be brought up under stat. 2 Geo. 2, c. 22, in order that he might take the benefit of the Insolvent Debtors' Acts.(i) So it has been granted to command the Court of Quarter Sessions, to inquire and give the benefit of the Insolvent Debtors' Act to a prisoner if duly entitled to it.(y) So where an insolvent debtor brought up to the Quar- ter Sessions, under the repealed insolvent act of 34 Geo. 3, c. 69, was remanded upon a charge, which he gave notice he would disprove at a subsequent adjournment of the sessions; the Court of B. R. granted him a mandamus, coI^manding that he should be brought up for such pur- pose. (A) Institutions, Private.] The Court of B. R. constantly interferes by mandamus, with respect to private foundations, as in the cases of charities, dissenting ministers, lecturers, visitors, &c.,(Z) but the appli- cants must be legally entitled to that for which they ask.(wi) Inspection of Books, Rolls, &c.] — See titles Accounts; Books ; Company ; Corporation Municipal; Manor Rolls ; Rate. Joiners' Company.] See titles Company; Franchise; Freedom [Company); Freeman. Joint Stock Company.] See tit. Company (Joint Stock). Judgment. J Enforcing. — The writ does not lie to enforce a judgment obtained in an action in one of the superior Courts, because there is a specific legal remedy most efficacious in its nature, namely, a writ of exe- cution in the ordinary form. Thus, where the prosecutor had obtained a judgment, and entered it up against a corporation, which afterwards ap- peared to have no assets ) the Court refused to issue the writ to command them to pay the amount of such judgment, merely on the ground that an [g") E. T. Jones, 6 T. R. 28. R. v. Surrey (J.), 6 T. R. YT. (A) Ex parte Chiffeuch, 6 East, 346 and 347, n. [a). • (i) R. T. Ipswich (Bailiffs), 1 East, 84. Ex parte King, 1 Bast, 91, and cited in 15 East, 126; and see tit. " Quarter Sessions." {}) Ante, p. 11. Ex parte King, T East, 90, and cited in 15 East, 126 : 44 Geo. 3, c. 108. See tits. " Courts Inferior." (A) R. T. Surrey (J.), 6 T. R. 76 ; and see 3 D. & R. 310-1 See tit. "Bankrupt." [l) Which tits. see. (m) Ante, p. 28. B. v. Ottery St. Mary, 3 G. & D. 383. S. 0. 4 Q. B. Wl,\ where see per Ld. Denman, 0. J. The cases of mandamna to admit dissenting ministers are clearly cases of private trust. See tits. " Charity," " Church," " Dis- senters," " Office" (Public, Election). 190 tapping's mandamus. r*14.n execution might *turn out fruitless.(w) ' But if the judgment be not so entered up against the company, then it seems the Court will grant the writ of mandamus, (o) As to judgment in compensation cases, see tit. Compensation (Com- pany). As to judgment and execution of Inferior Courts, see tits. Cowrts h- f&rior (Judgment, Execution, (fee); Costs. Jurats.] The writ of mandamus has often been granted in respect of the office of jurat of a municipal corporation, because it is a public office and a freehold, (p) .] Election. — See stat. 6 & 7 Vict. c. 89, App., the provisions of which should be followed. .] Admission and Swearing in. — So the writ has been granted to admit and swear in to the office of jurat.(2) .] Restoration. — So the writ lies to restore to such an office after unlawful depriTation.(?') And it lies to return a jurat, as mayor elect, if duly entitled.(s) Jury.] The writ does not lie to command a jury to find a particular verdict, or to present a particular fact.(<) As to summoning a jury. See tit. Manor (Leet Jury). Justice's Clerk]. Restoration. — The writ does not lie to restores justice's clerk to his office, although he may have been dismissed without cause, and although it be such an office as entitles to compensation under stat. 5 & 6 Wm. 4, c. 76, and is recognised by several public acts of Par- liament; for such clerk has no permanent interest in his office, being id at the mere pleasure of the justices, in this respect he resembles a mere ves- try clerk :(?t) and as the office of clerk to a stipendiary magistracy is not within the stat. 5 & 6 Vict. c. Ill, so a mandamus under such statute for compensation for loss of such office does not lie.(jj) («) Ante, p. 23. R. v. Victoria Park, 4 P. & D. 639. S. 0. 1 Q. B. 288,t citing and distinguishing R. v. St. Katherine's Dock, 4 B. & Ad. 360.f S. C. 1 N. 4 M. 121,t and R.T.Nottingham Old Works, 6 A. & E. 335.t S. 0. 1 N.&P. 480-1 See tits. " Company," " Distress," " Execution." (o) 4 B. & Ad. 360.-|- S. C. 1 N. & M. 121, supra.f (p) Anon. 1 Lev. 148 : Com. Dig. tit. " Man." {A.\ See tits. " Alderman," " Office, (Public). (?) R. T. Rye (May5r), Burr, T98 ; 2 Ld. Ken. 468. See tit. " Office" (Admission), (Swearing in). (r) Anon. 1 Ley. 148. See tit. " Office" (Restoration). h) 1 Mod. 365. S. C. Stra. 1145 ; and see Burr. 1013. See tit. " Mayor." (*) Clitheroe's case, Comb. 239. R. t. Montacute (Ld.), 1 W. Blac. 64. S. C. 1 Wils. 283. See tits. " Courts Inferior," "Freeman" (Presentation &c.), " Inqnest. (m) Ex parte Sandys, 1 N. & M. 591.f S. C. B. & Adol. 863, also cited in B. t. Bridgewater (Mayor), 1 N. & P. 4T0.+ S. C. 6 A. & E. 339.+ See tits. " Guardians of Poor" (Clerk), " Office" (Freehold), " Quarter Sessions" (Justices), " Vestry" (Cletk). (») R. V. Manchester (Borough), 16 L. J., N. S., 2T, Q. B. See tit " CompeBSH' tion" (Office). / i i > , LANDLORD. 191 *Keys.] Sqb titles Charity ; OhurcJi (^Keys). [*142] King.] See titles Crown; Oastoms ; Excise; Treasure/ Lords. King's Beam.] Master Weigher ; Restoration. — It appears that a mandamus has been granted to restore to the office of master weigher of the King's Beam.(w) Knight.] See titles Dignity ; Knight Templcvr. Knight Templar.] Restoration. — The writ does not lie to restore a knight templar, (a;) Landlord.] Possession. — The writ lies to command certain magis- trates who have refused so to do, to proceed to view certain premises of the applicant, and deliver possession thereof to him as the landlord thereof, pursuant to stat. 11 Geo. 2, c. 19, s. 16, there being no sufficient distress on the premises, and the defendant having deserted them.(y) Bui formerly when the magistrates from a doubt of their jurisdiction, incorrectly declined to give such possession, the Court usually refused by mandamus, to compel them so to do.(z) So, the writ lies to command justices to proceed and give judgment in a certain complaint depending before them on the stat. 11 Geo. 2, c. 19, for the relief of landlords ; but a return by such justices, that they have heard and determined the complaint that was before them, is good, (a) But it lies not to command magistrates to give restitution under stat. 11 Geo. 2, c. 19, pursuant to the order of certain justices of assize, as such magistrates have no such jurisdiction or power given to them by the act. (6) — .] Goods. — The writ also lies to command justices at sessions to enter continuances, and hear an appeal against an order of justices, under stat. 11 Geo. 2, c. 19, s. 4, for having fraudulently conveyed away goods to prevent the landlord distraining the same.(c) (w) Anon. 1 Bam. 123, 135. See tit. " OfBce" (Restoration). \x) R. V. London Waterworks, 1 Lev. 123, per Wyndham, J. See tits. " Abbot," "Dignity," "Knight," "Mon]£," "Office," "Prior," "Visitor." (y) Ex parte Fielder, 8 D. 535. S. C. 4 Jur. 507. See also Ashcroft v. Bourne, 3 B. & Ad. 684.f See tits. " Act of Parliament," "Forcible Entry, &c.," "Quarter Sessions" (Justices). («) 8 D. 535, supra. But see R. v. Kent (J.), 14 East, 395. See also 1 M. & S. 193. But see stat. 6 & 7 Vict. c. 6T, a. 3, which, as it confers a full indemnity for all lawful acts done in execution of a mandamus, it is apprehended the Court will now more readily grant the writ. (a) R. T. Richardson, 1 Wils. 21. See tits. " Courts Inferior," (Judgment, &c.), " Quarter Sessions" (Justices). (b) Ante, p. 10, 11. R. v. Traill, 4 P. & D. 325. S. C. 12 A. & E. 761.+ S- C. 10 L. J., N. S. 56, M. 0. See tit. "Act of Parliament." (c) R. T. Chesh. (J,), 2 N. & M. 827.-|- See tits. "Carriers," "Quarter Sessions" (Justices), "Railway" (Goods). 192 tapping's mandamus. Land Tax CoMMissiONEES.] Glerh; Election. — ^The writ lies to com- mand *the commissioners of the land tax of a parish, to elect a [ 1*^] clerk in the department of the rates and duties on -vrindows, houses, lights, &o., it being a beneficial office instituted by act of Parliament, 25 Geo. 3, 0. 4, and having certain fees and profits annexed to it.(rf) .] Admission. — So the writ lies to command the commissioners of land tax, to admit one who had the majority of legal votes(e) to the office of clerk of the commissioners. Lectureship.] Lecturer. — ^The writ lies for a lectureship. (/) In order to constitute a lectureship, there must be both an endowment and a rigbt to use the pulpit, (g-) It has, however, been sometimes endeavoured to liken the function of a lecturer in all respects to that office, to which & person is admitted by the institution of a bishop in the case of an eccle- siastical benefice, and to the cases of curates, schoolmasters, &c., but it is clear that in the latter appointments there are particular provisions which certainly do not apply to lectureships.{A.) The court of B. R., has often interfered by mandamus in the case of lecturers of parish churches, (t) but as before said, the lectureship l, cited in Anon., 1 Barn. 135. See tit. " Office" (Restora- tion). (d) R. T. Raines, 3 Salk. 233, 11, 13, and cases there cited; Bac. Abr. tit. "Man." 0. (e) R. V. Rushworth, Kel. 28'r. Middleton's case, 1 Sid. 169. S. C. 1 Keb. 625, 629. S. 0. 1 Lev. 123, nom. R. T. New "Waterworks (Governors). The Court, however, much doubted whether mandamus lay in this case, but it being strongly pressed by Maynard, the Attorney- General, and "Wylde and all the King's Oomisd, to have the writ, the Court consented it should go, and that they would consider further upon the return thereof. S. C. approved in R. v. London (Mayor), 2 T. E. 182, n. (6) ; Calthorp's Rep. 56 ; Com. Dig. tit. " Man.?' (A.) See tit. "Office" (Public). (/) Leigh's case, 3 Mod. 334. S. C. 1 Show. 252. See 1 Keb. 631, supra where it is said that the Court doubted whether restitution would ever be granted. Sec tit. " Act of Parliament." (g) R. T. St. John's Coll., Comb., 282, per Holt, C. J. S. C. 4 Mod. 237; Ld. Raym. 21*1, 608 ; Bac. Abr. tit. " Man." (D.) [h) Hall's case, 1 Mod. '76, and cited. in Comb. 282. (i) Comb. 282, and 4 Mod. 237, supra. See tit. "Presentment." , (j) Cited in Dr. Walker's case, Gas. t. Hard. 214. See tits. "Courts, Inferior (Judgment), " Quarter Sessions." OFFICE. 221 Office.] The writ of mandamus, founded it is said upon a passage(ji;') of Magna Charta, c. 29, (k) has been by a great number of cases held to be *grantable, as well to admit him who has a right as to restore p^, ^^-i him who has been wrongfully displaced, to any office, function, or franchise of a public nature, whether spiritual or temporal, judicial or ministerial,(Z) and also to command the officers thereof, to do all legal acts constituting or connected with their official duties, provided there be no other specific legal remedy, whereby they can be enforced. (m). If, how- ever, there formerly might have been a specific legal remedy, as by writ of assize, or other process, which has since fallen into desuetude, in such cases the writ of mandamus will nevertheless be granted.(m) This most important and extensive subject is arranged as follows : — Office. Office. 1st. For what offices - 173 Affidavits - 186 Public ... - 173 Rule 186 Known to the law - 174 Writ {Form of) 186 Freehold - 174 Returns ... 186 Returns - 175 Traverses 186 Fees attached 176 Incapax 186 2nd. Officers - 176 Not qualified 186 Need not he sworn - 176 Non fuit electua 187 Judicial and ministerial 176 Condition precedent 187 Deputy 177 Oaths 187 Admission 177 5th. Swearing in - - 188 Restoration - 178 Rule 188 Application - 178 Returns - - - 188 Of Costs - - 178 Non fuit electus - 188 Ecclesiastical - 178 6th. Enforcing Duties 189 Spiritual - 178 7th. Deprivation 190 3rd. Election 179 8th. Restoration 190 Definite number 179 Suspension 192 Notice of application - 183 Application 193 Affidayits, &c. - 184 Rule 193 Application - 184 Writ (Form of) 194 Priority of motion 184 Returns . . - 194 Rule - - 184 1. Traverses 194 Writ (Form of) - - 185 Non fuit amotus 194 4th. Admission - 185 Non fuit admissus 194 Application - - 186 Non appunctuatus 194 (ji)') Ante, p. 2, 5. NuUus liber homo capiatur vel imprisonetur, aut disseisietur de libero tenemeuto suo, vel libertatibus, vel liberis consuetudinibus suis, aut utla. getur, aut exuletur, aut aliquo mode destruatur ; nee super eum ibimus, nee super eum mittemus, nisi per legale judicium parium suorum, vel per legem ,terrae ; nuUi vendemus, nulli negabimus aut differemus justitiam vel rectum. (i)Bull. N. P. 195. Dolben's case, 1 Keb. 872, 852. R. v. London (Ep.), 1 Wils. 11. S. C. Stra. 1192. R. t. London (Mayor), 2 T. R. 180. It was not, however, usual to grant the writ in order to try titles to offices before Stat. 9 Ann. c. 20. Knipe v. Edwin, 4 Mod. 281. (I) 3 Blac. Com. 110. Bagg's case, 11 Rep. 93; 2 Sid. 112. Audley's case, Latch. 123. S. C. Poph. 176. Middleton's case, 3 Dyer, 332, b. n. 333, pi. 28; and see R. V. Godwin, 1 Doug. 397. For a definition of the term office, see Bac. Abr. tits. " Officer" (A.), " Man." C. See post, p. 173. (m) Ante, p. 12, 18—27. R. v. Cambridge (U.), 1 W. Blac. 552. S. C. Burr. 1647. See tit. "Alderman" (Duties, &c.), and post, tit. "Enforcing Duties." (») Ante, p. 5, u. (A), 19, n. (p), 20, n. (g), (r), («), and the numerous cases there cited. K. V. Wheeler, Cas. t. Hard. 99 ; Com. Dig. tit. « Man." (B). 222 tapping's mandamus. Office — continued. Non fuit electus 194 No such office - 194 2. Special Returns - - 194 1. Causes of Removal 195 Bribery - - - 196 Desertion, non-residence, &c. ... 196 Drunkenness - - 197 Erasing Corpr. Books - 197 Incapacity to execute office - - 19? Incompatible office - 19j Libel - - 197 Neglect of Duty, &c. 198 Office — continued. Oaths - - - Statement of removal 2. Power of removal 3. Summons When necessary . For what offices * Form of - . Allegation of summoiiB in return - - - 202 4. Proof of causes of remo- val - - - . 203 5. Removal founded on causes alleged - 204 9th. Compensation - 204 - 198 - 198 - 199 200 : 200 - 201 202 -.] 1st. For what Offices. — It may be here r*173] stated,(o) that the ■writ of mandamus lies for all offices of a pul)lic( jj) nature, whether spiritual, temporal, corporate, &c.,(j) judicial or ministe- rial for which there exists no specific legal remedy, (r) The writ lies also fer a function with emoluments or fees annexed, if there be no specific legal remedy. Thus, it lies to admit a dissenting minister to the use of the pulpit of a dissenting meeting house,(s) which cannot be considered an office, it is in fact a function merely,{i) and it has since been held, that although the place be not in strictness what Lord Coke would have termed an office, yet the Court will not on that account refuse to grant the writ.(M) .] Public. — The office must be one of a public nature, to te the subject of a mandamus,(t») as where it concerns the administration of jus- tice, as a leet,(io) or where it concerns any public or necessary work, or administration of government, (x) or where the office or function is L -I for the public *weal.(y) The value of the importance to the public (o) See ante, p. 12. (p) See definition of the word "Public," infra, (Public). (?) See Stat. 9 Ann. c. 20, and 1 & 2 Wm. 4, c. 21, App. As to Ireland, see stats, 19 Geo. 2, t. 12, and 9 & 10 Tict. o. 113, App. Ante, p. 172. (r) Ante, p. 18—27. (s) See tits. "Curate," " Disseuters," "Franchise," "Freedom." B. v. Barker, Burr. 1270, and see B. v. Land Tax Commissioners, 1 T. B. 148. See EstwickT. London (City), Sty. 42. («) See 1 T. R. 148, supra. B. v. London (Bp.), 1 Wils. 11. S. C. Str*. 1192. («) R. V. Darlington Grammar School, cited in Ex parte Le Cren, 2 D. & L. 514; and see ante, p. 4. (v) Ante, p. 9, 12. Anon. 1 Barn. 123; Anon. Comb. 133; Sty. 457, supra. (This was, however, a case of a writ of restitution, but which writ, as regarded offices, was the same as mandamus, ante, p. 3.) R. v. London (City), 2 Bam. 398. Clerk of City Works' ease, 2 Sid. 112. Stamp's case, 1 Sid. 40. Middletoji's caac, 1 Sid. 169. S. 0. 1 Keb. 625. B. v. White, 3 Salk, 232. Hurst's case, 1 Lev. 76 1 Anon. Comb. 41 ; Anon. Comb. 133 ; Anon. Comb. 347. B. v. London (MayorV, 2 T. R. 183, n. (J). See Bao. Abr. tit. " Office" (A.) See tit. " Reading" (StewMd), (w) See supra, " Manor" (Leet Steward). R. v. New River, 1 Keb. 629; 2 Sid. 113, supra. R. v. Blooer, Burr. 1044. (x) Supra. See tits. " Act of Parliament," " Constable," " Manor" (LeetSteffatd); See ante, p. 12. (y) Supra, 2 T. R. 183, n. (J) ; 2 Sid. 112, 113; Burr. 1044, supra. See ante, p. 12, and tits. " Drainage," " King's Beam." r r 1 B. 223 is not however semptilously weighed, (z) There must be an absence of my specific legal remedy .(a) So on the other hand, it has been clearly settled, that to a private office which does not concern the public, neither admission nor restitution will fee granted through the medium of the writ of mandamus,(6) as, to the place of clerk of a private company in London,(c) or of steward of a Oourt Baron,(d ) &c. See the several titles throughout this series., Nor will the writ be granted for a mere private appointment, which may be terminated at the will of the appointor, (e) .] The office must he known to the Lww.-r-So the Court will not grant a mandamus to admit to an office not known^ to the law, as to that of a vestry clerk,(/): or that of second curate,(p') nor will it be granted for an office not judicially known to be one, unless it be specially de- scribed in the affidavits, thus, stating an office to be " one of the eight men of Ashburn Court" was held insufficient,' the duties of the office not being described,(A) nor will the writ be granted for an office in fieri,(i) But although the. exact nature or quality of the office be not ascertained by the affidavits, yet if they be prima facie sufficient, the Court will re- C[uire a return.(j) —— .] Freehold.'^-Th.e writ of mandamus will not be granted for an office or function which is not a freehold ; it should also have either fees or emoluments annexed to it.(A) Thus it lies for an office for life, or for one to which the officer is appointed quamdiu se bene gesserit, which is in law a freehold for life.(0 (z) Ante, p. 12, n. (r). B. v. Barker, Burr. 1265; Bac. Abr. tit. "Man." 257. R. T. Oxenden, 1 Show. 263. (a) Ante, pp. 5, 18, 21. (b) Ante, p. 12. R. v. London (Mayor), 2 T. B. 182, n. (6). See The Protector V. Craford, Sty. 457. Isle's case, 1 Yent. 143 ; 3 Salk. 231, 9. R. v. Ward, Fitzg. 194 1 Gude'a Cr, Pr. 180. " Dissenters" (Minister, Admission), (Restoration). (c) See tit. " Clerk of Private Company." White's case, 6 Mod. Cas. 18 ; Com. Dig. tit. " Man." (B.) .(d) Stamp's case, 1 Sid. 40. Middleton's case, 1 Sid. 169. • See tits. "Dean and Chapter" (Clerk, Restoration), "Manor" (Court, Baron, Steward). (e) R. T. London (Mayor), 2 T. R. 178, 179. See tits. " Custos Brevium" (Clerk), " Guardians" (Clerk), " Mint" (Restoration). (/) 5 T. R. 713. R. T. St. Nicholas (Parish), 4 M. & S. 324. See tits. " Guar- dians of Poor" (Clerk), " Vestry Clerk." (g) Ante, p. 113, n. (g). Anonymous, 2 Chit. 253. See tit. " Ashburton" (Eight Men of). (A) Anon.. 2 Mod. 316, and cases there cited; Com. Dig. tit. "Man." (B.) See tits. "Ashburton" (Eight Men of), "Tiverton" CTwenty-four men of), infra, "Elec- tion." (i) Ante, p. 113, n. (g). Anon. 2 Chit. 253. ■ U) R. V. New River, 1 Keb. 631. (k) R..T. St. Nicholas Parish,. 4 M. & S. 325. Dighton's case, 1 Vent. 82. B. v. Dolgelly Union, 8 A. & E..562.f The case of Schriven t. Turner, Stra. 832. R. r. Land Tax Commissioners, 1 T. R. 147. Estwick v. London (City), Sty. 42. R. f. Patrick, 2 Keb. 167. Northampton's case, Lofft. 549. Gude's Cr. Pr. 180. See tits. "Councillor," "Custos Brevium" (Clerk), "Guardians" (Clerk), "Mint" (Res- toration). (I) B. V. London (Mayor), 2 T. R. 178. A return of "quamdiii se bene gesserit," aeeds not " et non diutiua." B. v. Holt, 3 Keb. 667. See post, tit. " Beturns." 224 TAPPING'S MANDAMUS. P^^»,, *The writ will be denied, if the place be a merely temporary appointment,(m) or not permanent, as where the office is held durante bene placito.(?i) So if the body which appoints, be not a corpo- rate body, but be merely added to, as guardians of the poor, &c., in such case the duration of the appointment is as fluctuating as the office of the appointors, and therefore not such, for which mandamus will be granted.(o) But in one case, where on the one side, the evidence shewed that the office was not legally holden for life, and on the other, that it had usually been so holden, and that it was accepted on that understanding, the Court granted a peremptory mandamus to command an award of compensation as for an office held for life.(p) The writ does not lie for an officer at will,(g') nor for an officer who is appointed generally, but removable at will,(7') but it will lie for a corpo- rate officer although the appointment be general, for the Court will look to the nature of the appointment, (s) . Returns. — It has been held to be a good return to a mandamus, to restore an officer at pleasure : that the defendants have chosen another officer, and that thereby the prosecutor was removed j for in such case the election of a new officer has the legal operation of an actual amotion.(<) So, a return that states merely that the office is one at pleasure, and that the prosecutor has been removed therefrom, is good without stating the cause of the removal,(M) or a notice of removal or summons, (w) But the return must shew that the will or pleasure to remove has been declared, or the Court will grant restitution.(«)) Thus, where an officer at will was removed, and the corporation did not rely upon its power of amotion, but returned insufficient *matter, a peremptory mandamus was granted L -' for his restoration. (z)t)) But if the prosecutor ought not to be res- (m) Supra, u. (a). E. v. Croydon (Churchwardens), 5 T. R. 714. K. T. Patrick, 2 Keb. 167. (n) Dighton v. Stratford (Corp.), 1 Sid. 461. S. C. 1 Lev. 291. S. 0. 1 Vent. 77. S. C. 1 Vent. 82. S. C. Raym. 188. S. C. 2 Keb. 656. See Blagrave's case, 2 Sid. 49. Warren's case, Cro. Jac. 540, and cases there cited. R. t. Thame (Guardians), Stra. 115. R. v. Slatford, 5 Mod. 316. R. t. Tidderley, 1 Sid. 14; 1 Vent. 77, supra. R. v. Loudon (Mayor), 2 T. R. 178, 179. (o) R. V. St. Nicholas Parish, 4 M. & S. 325. See also 5 T. R. 713, supra, n. (/). See tit. "Guardians of Poor" (Clerls;). (p) R. T. Norwich (Mayor), 8 A. & E. 633.-J- See tit. " Compensation" (Office). (?) R. V. Oxon. (Mayor), Salk. 428, 3, and cases there cited, and see 2 Lev. 18. M R. V. Coventry (Mayor), 2 Salk. 430. S. C. Ld. Raym 391. S. C. Holt, 438. Is) Ante, p. 130. R. v. St. Nicholas Guardians, 4 M. & S. 325. (t) Bull. N. P. 203. R. V. Canterbury (Mayor), Str. 674. Pepis' case, 1 Vent. 342. R. V. Thame (Churchwardens), Str. 115. R. v. Taunton (Churchwardens), Cowp. 413. R. V. Pateman, 2 T. R. 777. Com. Dig. tit. "Man." D. 3. See infra, tit. " Oface" (Restoration). (u) Ante, p. 12—15. R. v. Cambridge (Mayor), 2 Show. 69. Blagrave's case, 2 Sid. 6, 49, 72. Dighton's case, Ray. 188. S. C. 1 Sid. 461. S. C. 1 Vent. 77, 82. S. C. 1 Lev. 291, and the cases there cited. S. C. 2 Keb. 641, 641, 656. R. v. Co- ventry (Mayor), Salk. 430. S. C. Ld. Raym. 391. R. v. Slatford, Comb. 419. R. V. Campion, 1 Sid. 14, 15. ft') Dighton V. Stratford-upon-Avon, 2 Keb. 641. See infra, " Summons." (w) R. V. Slatford, Comb. 419. S. C. 5 Mod. 316. See infra, "Restoration." (m) R. V. Oxon. (Mayor), 2 Salk. 428, 429, 430. S. C. Holt, 438. Bull. N. P. 203. Whiteacre's case, Str. 674. R. v. Tidderley, 1 Sid. 14 ; 1 Vent. 77. omoE. 225 tored, the Court will not do so, although the return be insufficient,(io) for it will not grant the writ to do that which is manifestly improper. The return of a cmtom to remove ad libitum is good, but must be re- turned positively, and not by way of recital. (x) The Court will not extend such a custom, but on the contrary, will construe it strictly. Thus, a custom that a common councilman may be removed at pleasure is good, but such a custom cannot be extended to an alderman or freeman, (y) .] Fees, Emoluments, <&c. — There must also be annexed to or issuing out of the office fixed fees or emoluments, or a salary.(z) The office must, as before stated, be an office of consequence or value for which there does not exist any specific legal remedy.(a) The value, however, is not scrupulously weighed. (6) .] 2nd. Officers need not be Sworn Officers. — The writ will be granted for officers, who are not sworn to perform the duties of the offices, as usher of a school; steward of a leet; churchwarden; parish clerk, &o.(c) .] Judicial and Ministerial. — In some cases, it is stated to be a principle as to the dispensing the writ of mandamus, that it never issues to command officers in their judicial but only in their ministerial capa- cities ;(cQ this, as the statement of a principle, is certainly erroneous, for the writ lies to command both judicial and ministerial officers, (e) The form of it in the two cases, is, however, different in this, that when it issues to enforce the exercise of a judicial capacity, it is general in its terms, (/) and not specific. Thus, it would merely require the Judge of an inferior Court "to adjudicate," without specifying what judgment to give; or, in other words "to give sentence," generally, without saying what sentence •,(g) whereas in the case of a ministerial officer, the r*i 77-1 writ would, in terms, specifically command the performance of (w) Ante, p. 12. R. v. Tidderley, 1 Sid. 14. R. v. Griffiths, 5 B. & A. TSLf See infra, " Restoration." (x) E. v. Coventry (Mayor), Ld. Raym. 391. S. C. 2 Salk. 430, and cases tlieie cited. See tits. "Councillor" (Restoration Return), "Custom." See post, tit. "Return." ly) R. T. Thame (Churchwardens), Str. 115. R. v. Cambridge (TI.), 2 Show- 69. Warren's case, Cro. Jac. 540. S. C. 2 RoU. 112. Com. Dig. tit. " Man." D. 3. See tit. " Custom," and post, tit. " Return." (z) Ante, p. 12, n. (r). E. v. Croydon (Churchwardens), 5 T. R. Tl3. The Pro- tector v. Craford, Sty. 457, per Glyn, C. J. R. v. Dr. Asliew, Burr. 2186. See tits. "Lectureship," "Parson" (Salary), "Physicians' College," "Reading", (Steward). (a) Ante, p. 18— 27. R. v. Cambridge (U.), 1 W. Blac. 552. S. C. Burr. 1647. (6) Ante, p. 12, n. (r). B. v. Barker, Burr. 1265. Bac, Abr. tit. " Man." 257. E. V. Oxenden, 1 Show. 263. (c) City Works case, 2 Sid. 112, per Glyn, C. J. Stamp's case, 1 Sid. 40. The Protector v. Craford, Sty. 457. Le Parish of St. Balaunce case, Palmer, 50. See tits. "Churchwarden," "Manor" (Leet Steward), "Parish Clerk," "School" (Usher). (d) R. T. Montacute (Lord), 1 W. Blac. 61. S. C. 1 Wils. 283. R. v. Ely (Ep.), 2 T. R. 290. S. C, 1 W, Blac. 90, n. (A). (e) Ante, p. 12. (/) 1 W. Blac. 62, S, C. 1 Wils. 283, supra, n. (d), and see post, tit. " Writ" (Mandatory Clause). iff) See Stat. 12 Geo. 3, c. 21, S. 1, and see R. v. Litchfield (Ep.), 7 Mod. Mat, 1852.— 15 226 tapping's mandamus. Notwithstanding the writ issues to command all inferior officers to do their duty ; yet it has been settled, upon the authority of seyeral cases, that the Court will not grant the writ to command an inferior ministerial officer to execute the duties of his office, when the officer, as such is sub- ject to another authority, by whom he can be punished for his neglect, and with whom there is no collusion. = Thus, the writ does not lie to com- mand the treasurer of a county to obey an order of the Court of Quarter Sessions, both because he is the . mere servant of such sessions, and ame- nable to them, and also that the proper remedy in such case is by indict- ment; and Lord Kenyon, in delivering his judgment, remarked; it has been often said by Lord Mansfield, that a mandamus is a very beneficial writ, and that the best method of preserving it, is to be sparing in the use of it;" and added, "that the Court had no difficulty, upon a proper case laid before them, in granting a mandamus to justices to make on or- der, when they refuse to do their duty ; but it would be descending too low to grant a mandamus to their officer to obey that order ; and that the Courtmight as well issue such a writ to a constable, or other ministerial officer, to compel him to execute a warrant directed to him."(^) So the Court of B. E. will not, by mandamus command other inferior ministerial officers to do their duties; as a Berjeant-at-mace;(i) or an apparitor ;(y) for these are servants to their respective Courts, and pun- ishable by the Judges of- theifl, and for the superior Court to interpose in obliging such inferior officers, would be to usurp the authority of the in- ferior Court which has a proper jurisdiction over its own officers, and which alone is answerable to the superior Court for the execution of such authority, (i) .] Beiputy ; Admission. — The writ will not be granted to com- mand the appointment or admission of a deputy, to a place or office which cannot be exercised by deputy.(Z) But if there be a legal power to con- stitute a deputy in such a case, a writ wiU be granted for hindering one ^ ^ who may ^lawfully make, in making a deputy, because there is L -"no other remedy; but to such a writ returns of "no power to make deputy;" "deputy not duly appointed ;" or that " deputy is insuffi- cient," would be good.(»n.) 218. S. C. Kel. 287. S. 0. 2 Barn. 365, 429. See infra, " Mmisterial," and post, tit, " Writ" lEandatory Clause.) U) Ante,p. 12. See tits. " Constable," " Ooiinty,"..(Trea3urer), ante, p. 103, 104; 3 A. & E. 481,t per Littledale J. ; 5 T. R. 364. R. v. Bristow, 6 T. E. 168, cited in R.v.Jeye3,5N.&M. 103.f S. C. 3 A.&B.416.-J- R. v. Payn, 6 A. & B. 397.1 S.C. 1 N. & P. 524.-I- R. T. Shaw, 5 T. R. 549; and see 1 Chit. 650; Bull. N. P. 195, See supra, "Judical." («■) See tits. " Serjeant of Mace." (f) See tit. " Appa;ritor," p. 42. (ft) See auterj p. 112, "Common Pleas Officers," and post, p. ITS. E. T.Wilt- shire anal, 5 N. & M. 349.f Bac. Abr. tit. " Man." (D.) See tit. " Proctor." \l) R. v. Gravesend (Mayor), 4 D. & R. ilT,j- and 3 A. & i: 116,-f[ as to when deputies may be appointed. R. v. Gravesend' (Mayor), 2 B. & C. 602.-J- See tits. " Deputy Officer," " Marches," " Recorder" (Deputy,) Registrar of Archbishop's GoiiTti" "Registrar of Bishop's Court;" infra, " Admission," and post, p. U8, n. (r). (m) R. V. Win, 2 Keb. 738, 742, 743. S. C. 1 Lev. 306, 307. S. C. 1 Vent. 110, F r 1 E. 227 •] Restoration. — The writ lies also to command the restoration of a deputy to his place, if illegally deprived. Thus, if an office be granted to A. exercendum per se yel sufficientem deputatum, if the deputy be re- moved, a mandamus by A. lies to restore his deputy. (n) . Application. — The writ will not, however, be granted on the application of the deputy himself, because his authority is revocable at the will of the person who appointed him, but will be granted either to admit or to restore such deputy, on behalf of the party having the power of appointing such deputy ; for his freehold is concerned, and he has no other remedy.(o) .] Officers of Courts. — Officers whose offices are incident to ' Courts partake of the nature of the several and respective Courts for which they are appointed, and which they attend, and the Judges, or those who have the supreme authority in such Courts, are the proper per- sons to censure any misbehaviour; and should they be mistaken, the Court of B. R. cannot relieve ; for in all cases where such Judges, &c. keep within their bounds, no Court can correct their errors in proceed- ings, and if wrong be done, the party injured must appeal, (j)) .] Ecclesiastical. — The Court of B. R. has no jurisdiction to grant mandamuses in respect of officers purely belonging and subject alone to the Ecclesiastical Court ;(g') but it lies in some instances though the office be subject to the Ecclesiastical Court, and notwithstanding the officer be a deputy merely, if there be no visitor.(r) .] Spiritiial Officer. — The Court will grant a writ of mandamus to admit or restore the applicant to a spiritual office, if of a public na- ture, and for which there is not a legal remedy, (s) Thus it has been granted to induct to a cathedral stall. (<) * .] 3rd. Election. — Wherever a political necessity exists, or a duty be shewn, to fill up a municipal or other office by elec- ^ -' 111. Anon. 1 Barn. 252. Com. Dig. tit. « Man." (A.) Bac. Abr. tit. " Man." C. See R. V. Roberts, 3 A. & E. 116,\ and tit. " Marches," &c. {%) R. T. Marches (President), 1 Lev. 306, 307. S. C. 1 Vent. 110, 111, supra. See R. V. Roberts, 3 A. & E. 7T6,f (as to when a deputy may be appointed). Com. Dig. tit. " Man." (A). See tit. » Marches." (o) Ante, p. 18, 27. R. v. Marches (President), 1 Lev. 306, 307. S. 0. 2 Keb. 738, 742. S. C. 1 Vent. 110, 111. R. v. Dr. Ward, 1 Barn. 295. S. C. 1 Barn. 380, 411, 412. S. 0. Stra. 896. See tits. "Marches." (p) See ante, p. 9, 21, 105; 3 Mod. 335, supra; 1 Show. 263, ij. (a), supra; Carth. 170. See tits. "Courts Superior" (Common Pleas,) "Proctor." Supra, p. l".i.(i)(y). {q) Ante, p. 22. R. v. Dr. Ward, Barn. 295. R. v. Canterbury, (Archbp.), 8 Bast, 218. R. V. Chester, (Ep.). 1 W. Blac. 24. S. C. 1 Wils. 206. See also tits. "Apparitor, &c." "Proctor," "Registrar ii Archbishop's Court." {r) R. T. Morpeth (Bailiffs), T. 3 Geo. 1, Stra. 58. R. v. "Ward, Stra. 897, and cited in B. /.London (Ep.), 1 Wils. 14. S. C. Stra. 1192 ; Sel. N. P. 1083, 11th edit. And see tits. " Apparitor General, &c.," " Prebendary," " Visitor." Ante, p 177, n, [I). Is) Ante, p. 12, 18—27. Gude's Cr. Pr. 180. See supra, (Public). (t) See tit. " Canon," " Cathedral Stall," "Prebendary." Sir, T. Jo». 199. R. t, Dublin (Dean), Stra. 542. R. v. Morpeth (Bailiffs), Stra, Sat;. gt?ls,o, UO, 228 TAPPINa'S MANDAMTTS. tion, &c., the Court of B. E. will interfere, by mandamus, and command it.(w) . Definite Number. — Thus it is clear that where, by act of Parlia- ment, letters patent, charter, or prescription, a municipal body ought to consist of a definite number, and they neglect to fill up the vacancies as they occur, the Court will grant a mandamus for that purpose.(«) But it does not lie to command an election of members of a body, the number of whom is indefinite ; for the writ issues only in cases of necessity, and to supply a defect of justice. (io) Thus where a charter authorized the mayor, &c. of a corporation from tinre to time, and at all times thereafter, as often and when to them should seem fit and necessary to nominate, choose and prefer, so many and such persons to be free burgesses, &c., as they pleased ; the Court of B. K. refused to grant a mandamus either to proceed to the election of free burgesses, or to command the holding of a meeting for the purpose of considering the propriety of proceeding to such an election, in order to fill up vacancies in the aldermanic body and the then existing body of free burgesses respectively ; because the power given to the corporation was purely discretionary ; it being clearly settled, that a mandamus does not lie to conimand the doing of that, the doing or omis- sion of which is the subject of pure discretion. (a;) It seems that the Court of B. K. has, in order to prevent a defect of police or government, exercised a common law jurisdiction, and issued the writ to command the filling up of vacancies in municipal bodies, occasioned otherwise than by the want of an election on the charter day.(y) So also ^,r,r,-. by virtue of stat. 11 Geo. 1, c. 4, s. 4, the Court will command, if r 1801 . L -" necessary, an *election of the annual as well as the head officer, and all the necessary constituent parts of a municipal corporation.(z) The (u) Breedon t. Gill, 5 Mod. 2'75. R. v. Robinson, Stra. 555. R. v.Powey (Mayor), 4 D. & K. 138.f S. C. 2 B. & 0. SST.f And see stats. 9 Anne, c. 20, 11 Geo. 1, o. 4, 5 & 6 Wm. 4, c. 76, and 1 Vict. c. 78, s. 26, App. Bull. N. P. 197, and cases there cited; Sac. Abr. tit. "Man." (D.) ; 3 Bl. Com. 265 ; 3 Steph. Com. 684. See tits. "Alderman" (Election), "Bailiff" (Election), "Burgess" (Election), "Chamber- lain" (Election), " Churchwarden" (Election), " Corporation Municipal" (Duties, &c.), " Councillor" (Election), " Guardians of Poor" (Election), " Jurats" (Election), "Lectureship" (Lecturer), "Mayor" (Election), "Overseers" (Election), " Parish" (OfiBcers, Election), " Parish Clerk" (Appointment), " Portreeve" (Election), " Pre- bendary" (Election), "Recorder" (Election), "Sexton" (Election), " Sidesman" (Election), "Town Clerk" (Election). See ante, p. 9— 12. («) Ante, p. 11, 37. B. v. Powey (Mayor), 4 D. & R. 135.f S. C. 2 B. & C. SSf.f Bull. N. P. 201. See tits. " Alderman" (Election), " Mayor" (Election). (w) Ante, p. 10, 11 ; 2 B. & C. 587.t S. C. 4 D. & B. 132,+ supra. R. v. Pate- man, 2 T. R. 777 ; Bull. N. P. 201. No case can be found to the contrary; 4 D. & B. 137,t per Abbott, C. J. See 5 D. & R. 614.+ R. v. Eye (Bailiffs), 2 D. & B. 172 ;t 1 B. & C. 85 ;t 4 B. & A. 271 ;t Bac. Abr. tit. " Man." (D.) See tit. « Alderman" (Election), " Burgess." a (x) Ante, p. 12, 13 ; 4 D. & R. 132.f S. C. 2 B. & C. 587,+ supra. Com. Dig. tit. " Man." B. 1. See tit. " Alderman" (Election), " Burgess" (Free Burgess, Elec- tion). {y) Ante, p. 5. R. v. Phippen, 7 A. & E. 968.f See stat. 9 Anne, c. 20, App. See tits. "Alderman" (Election), " Capital Burgess" (Removal), " Mayor." (z) See stat. App., and stat. 19 Geo. 2, c. 12, (L), App. B. v. Maiden, Burr. 2132. R. V. Woodrow, 2 T. R. 732. R. v. Oxford (Corp.), Cas. t. Hard. 177, citing OEriCE. 229 Court of B. R. has also the power of awarding a mandamus by virtue of the stat. 7 Wm. 4 & 1 Vict. c. 78, s. 26,(a) (extending the provisions of stat. 11 G-eo. 1, c. 4, which has been held to apply to the cases hereafter mentioned,) where there has been no election, or the election was void ; but not where the party is supposed to have forfeited his title for a cause siibsequent to the election. (6) Thus the Court will command a corpora- tion to go to an election of a corporate officeT, in the stead of one again^st whom judgment of ouster has been signed ;(c) or it may grant the writ in the first instance, without waiting for such ouster, because the mandamus concludes nothing; for on the trial, the validity of the elections may be gone into.(cZ) So it lies to proceed to an election, w^sre there is a clause to hold over.(e) The Court will also grant the writ to proceed to an election; &c., where there has been one de facto, the validity of which is disputed ; the office not being full de facto of either' party ; in order that the title of the con- tending parties may be tried on the return. Thus, where two persons claimed to have been legally elected to the office of recorder of a borough, and the municipal Court had certified the election of one of them to the Secretary of State, for the approbation of the CrOwn ; the Court of B. R. thought it a proper case for a mandamus, to command the corporation to put the corporate seal to a certificate of th: election of the other j the cer- tificate being only a step towards the completion of the title, the Crown not having, at the time of the motion, signified its approbation of him whose election had been certified. (/) But the writ will, in such cases, be granted only to elect officers in the stead of those improperly elected ;(^) or ousted by quo warranto; (A) and not also to elect others in the room of those duly elected, *although the latter were elected at L -I the same time with those so improperly elected. Such writ will also be Bossiney's case, Stra. 1003. R. t. Bridgenorth, 2 Chit. 256. Scarborough's case, Stra. 1180. Com. Dig. tit. " Man." (A.) (C. 2). Bac. Abr. tit. " Man." (D.) R. v. Thetford (Mayor), 8, East, 278. See the titles of the several municipal officers throughout this series, and also stat. 6 & T Vict. c. 89, App. iffl) See stat. App. b) R. V. Phippen, 7 A. & E. 968.t Bac. Abr. tit. "Man." (D.) c) R. v. "West Looe (Corp.), Burr. 1386, 138'7. R. v. Pindar, 8 Mod. 235. S. C. Stra. 582, 625, 621. S. C. Ld. Raym. 144T. S. C. 8 Mod. 332, where see return of an ouster. See tit. "Mayor." (d) R. T. Bridgewater (Corp.), 3 Doug. 381 ;t Sayer, 211 ; Burr. 1454; 2 T. R. 259; 4 T. R. 699 ; 6 East, 360. See tit. "Peremptory Writ" (Effect). (e) R. V. Helston (Mayor), Stra. 555. Com. Dig. tit. "Man." (A.) (/) 3 Steph. Com. 682. R. t. York (Mayor), 4 T. R. 699. R. t. Oxford (Mayor), 6 A. & E. 353.f R. V. Leeds (Mayor), 11 A. & E. 512.t See stats. 11 Geo. 1, c. 4, 1 Wm. 4 & 1 Vict. c. T8, s. 24, and 19 Geo. 2, c. 12, (I.), App. R. v. London (Mayor), 1 T. R. 146. R. v. Leyland, 3 M. & S. 184. R. v. Norwich, 1 B. & Ad. 310.t Bac. Abr. tit. " Man." 0. R. v. St. Luke's, 2 N. & M. 464.t See tits. "Churchwarden" (Admission), "Councilman" (Election), "Mayor" (Election). (g) Ante, p. 10. R. v. St. Pancras, 1 A. & E. SCf See tit. "Vestry (Holding). (A) R. T. Pindar, 8 Mod. 235. S. 0. Stra. 582, 625, 627. S. C. Ld. Raym. 1447. 5. C. 8 Mod. 332, 334, where see a return of ouster. R. v. London (Mayor), 1 Show. 280. S. C. 4 Mod. 58 ; 6 Com. Dig. " Quo Warranto," (C. 5.) See ante, tit. " Mayor" (Election). 230 tapping's mandamus. granted after an election de facto, if such election be merely colmiraik, and dearly void, and in some cases notwithstanding the office may be full de facto; for the words "no dection," in the stat. 11 Geo. 1, c. 4, s. \ mean "no due legal valid election ;(t) if, however, the ofl^oer be actually sworn in, or if the validity of the election be merely doubtful or question^ able, the Court may think it proper, and direct that the right of the officer de facto should be tried first by a quo warranto information ; but if it be clear that there has been merely a colourable, and therefore void election ; the officer so elected, obtains no estate in the office, and the Court of B. K. will award a writ, upon the above statutes, to go. to a new election, and not await any controversy about the former one;(y) not- withstanding, as before stated, such wrongful officer may be in posses- sion. (/<;) The law upon this point is shortly this : that a mandamus will be granted to elect or to permit an exercise of office ; but not to restore, where the office is already full (de facto), by what is called a void election, although the office be such that the right to it cannot be tried by a quo warranto information ; for in such cases the Court will, if they be satisfied that the election is void, so treat it, and issue a mandamus to proceed de novo;(r) notwithstanding the applicant may claim under the same elec- tion with the officer de facto.(«i) So if two or more applicants shew to the Court of B. K. a colourable title only, to offices not the subject of a quo warranto information, such Court will grant a mandamus to each or all of them, in order to give them an opportunity of litigating their rights, and will not decide on the title, on shewing cause to the rule nisi.(»i) To such writs a return of a ^fejiarfy is, therefore, bad.(o) But (i) See such act, and also 19 Geo. 2, c. 12, (I.), App. R. v. Cambridge (Mayor), Burr. 2008, per Ld. Mansfield, C. J. Borough of Bossiney's case, Stra. 1002. B. V. Carmarthen (Mayor), or R. t. Newsham, Say. 211. R. v. Bankes, Burr. 1454. R. V. Colchester (Mayor), 4 Doug. 14.f R. v. Land Tax Commissioners,. 3 T. K. 149. Bac. Abr. tit. " Man." (D.) See tits. " Councilman" (Election), "Mayor" (Klection). \ (/) Case of Aberystwith, Stra. 1157, and see Stra. 1003, 1180. \k) Scarborough's case, Stra. 1180. See tit. "Mayor" (Election). \l) Ante, p. 26, 27. R. T. Stoke Damerel, 5 A. & E. 584 j-j- 2 H. & W. 346. S. C. 1 N. & P. 60,f per Patteson, J., citing 1 Bast, 79, supra ; Burr. 1454. S. 0. 1 W. Blac. 444, 451 ; Burr. 2008. Bossiney's case, Stra. 1003 ; 2 T. R. 259, and 1 A. & E. 254, supra. R. v. Bedford Level (Corp.), 6 East, 356. Ex parte Thatcher, 1 D. & R. 426.f R. V. Land Tax Commissioners, 1 T. R. 146. See also E. t. Exe- ter (Chapter), 12 A. & E. 527.t R. V. Shepherd, 4 T. R. 381. R. v. Davie, 6 A. 4 B. 386 ;f 7 A. & E. 254,t and see cases 1 N. & P. 474.-i- S. C. 6 A. & B. 3i9;t 3 A. & E. 467.-i- See tit. " Mayor" (Election). (m) Ante, p. 180 ; 2 T. R. 259. R. v. Barker, Burr. 1265. Com. Dig. tit. "Man." (B.) (») R. T. Middlesex (Archdeacon), 3 A. & E. 616.-|- R. v. Birmingham (Rector), 7 A. & E. 256.t R. T. Lyme Regis (Mayor), 1 Doug. 80, 84 1 6 Bast, 356. See tit. "Churchwarden" (Election). See post, tits. "Application," "Rule." (o) Co. Litt. 344, b. R. v. Ward, Fitzg. 195. BosweU's case, 6 Rep. 48, b. E. v. Exeter (Chapter), 12 A. & E. 526, 530.f R. T. Cambridge (Mayor), Burr. 2008. See R. V. Bedford Level, 6 East, 356. R. v. St. Pancras, 1 A. & E. 80.-f R. t. Bir- mingham (Rector), 7 A. & B. 258.^ And see R. v. Shepherd, 4 T. R. 381. See post, tit. " Return." OITIOE. 231 it has been held to be a good return, to such a writj *that there has been an election, thereby meaning a valid election. (p) So is •- -' a return of non fuit electus.(2) But if a candidate have been rejected, or ousted of an office by the elec- tion of another person to that office, such election not being merely colout- ahle, but prima facie good, or even doubtful, and the right to such office can be tried by an information in the nature of a quo warranto, he must take such remedy against the party holding the office de facto, for in such a case, a mandamus will not be granted, it not being the proper process for ousting an usurper.(r) . For the writ as before stated is not grantable where there is another specific legal remedy by quo warranto informa- tion.(s) So that to a mandamus founded upon such facts,, a return of a phnarty'xs good.(<) Where the mandamus is sought for to fill up an office, on the ground that the election to it is a nullity, such nullity must be very clearly made out.(M) Thus where it appeared by affidavit, that one of two candidates for an office had a majority only by means of illegal votes, the Court granted the writ to admit and swear the other who appeared upon the affidavits to have the greater number of legal votes, and this although the former was admittted and sworn into the office, there being no other spe- cific, or at least no other such convenient mode of trying the right.(«)) , But where an office is full by the appointment of the person who prima faoip, or ordinarily has the right of appointment, and where there are means of trying the title by action, as by refusing to pay the fees, &c., the Court, will not grant a mandamus against the party filling the office in oi;der to try the title, especially where it is doubtful, whether or not an information in the nature of a quo warranto will lie for the usurpation of such office. («o) So, that the prosecutor must make out a very strong claim before the Court will grant a mandamus in such case.(a;) But if (;i) E. V. Wmiams, Say. 140. (}) Ante, p. 72. R. v. Ward, Pitzg. 195. (r) Ante, p. 26, 27. R. v. Stoke Damerel, 5 A. & B. 589.t S. C. 1 N. & P. Se.f R T. Oxford (Mayor), 1 N. & P. 474.t S. 0. 6 A. & E. 349.t R. t. Davie, 6 A. & E. 386. Ex parte Thatcher, 1 D. & R. 426.t B. t. Beedle, 3 A. & E. 467,t con- firming E. T. York (Mayor), 4-T. R. 699. B. v. Colchester (Mayor), 2 T. R. 259. E. T. Bedford (Corp.), 1 East, 79. R. t. Bedford Level, 6 Bast, 356. R. t. Bir- mingham (Rector), 7 A. & E. 255.f Bossiney's case, Stra. 1003. R. v. Bankes, Biirr. 1454. S. C. 1 W. Blac. 444, 451, where see form of rule. R. v. Cambridge (Mayor), Burr. 2008. R. v. Chester (Mayor), 1 M. & S. 101. R. v. Attwood, 4 B. & Ad. 482,f and cases there cited. R. v. Bxeter (Chapter), 12 A. & E. 526, 530.-t- R. T. Williams, Say. 140 ; Bac. Abr. tit.. " Man." (0.) See tits. " CounciUor" (Elec- tion), "Mayor" (Election). . , (s) Ante, p. 26, 27. R. v. Bedford Level, 6 East, 358 ; 3 A. & B. 460, 473,t supra. R. T. Chester (Ep.), 1 T. R. 396. (0 Co. Litt. 344 b. ; 6 Rep. 48 b. E. v. Bankes, H., 4 Geo. 3, Burr. 1452 ; 12 A. & E. 526, 530,1 supra ; Com. Dig. tit. " Man." (B.) As to what is a plmarty, see 11 A. k E. 512.f See ante, p. 181, n. (o). (u) 6 A. & E. 386,t supra. ■Iv) Ante, p. 18 ; 6 East, 356, supra;, 2. Smith, 535. . See post, tit. ".Application." i(w) Ante, p. 20, 24, 26, 27. R. v. Stoke Damerel (Minister), 1 N. & P. se.f S.. 0. 5 A. & E. 584.-I- S. 0. 2 Har. k W. 346. [x) 1 N. & P. 58.| See tit. " Application." 232 tapping's mandamus. the oflEice be full by an ^appointment clearly made without any ■- -' authority, the writ will be granted, though generally a plenarty is an objection to such a proceeding. (y) So the Court will refuse such a writ when applied for, in order to raise a question against usage, as whether the election of certain municipal oflS.cers ought or ought not to be annual; although, such usage be clearly contrary to the words of the charter, if there be another remedy open to the applicants or where the words or construction of such charter, are in any degree doubtful. Thus where a charter of incorporation of Hen. 7, granted to the citizens and commonalty in these words, " volumus etiam damus et concedimus pro nobis et heredibus nostris, praefatis ciTibns et communitati heredibus et successoribus suis : quod ipsi et succesaores in perpetuum singulis annis successivis viginti quartuor coneives civitatia prsedictae in aldermannos, nee non quadraginta alios cives ejusdem civitatis pro communi consilio civitatis illius eligere facere et creare POSSINT." It appeared that in 1693, and the two following years, successive elections of the forty common councilmen had been made ; since which time the usage had been not to elect the aldermen or councilmen annually; (2) the Court refused a writ of mandamus, which was applied for in order to raise a question against such usage. So, if a peremptory writ be granted for one, there can be no mandamus for another until the election has been tried, upon the pretence that the latter was well elected and the former mandamus gained by artifipe.(o) Where an election is incomplete, or irregularly conducted, the writ Hes to command an entry of an adjournment of an election meeting, and to proceed to complete the election. (&) But the Court will not grant a man- damus to summon the individual persons who were summoned for a jury on a former day to proceed to election. (c) So, the writ also lies to com- mand municipal officers to proceed in a scrutiny of the poll in the election of their corporate members. (cQ There is no precedent, in the case of an election, of a mandamus having been granted to command a returning officer to make a new return.(e) . Notice of Application, &c. — ^By stat. 6 & 7 Vict. c. 89, s. 5, ten days' notice in writing should be given of the intended application(/) (y) Ante, p. 181, u.. (0) ; 5 A. & E. 586,t supra ; E. v. Colchester (Mayor), 2 T. R. 259, and see R. T. Bedford Level, 6 East, 536. (z) Ante, p. 18— 2'7. R. v. Chester (Mayor), 1 M. & S. 101. R. v. Attwood, 4 B. & Ad. 482, 483, 495.t R. v. Salway, 9 B. & C. 432, 435 ;f Stra. 1180. See tits. " Custom," " Manor" (Custom, License). See post, tit. " Application." (ffi) 2 Jon. 215 ; Com. Dig. tit. " Man." (B.) See post, tit. " "Writ" (Concurrent), " Peremptory Writ." (b). R. v. St. Luke's (Vestrymen), 2 N. & M. 464.t See tit. " Vestry." (c) R. V. Bankes, Burr. 1452. S. C. 1 W. Blac. 452 ; Com. Dig. tit. " Man." (B.) See tit. " Jury." (d) R. V. Everet, Cas. temp. Hard. 261. (e) R. T. Heathcote, 10 Mod. 49, 54. But see tit. " Alderman" (Election). (/) See stat. App: In cases of the election to corporate offices, it is well to fol- low that statute strictly. As to Ireland, See stats. 19 Geo. 2, c. 12 (I.); 9 & ID Vict. c. 13 (I.), n. (a). See post, tit. "Application'' (Notice). OFPiOE. 233 to the Court for a writ to proceed to the election of any corporate officer of a *borough in England or Wales. A burgess had been held |-^^ „ ,, not to be a corporate officer within the above statute. (^) ^ ^ . Affidavits and statement of grounds of "motion, see Require- ments of stat. 6 & 7 Vict. e. 89, App. . Application ; Priority of Motion. Where a defendant is oust- ed on a quo warranto, the prosecutor of such information is entitled to priority of motion for mandamus for a new election, if he apply within a reasonable time, if he do not do so, then, and not before, the defendant is entitled to move for it;(^) if, however, the prosecutor be quite prepared to move, and only stay till his judgment of ouster be signed, he does not thereby lose his priority of motion, nor if another person, in order to get priority, employ a counsel, who has pre-audience of the prosecutor's coun- sel, (i) The Court of B. R. will not, either in municipal or in such parish, on amotion for a mandamus to elect, &c., investigate the title of electors, who have for some time exercised their office, especially when objections are taken to the title of each individual.(y) Since the stat. 11 Greo. 1, c. 4, for obliging municipal corporations to elect officers, it has been held, that the Court of B. R. has a discretionary power to refuse a writ for that purpose, and that it will first receive infor- mation as to the election, and if dissatisfied about the right, will send the parties to try it on a quo warranto information. (A) In all cases within the stat. 6 & 7 Vict, c, 89, which applies to the ejection of municipal officers, it is enacted, that the ■defendant may shew cause in the first instance against such application, and if no sufficient cause be shewn, that it shall be lawful for the Court of B. R. on proof of due service of such notice and statement, and of the delivery of a copy of the affidavits, to make the rule for such mandamus absolute, if the said Court shall think fit in the first instance. (Z) . Rule. — As to the rule in cases of the election of municipal officers, it is by stat. 6 & 7 Vict. c. 89, (m) enacted, that the Court may, if it shall so think fit, make the rule for such mandamus absolute in the first instance, or direct that any writ of mandamus thereby ordered to be issued, shall be peremptory in the first instance. If the Court have proposed to try an election by a feigned issue, or to proceed to a new election, and if one party refuse it, the Court will insert such refusal in the rule, that it may appear authentically to the jury on [g] Ke Milner, 13 L. J., N. S., M. C. 186. See tit. " Burgess." (A) R. V. McKay, 4 B. & C. 658.i- R. t. West Looe (Corp.), Burr. 1386. R. v. Wigan (Corp.), Burr. '?82. See post, tit. " Application" (Motion). (J) See note (A), supra. (j) R. T. Dolgelly Union, 8 A. & E. 561.t S. 0. 3 N. & P. 542. In re Aston Union, 6 A. & E. '784.f R. t. Ramsden, 3 A. & B. 456. ■)■ See post, tit. " Applica- tion." As to Municipal Elections, see stat. 1 Tict. t. 78, b. 1, App. (A) Ante, p. 13 — 15, 26, 27. R. v. Tintagel (Mayor), Stra. 1003, 115T ; Andr. 280 ; Bac. Abr. tit. " Man." (B.) [I) See stat. App. (m) See stat. App. 234 tapping's mandamus, the trial.(ra) The rule to elect should be "to proceed to an election and *not to elect a particular person/'C) The Court will not order a •- -I day for the election to be inserted in the rule, but will leave that to the proper officer, (jj) . Writ, Farm of. — The writ, in form, is to proceed to an election to the office generally, and not to elect a particular person 5(5) for the Court of B. R. has no power to command the election of a particular per- son, unless STich person be by act of Parliament or otherwise specially named as the person to be eleeted.(r) The Court will not fix the day for the election, in order that it may be inserted in the writ ;(s) for the Court will leave that for the proper offieefj and if he do wrong, application should be made to the Court. («)■ "]. 4th. Admission. — The writ lies to command admission to the exercise of the duties of an office, if the applicant be duly entitled;(«) as to the office of a common councilman, &c.('w) But if there be a custom that no person shall be elected to or serve an office for more than two years successively, the Court will not grant a mandamus to admit a per- son who has been elected to serve for a third or fourth year.(w) So where there is an ascertained defect in the title of him who applies for admis- sion to an office, the Court will not admit him, for he may be ousted im- mediately.(x) But the writ will be granted, although the applicant may have never had possession of his office ; for if he have had possession, and be ousted, then the writ must be " to restore, &/a."[y) It is not, however, a ground for refusing a mandamus to admit a party to an office to which he has been elected, that to a similar mandamus, granted in respect of a former election of the same party, a return was made shewing an excuse^ valid in point of law, for not admitting him, for he may have gained a qnalifi- (b) R. t. Barker, Burr. 1265; Com. Dig. tit.- "Man." (A.). See tit. "I Issue,." (0) Shuttleworth v. London (City), 2 Buls. 122; 2 Roll. 456; Com. Dig. tit "Man." 0. 2. See post, tit. " Writ" (Manda.toiy Clause.) (p) Ante, p. 38, u. («). (?) 2 Bulst. 122 ; 2 Roll. 456. See post. tit. "Writ" (Form). (t) Roll. Abr. tit. "Restitution," 5. See tits. " Act of Parliament," "Church^ wardens." («) Ante, p. 38, n. (v). Borough of Evesham's case, Stra. 949 ; Anon. 2 Bam. 236 ; Com. Dig. tit. "Man." C. 2. (t) R. T. Bridgenorth (Mayor), 2 Chit. 256.-|- See tit. " Burgess." («) Ante, p. 12, 21, 28. R. v. Gloucester (Ep.), 2 B. & Ad. 158.+ E. v. Dol- geUy (Union), 8 A. & E. 562.t (d) R. t. Dublin (Dean), Stra. 539, per Eyre, J. And see the several titles throughout this work, supra, p. 179, u, («). (hi) Ante, p. 2T, 28. R. v. London (Mayor), IT. E. 423 ; Com. Dig. tit. "Man." (B.) See tit. "Custom." (x) Ante, p. 27, 28 ; 3 B. & Ad. 264 ;■}■ 1 T. R. 423, supra. See tit. "Burgess" (Admission, &c.) (y) Ante, p. 80. E. v. St. John's Coll., Comb. 238; S. C. Holt, 437. S. C. 4 Mod. 368 ; Anon. Sti. 299 ; Com. Dig. tit. " Man." (A.) See infra, ^' Restoration," and tits. "Alderman" (Admission), "Burgess" (Admission), "Churchwarden" (Ad- mission). OPS' ICE. 235 cation siibsequently,(a) Nor is it a good, return to such, a writ that the office is full, for,a mandamus giyes no, right, but only a possession, in order to try the righti(a) But it is a good return that the prosecutor has refused to he admitted. (6) * . Application. — The Court will more readily grant an application to admit than one to restore. The. former is conceded '- ^ in jnost cases, in order to enable the applicant to try his right, without which he would be deprived of all legal remedy. (c) The applicant must, however, make out a prima facie right to the office, the nature of which must be shewn -yicc) and shew at least that he has complied with all the fprms necessary to constitute that right.(cs?) Thus a mere statement by applicant that he supposes he was elected for life, is not sufficient ; he must shew the grounds for it.(e) . Affidavits. — The Court will not grant a mandamus to admit to an office not hnown to the law, unless the nature of it be specially stated, in order that the Court may see that it is such an one for which the writ lies,(/) And it is not sufficient that the affidavit positively states that the office is a public one, for it should proceed to show how it is so, by specifically alleging the nature of the duties ;(gr) but although some of the circumstances stated may seem to shew the office to be a private one, yet, if the affidavit? which state it to be a public one are not denied, the Court will and ought to grant the writ, as they will be better able to judge of the matter on the return. (A) The affidavits must also positively shew the fact of election, (i) Thus in a case where it was merely alleged that he (the prosecutor) had heen in- formed that he had heen elected, the Court refused the rule ; but ultimately, there being an affidavit of an application and refusal to allow inspection of the Court books, granted the rule.(y) (z) Ante, p. 27, 28. R. v. London (Mayor), 1 N. & M. 285.-t- S. 0. 3 B. & Ad. 256.+ See post, p. 188, n. [x). (a) Ante, p. 181. R. v. Ward, Stra. 893; R. T. Ely (Ep.), 1 W.Blac. 57. S. C. 1 Wils. 266. See supra, "Election," as to difference between offices which are and are not the subjects of quo warranto. See post, tit. " Peremptory Writ" (Effect). (W E. T. Jorden, 9 Geo. 2, Bull. N. P. 201. See post, 192, u. (/), {g). (e) E. T. Jotham, 3 T. S,. 578 ; 1 W. Blac. 25, n. (o), 2nd edit. ; Com. Dig. tit. "Man." (A.) Infra, " Restoration," and post, tit. "Application." (cc) Aion., 6 Mod. 316. S?e supra, " Election." Ante, p. 27, 28. U) Ante, p. 27, 28; 3 T. R. 575 ; 3 B. & Ad. 264,f supra. (e) 3 T. E, 5-78, supra. (/) Ante, p. 174. Anon., 6 Mod. 316^ and cited in R. v. London (Mayor of), 2 T. E. 179 ; 3 B. & Ad., 264 ;f 4 Com. Dig. 209. Schriven and Turner's, case, Stra, 832 ; Bac. Abr. tit. " Man." (C.) ig) Anon., 1 Barn. 153. See tit. " Ashburton'' (Eight Men of). (h) Ante, p. 173. R. v. London (Mayor), 2 T. R. 182, n. (6). R. t. Dr. Ward, Fitzg. 123. (i) Bull. N. P. 200. R. v. Harewood, 2 East, 177, and see 2 Mod. 316 ; Bac. Abr. tit. "Man." (C.) [}) Ante, p. 118, n. [v) ; 3 T. R. 578. R. v. Vintners' Company, Bull. N. P. 200. See tit. post, " Application" (AfBdavits). 236 TAPPING'S MANDAMUS. . Rule. — The rule for a writ to admit, will, in case the right appear plain, be granted absolute in the first instance. (it) . Writ, Form of. — The office must be properly described in the writ, or the variance will be fatal.(Z) . Return ; Traverses. — ^The return may traverse all or any of the traversable allegations contained in the writ. . Incapax ; Not Qualified, &c. — But it has been held not to be a good return to state that the defendant was " incapahl^' of being, or " not qualified" to be elected ; for the proper way to try such points is by an inforination in the nature of a quo warranto, (m) r*1 871 * ■ "^^ '^^*' -^^®''*''''- — ^It ^^8 been held, that to a man- damus to admit to an office, containing a suggestion of due elec- tion, a traverse of such suggestion, is a good and sufficient answer, and a proper way of putting in issue the title of the applicant ; for it may be that the application for the mandamus is made by a perfect stranger, and there must be some general way of traversing the title he sets up. (re) And such a traverse is good, notwithstanding it does not show wherein an election, if one were had, was rendered void, &c.(o) . Condition Precedent; Oaths. — So, if the taking of certain sta- tutory oaths are a condition precedent to admission, the omission so to do will form a good return ; but a return which merely stated that the, pro- secutor had not taken the oaths before a mayor according to the stat. 13 Car. 2, c. 1, was held to be bad for uncertaity, as he might have taken them before two justices : but as to an officer who is bound to take the oaths, it is no excuse that they were not tendered to him.(p) By the subsequent statute, 1 Wm. & M. sess, 1, o. 8, every person hav- ing an office was bound to take certain oaths. (5) It has, however, been held under such last mentioned statute, that a judgment given against a {k) Bull. N. P. See Mayor of Truro, M. 1816; 2 Chit. 251.\ E. t. CoTentiy (Mayor), 3 Doug. 236. See post, " Rule." (i!) Ante, p. 1T5. B. v. Ipswich (Bailiffs), 2 Salk. 434. R. v. Dartmouth Mayor), 3 Salk. 229. See tit. " Ashburton" (Eight Men of). See post, tit. "Writ" Form of). (m) R. T. Doncaster, Say. 40 ; Bac. Abr. tit. " Man." (I.) These returns apply to those offices only a right to which cannot be tried by quo warranto. See supra, " Election," and infra, " Restoration" (Return). See tit. " Churchwarden" (Swear- ing in, Incapax). (n) Cas. t. Hard. 130, u. (1). R. v. Dr. Harris, 1 W. Blac. 430. S. C. Burr. 1420, 1422. R. T. Harwood, Ld. Raym. 1405, overruling R. v. Sympson, M., 11 Geo. 1. R. T. Dr. Ward, 1 Barn. 381, 412 ; Fitzg. 195. R. v. Twitty, 2 Salk. 433. R. V. York (Mayor), 5 T. R. 66, 72. R. v. Cornwall (Mayor), 11 Mod. 174. B. t. Guise, 3 Salk. 88. S. C. 6 Mod. 189. S. C. Ld. Raym. 1008. R. v. DoTcr (Mayor), 16 L. J., N. S., 101, M. C. R. v. New Windsor (Mayor), 14 L. J., N. S., 319, Q.B. R. T. Harwich (Mayor), 8 A. & B. 919.-|- S. C. 8 L. J., N. S. 13, Q. B.; Bac. Abr. tit. " Man." (6.) See tit. " Churchwarden" (Swearing in, Return, Tra- verse, Non fuit Electus). (0) R. V. York (Sheriff), 2 Show. 154 ; Fitzg. 195. See post, tit. "Return." {j>) R. T. Slatford, 5 Mod. 316. S. C. 2 Jones, 121. S. C. 2 Salk. 428. S. C. Comb. 419. S. C. Holt, 438 ; 1 Hawk. P. C. ch. 8, s. 1. R. v. Sanchar, 2 Show. 66, n. {a) ; Com. Dig. tit. "Franchise" (F. 29). See tit. "College" (Oaths). See post, tit. " Return." ' =■ ^ . (j) B. V. Exou (Mayor), 1 Show. 258. B. v. London (City), 1 Show. 240. OFFICE. 237 city, " that the liberties thereof be seized into the King's hands," neither dissolved the corporation, nor amoved the members thereof from their cor- porate offices ; and therefore, if an alderman of the city, after such statute, (which enacts, " that if any person now having any office, shall neglect to take the oaths therein prescribed, before the first of August next ensuing, or sooner if required by the Privy Council, the said office shall be void,") neglected to take the said oaths within the time mentioned, it was a for- feiture of his office, to which he was not restored by the stat. of 2 Wm. & M. St. 1, c. 8, s. 7, (which enacts, "that all officers of the said city who rightly held any office therein at the time the said judgment was given, shall be confirmed in, and have and enjoy the same as fully as they held them at the time the said judgment was given, except such as have been removed for any just cause. ")(»•) So, *that if any officer omitted rHciQc-i to take them, and subscribe the declaration at the time of his tak- ing the oath of office, his election to such office became absolutely Toid, although the oaths or declaration were not tendered to him, therefore, an omission to do so, constituted a good return. (s) But now by stat. 5 Geo. 1, c. 6, it is enacted, that all persons required to take such oath or subscribe such declaration, shall be confirmed in their respective offices, and be free from all incapacities and penalties, and none of their acts be questioned, notwithstanding their omission to take such oaths or subscribe the declarations, &c., nor shall they be amoved by the corporation, or otherwise prosecuted for having omitted to take the Sacra- ment within one year next before their election, unless such removal or prosecution be commenced within six months after the election, and there- fore, if neither removal nor prosecution take place within the time limited, the election becomes absolute and unavoidable. (<) Subsequent statutes have in some cases mitigated the penalties on omis- sion to take the oaths, and in other cases abolished them altogether. .] 5th. Swearing in. — The writ lies also to command the swear- ing in to an offioe,(M) if the prosecutor be duly entitled to be sworn in. Thus, if an officer attend a magistrate to be sworn, and he be refused ; the writ will be granted, because if the law were otherwise, it would be in the power of the magistrate to elude the act,(y) and the writ will be granted notwithstanding the officer may execute his office before he is sworn, (m)) (r) Smith's case, 4 Mod. 53. S. C. 1 Show. 263, 274. S. C. Garth. 217. S. C. Skin. 293, 310. S. C. Holt, 168, 310. S. C. 12 Mod. If. See tit. " Oaths." (s) R.T. Sanchar, 2 Show. 66. R. v. Morpeth (Bailiif), Stra. 58. See Jones's Rep. 2 Jones, 121. R. v. Thatcher, Trem. 517—523 ; 4 Mod. 34, n (6), and see stats. 1 W. &M. s. 1, t. 8, s. 6, and 2 W. & M. c. 8, s. 12, supra, p. 187. («) Crawford v. Powell, Burr. 1013. S. C. 1 W. Blac. 229. See also R. v. Mon- day, Cowp. 539; 25 Car. 2, c. 2 ; 1 Geo. 1, St. 2, c. 13; 11 Geo. 1, c. 4, s. 4, and 31 Geo. 3, c. 32, B. 18. R. v. Sanchar, 2 Show. 68, n. (a), 3rd edit. (u) R. T. Maidstone (Corp.), 1 Keb. 733. R. v. Birmingham (Rector,) 7 A. & E. 256, and notes (a) and (4). Also see the several titles throughout the work, and supra, p. 179, n. (u). As to before whom a party elected under mandamus must be sworn in, see R. v. Maiden, Burr. 2131. M R. T. Oxon (Mayor), 2 Salk. 429. S. C. Comb. 419. (w) See tits. "Churchwarden" (Swearing in). "Mayor" (Swearingdn). 238 tapping's mandamus. But such a mandamus will not be granted to one, who has had judg- ment on an information in the nature of a quo warranto against him, for an usurpation, unless he claim under a subsequent election or title, for the Court will not assist him who has no right.(a;) .] Rule. — The rule for a writ to swear in, &c., will, In case the right appear plain, be granted absolute in the first instance, (^) and if the officer be municipal, as a corporator, the rule for the writ will be granted as of course, (a) .] Eeturn, non fuit electus. — To such a writ, a return that the *prosecutor " was not elected" is good,(a) without shewing wherein L J the election, if one were had, was rendered void, ka.{h) If two sue out a mandamus, in a case in which one only can be duly elected, the defendant may return the special matter, for he cannot tell which to swear in.(c) . Enforcing Duties. — The writ lies to command an elected officer to discharge all the duties belonging or annexed to the office ;((Z) notwith- standing he may be liable to a penalty for neglect, (e) So, although such officer be bound by an oath to execute his office duly.(/) So, the writ lies to command an elected corporate officer to take upon himself the duties of his office, although he may have paid a fine imposed by a by-law, for refusing to accept it, if such fine do not operate as an exemption or discharge from the duties, &c.(<7) So, if persons find themselves injured by the non-residence of a muni- cipal corporator, and the corporation refuse to interfere and to do their duty, such persons may apply to the Court of B. K. for a mandamus, directed to such a corporation, to enforce a performance of their duty;(J) and the applicant is entitled to the writ in such a case ex debito justi- tiaB.(i) {%) See supra, "Admission." R. v. Heale, Stra. 625. S. C. Ld. Raym. 1447; 3 Bro. P. 0. ITS. Vide Cowp. 509; 2 East, 1% ; Gom. Dig. tit. "Man." (B.). iy) BuU. N. P. 199. See Mayor of Truro, M. 1816 ; 2 Ciiit. 257.t R. v. Coventiy (Mayor), 3 Dong. 236. (z) 4 T. R. TOO. The afSdavits must shew an election. Bull. N. P. 200. E. v. Harewood, 2 East, ITT; 2 Mod. 316. See post, tits. " Application," "Rule." (a) Gas. t. Hard. 130, n. (1). R. t. Dr. Harris, 1 W. Blac. 430. S. C. Burr. 1420, 1422. R. T. Harwood, Ld. Raym. 1405, overruling R. t. Sympson, M., U Geo. 1. R. V. Dr. "Ward, 1 Barn. 381, 412 ; Fitzg. 195. R. v. Twitty, 2 Salk. 433. E. i. York (Mayor), 5 T. R. 66, Y2. R. v. Gornwall (Mayor), 11 Mod. lU. K. v. Guise, 3 Salk. 88. S. G. 6 Mod. 189. S. G. Ld. Raym. lOOfi. See tit. " Churchwarden" (Swearing in, Eeturn, Non fuit Electus) ; and see poet, tit. " Return." (b) R. V. York (Sheriff), 2 Show. 154; Fitzg. 19&, See- post, tit. "Return." (c) R. V. Guise, Ld. Raym. 1008. S. 0. 6 Mod. 189; and see 1 W. Blac. 430. S. G. Burr. 1420. See tit. " Churchwarden" (Admissio»)- (d) Ante, p. 12. R. v. Gravesend (Mayor), 2 B. &.C. 602.t See tits. "Alder- man'' (Enforcing Duty), "Burgess Roll," "Ganal Company," " Church," "Corpora- tion Municipal" (Duties), " Courts Inferior," " Lectureship," " Mayor." (e) R. T. Everet, Gas. t. Hard. 261 ; Com. Dig. tit.- " Man." (A.) , (/) R. V. Montacute (Ld.), 1 W. Blac. 62. S. C. 1 Wils. 283. (g) R. V. Bower, 2 D. & R. 842.t S. C. 1 B. & C. SSS.f See tit. " By-law." (h) 4 D. & R. '?'72.f See tits. "Alderman" (Restoration, Return, Non-residence). (j) Bull. N. P. 199 ; 3 Blac. Gom. 264, cited in 4 D. & R. ?Y2.f See tit. post, " Application." * orricE. 239 The writ will not, however, be granted on a suggestion, that the defen- dant is attempting an abuse of a public office. Thus, where certain justices had (as it was contended) illegally convicted a dissenting minister of keep- ing a conventicle, and a mandamus to the justices was moved for to permit him to preach, the Court refused the writ, and said, " that a mandamus is always to command the doing of some act in execution of law, whereas this would he in the nature of a writ, de non molestando.(^') So, where certain defendants held tobacco, until payment of a certain amount of duty, which the owner contended, was more than was due, and he applied for a mandamus to command them to deliver it up ; it was answered, that the commissioners *were not called upon to perform a duty, but to p;,J,Q/^-| abstain from a wrongful act, and that if they were not entitled to L -' retain the tobacco, they were wrong doers, and liable to a civil action, the Court discharged the rule, saying " either the officers were justified in what they did, or not. If they were, then there was no grievance, but if not so justified, then the writ of mandamus is not the proper remedy."(^) r]. Deprivation. — The writ does not lie to command the mayor, &o., to assemble for the purpose of considering the propriety of removing certain members of their body as for non-residence, &c.,(Z) unless the cor- poration be misgoverned. (»») Nor does it appear, that in any other case the Court can grant a writ to turn out and deprive of an office. (ra) Thus, it has been held, that an officer in upon a corrupt contract against stat. Edw. 6, or guilty of simony cannot be removed by mandamus. (o) ]. 8th. Restoration. — ^Although most municipal corporations pos- sess a power of amotion over their own members, yet the Court of B. K. has jurisdiction to inquire whether that power has or not been duly exer- cised; and where it has not, to issue a mandamus to restore, &c.(^) At common law, a member of a municipal corporation cannot be amoved until he has been convicted of an offence ;(g) so that all further power of amo- tion must be vested in the corporation by their charter, &c. ; and if the charter, &c. give a power of amotion for reasonable cause, the Court of {}) See ante, p. 10, n. If), 119, n. (d). B. v. Peach, 2 Salk. 572. S. C. nom Peat's case, 6 Mod. 229. See tit. "Dissenters." (k) Ante, p. 18, 26. R. v. Customs (Commrs.), 5 A. & B. SSCf See tit. " Cus- toms." (9 Ante, p. 4, n. (i), 102, n. (a). K. v. Portsmouth (Mayor), 3 B. & C. 152.t S. Cf. 4 D. & R. 1G1 if 2 T. R. '7T2 ; and see tits. " Alderman" (Removal), " Capital Bujgess" (Removal), supra, "College" (Fellows Expulsion), (Visitor Deprivation), "Councilman" (Removal), and infra, "Return" (Non-residence). (m) Ante, p. 9, 10. See tit. "Councilman" (Removal), and see p. 102, 191, n. (t). (n) E. V. Sowar, 3 Salk. 230, 1. See R. v. St. John's Coll., 4 Mod. 234. Calvin's case, T Rep. 30 ; Vaughan, 401. Shuttleworth's case, 2 Bulst. 122. But see R. v. Totness.(Mayor)j 5,D. & B. 481.J- R. v. West Looe (Mayor), 5 D. & R. 414.f See tits. " College!' (Fellows), "University." (o) E. V. St. John's Cam., Comb., 288. (p) ,Aote, p..l2. R. T. London (Mayor), 4 M. & B. 52. S. 0. 9 B. & C. l,f (where see form of pleadings), citing R. v. Leeds (Mayor), Stra. 640. R. v. Ax- bridge, 2 Oowp. 523. R. V. London (Mayor), 2 T. R. 111. R. v. Liverpool (Mayor), Burr. '?31. See supra, p. 179, n, («), and infra, "Return." , (a) Bagg's case, 11 Rep. 94, cited in R. v.. London (Mayor), 4 M. & B. 54. S. C. 9 B. & C. 1, 21,t supra. 240 tapping's MANDAMUi / B. R. will, by mandamus, inquire into the cause ; but if it give a power of amotion for such cause as such municipal corporation shall think rea- sonable, such Court will not interfere. Thus where a charter of incorpo- ration declare'd, that "it should be lawful for the mayor and capital burgesses to amove any of their body for non-residence within the borough," it was held, that this gave them a discretionary, and not a compulsory power of amotion ; and the Court of B. B. refused a man- damus to command them to assemble and consider the propriety of amoving the non-resident members.(j-) And even where a charter r*10n *^^ terms requires residence, the Court will not command the cor- '- poration to meet, for the purpose of considering the proprietyof removing non-resident members, if such power of removal be discretion- ary ; because if a meeting be called, and they do not choose to remove the non-resident members, no benefit will be derived from the application,-and such a mandamus would afford no remedy for the alleged evil.(s) But if the affidavits suggest a serious injury or inconvenience to the public by the non-residence, the Court in its discretion may grant the writ.(i) The writ of mandamus will, on a proper application, be granted, by the Court of B. R. to restore to, or to precedency ia(u) any oiBce; to which, as before stated, admittance can be obtained through its medium.(j)) The writ of mandamus, when applied to this purpose, is the true specific remedy for a wrongful dispossession of an office or function which has temporal rights attached to it : it is applicable to all cases where the established course of law has not provided a specific legal remedy by another form of proceeding.(«;) Thus it lies if an officer be removed from his office before it is competent to amove him. (a;) But the office or function,(y) as before stated, must be a freehold, or some other matter of profit. (a) As to the office for which a mandamus will lie, see supra, p. 179, note (a). (r) Ante, p. 12, 15. E. T. West Looe, 5 D. & B. 414 ;j- and see R. t. Portsmouth, 4D. &R. Ter.f S. 0. 3 B. & C. 152.-}- B.V. Totness, 5D. &B. 481,t andthecases there collected; 4 M. & B. 54.f S. C. 9 B. & C. 21,f snpra; 2 T. R. 351. And see R. V. Lyme Regis (Mayor), 1 Doug. 149, where see form of return of amotion for non-residence. See tit. " Alderman" (Restoration, Non-residence), and infra, " Beturn," " Non-residence." (s) Ante, p. 12—15, 56. R. v. Totness (Mayor), 5 D. & B. 481.f R. t. Ports- mouth (Mayor), 4 D. & R. TeT.f R. v. Heaven, 2 T. B. 772. And see 5 D. & R. 414,-|- supra ; Burr. 2089. (t) Ante, p. 38, 56; 4 D. & R. 161, j- supra. See tit. "Alderman" (Removal); p. 190, n. (m). See post, tit. " Application." (u) R. V. Miles, 1 Keb. 623. See tits. " Alderman," " Precedence." (v) Ante, p. 11, 12. Bac. Abr. tit. "Man." (C). Bagg's case, 11 Eep. 93, b., which is the leading case as to the restoration to a municipal office. E. v. New Coll., 2 Lev. 15. B. v. Buckingham (Corp.), 10 Mod. 115. B. v. York (Mayor),-2 G.&,T).58l. S. C. 2 Q. B. 550.t B. v. York (Sheriffs), 3 B. & Ad. YTO.f Hurst's case, 1 Lev. 15. Parker's case, 1 Vent. 331. B. v. London (Mayor), 2 T. E. 180. Hurst's case, 1 Keb. 387. B. v. St. John's CoU., 4 Mod. 234. Calvin's case, 7Eep. 20 ; Y^ughau, 401 ; 2 Bulst. 122. (w) Ante, p. 12, IS— 26. B. v. Blooer, Burr. 549. (x) Ante, p. 12. Northampton's case, LofFt, 549. (y) Ante, p. 12. See ante, tit. " Dissenters." (2) Ante, p. 12, n. (r). (a) See supra, "Election," n. («). F F I 1. 241 The Court will not, however, grant a mandamus to one who is amoved from his office by a judgment on a quo warranto, for the Court will act upon such judgment until it be reversed, without considering whether it be a proper judgment or not;(J) for " res judicata pro veritate accipitur." Nor will the Court grant a mandamus to restore a person where it is con- fessed that he has been rightly removed, although the act of removal may have been irregularly or informally conducted, as that he was not summon- ed, &c. ; for the Court will not grant this writ to restore, &c., if the prosecutor may the *very instant be properly and lawfully removed. (c) Nor rsjt-iqon will the Court, in its discretion, grant the writ, although the ■* return be insufficient, if it appear that there has been a gross misbehaviour, sufficient to warrant a removal from the office.(d) Nor will it be granted to restore a person, if since his deprivation his right to restoration have ceased, as by lapse of time. Thus, if a mayor be amoved, he shall not, after his year has elapsed, have a mandamus to be restored, (e) Nor will it be granted for one who has consented to be turned out,(y") or who has resigned his office. (^) .] Su^ension. — If the applicant for the writ of mandamus be actually in possession of his office, never having been entirely displaced, the writ will be refused, upon the ground that it is not necessary to res- tore him ; for there must be an actual removal in order to authorize the writ.(A) So the writ will not be granted to one who is merely suspended from his office quousque, &c., if there be no power to suspend, &c. ; for the freehold still remains in him, and he may bring an action on the case (J) Ante, p. Ill, n. (m). R. t. Serle, 8 Mod. 332. S. C. 8 Mod. 234. Com. Dig. tit. "Quo Warranto," 0. 5. See supra, " Swearing in," and tit. " Court Inferior" (Judgment, Execution, &c.) {c) Ante, p. 15, 16. R. v. Axbridge, 1 Cowp. 523. R. v. London (Mayor), 2 T. R. 177, 180, (which case was decided after much consideration). Com. Dig. tit. "Man." (B.) R. v. Griffiths, 5 B. & A. 731.^ R. v. Newcastle (Mayor), Burr. 530. R. T. Tidderley, 1 Sid. 14. R. v. Rippon (Mayor), 2 Salk. 433. Bao. Abr. tit. " Man." (B.) But see R. v. Ward, 1 Bam. 294 ; and tit. " Bridge House Estates." ((J) Ante, p. 12—14. R. v. Tidderley, 1 Sid. 14 j and see 2 T. R. 180, and 1 CoWp. 523, supra. See E. v. Argent, cited in 2 T. R. 181. And see 2 T. R. 182, n.(6). Bassett v. Chichester, 1 Sid. 286; 1 Mod. 83, n. (a). See tit. "Bridge House Estates." (e) Ante, p. 27, 28. Mayor of Durham's case, 1 Sid. 33. Com. Dig. tit. " Man." (B.) See ante, tits. " Canal Company," " Highway" (Tolls), and post, tit. " Appli- cation." (/) R.T. Lane, Ld. Raym. 1304. But see S. C. Fort. 275, where it is said, that consent to be turned out is not a resignation. See also R. t. Gloucester (Mayor), Holt, 450. (g) Bull. N. P. 203. R. v. Jay, 3 Keb. 714. R. v. Mills, 1 Keb. 623. Com. Dig. tit. " Man." (B.) R. v. Rippon (Mayor), 2 Salk. 433 ; Ld. Raym. 1304. S. C. Port. 275 1 Holt, 450. A) Ante, p. 15, 16. R. v. Oxford (Mayor), 6 A. & E. 352,-|- per WiUiams, J. R. T. LiTerpool (Mayor), Burr. 734. R. v. London (Mayor), 2 T. B. 181. R. v. Whit- stable Fishery, 7 East, 353. See tits. " Bridge House Estates," " OounciUor" (Sus- pension) . May, 1852.— 16 242 tapping's mandamus. for such improper suspension ;(i) and, it seems, an action for money Lad and received during his suspension. (_;') It has, however, been held, that a suspension, under a power to sn8- r*ioqi W^^> '^'^■i *should, if there be one, be shewn in the return, other- wise it will be bad,(A) and the applicant will be restored;(Z) and it should be so set out, in order that the Court may judge whether the suspension be or not for good cause.(m) It has also been solemnly de- cided, that the Court will not grant the writ to restore to an office, thougt the applicant have been irregularly suspended, if it appear by his own shewing that there was good grdtind for the suspension, had the proceed- ings been regular. (»i) .] Application. — 'The Court has always looked much more strictly to the right of a party applying for a mandamus to be restored, than to that of an applicant to be admitted to an office,(o) for in the latter case it is required that he shew by affidavit, not only that he has a prima facie title, but also, that he has complied with all the forms necessary to con- stitute his right ; because if he have been before properly admitted, he may incidentally try his right by bringing an action for money had and received for the profits.(^) Therefore, in order to entitle himself to this extraordinary remedy, he must lay such facts before the Court as will warrant them in presuming that the right, both legal and equitable, is in him. (5) It is not, however, necessary that it should clearly appear that in- justice has been donejit is sufficient to raise a reasonable doubt in the Court whether it has or not ; especially when it is considered, that if the mandamus be refused, the party has no direct remedy, whereas, if granted, it does not conclude them to whom it is directed, as they may dispute the ques- tion on a return to the writ.(r) (i) Ante, p. 20. E. v. Guildford (Approved Men, &c.), 1 Keb. 868, 880. S. C. 2 Keb. 1. S. 0. Raym. 152. S. C. 1 Lev. 162, per Hyde, 0. J., and Kelynge, J., but, Twisden (totis viribus) disseutiente, for, said he, " a suspension is a temporary amotion, and perhaps it will never be discharged." In the following year, how- ever, a mandamus was granted, on the application of the same person, to restore him to the same office, but it does not appear from the reports (2 Keb. 1 ; Eaym. 152) of the case but that the corporation had actually removed him in the inter- mediate time. R. V. London (Mayor), 2 T. R. 1'79, approved in R. v. Griffiths, 5B. & A. T36,-j- per Best, J. R. v. Tyther, 2 Keb. 250. See B. v. Patrick, 2 Keb. HI, per Keeling, C. J. Com. Dig. tit. "Man." (B.),and 1 East, 355,n.(ffl) ButseeBac. Abr. tit. " Man." C. 2. See tit. " College" (Fellows Restoration). {j) Ante, p. 20, 24 ; 2 T. R. 182, per Ashhurst, J. R. v. Whitstable Fishery, 1 East, 353 ; Bac. Abr. tit. " Man." C. 3 ; 11 Ves. 313. [k) 1 Keb. 880, supra. R. v. Tyther, 2 Keb. 250. See post, tit. " Return." h) See 2 T. R. 179. Supra, n. (i). (m) 1 Keb. 868, 880, and 2 T. R. 179, supra, n. (i). {n) R. V. London (Mayor), 2 T. R. 17T. Com. Dig. tit. " Man." (B.), and 7 East, 355, n. (a), supra, p. 192, n. («). (0) See supra, " Admission" (Application). (p) Ante, p. 24 f 3 T. R. 578, supra; 1 Doug. 134; 1 W. Blac.' 25, n. (0), 2iid edit; Stra. 557 ; Ld. Raym. 1334 ; 8Mod.l48; 2T.R.177; Com. Dig. tit. " Man." (A.) See post, tit. " Application." (?) Ante, p. 27, 28 ; 1 W. Blac. 25, n. (0) ; Cas. t. Hard. 100 ; 3 T. R. 558, per BuUer, J. See post, tit. " Application." (r) See B. v. Wyudham, Cowp. 378. R. t. Cambridge (U.), 6 T. E. 100. OFFICE. 243 Although on an application for a writ to be restored to a municipal office, the prosecutor should show some title in himself, yet the Court of B, E. has, in exercise of its superintendenoy over such corporations, granted a mandamus where no particular person was interested. (s) On motion for a mandamus to restore to an office, there is no need of affidavits to show that the applicant was once in, for if he have not been, that fact may be returned ;{{) it is prudent, however, to be fortified with such an affidavit. .] Rule. — Where the mandamus is to admit or swear in, the Court will, in case the right appear plain, grant the writ upon the first motion. But *where it is to restore one who has been removed, rsK-iq^-i the practice in all cases is, first to grant a rule to show cause, (m) .] Writ, Form of. — The writ for restoration to an office need not allege it to be a place of profit, for all the precedents of such writs are with- out any suggestion of pecuniary loss ; it is a sufficient ground for the writ that there has been a loss of precedency or authority. (?)) .] Returns. — ^Keturns to a mandamus to restore are of two kinds ; 1st. Traverses, or those which deny some material fact or facts, being the suggestion and ground of the writ ; 2nd. Special, or those that confess the amotion, and justify it.(«)) 1. Traverses. Among the various returns that may be made by way of traverse to a mandamus to restore, "non fuit amotus" is the most usual, and goes to the foundation of the writ.(a;) So " non fuit admissus" is a good return, for amotion depends upon the admission, and therefore, such a return of " non fuit admissus" is but a special " non fuit amotus."(a;) So a return of " non appunctuatus" has been held to be good. (a) So " non fuit electus" is a good return,(a) and without shewing wherein the (s) Ante, p. 11, 32, n. (w). E. t. Nottingham (Town), Bull. K. P. 201. See Ut. " Corporation Municipal," and post, tit. "Application." (t) R. v. Cutlers' Company, Oas. t. Hard. 129. Com. Dig. tit. " Man." (A.) (u) Bull. N. P. 199. See Mayor of Truro, M. 1816, 2 Chit. 2b1.^ R. v. Coventry (Mayor), 3 Doug. 236.-)- See supra, " Admission" .{Rule), " Swearing in" (Rule), post, tit. " Rule." (») Ante, p. 12, n. (r), 191, n. (a). Bagg's case, 11 Co. 93, a. See a precedent, temp. H. 6, cited in Dyer ; 6 Ed. 2, Clo. Rolls, membr. 8, in which the words are, deliberis consuetudinibus'et a libertate Civitatis. R. T.Oxford (Mayor), Palm. 453; Noy, 92. S. 0. Latch. 229. See tits. "Alderman" (Restoration), "Prece- dence," and post, tit. " Writ." (w) See post, tit. " Return." (x) R. T. Chester (City), 5 Mod. 11. Com. Dig. tit. "Man." D. 3. R. t. Buck- ingham (Corp.), 10 Mod. 1T4, citing Hereford's case, 1 Sid. 209, 210. See tit. " Traverse," 1 Doug. 84. See form of traverses in amotions as to municipal offices. R. V. Shrewsbury (Mayor), Cas. t. Hard. 147. See post, tit. "Return" (Traverse). (2) Ruding V. Newel, Stra. 983. _ la) ~ ■ - - a) See tit. " Churchwarden" (Swearing in, Return, Non fuit Electus). Com. Dig. tit. "Man." D. 3, D. 4. R. v. Stafford (Mayor), 2 Keb. 264; March, 288, pi. 237 ; Cas. t. Hard. 130, n. (1). R. v. Dr. Harris, 1 W. Blac. 430. S. C. Burr. 1420, 1422. R. V. Harwood, Ld. Raym. 1405, overruling R. v. Simpson, M. 11 Geo. 1. R. V. Dr. Ward, 1 Barn. 381, 412. S. 0. Fitzg. 195. R.v. Twitty, 2 Salk. 433. R. T. York (Mayor), 5 T. R. 66, 72. R. v. Cornwall (Mayor), 11 Mod. 174. R. V. Guise, 3 Salk. 88. S. 0. 6 Mod. 189. S. C. Ld. Raym. 1008. 244 tapping's mandamus. election, if any have been had, was rendered void. (6) So a return of " no such offiic.^' has been held to be good.(c) So, any other traverse of material matter. Thus, to a mandamus to restore A., who was duly elect- ed, sworn, and admitted, (mentioning no time), a return " that A. was on the 29th August duly elected, but that neither at his election, nor since, nor yet, is he sworn or admitted, and therefore, &o.," is a good return,(d) it being a traverse of a material portion of the writ. 2. Special Returns; or those which confess an amotion, and justifyil *must be specially stated. They must not only accurately state L -^ the justification in extensD ; but such justification, when so stated, must also be legally sufficient in substance. (e) Thus to a writ to restore, a return that another prsefectus et juratus est, to the same office, has been held to be bad, as containing no legal avoidance or justification. (/) Such a special return should shew : 1st. The cause or causes of removal. 2ndly. The power of removal. Srdly. A summons, when necessary, or its equivalent. 4thly. That the causes of removal are true. 5thly, and lastly, That the removal was founded upon the alleged causes of removal. In other words, the return should shew that the prosecutor was removed in a legal manner, and for a legal cause.(g') . 1st. The Cause or Causes of Removal. — ^The general grounds of disfranchisement, and, therefore, of return, in cases of municipal ofSces, are of three kinds : 1. Such offences as are against the oath and duty of the officer, and to the prejudice of the municipal corporation, which being breaches of official trust and condition, need not a previous conviction; but such corporation may, in the first instance proceed to disfranohise, there being an inherent power in every such corporation so to do. Thus an offence is no cause of disfranchisement, unless it be of a thing done which works to the destruction of the body corporate, or of the hbertiea or privileges thereof; so that no personal offence, offered by one member to another, as, for instance, an assault, is good ground of disfranchise- ment; (A) nor is a mere breach of contract or covenant a good return. Thus, a return that the prosecutor, contrary to his indenture, had married within two years, has been held to be bad.(i) (6) E. T. York (Sheriff), 2 Show. 154; R. v. Ward (Dr.), Pitzg. 195. See post, tit. " Beturn" (Traverse). (c) Supra. R. v. Dartmouth (Mayor), 3 Salk. 229. See tits. "Ashburton" (Eight Men of," " Curate," p. 113, n. {g). (d) R. V. Lynn (Mayor)j Andr. 105. Com. Dig. tit. "Man." D. 3. (e) R. T. Dover (Mayor), 16 L. J., N. S. 101, M. C. These returns require great skill in the preparation, and should, therefore, be settled by counsel. See post, tit. "Return," (Certainty). (/) R. V. CornwaU (Corp.), 11 Mod. 1'74, citing Doug. T9, 80. Com. Dig. tit. " Man." D. 3, D. 4. (g\ Bac. Abr. tit. "Man." (J.) ; Burr. T31. See post, tit. "Return." (h) Ante, p. 39, n. {h); Bull. N. P. 203, 204; Garth. 173. See 'tits. "Free- dom" (Company, Admission), " Alderman" (Restoration, Return), and infra, n. {))■ (j) Ante, p. 125, n. (t). R. v. Townsend, 1 Keb. 458, 470, 659. S. 0. 1 Lev, 91- 1 F 1 E. 245 2. Such misbehaviours as are general offences-, and wliieli render infa- mous, as perjury, forgery, &c., although th«y have not any immediate relation to the office j for in such cases it is the loss of credit, or in other words, the in/ami/, which is the ground of forfeiture, and therefore con- viction, which is the ground of the infamy, must precede the disfranchise- ment jQ') so that if the crime upon which the conviction is founded, he such as does not carry infamy with it, it will be no cause of disfranchise- ment, as if one be convicted of *a simple assault. (A) But when a conviction disables a man from holding an office, a return of the '- -■ offence, without stating the conviction, is good.(?) 3rd. Such misfeasances as partake of both those previously mentioned, namely, by being a breach of oath and duty, and an offence at common law ; these are clearly causes of disfranchisement, without a previous con- viction ; as to this point, however, there was formerly a great diversity of opinion, and what is said in Bagg's case, " that if a party be convict of an offence against his duty, and to the prejudice of the corporation, it is good cause to remove him," would seem to imply that a previous convic- tion is necessary, but it is not so, for if the whole paragraph be considered, it will appear that it is only referrible to those cases where there is no power of amotion. (m) Having thus stated a general outline of those offences, a commission of which create a forfeiture of a municipal office, it merely now remains to treat specifically of the principal of those offences. r-. Bribery.— ~K return that the prosecutor corruptly bribed one of the burgesses to vote for a Member of Parliament, and a power of amo- tion for such cause is good, if there have been a precedent conviction. (n) But in another case, on a return that the prosecutor corruptly gave money to, one of the corporation to vote for a mayor, the Court was equally divided ; two of the Judges holding that a precedent conviction was neces- sary; the other two that it was not : but it was then stated by the Court, " that for such offences as are such at common law merely, a precedent conviction is necessary; because, in such case, the removal is on the ground pi infamy ; but that for an action prejudicial to the corporation, S. C. 1 Sid. lOT. S. C. Baym. 69. See also E. v. York Eailway, 14 L. J., N. S 2?7, Q. B. See tit. " Citizen" (Restoration). {}) Bagg's case, 11 Rep. 98, 99. S. C. 1 Roll. 224, which is the leading case on tiis subject ; 8 Mod. 101. R. v. Derby (Mayor), Cas. t. Hard. 154 ; Bull. N. P. 206. Lane's case, Ld. Eaym. 1304. S. 0. Fort. 200, 2Y5. S. 0. 11 Mod. 270, but dif- ferently reported. R. v. Richardson, Burr. 538 ; 8 Mod. 100 ; Port. 206. R. v. LiTerpool, Burr. T32. See tits. "Alderman" (Restoration, Return), "Conviction," and post, p. 196, n. (o). (h) Bull. N. P. 206, supra, p. 195, n. (A). [l] Anon., 2 Show. 183. (m) See infra, n. (o). Cas. t. Hard. 154. Haddock's case, Ray. 435. See return of jBriSecy, infra, n. (n). R. v. Hutchinson, 8 Mod. 101, citing Yate's case, Sty. 4,77. R. T. Ipswich (Bailiffs), 2 Salk. 434. But see Bull. N. P. 206. See tit. " Al- derman" (Restoration, ReturnV (b) R. t. Newcastle (Mayor), commonly called Parrott's case, M. 8 Anne, cited in R. T. Derby (Mayor), Cas. t. Hard. 154. 246 tapping's mandamus. as well as contrary to the common law, the party may be disfranchised, without a prior conviction."(o) . Desertion ; Nbrwresidence, &c. — Public oflSces having been in- stituted for the public good, are determined by nonuser or desertion.(^) Thus if a member of a municipal corporation, as an alderman, burgess, &o., desert or cease to reside within the limits of his corporation, such desertion, &c. is a good cause of amotion, and therefore of return ;(o) and the expression of such desertion, &c. in a return, by the words L -^ deseruit et reliquit is *sufficient, for they signify a total deser- tion ;(r) the return must allege a total desertion, or it will be insufficient in substance, (s) But non-residence, though a good cause of removal, does not ipso facto determine the office, for there must be judgment of amotion by the cor- poration, before an information in the nature of a quo warranto will lie,(i) so in general the Court of B. E. will not grant a mandamus to elect ano- ther upon non -residence, unless the non-resident party have been previ- ously removed. (it) It has also been held, that if a non-resident officer attend his office, though he live out of the corporation, yet his attendance upon the office will be a sufficient residence. (i;) Where the non-residence is a good ground of amotion, it is not neces- sary to summon to come in and reside previously to the proceedings to amove, (ic) .] Drunkenness. — Habitual drunkenness is a good return to a mandamus to restore, but contra, if the prosecutor were drunk by acci- dent, (x) .] Erasing Corporation Books. — Erasing or making false entries (o) Ante, p. 196, n. (h), (/). R. v. CarUale (Alderman), 8 Mod. 19, 99. S. 0. 11 Mod. 378. S. 0. Stra. 385. S. 0. Fort. 200, cited in Derby (Mayor), Cas. t. Hard. 155. Bagg's case, 11 Eep. 99. Com. Dig. tit. " Man." D. 3. E. t. Tiverton (Mayor), 8 Mod. 186. {p) R. V. Campion, 1 Sid. 14. Exeter (City) t. Glide, 4 Mod. 36. Stanton's case. Moor, 135. See tit. "Alderman." (j) R. T. Truebody, 11 Mod. 75. S. C. Ld. Eaym. 1275. S. C. Holt, 449. R.T. Lyme Regis (Mayor), 1 Doug. 149, 569. Exeter (City) v. Glide, 4 Mod. 36 ; BulLN. P. 206 ; 1 Show. 258, 364. R. v. Leicester (Mayor), Burr. 2087. R. v. Newcastle (Mayor), Burr. 530 ; Say. 39. See form of return of non-residence, &c., 1 Dong. 135. See tit. " Alderman" (Restoration, Return, Non-residence). {r) Ante, p. 40. R. v. Exeter (Mayor), 1 Show. 364, 365, per Holt, C. J., and Eyre, J. S. C. 4 Mod. 36. S. C. Holt, 169, 435. See tit. "Alderman." («) Ante, p. 59, n. (A) ; Burr. 2087, supra; Smith's case, 4 Mod. 56 ; Bull. N. P. 207. R. T. Leicester (Corp.), Burr. 2087. (t) R. V. Heaven, 2 T. R. 772 ; 1 Show. 365, n. (a), 3rd edit. R. v. Ponsonby, Ves. 6. S. C. 5 Bro. P. C. 287. S. C. Say. 245; BulL N. P. 211. Exeter (City) T. Glide, 4 Mod. 36. («) R. T. Truro (Mayor), 3 B. & A. 590 ;+ S. C. 2 Chit. 257.+ See supra, "Elec- tion." [v] 11 Mod. 75, supra. R. t. Exon (Mayor), 1 Show. 260, 3rd edit., n. (6). B. V. Leicester (Mayor), Burr. 2087. See return of non-attendance, 1 Doug. 177. (w) Ante, p. 40, (Summons); 1 Doug. 149—160. See infra, tit. "Summons.'' R. T. Exon (Mayor), 1 Show. 259, 3rd edit., n. (A). {x) R. T. Taylor, 3 Salk. 231. See tits. "Alderman" (Restoration, Eetnm)' " Parish Clerk" (Restoration, Return). F p 1 E. 247 in corporation Ibooks, is not only an offence at common law, but also against the official duty, and therefore good cause of disfranchisement ;(^) the erasure should, however, be alleged to be detrimental to the corpora- tion, (a) .] Incapacity. — Also to such a writ, a return of any incapacity, is good, if the defendant be the judge of it;(a) a confession of an amo- tion and a justification of it on such a ground is a very common species of return. (6) .] Incompatible Office. — If a prosecutor have taken a second office, which is incompatible with, and avoids his tenure of a prior one ; such fact, if properly stated, will be a good return, (c) .] Slander. — A return of an amotion, because the prosecutor has *spoken opprobious or slanderous words of an officer of the same p^, qq, corporation, is not good, unless spoken concerning the official duties of such officer ;(fl!) but if so spoken, the prosecutor may be, therefor, dis- franchised, without a previous conviction. (e) ' .] Neglect of Official Duties. — If an officer act contrary to the nature and duty of his office ; or if he refuse to act at all, the office may therefor become forfeited ; so that all commissions or omissions, within the spirit of such rule, will form a good matter of return in confession and avoidance, to a writ of mandamus to restore, &c.(/) Thua a general neglect or refusal to attend to the duties of an office, is a ground of for- feiture ; so determined neglect or wilful refusal ; but a single instance of omitting to attend, when no particular business was expected, does not work a forfeiture, (g') Thus occasional non-attendance at the Court of Quarter Sessions, is no cause of forfeiture of a municipal office ; for though there be a difference between public offices that concern the administra- (y) BuU. N. P. 204 ; ante, p. 40. R. v. Wilton (Mayor), M. 8 Wm. 3 ; Ld. Raym. 225. S. C. 5 Mod. 257. S. C. 2 Salk. 428. S. C. nom. R. v. Chalk, Comb. 396, 397. E. V. Derby (Mayor), Cas. t. Hard. 153, per Hardwicke, C. J. Yates's case, Sty. 480. R. T. Perrott, M. T., 8 Anne. But see K. T. Hutchinson, 8 Mod. 100, citing Fort. 200. See tit. " Alderman" (Restoration, Return, Erasing Corp. Books). h) E. V. Chalk, Ld. Raym. 226. [a] Ante, p. 72. R. v. Cambridge (U.), 8 Mod. 148 ; 10 Mod. lU. See tits. "Churchwarden" (Swearing in. Return, Incapax), "Lectureship." (S) Ante, p. 194. R. t. Guildford (Approved Men), 1 Lev. 162. S. C. 1 Keb. 868, 880. S. C. Raym. 152 ; 10 Mod. 1Y4. (c) R. T. Sandwich (Corp.), 2 Keb. 92. Awdley's case. Latch. 123. R. v. Pate- man, 3 T. R. 777. See tit. " Town Clerk" (Restoration, Return). (d) R. T. Gloucester (Mayor), Holt, 450. Jay's case, 1 Vent. 302. S. C. 3 Keb. 714. Clark's case, 1 Vent. 327. S. C. Cro. Jac. 506. Parker's case, 1 Vent. 331. Bagg's case, 11 Rep. 98. S. C. 1 Roll. 79 ; 11 Mod. 379. R. t. Raines, 3 Salk. 234. Earle's case, Garth. 173, where see form of return. See R. t. Cambridge (Chan- cellor), Stra. 557. See tits. "Alderman" (Restoration, Return), " Councillor" (Res- toration, Return). Lord Hale usually required such a return to be sworn. See tit. " Councillor" (Restoration, Return), and post, tit. " Return." (e) Ante, p. 195, per Portescue, J., 11 Mod. 379. But see R. t. Lane, Fort. 275. (/) Ante, p. 194. See Bac. Abr. tit. " Office" (M.) See infra, u. [g), (A), as to return, and see post, tit. " Return." [g) Burr. 2004; 2 Salk. 434. S. C. Ld. Raym. 1233. See tit. "Recorder" (Res- toration, Return). 248 tapping's mandamus. tion of justice, and private offices, in this, that nonuser in the one, is no forfeiture without a request, and some special loss occasioned thereby, as it is in the other ; yet as the absence of a single officer, as an alderman, does not hinder the holding of Courts, or the valadity of the acts of that Court, such an absence does not amount to a neglect or nonuser of such office. (A) .] Oaths. — As to a return of omission to take oaths, see supra, titles Aldermen (Restoration ; Retwrn) ; Admission {Return ; Oaths). .] Statement in^ Return of Causes of Removal. — Where an amo- tion is returned, the return must contain all the facts necessary to shew that the prosecutor was removed in a legal and proper manner, and for a legal cause. It is not sufficient to state conclusions only, the facts themselves, upon which the amotion was founded, must be precisely alleged, in order that the Court may be the judge of the matter ;0 so that a general allegation of neglect *and omission of duty, has L ■' been held to render such a return insufficient,(y) and to warrant a peremptory mandamus. (A;) So a return which alleged the articles or causes of removal, "ad effectum sequentem," has been held to be iU.fZ) This principle does not, it seems, apply to an amotion from the office of common councilman ;(?») nor to any office which is either at pleasure or discretionary. («) The cause of removal must shew a neglect of duty, &e., in theporiicM- lar office from which the prosecutor has been removed. (o) So that a return that the prosecutor had misbehaved as chamberlain, and therefore [k) Bull. N. P. 202, 203. R. v. Bristol (Mayor), 1 Show. 288. E. v. Pomfret (Mayor), 10 Mod. 108 ; Reynell's case, 9 Rep. 99. Serjt. Wliitaker's caaej 2 Salk. 434. S. C. Ld. Raym. 1233. R. v. Carlisle, Stra. 385. R. v. Leicester (Mayor), Burr. 2087. R. v. Wells, Burr. 1999. R. t. Richardson, Burr. 517. R. t. Exon Mayor), 1 Show. 260, 3rd edit., u. (6). R. v. Wells (Corp.),. Burr. 1999. Shrews- bury's case, 9 Rep. 46 b. (i) Bull. N. P. 203. Bao. Abr. tit. " Man." (I.) See post, tit. "Return." R. v. Buckingham (Corp.), 10 Mod. 174, 175. R. v. Liverpool (Mayor), Burr. 731, per Mansfield, 0. J. R. v. I>oncaster (Mayor), Say. 37 ; and see S. C. Ld. Raym. 1566. R. V. London (Mayor), 3 B. & Ad. 261.-f- R. v. Abingdon (Mayor), 2 Salt. 432. R. T. Lyme Regis (Mayor), 1 Doug. 149. Bagg's case, 11 Rep. 98. R. v. Exon (Mayor), 1 Show. 259, 3rd edit. Freeman's case, Cro. Car. 579. R. v. Corye, Sty. 87. E. T. Wilton (Mayor), 2 Salk. 438. S. C. Ld. Raym. 225. S. C. 5 Mod. 255, 257. {]) R. T. Doncaster (Mayor), Ld. Raym. 1566. S. C. Say. 37 ; Doug. 144. Warren's case, Cro. Jac. 540. R. t. Deighton, 2 Keb. 656. Bac. Abr. tit. " Man." [k) R. T. Shaw, 12 Mod. 113. R. v. Apleford, 2 Keb. 861, and cases there cited. (;) R. T. Hutchinson, 8 Mod. 102 ; but see S. C. Fort. 200. R. v. Bear, 2 Salk. 417. Pnllen v. Palmer, Ld. Raym. 496. See post, tit. " Return." (m) Dighton's case, 1 Tent. 82. S. C. 2 Keb. 656. Warren's case, Cro. Jac. 540. See tit. " Councilman." {n) See ante, p. 12—15. R. v. Eye (Bailiffs), 4 B. & A. 271.+ S. 0. 1 B. & C. 85. S. 0. 2 D. & R. 172.t (o) Ante. Bull. N P. 203. Lord Hawley's case, 1 Vent. 145. Anon., Sty. 151. Bagg's case, 11 Rep. 93 b. R. v. Chalke, Ld. Raym. 255. S. C. 2 Salk. 428. K. T. Hutchinson, 8 Mod. 99. R. v. Newbury (Mayor), 1 Q. B. 751.-i; S. C. 1 G. 4D. 388. OFFICE. 249 they had removed him from his ofiSce of capital burgess, has been held to be bad.(^) . 2nd. The Power of Removal, &c. — The power to remove or suspend, must be shewn upon the face of the return,(g') in order that the Court may see both that such a power exists, and that it has not been exceeded ; for if the power to remove be only for " reasonable cause," the Court will inquire into the cause, (r) In a return to a mandamus to restore, if it be stated that the prosecu- tor was removed by the municipal body at large for a corporate offence, it is unnecessary to aver that a power of removal for such offence is vested in them; because such a power is inherent in their constitution, and therefore the law will take notice of it without averment, according to the rule " Expressio eorum quae tacite insunt nihil operatur." Sometimes, however, such power is expressly given by charter, by-law, &c. to a select part ; if vested in a select part,(s) the return should shew how, whether by charter or *prescription, &c. If the prosecutor mean to contend j.^n[\r\-\ that it is vested in a select part, he may either allege it in reply L -' to the return, or bring an action for a false return. (<) The return should shew that the power of removal has been duly exer- cised ;('w) thus, as a corporation cannot amove by an order, but only by an act under the Common Seal, so such an act must be shewn in the return. (d) But where an election is merely entered in a book, a bare order of discharge is suflB.cient.(io) So, where a return stated the amotion to have been made per Majorem et Burgenses generally, the Court pre- sumed it to have been executed by all, and not by the mayor and major part of the burgesses, for " indefinitum sequipoUet universal!," and stated if all the burgesses were not there, an action for a false return would have lain.(a;) But where a return alleged that the mayor, &c. had met in the (p) E. T. Doncaster (Mayor), Ld. Eaym. 1564. S. C. 1 Barn. 264. Com. Dig. tit. "Man." D. 4. [q] R. T. London (Mayor), 2 T. E. 119. Brace's case, Str. 819. B. v. Guildford, 1 Lev. 162. S. C. 1 Keb. 868, 880. S. 0. Ray. 152. Com. Dig. tit. " Man." D. 4. (r) Ante, p. 198, n. (i). R. t. London (Mayor), 3 B. & Ad. 267.1 R- v. Strat- ford-upon-Avon (Mayor), 1 Lev. 291 ; Ld. Raym. 710. R. v. London (Ep.), 13 Bast, 419, and n. (a). R. v. Thame (Churchwardens), Str. 115. R. v. Cambridge (U), 8 Mod. 161, per Pratt, C. J., citing 5 Rep. 67. (a) E. v. Lyme Regis (Mayor), 1 Doug. 149, where see form of return. E. v. Richardson, Burr. 517. Haddock's case, Raym. 439. Lord Brace's case, Stra. 819. Symmers v. Regem, Cowp. 502. E. v. Lyme Regis (Mayor), 1 Doug. 149. Exeter (City) v. Glide, 4 Mod. 34, n. (a). R. v. Doncaster (Mayor), Say, 38. R. v. Liverpool (Mayor), Burr. 732. Bac. Abr. tit. " Man." (L) H) 1 Doug. 149, (144), supra. R. v. Doncaster (Mayor), Say. 38. S. C. Bull. N. P. 201, 205. S. C. Ld. Raym. 1564. Com. Dig. tit. " Man." D. 3. E. v. Fevers- ham, 8 T. R. 536. Bac. Ab. tit. " Man." (I). A power of amotion ad libitum not being incident to a corporation, must, when relied upon, be positively alleged; 2 Salk. 430, n. (a). (m) R. v. Doncaster (Mayor), Say. 38. Com. Dig. tit. " Man." D. 3. (v) Bull. N. P. 204. E. V. Wilton (Mayor), 5 Mod. 259. S. C. 2 Salk. 428. R. V. Holt, 3 Keb. 700; cases there cited. (w) R. .. Chalke, Ld. Raym. 226. (x) R. V. Brayfield, 2 Keb. 489, and Colchester's case there cited; 1 Bulst. 160; March. 165. And see Dightonv. Stafford (Corp.), 2 Keb. 641. 250 tapping's mandamus. council house, but it was not said to be at a common council there held, such return was quashed. (^) The return should also shew, that the body removing had not only the power to remove, but were legally constituted for the occasion. So that it is not sufficient to say that the common council in due manner met and assembled, it must expressly allege that they were all summoned ;(«) for the omission to summon one member, resident within the limits of the borough, to a corporate meeting, avoids the acts of that meeting, (a) But a return which stated that the body was duly assembled to amove, &c., has been held to be sufficient.(^ The notice to the corporators to meet, should contain a statement of the particular business for which their presence is required,(c) . 3rd. Summons ; when Necessary. — After a person has been ad- mitted to an office, he cannot be justly amoved from it in invito without having previously forfeited it, and an inquiry had, as to whether there has been a forfeiture or not ; which inquiry can only be made after the party *amoved has been personally summoned to answer the matters L -' wherewith he is charged, (rf) A summons, therefore, is in general necessary in all cases where the amotion is in invito. But where the prosecutor is amoved for non-resi- dence, or he reside out of the borough, &c., the corporation is not bound to go out of its jurisdiction to summon him.(e) It must, however, clearly {jA R. T. Gloucester (Mayor), 3 Bulst. 126. See post, tit. "Return" (Certainty). (z) Bull. N. P. 204. R. T. Liverpool (Mayor), Burr. 232, 723. Com Dig. tit. " Man." D. 4. How a removal was effected need not be alleged on a remoTal from an office durante bene placito. R. v. Holt, 3 Keb. TOO. R. v. Cambridge (Mayor), 2 Show. 70. Ante, p. 176. (a) R. T. Shrewsbury (Mayor), Cas. t. Hard. 147. S. 0. Stra. 1051. S. C. Andr. lYl. S. C. Eidgw. 46. S. C. 14 Vin. Abr. 583, c. 4 ; Bull. N. P. 208. R. T. Grimes, Burr. 2598. Bagg's case, 11 Rep. 90. R. T. Gaskin, 8 T. R. 209. R. v. Truebody, Ld. Raym. 1275. R. v. Chalke, Ld. Raym. 226. R. v. Darlington School, 6 Q. B. 707.t (b) E. T. Doncaster (Mayor), 2 Ld. Ken. 391 ; Burr. 738. (c) R. v. Doncaster (Mayor), Burr. 738; R. v. Carlisle (Corp.), Stra. 384; 11 East, 84, u. (a), nom. Machell v. Nevinson, E. 10 Geo. 1. (d) Supra, p. 195 ; Bull. N. P. 204 ; Bac. Abr. tit. " Man." (I.) R. v. London (Mayor), Holt, 169, 170. R. v. Gaskin, 8 T. R. 209. E. t. Davies, 9 D. & R. 2d9.t R. v. Smith, 5 Q. B. 619.-|- S. C. 1 D. & M. 565, where see plea of "no summons." S. C. 13 L. J., N. S. 166, Q. B. R. v. Oxford (Mayor), Latch. 229. S. C. Palm. 455. Bagg's case, 11 Rep. 93 b. Painter v. Liverpool Gas Company, 3 A. & B. 433.t R. v. Langley, 5 Q. B. 619,t n. [g). R. v. Neale, 4 N. k M. 868 ;t 6 Q. B. 622,f n. (c). E. v. St. James' (Vicar), 5 Q. B. 622.f R. v. Darlington School, 6 Q. B. 709.f R. V. GrifSths, 5 B. & A. 731.-f The Protector v. Colchester (City), Sty. 447, 453. R. v. Cambridge (U.), Stra. 566, per Portescue, J. S. C. Fort. 204. R. T. Aldborough, 10 Mod. 101 ; 10 Mod. 180, n. (/). Dunch v. Norwich (City), 2 Salk. 436. R. t. Bentley, Stra. 912. R. v. Litchfield (Ep.), 7 Mod. 217; 1 Bing. 357.f Dr. Sherlock v. Norwich (Dean), Port. 222. See further, as to summons, tit. " Alderman" (Summons). («) R. T. Exeter (Mayor), 1 Show. 365, 366. S. C. Comb. 198. S. C. 4Mod, 33. S. C. Holt, 169, 435. S. 0. 12 Mod. 27; and see supra, Cowp. 503; 1 Doug. 149. R. V. Shrewsbury (Mayor), 7 Mod. 202. R. v. Truebody, 11 Mod. 75. S. 0. Ld. Raym. 1275. S. C. Holt, 449. E. v. Grimes, Burr. 2598. See 1 Kyd. on Corp. 443. Bagg's case, 11 Co. 99. R. v. Lyme Eegis (Mayor), 1 Doug. 149. See tit. "Alder- man" (Return, Summons). A corporate office does not become ipso facto vacant OPEIOE. 251 appear that the non-residence is with the intention of withdrawing per- manently, or the Court will grant a peremptory mandamus. (/) But where a good and true cause of suspension or removal is returned, the Court will not, although the prosecutor have not been summoned, restore him to his office. Thus, where a corporator declared that he would serve no longer, and was thereupon removed, the Court refused to restore him, though he had not been summoned. (gr) So after a voluntary resig- nation. (/i) So, where a mandamus was applied for to restore a town clerk, upon the goound that he had been removed without notice to ap- pear and defend himself, the Court refused the writ, because it was ad- mitted there was sufficient cause for the amotion. (i) . For what offices. — Those offices only which are of a freehold nature, whatsoever the ground of amotion may be, require a previous summons, &c.(y) For to a mandamus to restore an officer who is in at ♦pleasure only, it is, as before stated, a good return to say, it was ^^^nn-i their pleasure to remove him, and in such a case a summons is "- -' not necessary j(A;) but if by the return it should appear that such officer was amoved for some misfeasance, and the power to remove ad libitum be not returned nor relied upon, then the return mast allege a summons, &c. as in other cases.(f) So, no summons previously to removal is necessary, where there is a discretionary power of amotion, (m) . Form, of sumTnons. — The cases differ considerably as to whether the summons may be merely general in its terms, or that it is necessary that it should particularly specify the matters to be charged. Thus, the Court has on many occasions stated, that there need not be any summons to answer particular matters ;(n) on other occasions the Court has said, that the prosecutor should have had a particular summons for a particular charge, and that it is not sufficient to summon generally, and then to allege particular crimes, &c. against him, which he may not be prepared by non-residence, — it is a forfeiture ; but tbe franchise is not lost till a sentence of amotion has been pronounced; see ante, p. 197. R. v. Exon (Mayor), 1 Show. 260, 3rd edit., n. (A), citing E. t. Heaven, 2 T. B. 112. 1 Show. 365, citing Moore, 135,833. (/) Ante, p. 197. E. v. Truebody, Ld. Eaym. 1275. B. v. Leicester (Mayor), Burr. 2089. B. v. Lyme Eegis (Mayor), 1 Doug. 149. See Espinasse's Dig., 2nd edit., p. 679. See tit. "Alderman" (Bestoration, Eetum, Non-residence). (g) Ante, p. 192. E. v. Axbridge, Cowp. 523. E. v. London (Mayor), 2 T. B. 177. E. T. Dr. Gaskin, 8 T. E. 209. E. v. Tidderley, 1 Sid. 14. Hazard's case, 2 KoU. 11. (h) Ante, p. 192. R. t. Eippon (Mayor), 2 Salk. 433. S. C. Ld. Eaym. 563. U) Ante, p. 192. E. T. Bxon (Mayor), 1 Show. 259, 3rd edit., n. (e), citing 260, n. (j) R. T. Axbridge (Mayor), Cowp. 523. [J) Recorder of Colchester's case, 2 Eeb. 656 ; and see Sid. 461. B. v. Dighton, supra, p. 176, n. (t). (k) Ante, p. 176. E. t. Thame (Guardians), Stra. 115. B. v. Holt, 3 Keb. 700. Com. Dig. tit. "Man." (D. 3). Dighton v. Stratford-upon-Avon, 2 Keb. 641. (I) Ante, p. 176. Stra. 115, supra. E. v. Ipswich (Bailiffs), 2 Salk. 435, 16. S. C. Ld. Raym. 1233. (m) Ante, p. 12—15. E. v. Darlington School, 6 Q. B. 682.+ («) E. T. Wilton (Mayor), 5 Mod. 259. S. C. 2 Salk. 428. S. C. Ld.Eaym. 225. Com. Dig. tit. " Man." D. 3. 252 tapping's mandamus. to answer, (o) It would seem, that the summons should specially allege the grounds of the amotion. No public notice is necessary.Qj) . Allegation of Summons in Return. — As the fact of summons is necessary to a legal amotion, so a specific allegation of summons, or of equivalent facts, in a return of such an amotion, is so requisite to ite validity that its absence is an objection that can never be got 0Ter,(}) Therefore, in all cases in which a mandamus is brought to command a restoration to an of&ce, the return must not only shew the cause of remo- val, but that the party removed was summoned to answer, or was heard in his defence. Thus, although a municipal corporation have lawful au- thority, either by charter or prescription, to remove, and may have had just cause to remove the prosecutor, yet, if it appear from the return that they proceeded against him without having either summoned or heard him in answer to what was objected against him, such removal will be void, and will not bind the prosecutor, because it is against justice and right.(r') So, where a return *did not show upon the face of it L -^ that the prosecutor had been, previously to amotion, summoned or heard as to the matters objected against him, it was quashed.(s) It is not however necessary, that the prosecutor should, in pursuance of the sum. mons, have appeared to answer the charge. (i) An allegation of non-attendance, licet summonitus, has been held good by three judges, contra Holt, C. J., who held a particular summons to be necessary.(M) So, an objection taken to a return to a mandamus to restore to the oflSce of alderman, that it was not stated that the alderman had notice to defend himself, but that he had been summoned to attend in his place as alderman, was overruled ; it being held, that such an allegation was equivalent to a formal notice.(«) So, if the return say " quod pro- (o) Exeter (City) v. Glide, 4 Mod. 37, n. (a). Bagg's case, 11 Rep. 99. E, t. Liverpool (Mayor), Burr. Y31. Morris's case, M. 1 Wm. 3, cited in Mod. 37. E. T. Exon (Mayor), 1 Show. 259. R. v. Chalke, Ld. Baym. 225. S. 0. 2 Salk. 428. S. C. 5 Mod. 254, 257. B. v. Exeter (Mayor), 1 Show. 365, 3rd edit., per Holt, C. J. R. V. Cambridge (Chancellor), Stra. 557. See infra, n. («). (j>) B. T. Shrewsbury (Mayor), 7 Mod. 202, citing Serjeant Glide's case, 4 Mod. 33. S. 0. 1 Show. 258, 364. S. C. Comb. 197. S. C. Holt, 169, 435. S. C. 12 Mod. 27, 251. S. C. Ld. Baym. 223. (q) B. T. Cambridge (U.), 8 Mod. 164, citing Dr. Bentley's case, 2 Bam. 19, 22. E. V. Shrewsbury (Mayor), 7 Mod. 202. B. v. Wilton (Mayor), 2 Salk. 434. S. C. Ld. Baym. 225. S. C. 5 Mod. 255, 257. (r) Bragg's case, 11 Co. 99 b., cited in R. v. Smith, 1 D. & M. 573. S. C. 5 Q. B. 614.f See p. 200, and tits. "Alderman" (Restoration Summons). (s) 9 Edw. 4, 14. Campion' 3 case, 2 Sid. 97. Bagg's case, 11 Bep. 99 a. Anon., Sty. 151, 447. The Protector v. Colchester (Town), Sty. 452. B. v. Brayfield, 2 Keb. 488. R. v. Dr. Gaskin, 8 T. R. 209. E. T. Aldborougb (Borough), 10 Mod. 101. R. T. Cooper, 1 Keb. 777. R. v. Heaven, 2 T. R. 772. Dr. Bentley's case. Port. 202, 206, 235. S. 0. Stra. 557; Ld. Baym. 1334; Com. Dig. tit. "Maii."R 3, D. 4. B. v. Cambridge (U.), 8 Mod. 154. Exeter (City) t. Glide, 4 Mod. 37. U) Com. Dig. tit. " Man." D. 3. («) R. V. Glyde, 12 Mod. 28. S. 0. 1 Show. 364. S. C. Holt, 169, 435. S. 0. Ld. Raym. 223 ; 1 Doug. 149 ; Cowp. 503 ; supra, p. 199, n. (z). See ante, p. 202, n. (n), (o), (t). (v) R. V. Gaskin, 8 T. R. 210, citing 11 Co. 99 a. R. T. London (Mayor), M., 26 ORGANIST. 253 curaveruEt cum summoneri," it is sufficient, (w) But an allegation of licet saspius requisitus, &o., has been held not to be sufficient to express a sum- moning, (as) ^ If it be alleged " that the prosecutor appeared and was heard," it is sufficient; for appearance cures a want of summons, and in such case a summons need not be alleged, for the Court will presume he was heard in his defenee.(i!i) So, an allegation of " quod fuit auditus de materiis objfectis" has been held to be sufficient, although it did not state that he was summoned; for the intent of the summons is, that the prosecutor may be heard.(a) But a return that the prosecutor was heard of that and other crimes, without stating what crimes, has been held to be bad ;(i) because it did not appear but the crimes were such as would not justify a disfranchisement, and the Court wUl intend nothing but what is sufficiently alleged.(c) .] 4th. Proof that Causes of Removal are True. — It should ap- pear on the return, that on the hearing, &c., had in pursuance of the summons, &c., *the charge for which the prosecutor was removed r^nn^-i was proved ; it is not sufficient to state merely that he was present when the charge was made, and did not deny \t.{d) The return should also describe the nature of the proof, which must be such as is allowed at common law.(e) .] 5th. Removal founded on alleged Cause of Removal. — The return should upon the face of it shew, that the judgment of amotion was found- ed upon the evidence given(/) against the prosecutor on the hearing had in pursuance of the summons. .] 9th. As to compensation for loss of office, see tit. Compensa- tion ( Office). Organist.] Election. — The writ does not lie to command the vicar, M E. T. Braithwaite's case, 1 Vent. 19 ; Com. Dig. tit. " Man." D. 3. (x) E. T. Wilton (Burgesses), 5 Mod. 258. Exeter (City) v. Glide, 4 Mod. 31. S. 0. 1 Show. 364. S. C. Ld. Eaym. 223 ; Com. Dig. tit. " Mint." D. 4. (a) R. T. Dyer, 1 Salk. 181. S. C. Ld. Raym. 1406. R. v. Johnson, Stra. 261. R. v. Wilton (Mayor), 2 Salk. 428. S. C. Ld. Raym. 225; nom. R. v. Chalke. S. 0. 5 Mod. 255, 257. R. v. Exon (Mayor), 1 Show. 259, 366, 3rd edit., n. (c). R. V. Ipswich (Bailiffs), 2 Salk. 435. S. C. Ld. Raym. 1233. S. C. Holt, 444. R. v. Oxford (Mayor), Palm. 453. R. v. Liverpool (Mayor), Burr. 731. See 2 T. R. 181. R. T. The Baily, 1 Keb. 33. R. v. Gloucester (City), 3 Buls. 189. R. v. Shrews- bury (Mayor), 1 Mod. 202. (a) 5 Mod. 259. S. C. Salk. 428, supra; Com. Dig. tit. " Man." D. 3. (b) E. T. Wilton (Mayor), 5 Mod. 259. Manaton's case, Raym. 365. See post, tit. "Return" (Certainty). (c) Supra, n. («). See post, tit. "Return." {dy&. T. Faversham Fishers, 8 T. R. 352, 365 ; 2 B. & Ad. 105.f R. t. Richard- son, Burr. 538. Harman v. Tappenden, 1 East, 562 ; and see 1 M. & S. 697. R. v. Carmarthen (Burgesses), 1 M. & R. 697 ; Bull. N. P. 202. R. v. Neal, 4 N. & M. 868.t E. T. Smith, 1 D. & M. 564. S. C. 5 Q. B. 614.t See tit. " Parish Clerk" (Return). |e) E.'t. Wilton (Mayor), 5 Mod. 258. (/) 8 T. E. 354; Burr. 538, supra. R. v. Buckingham (Corp.), 10 Mod. 176, citing Bagg's case, 11 Rep. 97. R. v. Oxon (Mayor), 2 Salk. 429. R. v. Ipswich (Bailiffs), 2 Salk. 435 S. 0. Ld. Raym. 1233. 254 tapping's mandamus. &c., of a parish, to meet for the purpose of electing an organist for the parish church, although for all time of living memory, there may have always been an organist, who has been paid a stipend out of the church- rates.(gf) .] Admission. — At a vestry meeting convened for the purpose of electing an organist, it was unanimously agreed that the course pursued on a former vacancy should be followed ; namely, that a committee of the vestry should elect six out of the candidates, who should perform in the parish church each on a separate Sunday, and that one of the six candi- dates should be received. It was held, that this mode of proceeding was not unreasonable, and that the Court would not grant a mandamus to admit to the ofiSce a person in whose favour the greatest number of votes had been tendered, but who was not one of the six candidates.(A) Overseers op the Poor.] This subject is arranged as follows : — OvEESEERS — Swearing in - 205 204 Duty, &c. - 206 205 Accounts - 206 205 Rendering - 206 205 Allowance - 206 205 Payment - 207 Election Appointment Application Affidavits Return . j Election. — The writ lies to command justices of the peace to hold, *under the provisions of a local act, a petty sessions, and r*2051 - ~ r -• ~ 7 r J ~! " L -' thereat receive from the vestry clerk a list of the names of those nominated by the inhabitants to serve the office of overseers of the poor, and to select and appoint therefrom certain of them to serve such office ;(i) and also to command parish officers to produce the poor-rate and other books, at a scrutiny of the votes given at a poll which has been taken for the election of overseers. Q') .J Appointment. — The writ will also be granted to command jus- tices of peace to appoint overseers for a place by law entitled to have them,(7c) notwithstanding it may be extra-parochial, if it be a vill, which [(/) Ex parte Le Cren, 2 D. & L. 5T1. S. 0. 14 L. J.,. N. S. 34, Q. B. It is not an office known to the law. Ante, p. 113, u. [g). See tit. " Office" (Known to the Law.) (A) 2 D. & L. 511, supra. See tit. " Office" (Admission). (i) R. v. Hedger, 4 P. & D. 61. S. C. 12 A. &E. 139, 15l.t S. C. 9 L. J., N. S. IIY, M. C. See tits. " Act of Parliament," " Churchwarden" (Election), "Office" (Election), "Parish" (Officers, Election). (y) R. T. Fall, 1 a. & D. 118. S. C. 1 Q. B. 636.-J- See tits. " Church" (Church Trustees), " Churchwarden" (Election), "Vote." And post, p. 208, n. (o). (k) Ante, p. 9, 27, 28. R. v. Horton, 1 T. K. 3'74. R. v. Newell, 4 T. R. 266. R. T. Salop (J.), 3 B. & Ad. giCf R. v. Worcestersh. (J.), 12 A. & E. 28. S. C. 3 P. &D. 465. S. C. 9 L. J., N. S. 81, M. C. S. C. 4 Jur. 1009. R. v. Middlesex (J.), Sav. 148. R. T. Lancaster (J.), 2 Barn. 430, 431. R. v. Palmer, 8 East, 416 : Bac. Abr. tit. "Man."(D.) (Z) R. T. Rufford (Inhabs.), Str. 512. S. C. Fortes. 321. S. C. 8 Mod. 39. S. C. OVERSEERS OF THE POOR, 255 must be shewn on the affidavits ;(Z) or for a hamlet, which never before had overseers, if entitled to have them.(m) So where a parish consists of several townships, some of which maintain their own poor, and have overseers separately appointed, the Court will grant a mandamus to com- mand a separate appointment,(n) notwithstanding the statutory period of time within which they should have been appointed, may have ex- pired.(»m) The writ does not, however, lie to command an overseer to allow inspec- tion of his appointment, such an application being properly the subject of an appeal to the sessions, (o) . Application ; Affidavits. — The affidavits must expressly shew that the place in question actually is or is reputed to be a vill,(j)) or otherwise as by act of Parliament, &c., entitled to have overseers. . Return. — It is a good return to such a mandamus, that the place for which the overseers are sought to be appointed is not entitled to have them.(g) .] Swearing in. — The writ also lies to command churchwardens to *perform the ministerial act of swearing in overseers of the p^nf,f,-| poor ;{r) and the rule for this purpose is absolute in the first ^ ^ instance, (s) . Duty, &c. — The Court will not, by mandamus, command an overseer to join in doing a particular act, if there be a concurrence of the majority, because that is sufficient ; but if one will neither do nor join in the doing of an act which he ought to do, the Court, in either case, will grant a mandamus to compel him.(i) .J Accounts, Rendering. — As justices of the peace have, under stat. 17 Geo. 2, c. 38, a discretionary power whether or not they will com- mit overseers for not rendering an account ; so the Court of B. R. will Foley, 9, cited in 2 Salk. 486, marg. R. v. Lancash. (J.), 1 D. & E. 485.f R. v. Sparrow, V Mod. 393, where see form of writ. S. C. Stra. 1123, and cases there cftBd. See 1 T. R. 374, supra; Com. Dig. tit. " Man." (A.) R. v. Bedfordsh. (J.), Cald. 15Y. R. V. Peterborough (J.), Cald. 238 ; Bac. Abr. tit. " Man." (D.) And tit. " Churchwardens." (m) R. Y. Westmoreland (J.), T. 19 and 20 Geo. 2 ; 1 Wils. 138 ; Com. Dig. tit. "Man." (A.) (n) R. T. Horton, 1 T. R. 374. R. v. Palmer, 8 East, 416, and see R. t. Walsall, 2 B. &A. 157.t , [nn) Ante, p. 22, n. (a). E. v. Sparrow, supra, n. {I). See tit. " Act of Parlia- ment." (o) Ante, p. 21. R. T. Harrison, 16 L. J., N. S. 33, M. C. See tits. " Books, &o.," " Quarter Sessions" (Appeal). [p) Ante, p. 27, 28. R. v. Bedfordsh. (J.), Cald. 157, 238. See post, tits. "Affi- daTits," "Application" (Affidavits). (?) R. T. Welbecfc (Inhabs.), Stra. 1143. And see Burr. 1391, 1393, supra. See ante, tit. " OfBce" (Restoration, Return), and post, tit. " Return." (r) R. T. Manchester (Churchwardens), 7 D. 707. See tits. " Churchwardens" (Swearing in), " Office" (Swearing in). See post, tit. " Return," and ante, p. 12. («) Ibid. See post, tit. " Rule." (t) Ante, p. 9, 15. R. v. Beeston, 3 T. E. 592. See tits. " Alderman" (En- forcing Duty), " Corporation Municipal" (Duties, &c.), " Office" (Enforcing Duties), " Poor." 256 tapping's mandamus. not command them to issue their warrant, under that statute, against the overseers, on their default, (m) The writ, will, however, be granted to command overseers, &c., to pass their accounts, pursuant to stat. 50 Greo. 3, c. 49. (i>) So it lies to com- mand the Quarter Sessions to hear and determine a complaint against ex- overseers, &c., for not having signed, passed, and delivered to the succeed- ing overseers, &c., proper accounts conformably with stat. 17 Geo. 2, c. 38 ; to which the defendants may return that they have, in fact, signed, &c. their accounts, (w) But a mandamus to command ex-overaeers to account under stat. 43 Eliz. c. 2, with the then present overseers, has been quashed, because by such statute, the account is to be rendereito the justices, &c., and not to the overseers. (a;) So it will not lie to com- mand them to account, unless it appear that there is no other Temeij.[y) So where overseers produce their accounts to the auditor appointed by the poor law commissioners, but refuse to furnish particulars of the items of those accounts, the Court will not grant a mandamus, to compel them to do so, the auditor having it in his power to disallow such charges, (z) .] Allowance. — The writ lies to command justices to examine, allow, and pass the accounts of the overseers of the poor, under stat. 50 Geo. 3, c. 49, s. 1 (a), and also to command them to swear such overseers r*'>n7l *° their ^accounts, under stat. 17 Geo. 2, c. 38 ; but if the jus- '- ^ tices have a legal objection to do so, they may return it.(6) The application for the writ is granted as of course, (c) The writ will also be granted to command the Quarter Sessions to enter continuances, and receive and hear an appeal, which ought to be received, against the allowance of overseers' accounts, &c.(rf) So as to an appeal against an allowance of the accounts of an assistant overseer, unless there be a limitation in the warrant of his appointment, which prevents his accountability to the parish. (e) So against the allowance of the accounts (u) Ante, p. 12, 15. E. v. Norfolk (J.), 1 N. & M. 6l.f See tits. "Accounts,' " Churchwardens" (Accounts). (v) Ante, p. 9. E. v. Warwicksh. (J.), 2 D. & R. 299.f 5 B. & C. 430.t See tits. " Act of Parliament," " Churchwardens" (Accounts), " Constable" (Accounts). (w) R. T. "Worcestersh. 3 D. & R. 299.t R. v. Carrocke, 1 Bott. P. L. 299 ; Sliow. 395. See tit. " Churchwarden" (Accounts). (x) Ante, p. 27, 28. Anon., 2 Salk. 525, 6. M Ante, p. 18— 27. R. v. Shepton Mallett (Overseers), 5 Mod. 421. (zj R. T. Halifax (Overseers), 10 L. J.. N. S. 81, M. C. See tit. " Auditor." (a) Ante, p. 9. R. v. Cambridge (J.), 8 D. 89, citing R. t. Flockwold Inclosnre, 2 Chit. 251. R. T. Barlow, 2 Salk. 609, and cases there cited. R. v. Baton, 9 L. J., N. S., 98, M. C, per Parker, C. J. R. v. Townsend, 1 Bott. 305, p. 318. See tits. " Act of Parliament," " Churchwardens" (Accounts, Allowance, &c.) ib) R. T. Middlesex (J.), 1 Wils. 125. Com. Dig. tit. "Man." (A.) (c) 1 Wils. 125, supra, n.(i). See post, tit. " Application." (d) Ante, p. 9, 11. R. v. Colchester (J.), 5 B. & A. 535.t S. 0. 1 D. & E. Ue.f R. T. Norfolk (J.), 2 B. & Ad. 944.-f- E. v. Glouoestersh. (J.), 1 B. & Ad. 2.f B- V. Dorsetsh. (J.), 15 East, 198. E. t. Worcestersh. (J.), 5 M. & S. 45'r. See tit. " Quarter Sessions" (Appeal). (e) R. V. Watts, T A. & E. 464.t R., v. Worcestersh. (J.), 5 M. & S. 45T. PARISH. 257 of ex-overseers, and this though a special sessions may hav.e previously allowed them, under stat> 50 Geo. 3, c. 49, s. l.(/) But as to the power of Quarter Sessions to allow accounts submitted to them annually by overseers, under stat. 50 Q-eo. 3, c. 49, s. 1, on their going out of office, is not taken away by stat. 4 & 5 Wm. 4, c. 76, s. 47, which requires such accounts to be passed quarterly, before an auditor appointed by the poor law commissioners ; therefore where a sum disallowed by the auditor, at his quarterly audit, was afterwards allowed by justices, in pass- ing the annual accounts, the Court refused to command the justices to to order the overseers to pay over to their successors, the sum which had been so disallowed by the auditor. (§') •. ■. Payment. — On a proper case being shewn, the Court will grant the writ to command justices to proceed on a complaint against overseers, under stats. 43 Bliz. c. 2, ss. 2 & 4, and 17 G. 2, c. 38, s. 3, for refusing to pay over the balance of money in their hands, (A) and also if necessary and proper to issue a distress warrant against them, in order to compel such payment, (i) A writ for such purpose will be granted upon the application of one only of the existing overseers, although the others refuse to concur in the application, (y) The writ also lies to command overseers to pay to the treasurer of an union, certain sums of money in pursuance of orders of guardians of the poor, and to levy a rate for that purpose, if necessary. (^) *Palace Court.] See tit. Courts Inferior (^Palace Court). [*208] Papers Ori'iciAL.] See titles ^ccowrefe; Company; Boohs; Manor (RoUs, Inspection) ; Peace {Clerh of ) ; Records, &c. Parish.] This subject is arranged as follows : — Paemh. . Meeting ... Officers . . - Election Auditors ... - Accounts Books, &c. luspeotiou DeliTery, &c. (/) 6 B. & A. 535.t S. C. 1 D. & R. 146.t Supra, n. (d). ig) R. T. Dartmouth (Earl), 1 D. & M. 126. S. C. 5 Q. B. STS.-f- (A) E. T. Carter, 4 T. R. 246 ; 2 Sess. Cas. 283 ; 2 M. & S. 343 ; Stra. 992 ; Bac: Abr. tit. " Man." (D.) See tits. " Churchwardens," " Constable" (Accounts, Ins- pection), " Quarter Sessions" (Justices). (i) R. T. Essex (J.), 3 B. & Ad. 941.f R. v. Somersetsh. (J.), M. 18 Geo. 2', Stra. 992. R. T. Pascoe, 2 M. & S. 343. Com. Dig. tit. « Man." (A.) R. v. Staffordsh. (J.), 13 L. J., N. S. 81, M. C. But see R. v. Norfolk (J.), 1 N. & M. er.f See post, tit. " Quarter Sessions" (Justices). And see stats. 6 4 7 Vict. c. 67, s. 3, 9 & 10 Vict. c. 113 (I.), App., and ante, p. 142, n. (z). (/) 2 M. & S. 343, supra, n. («). See post, tit. " Application.'' [k] R. V. Todmorden (Overseers), 11 L. J., N. S. 129, M. C. See tits. " Con- stable," "Money," ''Poor" (Relief, &c.) May, 1852.— 17 Parish. 208 Burial of parishioners - - 209 208 Loan, &c. - - 209 208 Repayment 209 208 Appeal - 210 208 Reimbursement - 210 209 Payment of money - 210 209 Rates - 210 209 Defaulters - 210 2§8 tapping's mandamus. -.J Parish Meeting. — The Court of B. R. will, on a proper case being laid before it, issue a mandamus to command churchwardens, &c. to convene a meeting of the pari8hioners.(r) .J Officers, Election.. — The writ also lies to command them to proceed to the election of parish offieers,(m) as to proceed to hold a poll and complete the election of trustees for lighting and paving, under a parish act.(n) So it lies to command parish officers to produce the rate- books and other books at the scrutiny of a poll, which had been taken at the election of churchwardens, overseers, &c.(o) .] Auditors. — The writ lies to command churchwardens to assem- ble the parishioners to elect a vestry and auditors of accounts for the parish, under a parish act.(j3) But where such an act confers a power of investigating accounts upon auditors to be annually elected, and to be summoned by the vestry clerk at certain stated intervals to audit the accounts, the Court will not grant a mandamus to command the latter, when new auditors have been- elected for the succeeding year, to call a meeting of the old auditors to audit the accounts for the past year.(j) .] Accounts. — The writ lies to command the production of parish accounts, &c., in order to be audited. (r) * •] Boohs, &c., Inspection. — The writ lies to allow a L J parishioner to have inspection and copy of parish books, they having an interest in them similar to that which a copyholder has in manor rolls. (s) But an application by rate-payers for a mandamns to give inspection of parish books containing entries of assessments to the poor rate and arrears in the payment has been refused.(i) So a parish- ioner has no right to inspect parish books for the purpose of gaining in- formation which may be useful to him, with a view to support his claim to an estate in the parish, and therefore the Court will refuse a mandamus (Z) Ante, p. 12. R. v. St. Margaret's (Parish), 4 M. & S. 250, cited in 1 N. &P. 58.f See tits. " Churchwardens," " Corporation Municipal" (Duties), " Vestry." (m) Ante, p. 12. R. v. Stoke Damerel, 5 A. & B. 584.t S. C. 1 N. &P. 56.t See tits. "Auditors" (Parish), " Churchwardens^" "Office" (Election), "Returning Officer." (n) R. v. St. Luke's (Vestrymen), 2 N. & M. 464.f See tits. " Act of ParUament" "Borough," " Corporation Municipal" (Duties). (o) R. Y. Fall, 1 G. & D. 118. S. C. 1 Q. R. 636.t See tits. " Church" (Church Trustees), " Corporation Municipal" (Duties), " Office" (Election), " Overseers." {p) R. T. St. Pancras, 3 N. & M. 425,t tits. "Act of Parliament," "Auditor," " Churchwardens" (Auditor), " Vestry." (a) In re St. GUes, &c., 1 D. 540. See tit, " Act of Parliament." It) R. t. St. Pancras, 6 A & B. 314.t S. C. 1 N. & P. 507,t where see form of writ; 6 A. & E. 321-|- (a). B. v. St. Pancras, 3 A. & E. 535.i- S. C. 5.N. &M. 224,f where see form of writ. R. v. St. Andrew's, 13 L. J., N. S. 341, Q. B., where see form of writ. S. C. 6 Q. B. 78.1 See tits. " Accounts, Books, &e." " Church- wardens" (Accounts), " County," " Overseers" (Accounts). . («) LoTe T. Dr. Bently, 11 Mod. 134, where the application was granted in aid of an action for a false return to a mandamus ; in such a case the rule is absolute m the first instance. Anon., 2 Chit. 290.-|- But see R. t. Arnold, 4 A. & K. 657.+ See tits. "Books," "Company," "Corporation Municipal" (Books), "Counlyi "Livings," " Manor" (Rolls), " Papers, Official." (t) R. T. Staffordsh. (J.), 6 A. & E. 90, 102.-J- R. v. St. Marylehone, 5. A. &B- 268.t S. C. 6 N. & M. 600, impugning R. v. Leicester (J.), 4 B. & C. 891.t PARISH. 259 for that purpose, (m) The right to inspect parochial documents also lies under the further, restriction, that the applicant must not claim adversely to the parish, (w) .] • Delivery, &c. — ^It has been held, that a mandamus will not lie to command ez-church wardens to deliver the parish books to their successors, for the reason, that a dispute between parish officers as to which has a right to keep those books, ought to be tried at law upon a feigned issue.(jo) But the writ has since been granted to command a late overseer to deliver over parish books and moneys to a then present overseer ; if, however, such late overseer be rendered incompetent to serve, in consequence of a conviction, as under stat. 4 & 5 Wm. 4, c. 76, the application for the rule must be supported by affidavits with the convic- tion annexed, for the Court ought to see whether there be a good convic- tion, (a;) .] Burial of Parishioners. — As to burial of parishioners, see tit. Burial. .J Loan, Repayment of. — The writ lies to command parish officers to pay principal and interest borrowed under Grilbert's Act, 22 Geo. 3, c. 83, after a lapse of thirty years, and no demand made, the charge being by the act still in force ;(y) but the Court will not command a rate to be made for repayment of such loan, if neither a payment nor a provision have *been made by the parish for more than twenty L J years previously to the application. (z) — ^ — .] Appeal. — The writ lies to enter continuance and hear an appeal against an order of the directors of a parish, for the payment of sums due on annuities and as interest on loans, (a) .] Reimbursement. — It is doubtful whether the writ lies to re- imburse money over paid on parish rates, notwithstanding the parish ought, at common law, to make a rate to reimburse, &c.(6) .] Payment of money. — The writ, however, lies to command the overseers of a parish within an union, to pay their proportion of the ex- penses of the union to the treasurer, and that if they have not sufficient (u) R. T. SmaJlpiece, 2 Chit. 288. («) R. T. Westowe (Overseers), 1 N. & P. 223.-)- S. C. 5 A. & E. Yse.-)- Oox v. Copping, 5 Mod. 396. S. C. 12 Vin. Abr. Bvid. (F. b), pi. 3. S. C. Ld. Kaym. 33*? ; 2 Chit. 288,f supra. See tit. " Manor" (Rolls). (w) Ante, p. 24. R. t. Street, 8 Mod. 99. But see stat. 11 Geo. 3, c. 38, s. 3; Anon., 2 Chit. 255 ;f Bac. Abr. tit. " Man." C. {x) R. T. Simms, 4 D. 294. R. T. Bletshow, 1 Bott's P.L. 300. S. C. nom. Puse T. Clapham., 1 Wile. 305. R. v. Fox, 1 W. W. & H. 4. See tit. " Conviction," and ante. p. 206, 207. (j') R. T. Bighton (Churchwardens), 1 N. & P. TTS.-j- S. C. 6 A. & E. 794, T98,t n. And see tits. " Church" (Loan), " Loan," » Money." See ante, p. 18—27. , (2) But see R. t. St. Paul, Shadwell, 1 M. & R. 591, and see tit. " Rate." ■ (a) R. V. Salop (J.), 2 B. & Ad. 145.t See tit. " Appeal/' " Church" (Loan), " Company," " Loan," " Money." . (i) Case of Parish issues. Comb. 257, Byre, J., saying, that he never knew of such a mandamus. See In re Lodge, 2 A. & E. 123.f S. C. 4 N. &M. 312, f nom. Ex parte Carlton High Dale (Inhabs.); and tits. "Churchwarden,"' "Constable," High" (Reimbursement by), " Drainage." 260 tapping's MANDAMtrS. funds in their hands for that purpose, that they forthwith do what is ne- cessary for making, collecting, and levying a rate for that purpose, and that they pay the amount thereof to the treasurer, (c) .] Rates. — The writ will be granted to command the making a parish rate ;(«?) but there must be a legal duty on the parish to make it.(e) Thus the Court will grant a mandamus to command commissioners en- trusted by act of Parliament with the regulation of the expenditure of a parish, to levy a rate for the purpose of paying off a sum borrowed on the credit of the rates by former commissioners, without pledging their per- sonal responsibility, where the' liabilities created under the former acts are reserved by the new act ; although the latter direct that the commission- ers shall be sued in the name of their clerk, and no interest have been paid within twenty years. (/) So the writ lies to command justices to enter continuances and hear an appeal against an order of sessions, for amending a rate made under the Parochial Assessment Act, 6 & 7 Wm. 4, c. 96, s. 6.(^) . Defaulters. — The writ also lies to command justices to issue distress warrants on nonpayment of parish rates. (A.) r*21 1 ^ ^Parish Cleek.] It is clearly settled that the writ of man- damus lies for the oflSce of parish clerk,(i) because it is a temporal, and not an ecclesiastical, office,(y) though in part it concerns the minis- tration of divine service. (^) It is both a freehold office, being prima facie an appointment for life ;(Z) and also a public one,(m) the duties being, to (c) R. T. Todmorden (Overseers), 4 P. & D. 553. S. C. 1 Q. B. 185,t where see form of writ, &c. E. v. St. Andrews, 10 A. & E. 736.+ See tits. " Money," " Pool" (Bate), "Rate." (d) R. T. St. Saviour's, T A. & B. 925.-f- S. 0. 3 N. & P. 126. S. C. 1 N. & P. 496.t R. V. Bangor (Overseers), 16 L. J., N. S., 58, M. 0. See tits. " Poor"(Rate), " Rate." (e) Ante, p. 12. R. v. Carpenter, 6 A. & E. '794.f S. C. 1 N. & P. 115.f E. y. Bangor (Churchwardens), 16. L. J., N. S. 58, M. 0. (/) R. V. St. Paul, Shadwell, 1 M. & R. 591. See tit. " Church." Ig) R. V. St. Alban's (JJ, 1 P. & D. 148. S. C. 8 A. & E. 932.+ (h) R. V. Dyer, 2 A. & E. 606.-|- E. v. Hughes, 3 A. & B. 428.-J- R. v. Hales, 3 A. & E. 494.-|- R. V. Mirehouse, 2 A. & E. 644.f See tit. " Quarter Sessions" (Jus- tices), and Stat. 6 & t Vict. c. 6T, s. 3, App., as to the indemnity which is thereby provided for any matter done in the due execution of a writ of mandamus ; also 9 & 10 Vict. c. 113, s. 8 (I). (i)Ante, p. 12. He's case, 1 Vent. 143. R. v. London (Mayor), 2 T. R. 180, 183, n. (J). R. V. Morpeth (Bailiffs), Stra. 59. R. v. Dr. Bland, 1 Moi. 366, citing 2 Roll. Abr.' 234. R. v. Patrick, 2 Keb. 168, per Twisden, J. Hurst's case, 1 Ley. 15. Lee v. Drake, 2 Salk. 468 ; but it was refused in T. IT Car. 1, cited in Stamp's case, 1 Keb. 5, and in R. v. Middleton, 1 Keb. 631, per Twisden, J., where it is erroneously stated to be an ecclesiastical office. (J) Say. 159, infra. Anon., 1 Keb. 286, pi. 94. Davis's case, H. 4 Geo. 1, cited in Stra. 89'7. Parish Clerk's case, 13 Rep. 10. R. v. Warren, Oowp. 370. Leigh's case, 3 Mod. 335. See tit. " Office." (ft) Parker v. Clerk, 6 Mod. 253, per Holt, C. J. See ante, p. 178, n. (t), («),((). (I) R. V. Ashton, Say. 159. Anon., 2 Chit. 254. Bac. Abr. tit. " Man." 0. See tit. " Office" (Freehold). (m) Agreed in Hurst's case, 1 Lev. 75. See tit. " Office" (Public). PAEISH OLEEK. 261 £eep the ornaments of the church, and to register baptisms, funerals, This subject is arranged as follows : — Pabish Clebk. Parish Clebk. Appointment - 211 Application 212 Admission - 211 Affidavits 212 Deputy - 211 Writ (Form of) - 212 Swear in - 211 Eeturns - 212 Restoration - - 212 Drunkenness - - 213' : ■.] Aj>pointment. — The writ lies to command him who has the right of appointment, whether by act of Parliament, custom, &c., as a roetor, &c., to appoint a parish clerk.(o) .] Admission. — So the writ of mandamus has often been granted to admit to the office of parish clerk.(p) The application should be sup- ported by an affidavit of due election, (y) .] . Deputy. — The writ lies also to admit a deputy parish clerk; but not on the application of such deputy.(r) .] Swear in. — So the writ lies to swear in the clerk of a parish, (s) *duly elected, as according to custom, &c.(<) In his duty of r*oioi swearing in, the ordinary acts only ministerially, and not judici- ally.(M) The writ has also been granted to swear into the joint offices of parish clerk and sexton. («) .] Restoration. — A parish clerk, although appointed by the min- ister, has, as before stated,(M)) prima facie a freehold in his office, holding it quamdiu se bene gesserit : and, therefore, he cannot be amoved without legal cause, which must be shewn on the return, in order to give the pro- secutor an opportunity of answering it. If he be improperly amoved, a (n) E. T. Kingscleere (Churchwardens of), 2 Lev. 18. See tit. " Registrar, &c." (o) Ante, p. 12. K. v. St. Anne's (Rector), P. 6 Geo. 3, Burr. ISTS. Com. Dig tit. " Man." (B.) See tits. " Act of Parliament," " Churchwarden" (Appointment). "Custom," "Office" (Appointment). , (p) R. V. Barlcer, Burr. 1267. Clerk of the Works case, 2 Sid. 112. See R. v. Patrick, 2 Keb. 168, per Twysden, J., 172, per Keeling, C. J. Speak q. t. v. Bourn, 2 Barn. 53, citing 2 Roll. Abr. 285; 2 Brown. 11, and 1 Lev. 75; 2 Lev. 18; 1 Vent. 143, supra ; Bac. Abr. tit. " Man." C. See tit. " Office" (Admission). (q) 2 Barn. 53, supra. Lee v. Drake, Salk. 468. See post, tit. " Application." (r) Ante, p^ 12. Parish Clerk's case, Lofft, 434. See tits. " Marches," " Office" (Beputy), "Recorder" (Deputy), "Registrar" (Deputy). («) Archdeacon Chester's case, M. 17 Car. 1, Rot. 31; Latch. 123, cited in Dr. Dolben's case, 1 Keb. 881 : but in Clerk of Work's case, 2 Sid. 112, per Glyn, C. J., it is said he is not a sworn officer ; Anon., Mar. 101 ; 2 Roll. Abr. 234, 1. 35 ; Com. Dig. tit. " Man." (A.) See tit. " Office" (Swearing in,) and ante, p. 12. [t) Ante, p. 12. Clerk of St. Dunstan's case. Comb. 105. Orme v. Pemberton, Cro. Car. 589, 3. See tit. " Custom." (m) R. v. Litchfield (Ep.), 7 Mod. 218. S. C. Kely. 287, nom. R. v. Rushworth. See tits. "Churchwardens" (Swearing in), "Office" (Judicial). («) R. V. Smith, 1 D. & M. 564. S. C. 5 Q. B. 614.f S. C. 13 L. J., N. S, 166, Q.B. See tit. "Sexton." (w) Ante, p. 211 ; Say. 159, supra. 262 tapping's mandamus. mandamus will be granted to restore him ;(x) and therefore it is clearly settled, that on a proper case the writ will be granted to restore a parish clerk. (^) .] Application ; Affidavits. — The affidavits in support of the rule should show a clear title to the office, that there is no plenarty,(z) and that the applicant has been removed therefrom;(a) it would he well that they should also state that the applicant was appointed for life, though such an allegation is not absolutely necessary,(6) as it is prima facie an office for life, (c) .] Writ (Form of). — ^The writ of mandamus to restore, &c. should be directed to him or them who has or have the power of appointment, as to the incumbent, and not as to the churchwardens. (, — „ ,...„, « ^. „ ^. „.„,! r„ 0-, -., — r— Hants.(J.), 1 B. & Ad. 656.t 1 B. & C. 485.+ S. C. 2 D. & E. 689, 694,t per Abbott, C. J., pjipra.. K. T. Codd, 9 A. & B. 682.t S. 0. 1 P. & D. 456. B. v. Barker, 6 A. & B. 38,8.f , 292 tapping's mandamus. costs.(M) If, however, there was no doubt in the case, the Court usually granted the writ, although no indemnity had been offered to the justi- ces.(j;) Thus where in answer to an application for a mandamus against magistrates to command them to issue distress warrants to levy a poor rate, it was suggested that the warrants would have to be executed r*c)At)-\ within Hampton Court Palace, that the officers of the *Crowii ^ claimed that the property was exempt from the operation of such warrants, and threatened proceedings if they were executed; the Court nevertheless granted the writ, and refused to call upon the applicant parish to give the magistrates, an indemnity against the consequences of any proceedings which might be taken, because the order of the magis- trates would be simply to levy on the goods and chattels of the persons named in the writ. (10) At this day the Court of B. E. will not issue a mandamus to justices in a doubtful case, merely in order that they may make a return, and lie protected by stat. 6 & 7 Vict. c. 67, s. 3, if a peremptory mandamus should issue and be obeyed. But should such a writ be issued to them, they ought not, in order to gain the protection of the statute, to make a return, but should obey the writ.(x) The Court of B. E.. will not order magistrates to do that which may reasonably occasion them costs, for which they have no means of reim- bursing themselves. (^) The Court of B. R. has refused a mandamus to command the chairman of a Quarter Sessions to issue process for the apprehension of two persons against whom a bill of indictment had been found a year previously, upon the ground that an application for such process had been rejected at ses- sions, (a) . Application. — Although there may have been more than two magistrates at petty sessions, all of whom took part in a decision, it is not necessary that upon an application for a mandamus, all who were present and took part in such decision, shall be included in the rule ; but if the Court sees that any two have been selected, or that any of the justices so acting, have been omitted for any improper purpose, it will require all to be joined. (a) . Rule, Service. — Service of a rule nisi for a mandamus against (u) R. V. Somersetsh. (J.), 4 N. & M. 394.f S. C. 2 A. & E. 63l.f But see the indemnity conferred by stat. 6 & t Vict. c. 67, s. 3, and 9 & 10 Vict. u. 113, s. 8 (I.), App. (v) R. v. Marriott, 12 A. & E. 119.f In R. v. Ellis, 2 D., N. S. 361, the justice ■was trustee of the property, upon which it was sought to enforce the warrant. R. T. Middx. (J.), 12 L. J., N. S. 36, M. 0. See ante, tit. "Poor" (Rate Default- ers.) M R. T. Middx. (J.), 2 D., N. S. 385. (x) R. T. Dartmouth (Earl), 5 Q. B. STS.-f- S. C. 1 D. & M. 126. See as to Ire- land, stat. 9 & 10 Vict. c. 113, s. 8, App. (y) Ante, p. 17. Ex parte Carlton High Dale, 4 N. & M. 313. (z) R. Y. Russell, 1 D., N. S. 544; 6 Jur. 221. See tit. "Prisoner." (a) Ante, p. 228, n. (x). R. v. Ellis, 2 D., N. S. 361 ; 4 A. & E. 354.t B.T. Wilts. (J.), 8 D. 717, 722. S. C. 4 Jur. 460. See post, tit. "Application." E A I L W A Y. 293 a determination of the petty sessions, need not be served upon the clerk of the peace ; it will be sufficient if it be served on the justices whose decision is complained against, and also upon the high constable of the hundred ; which service is in conformity with the practice of the Crown Office.(6) Queen.] See titles Crown; Customs (^Commissioners;) Excise (Com- missioners;) Treasury, JJords. >*Kailway.] This subject is arranged as follows :- [*243] -WAY. Railway. Daties, Ac. - - 243 Compensation - 244 Rule - - 244 Goods, &c. - - 244 Eeturns - 244 Appeal - 245 .] Duties, dsc. — The writ of mandamus lies to command a rail- way company to set out and define the line of their railway, and to proceed to purchase the lands necessary to the making and completion of the same pursuant to the provisions of their acts.(c) Thus the Court has made absolute a rule for a mandamus to command a railway company to pro- ceed according to the terms of the act of Parliament, obtained by them to set out and complete their line from A. to B., although they had executed part, and the time had not arrived within which they were to execute the remainder, and their funds were inadequate for the purpose, the Court being of opinion that they had no bona fide intention to complete the whole -woih^d). The writ must, however, be applied for within a reason- able time.(e) It ]iaa also been held that such a writ does not lie to com- mand a company to maintain the railway when constructed.(/) But where a railway made under the authority of an act of Parliament, by which the proprietors were incorporated, and by which it was provided, that the public should have the beneficial enjoyment of the same ; was afterwards taken up by the company, it was held that a mandamus might issue to command the company to reinstate, and lay down again the rail- way }{g) although they were liable to an indictment for not so doing ; for (b) E. V. Tucker, 5 D. & E. 434.f S. C. 3 B. & C. 545, 546.f See post, tit. "Eule" (Service), and ante, p. 234. As to costs of unsuccessful application, p. 234. (c) R. T. Eastern Counties Railway, 10 A. & B. SSl.f S. 0. 4 P. & D. 48, where 6ee a form of writ! S. C. 1 Eail. Cas. 509 ; 2 Rail. Cas. 260. S. C. 9 L. J., N. S. 303, Q. B. This appears to be the first mandamus as to railway matters. R. v. Gamble, 11 A. & E. 12.} S. C. 3 P. & D. 123. See tits. " Act of Parliament," "Company," "luclosure." (d) E. V. Eastern Counties Railway, 2 P. & D. 648. S. C. 10 A. & E. 531.f S. C. 1 Rail. Cas. 509 ; but see tit. "Application." (e) E. T. Birmingham Railway, &c., 1 G. & D. 335. S. 0. 1 Q. B. i1 f See post, tit. "Application" (when to be made.) (/) 10 A. & E. 543.t S. C. 4 P. & D. 48. R. v. Severn Railway, 2 B. & A. 646.t is) R. v. Severn Railway, 2 B. & A. 646.f R. v. Eastern Counties Railway, 10 A. &E. 543.f S. C. 4 P. & D. 48. R. v. Gamble, 11 A. & E. 72.f S. 0. 3 P. & D. 123. E. T. Pagham Sewers, 2 M. & R. 471. See tits. " Act of Parliament," "Inclosure." 294 tapping's mandamus. such a proceeding merely punishes for past defaults, and is not, therefore, an efficacious remedy. (A) The writ has also been often granted to command a railway company to increase the height of a bridge erected by them over a public carriage road, according to the provisions of their act of Parliament, (i) So the writ lies to command such a company to execute and complete, ^certain works, railways, roads, bridges, drains, &c., which the L ^^^i company has undertaken to execute and complete by virtue of the powers entrusted to them by act of Parliament ;(/) or to command the restoration of a turnpike road, which has been, by a railway company carried over their railway, to its proper width, and also to excavate and widen roads crossed by a railway.(A) . Rule. — The rule for a writ for any of the before-mentioned purposes, will be discharged if there have not been a demand made to, and a refusal by the company both before and after the works were com- pleted, to execute, &c. the necessary works, and comply with their act of Parliament. (?) . Returns. — Where a railway or other company has by its act of incorporation, &c., stipulated with the public to do a certain act, it is not a good return that such act cannot be executed by the company, owing to the want of funds, or, that funds cannot be raised without a new act, &c.(9n.) Nor is it a good return, that the approaches of a bridge, though of a less width, are as convenient to the public, as they could be made in execution of the powers of the act, and as convenient to the public as the original road had been j or that the company could not widen the ap- proaches, without taking or purchasing more land, that their compulsory powers of purchasing under the act had expired, before they had been (A) Ante, p. 24. E. T. Birmingham Canal, W. Blae. 708, n. (b) ; 2 B. & A. 646,1 supra. " But it is the general opinion that B. v. Severn Railway, (supra, u. (g) ), went to an extreme length as to this point." 3 P. & D. 123, per Ld. Denman,0. J. (i) R. T. Eastern Counties Railway, 2 G. & D. 1 S. C. 2 Q. B. 569.f S. 0. 11 L. J., N. S. \18, Q. B. But see R. t. Eastern Counties Railway, 4 Jur. 318. See tits. " Highway," " Inclosure." (J) Ante, p. 12. R. v. Brecknock Canal, 3 A. & E. 217.1 R. v. Bristol Railway 3 B. & D. 384. S. C. 4 Q. B. 162 ;■)• 4 P. & D. 48. S. C. 10 A. & E. 531,t supra. See Blackmore v. Glamorgansh. Canal, 1 M. & K. 154. R. v. Severn, &c., Com- pany, 2 B. & Aid. 646. E. T. Cumberworth, IN. &P. igr.f S. C. 4 A. & B. TSl.f See 2 P. & D. 648. R. v. York Railway, 14 L. J., N. S. 277, Q. B. where see form of writ. R. T. Norwich Railway, 15 L. J., N. S. 24, Q. B. S. C. 3 D. & L. 385. See tits. " Act of Parliament," " Highway." (*) R. V. Birmingham Railway, 1 G. & D. 324. S. C. 2 Q.B. 47,t where see form of writ and pleadings. R. t. Manchester Railway, 1 G. & D. 338. S. 0. 3 Q. B. 528,1 and 3 G. & D. 269, in error, where see form of writ and pleadings. K. t. Bristol Railway, 3 G. & D. 384. S. C. 4 Q. B. 162.-|- S. C. 12 L. J., N. S. 106, Q. B. See tits. " Highway," " Inclosure." (l) Ante, p. 27, 28. R. v. Bristol Railway, 3 G. & D. 384. S. C. 4 Q. B. 162.t R. T. Brecknock Canal 3 A. & E. 219.f S. C. 12 L. J., N. S. 106, Q. B. See ante, p. 28 ; see post, tit "Application," (Demand and Refusal.) (m) Ante, p. 109, n. (t) ; 10 A. & E. 531.^ S. C. 4 P. & D. 48, supra, where see form of such return. E. t. Eastern Counties Railway, 2 P. & D. 655, and cases there cited. See tits. " Act of Parliament," " Company," Courts Inferior" (Holding Courts.) KECOEDER. 295 called upon to widen, and that they had not then, nor hare since had the power to take or purchase land for such purpose, (n) ' .] Gompensation. See title Compensation ( Company). •.] Goods. — The writ does not lie to command a railway company to convey goods along their line, if there be no clause in their act of in- corporation, requiring them to carry all goods offered for conveyance, although they may have agreed with certain persons to carry their goods to the exclusion of all others, (o) * .] Appeal. — The writ lies to command justices to hear .^n^p.-. and determine an appeal, under a raUway act, over which they L ■' have jurisdiction, (p) Eeabing.J Steward of; Restoration. — The writ lies to restore the Steward of Beading to his office, it appearing to have profits, &c., annexed to it, and also to be an office pro bono publico. (2) Eeceiver oe Bedford Level.] See tit. Bedford Level. Eecorder.J The writ lies for the office of reoorder.(»') This subject is arranged as follows : — DBDEB. Rboobdee. Election - 245 Returns - 246 Application - 245 Eestoration - 246 Rule - 245 Beturna - 247 Ee turns - 245 Dbpdty Becokder. Admission - 246 Swearing in - 247 '.J Election. — ^The writ lies to command a municipal corporation to put the corporate seal to a certificate of the election of a recorder, in order that such recorder may obtain the approval of the Crown, (s) The writ will be granted for this purpose, notwithstanding the election of such recorder may have been contested. .] Application. — The rule for such a mandamus will be granted on affidavits that the applicant had the majority of legal votes at the elec- W E. T. Birmingham Railway, 1 G. & D. 324. S. 0. 2 Q. B. 47.t S. C. 3Q.B. S28,t and 3 G. & D. 269, in error. See post, tit. " Betum." (0) Ex parte Eobius, 7 D. 556. S. C. 1 W. W. & H. 578 ; 3 Jnr. 193. R. v. Severn Railway, 2 B. & A. 646.-|- See tit. " Contract," and ante, p. 27, 28. (p) Ante, p. 12. R. v. Worcester (J.), 7 D. 789. See tits. " Appeal," " Quarter , Sessions" (Appeal). (?) Blagrave v. Reading. (Mayor), 2 Sid. 6, 49, 72, and see Thompson's case, 4 Jac, there cited. It was a writ of restitution in principal case. See also 1 Sid. 461, and tits. " Steward," « Office." (r) 2 Roll. Abr. 456, 1. 30. B. v. "Wells, Burr. 1999 ; Com. Dig. tit. "Man." (A.) ; Bac. Abr. tit. " Man." (0.) See tit. " Office," ante, 174, n. {w), [x). U) E. T. York (Mayor), 4 T. B. 699. S. C. 5 T. B. 66, where see a form of writ; and see 6 East, 360, n. {d). B.' v. Colchester (Mayor), 6 East, 360. See E. t. Ox- ford (Mayor), 6 A. & E. 353,f per Coleridge, J. B. v. Colchester (Mayor), 2 T. E. 259. E. V. Cambridge (U.), 1 W. Blac. 551. S. C. Burr. 1647. See tits. "Certi- fioate," "College" (Seal), "Corporation Municipal" (Seal), "Hospital" (Seal), 296 tapping's mandamus. tion, notwithstanding it may be stated, that another candidate had the majority at the election, and that the corporation had already certified his electionj the office not being in such case de facto iull.(t) .] Bule. — The rule for a writ for this purpose, is, like that to swear in a corporator, a matter of course, and absolute in the first instance, (m) .J Returns. — To such a mandamus, a return " that the L '^*"J corporation *were not duly assembled to proceed to the election of a recorder," has been held to be bad, as a negative pregnant. (?;) go, where a writ, after a statement of all the proceedings of the election, con- cluded thus, " by reason thereof A. was elected," it was held, that to return that " he was not elected," was bad, and that the defendant should have traversed one of the material facts alleged, (w) .] Admission. — The writ also lies to command an admission of one duly entitled to the office of recorder. If, however, there be one de facto not colourably elected, the applicant must adopt his remedy by quo warranto, by which the title to the office can be tried as effectually as by mandamus, and he must so proceed, notwithstanding the rival candidate may claim under the same election; for the consequence of granting a rule for a mandamus in such a case would be, that a second person would be admitted to an office already filled by another, both claiming to have been duly elected, (x) " .] Returns. — ^A return to such a writ, that " the defendants did not know that the prosecutor had been elected a recorder," has been held to be insufficient.(j') .] Restoration. — The writ also lies to restore to the office of , recorder, one who has been improperly removed therefrom, (z) if he have a freehold in his office : such an officer is usually appointed by patent, {t) 4 T. B. 699, supra, n. (s). R. v. Oxford (Mayor), 6 A. & B. SBS.-f See stat. 6 & 7 Vict. c. 89, s. 5, App. As to Ireland, see stats. 19 Geo. 2, c. 12 (I.) ; 9 & 10 Vict. t. 113 (I.) See tit. "Office" (Election, Application), and ante, p. 26, 2Y. (m) 4 T. K. 699, VOO, and 6 Bast, 360, supra, n. (s), stat. 6 & 7 Vict. o. 89, App. See tit. "Office" (Election Rule), and post, tit. "Rule." {v) R. T. York (Mayor), 5 T. R. 66. See tit. " Office" (Election Returns), and post, tit. " Return," as to the present effect of a negative pregnant. (w) 5 T. R. 66, supra, n. (ti). See post, tit. "Return" (Certainty). (a;) Ante, p. 12, 26, 27. B. v. Colchester (Mayor), 2 T. R. 259. See R. v. Bed- ford Level (Corp.), 6 Bast, 360. R. v. York (Mayor), 4 T. R. 699. See R. v. Bar- ker, Burr. 1265. R. v. Blooer, Burr. 1045. Bossiny's case, Str. 1003. R.v. Bankes, Burr. 1453. S. C. 1 W. Blac. 445, 452, where a mandamus was granted, though there was a mayor de facto. See also Case of Aberystwith, Stra. 115f, and K. t. Cambridge (Mayor), Burr. 2008; Bac. Abr. tit. "Man." C. 2. See tits. " Office," " Mayor" (Election), (Election, Admission). {y) Bas'sett v. Barnstable (Mayor), 1 Sid. 286. For other returns, see tit. " Office" (Admission, Returns). (2) Ante, p. 12. Bassettv. Barnstable (Mayor), 1 Sid. 286 ; 6 Rep. 52. Awdley's case, Noy. T8 ; Andr. 181 ; Trem. PI. Cor. 541, where see form of writ. R. v. Corye, Sty. 86. This was a writ of restitution (ante, p. 3). R. v. London (Mayor), 2 Show. 69. R. T. Wells (Corp.), Burr. 1999, 200T. R. v. Holt, 3 Keb. 667, citing Blagrare's case. Prins' case, 1 Keb. 520, 541. Whitacre's case, cited in 1 Barn. 295. The Protector v. Craford, Sty. 457. The Protector v. Colchester (i?own). Sty. 446, 452. Ld. Hawley's case, 1 Vent. 143. S. 0. 2 Eeb. 770, 796. S. C. 2 Salt. 430. Pepis' REOORDEK. 297 quamdiu se bene gesserit,(a) and is a known officer, whose duty it is to administer justice in relation to the public, (b) But if a recorder be liable to be removed " at pleasure," which is sometimes the case, then a, mandamus to restore will not be granted, (c) but such power to remove " ad litum" *must be returned. ((^) Where there is a power to remove " ^^ ^^L^nA-r-, litum," the choice of another person to be recorder, is tantamount L ^ to a declaration of removal ; so that, in such a case, either an amotion, or the election of another, may be returned, as in the case of a tenancy at will, where the landlord may determine his will by express words, or by any act which is inconsistent with his estate, (e) .] Returns. — A return that the defendants did not know that the prosecutor was elected, is bad.(/) As a recorder is bound to attend and assist at the sessions, in order that he may direct the corporation in the proceedings of justice, and his office is a public one, relating to justice, so non-attendance is a cause both of forfeiture and of return -,{0) but such a return should state, that Courts have been held of which he had due noticfe, and that he wilfully absented himself. (A) .] Deputy, Swearing in. — The writ lies also to command the swearing in of a deputy recorder, legally and duly appointed, (i) case, 1 Tent. 342; Sir T. Jones, 51. Dighton v. Stratford, &c., 2 Eeb. 641. See tit. "Office" (Kestoration). (a) Ante, p. 175, n. [1). (h) Eastwict v. London (City), Sty. 42. Holt's case, Treem. 441. See Burr. 1999, 2006, supra. See tits. " Constable," " Office" (Public), and ante, p. 12. (c) Ante, p. I'T'T, n. («). Seijt. Wbitacre's case, 11 Mod. 67 (cited also in R. v. Carlisle (Mayor), irMod. 378). S. C.Ld. Raym. 1233, 1283. S.C.Holt, 443. S. C. 2 Salic. 434. R. v. Canterbury (Mayor), 11 Mod. 403. S. C. Stra. 674. See tit. "Office" (Restoration). (i) See ante, p. 176. Pepis' case, 1 Vent. 342. Blagrave's case, 2 Sid. 49, 72. The authority of Blagrave's case has been attempted to be impugned, but unsuc- cessfully. Hurst's case, 1 Keb. 388 ; 1 Tent. 343,- 2 Sid. 49, 72. See tit. " Office" (Freehold), and post, tit. " Return." (e) E. T. Canterbury (Mayor), 11 Mod. 403. S. C. Stra. 674. R. v. Thame, Stra. 115. R. v. Taunton (Churchwardens), Cowp. 413. Pepis' case, 1 Tent. 342. See tit. "Office" (Freehold Returns). So rules nisi for writs of mandamus to restore to a recordership have been granted, directed to the commissioners acting under the Statute of Corporations. Prin's case, 1 Keb. 520, 541. In such cases the Return usually made was that " they (the commissioners) adjudged it fitting, expedient, and for the public good that he (the person deprived) be not restored." On one occasion, when such a, return was objected to on'several grounds, and the Court was divided in opinion as to the " Expositions of the boundless commissions given by the late (this case was argued T. T. 15 Car. 2, B. R.) Irregular powers to justices ;" it conceived that " as the Parliament was then sitting, the best way was to adjourn the giving of judgment, and in the meantime pray advice of the Lords in Parliament as to the exposition of the act, and not to give any opinion on it during their sitting." 1 Keb. 541. (/) Ante, p. 246, n. [y). Bassett v. Barnstable (Mayor), 1 Sid. 286. For other returns see the Protector v. Colchester City, Sty. 447, 453, and tit. " Office." (g) Ante, p. 198. Serjeant Whitacre's case, 11 Mod. 67. R. v. Ipswich (Bailiffs), 2 Salk. 434, 435, citing R. v. Wells (Corp.), Burr. 1999; and see tit. "Office" (Re- storation Returns), and post, tit. " Return." (h) Bath V. Ld. Hawley, 2 Keb. 770, 797, P. 1655, in Barnardistou's case. Stiles, (»') Ante, p. 12. R. v. St. Alban's (Mayor), 12 Bast, 559. See R. v. Roberts, 3 298 tapping's mandamus. Eecords.] See titles Accounts; Boohs; Records, dec; Company; Corporation Municipal {Insignia'); Courts Inferior {Records) ; Manor (Leet Records) ; Peace {Clerh of ) ; Quarter Sessions {Records:) ; Town Clerk {Records); Will {Delivery). Begister of Dean and Chapter.] See tit. Dean and Chapter. [*248] ^Registers op Middlesex. J Registration. — The writ lies to command the registers of Middlesex to register the memorial of a deed, duly stamped and exeguted, notwithstanding the body thereof be lithographed,(y) and not written in the ordinary way. Registrar oe Livings.] See titles Infection ; Livings ; Parson, Registrar op Births, &c.J Birth. — The Court of B. E. has no power to issue a mandamus to the registrar of births, &c., under stat. 6 & 7 Wm. 4, c. 86, to command him to erase or alter the entry of a Birth, notwithstanding it appear that the child was not only supposititious, but that the entry had been made for fraudulent purposes, and though the appli- cation be made by a party having a pecuniary interest in defeating the alleged fraud. (^) .] Marriage. — The writ lies to command the superintendent reg- istrar of marriages to issue his certificate, pursuant to stat. 6 & 7 Wm. 4, c. 85, 3. 7, for a marriage within his district, but not out of it, for he has no jurisdiction.(Z) Registrar.] This subject is arranged as follows : — Registrar (Deputy) of Archbishop ofYork 248 Admission - - - 248 Eegistrar of Archdeacon - - 249 Admission - - - - 249 Return - - 249 Eestoratiou - 249 Registrar of Bishop's Court - - 249 Restoration - - - - 249 (Deputy) Admission - - 249 Registrar of Consistory Court - 249 Delivery of Records, &c. - 249 Registrar of Ecclesiastical Court - 250 Restoration - - - 250 Registrar op Archbishop op York's Court.] Admission of Deputy. — The writ lies to command the commissary of the Archbishop of York's Court, to admit and swear the deputy of the principal registrar of such Court, notwithstanding it is a spiritual office. The right to the office of registrar is to be determined at common law, and not in the Spiri- A. & E. 116. See tits. " Deputy Officer," " Marches," " OfBce" (Deputy), " Regis- trar of Archbishop of York's Court." (/) Ante, p. 12, 21, 28. R. v. Middlesex (Registers), 1 Q. B. ISB.f S. 0. nom. In re Ivimey, 14 L. J., N. S. 200, Q. B. See tit. " Act of Parliament." (*) Ex parte Stanford,-! a. & D. 428. S. C.l Q. B. 886.f S. C. 9D. 927,nom. In re Registrar of Births, &c., at Brixton. See the same case cited in R. v. West Riding (J.), 5 Q. B. 5.f See tits. "Quarter Sessions" (Records), "Records." (l) Ante, p. 12, 16. Ex parte Brady, 8 D. 332. See tit. "Act of Parliament." EEGISTRAE. 299 » tual Court, thotigli the subject-matter be spiritual; because the office itself being matter oi freehold, is, for that reason, of temporal cognizance. The writ will not be granted at the instance of the deputy himself, he being but an officer at will.(m) *Ebgistrae op Aechdeacon.] Admission. — The writ will be r^fnAQri granted to command an admittance to the office of registrar of an ^ archdeacon, (m) . Return. — It has been held not to be a good return to a man- damus to admit a registrar, " that an appeal is pending as to the admis- sion," and "an inhibition from the delegates to do nothing to prejudice the right," &c.(o) -. — .] Restoration. — The writ lies to restore to the office of registrar of an archdeacon, (p) Rkgistrak, of Bishop's Cotjut.] Restoration. — The writ will be granted to restore to the office of registrar of a Bishop's Court, (j) .J . Deputy, Admission. — The writ of mandamus lies to command a bishop to admit one duly entitled to the office of deputy regis- trar of his diocese, it being an office in which the administration of jus- tice is concerned. Thus, where the registrars of a diocese were authorized by their patent of office, (under the bishop's hand and seal,) to appoint a deputy, to be approved of and allowed by the bishop, who, if he should not approve of and allow the deputy named and proposed to him, was empowered to nominate another, with a salary payable out of the profits of the registrarship : the registrars appointed a deputy, subject to the approbation and consent of the bishop, who, on being informed of it, answered, that " for good and sufficient reasons he disapproved of the party nominated," but declined to specify his reasons ; the Court refused [m) R. T. Ward (Dr.), H., 4 Geo. 2 ; Str. 893 ; Com. Dig. tit. " Man." (A.) S. C. Fitzg. 123, 194. S. C. 1 Barn. 252, 294, 380, 411 (tie writ was directed to "The Commissary of the province of York," Ford's MS. : 1 East, 348 b.), citing Keb. 615, where it is said to have been expressly decided that it does not lie to admit a register, Fitzg. 194; 3 Bac. Abr. 531. S. C. R. v. Clapham, 1 Vent. 110. S. C. 1 Lev. 306. R. V. Eober.ts, 3 A. & E. TTB.-j- See White's case, 6 Mod. 18, per Holt, C. J. E. V. Dr. Bland, 1 Mod. 356, citing R. v. Dr. Ward, supra. See 8 East, 216 ; 5 Bac. Abr. G. 198 ; 2 Roll. Abr. 285. Jones v. Llandaff (Ep.), 4'^Mod. 27, 8. Lee's case, Carth. 169. See tits. " Deputy OfScer," " Marches," " Office" (Deputy), "Proctor." [n) Ante, p. 12, US. Lambert's case, Carth. 170. S. C. nom. E. v. Hill, 1 Show. 253, and cases there cited. Trem. 536. See tits. " Archdeacon," " Office" (Admission). (o) E. T. Dr. Harris, 1 W. Blac. 430. S. C. Burr. 1420. R. v. Ward, Stra. 893 ; Fitz. 123, 194, 195. See R. v. Chester (Ep)., 1 T. E. 403 ; Com. Dig. tit. " Man." D. 4. See tits. " Churchwarden" (Swearing in. Returns), " Inhibition," " Office" (Ad- mission, Returns). [p] Ante, p. 12. Ending v. Newell, Stra. 983 ; Trem. PI. Cor. 536, where see form of writ. See tit. " Office" (Eegtoration). [q] Ante, p. 12, 177, 178. Gloucester's case (Ep.),' Comb. 264. It was not granted until after some hesitation. See Anon., 12 Mod. 666, per Holt, C. J. E. v. Ward, Stra. 893. Ballard v. Gerrard, 12 Mod. 609 ; Holt, 442. See tit. " Office" (Restoration). ' 300 tapping's mandamus. a rule nisi for a mandamus to the bishop to admit the deputy, the hishop having a discretion which the Court could not force him to exercise in a particular way.(?-) Eegistbak of Consistory Court.] Delivery of Rolls, &c. — The writ lies to command the registrar of a Consistory Court to deliver over to r*of;m ^™ *who as of right should receive them, all the public books; records, and entries relating to such office. (s) Registrar of EcoLEsiA9riCAL Court.] Restoration. — The writ also lies to command a restoration to the office of registrar of an Ecclesi- astical Court. («) There should, however, be an affidavit that the officer has ecclesiastical jurisdiction. Eegistrar of Bedford Level.] See title Bedford Level (Regis- trar.) Registration.] Company. — See title Company (Registration.) Registration of Deed.] See title Register of Middlesex. Regius Professor.] See titles College (^Master)) School (Master,) (^Teacher;) University (Regius Professor.) Rehearing.] See titles Courts Inferior (Rehearing ;) Quarter Ses- sions (Rehearing.) Requests Court.] See titles Courts Inferior (Requests Court;) London. Resiant.] See titles Burgess (^Admission ;) Manor (Leet Resiant.) Returning Officers.] Appointment. — The writ lies to command overseers of townships comprised in an union, to meet and appoint a returning officer, to preside at the election of guardians of a parish union, (m) (r) Ante, p. 12—15. See Bac. Abr. tit. " Man." C. R. v. "Ward, Stra. 893. S. C. Fitzg. 123. E. T. Gloucester (Ep.), 2 B. & Ad. 158 if but see E. v. Hill, 1 Show. 253, where Holt, C. J., says that the writ does not lie for a deputy register, his office being at will. See tits. " Deputy," " Discretion," " Lecturship" (License), " Office" (Admission), " School" (Master, License). [s) R. T. Wheeler, Cas. t. temp. Hard. 98; Cunn. 155, S. C. See tits. "Ac- counts," "Books," "Company," "Courts Inferior" (Records), "Manor" (Rolls), "Peace" (Clerks of), "Records." (0 Ante, p. 12 ; Garth.. 170. R. t. Ward, Gilb. 193. White's case, 6 Mod. 18; but Holt, C. J., said it was against his will ; Com. Dig. tit. " JIan." (A.). See Leigh's case, 3 Mod. 335; and see R. y. Morpeth (Bailiffs), Stra. 59; Bac. Abr. tit "Man." C. See tits. " Ecclesiastical Court," " Office"t (Restoration). (m) R. v. Oldham Union, 16 L. J., N.S. 110, M. C, where see form of writ. See RIOTS. 301 Revising Barrister's Court.] See titles Burgess Roll; Courts Inferior (Revising Barrister;) Quarter Sessions. EiOTS.] Damages. — The writ lies to command justices to appoint a special P?tty Sessions, pursuant to stat. 7 & 8 Geo. 4, c. 31, for the pur- pose of hearing and determining a claim to compensation for damage, which had been suffered by rioters, (i;) But in order to entitle a party to require the ^holding of such a sessions, it must appear by affidavit, that r-^inKi-i within seven days • after the commission of the offence, he went before a justice of the peace, &c., and that he also complied with all the other requisites of the statute. The absence of such an afiSdavit will determine the Court not to grant the writ.(w) The writ also lies to command the Quarter Sessions to hear an ap- peal against the decision of a special Petty Session, on an applica- tion for compensation under stat. 8 Geo. 4, c. 33, for damage done by rioters, (x) .] Rate. — The writ does not lie to command justices to cause a rate to be make and levied for raising and paying the taxed costs of de- fending actions on stat. 57 Geo. 3, c. 19, s. 38, against the applicants for the recovery of certain damages found to have been sustained by the plain- tiffs in those actions, in consequence of certain tumultuous assemblages of persons within the borough, if the borough be not within a hun- dred, because the relief is confined solely to hundreds aliter, if within a hiimdred.(y) .] Compensation. — As to compensation for damage done by rioters. See titles Compensation (Rioters) ; Damages. KoAD.] See titles Canal; Footioay ; Highway; Inclosure ; Rail- way. EuGBT Charity, Trustees of.] See titles Charity ; Institutions', Private; Trust. Russia Company.] See titles Company ; Franchise ; Freedom (Com- pany, Swearing in.) tits. "Constable" (Appointment), "Guardians of Poor" (Election), " Office," "Pa- rish" (Officers, Election). (») R. V. Bateman, 4 B. & Ad. 552.f S. C. 1 N. & M. 118.f See tits. " Courts In- ferior" (Holding Court), "Manor" (Leet), "Quarter Sessions" (Petty Sessions). (w) Ante, p. 21, 28. See post, tit. " Application" (Affidavits). (x) R. V. Tucker, 5 D. & R. 434.f See tits. " Courts Inferior" (Appeal,) " Quarter Sessions'; (Appeal). (l/) Ante, p. 16. R. v. King's Lynn (J.), 3 B. & C. 147.t S. C. 4 D. & R. '7V8.f See tits. "Act of Parliament," " Costs," "Damages," "Money," and post, "Appli- cation." 302 tapping's mandamus. Sacrament. J Administration. — The writ has issued to command the administration of the Sacrament of our Lord's Supper.(z) As to return of not taking the Sacrament in order (a) to qualify for corporate office. St. Martyn-Le-Gkand, Cotjrt of.] Qe^iiile^s Attorney {Restoration); Courts Inferior {Saint Mar tyn-le- Grand.) r^ncoT *Salaut.J See titles i/ectoresAip ; Money; Office {Fees, &c. ;) Parson. Savings' Bank.] Arbitration. — The writ lies to command the man- agers, directors, or trustees of a savings' bank, to name and appoint an arbitrator on their behalf, to arbitrate in pursuance of the stat. 9 Geo. 4, c. 92, s. 45, as to matters in dispute between the bank managers and the depositers,(6) because there is no other remedy j for it has been held, that where money belonging to the depositers in a savings' bank had been embezzled, or lost by the default of the officers of the bank, the remedy of the depositors was not by action against the trustees or managers, but by mandamus to compel them to appoint an arbitrator under stat. 9 Geo. 4, c. 92, s. 45. (c) But where by a rule of a savings' bank, no claim for any sum of money could be made after more than seven years from the death of a depositor, the Court discharged a rule nisi for a mandamus to the trustees of such a bank, to appoint an arbitrator under stat. 9 Geo. 4, c. 92, s. 45, to decide a dispute as to the money, the alleged depositor of which had been dead more than seven years ; for the Court will not set on foot an inquiry which cannot end in any useful result.(d) The applicants must shew themselves to be depositors, otherwise the (2) Cited in R. y. Patrick, 2 Eeb. 167. But it is said by Windbam, J., tliat this precedent is not to be followed, for tbat most likely the writ in that case was, like many others, issued auctoritate Parliamenti on petitions presented to the King and Parliament from the House of Lords, which was then distinct, and a Court of Judicature : — ^in such oases the King gave present answers unicS. voce, without an act of Parliament. Ante, p. 3, n. (l). See tits. "Bishop," "Chrism,"-" Confirma- tion," " Consecration," " Visitation." (a) Clerk's case, 2 Vent. 24f. R. v. Larwood, 4 Mod. 269. R. T. Aldborough (Borough), 10 Mod. 100. See tits. " Alderman" (Restoration, Oaths), "Oaths," " Office" (Restoration, Return, Oaths). (b) See tits. "Act of Parliament," "Arbitration," "Award." B. v. Witham Savings' Bank, 1 A. & E. 321, 325.f S. C. 3 N. & M. 416.t B- v. Cheadle Savings' Bank, 1 A. & E. 323,t n. {a). S. C. 3 N. & M. 418,t n. (a). B. r. MildenhaU Savings' Bank, 6 A. & B. 952.f S. C. 2 N. & P. 2T8. R. v. Northwich SaTinga' Bank, 9 A. & E. '?29.f S. C. 1 P. & D. All. But see stat. 4 & 5 Wm. 4, c. 40, amending stat. 10 Geo. 4, c. 56, as to Savings' Banks. (c) Ante, p. 18—25. R. v. MildenhaU Savings' Bank, 2 N. &P. 278. S. C. 6 A. & E. 952 ;t also R. v. Witham Savings' Bank, 3 N. & M. 416.f S. C. 1 A. & B. 321,t and R. v. Cheadle Savings' Bank, 3 N. & M. 418,+ n. la). S. C. 1 A. & B. 323,tn. {a). M w (d) Ante, p. 15. R. v. Northwich Savings' Bank, 1 P. & D. 477. S. C. 9 A. 4 B. 729.f See tit. post, " Application." S-OHOLARSHIP, 303 writ 'will be refused. (e) But the Court of B. B. has under stat. 9 Geo. 4, 0. 92, s. 45, granted a mandamus to command a savings' bank to ap- point an arbitrator to decide between such bank and the applicants, in whose names a deposit has been made, although such deposit had been withdrawn by the person who had made it for the applicants, and notwith- standing the bank rules directed that a duplicate book of the deposits should be delivered by the bank, and be an authority for paying over any sums to the person bringing it to the bank, and though such duplicate was delivered up to the bank when the deposit was withdrawn. (/) The writ will not however be granted for the purpose of deciding upon the claim of persons professing to apply on behalf of a body of depositers, if it be mat- ter of dispute among the depositers themselves, whether or not the appli- cants are entitled to represent the \>odj.(g) *Scavenger]. The writ lies for the office of scavenger when r^oKqi appointed by act of Parliament, and thereby made a public office.{A) .] Appointment, Duties, &c.'] — It has been held, that the writ lies to command an appointment of scavengers. The report of the case is thas, " the Court was move4 for the parishioners and officers of the parish of Clerkenwell, to make scavengers, that are elected in that parish, serve the office." Kolle, C. J., answered, "It is marvel that the city of London do not look to this, for they have power by their bye-laws to make men serve such offices. Tet take a mandamus for them to be brought hither to shew cause why they will not execute the office. "(i) .] Admission, Swearing in. — The writ lies to admit a scavenger to his office,(_;') and also to swear him to the duties of his office. (^) SOHOLAESHIP.] See titles College (^Scholarship)) University [Scho- lar.) School.] This subject is arranged as follows : — (e) Ante, p. 21, 28. Supra, 1 A. & E. 323,f n. (a). S. C. 3 N. & M. 418,1 u. [a] ; 9 A. & E. I29.f S. C. 1 P. & D. 477. See post, tit. " Application." {/} R. T. Cheadle Savings' Bank, 1 A. & E. 323,t n. (a). S. C. 3 N. & M. 418,t n. («). See supra, n. (c), 6 A. & E. 956.+ S. C. 2 N. & P. 278, and 1 A. & B. 32I.f S. 0. 3N. &M. 416.t (g) See ante, p. 27, 28. D. v. Witham Savings' Bank, 1 A. & E. 321.f See post, tit. "Application." {h) See tit. " Act of Parliament," " Churchwarden." See He's case, 1 Vent. 143. Com. Dig. tit. "Man." (A.), also cited in the Case of Pariah Issues, Comb. 257. See stats. 2 Wm. & M., st. 2, c. 8, 3 Wm. & M., c. 12, 8 & 9 Wm. 3, c. 37, 6 Geo. 1, c. 6, 18 Geo. 2, c. 33, ss. 2, 3. (»') Anon., Mich. 1652; Sty. 346, cited in Patrick's case, Raym. Ill, nom. The case of the Inhabitants of Clerkenwell, M. 1652. (/)'See R. V. Barker, Burr. 1267, 1268, per Wilmot, J., ; also R. t. Evans, 1 Show. 282. City Works' case, 2 Sid. 112. R. v. Morpeth (Bailiffs), Stra. 59, H. 4 Geo. 1. R. T. London (Mayor), 2 T. R. 181. See tit. " OfBce" (Admission). (*) Hub. 270, M. 1652, cited in R. r. Patrick, 1 Keb. 834. See tit. " Office" (Swearing in). 304 tapping's mandamus. Schoolmaster ... 253 License - . - 254 Admission - - - 254 Restoration - - - 254 Teacher - - - - 254 License - - - 254 Admission . - - - 254 Under Master - - - - 254 License - - 254 Restoration - - - 256 Usher - - - 255 License - - - - 255 Restoration - - - 255 .J Sclwolmaster. — It is now clearly established that a mandamus will he granted, at the instance of a schoolmaster of a grammar or otker public school, because the office is of a public nature, and has temporal and certain rights annexed to it, for which there exists no other specific legal remedy. (Z) This doctrine was formerly doubted, and a mandamus r*9fid.1 ^°'' ^^"'^ *^^ officer has been refused. (m) The office of schoolmas- ter has been often stated to be the lowest for which the writ of mandamus will be granted.(ra) .] License. — The writ lies to command the licensing of a school- master, duly entitled to such license. But it is a good return, if the candidate be in holy orders, that a reasonable time has not been allowed, wherein to inquire into the propriety of licensing, (o) So it is a good return to such a writ, that the ordinary has suspended granting his license, until the party would submit himself to be> examined " touching his suffi- ciency in learning,"(p) or as to his morality and religion. .] Admission. — So the writ lies to command the due and proper admission of one appointed schoolmaster, to the duties of his office, (j) .] Restoration. — The writ will also be granted to restore such a schoolmaster, if improperly removed from his office j(r) or from the mas- (Z) Ante, p. 12. R. t. Canterbury (Archbishop), 8 East, 217, 218. E. t. Mor- peth (Bailififs), Stra. 58. See Cox's case, 1 P. Wms. "29. R. v. Appleford, 2 Kel). 862. R. T. Dr. Bland, T Mod. 356, citing Stamp's case, Ray. 12. S. 0. 1 Sid. 40. S. C. 1 Keb. 5, agreed in Hurst's case, 1 Lev. 75. S. C. 1 Keb. 354. R. t. Rush- worth, Kel. 287. Middleton's case, 1 Sid. 169. S. C. 1 Keb. 631. R. -v. Canter- bury (Archbp.), 15 East, 132. R. v. Litchfield, &c. (Bp.), Stra. 1023. S. 0.7 Mod. 217. S. C. 2 Barn. 365, 428. Withnell v. Gartham, 6 T. R. 388, 390. Bac. Abr. tit. "Man." C. See tits. "College" (Master), "Dissenters" (Minister), "Lec- tureship," " Office" (Public), (Pees, Emoluments, &c.) (m) The Protector v. Craford, Sty. 457. And see R. v. Patrick, 1 Keb. 835. E. V. Kingscleere (Churchwardens), 2 Lev. 18. Com. Dig. tit. " Man.'" (A.) (n) 1 Keb. 354, and 1 Keb. 631, supra. See tits. " Constable," "Sexton." (o) Ante, p. 27, 28. R. T. Morpeth (Bailiffs), T. 3 Geo. I, Stra. 58, cited in K. T. London (Ep.), 1 Wils. 13. S. C. Stra. 1192. R. v. Litchfield (Ep.), Stra. 1023. S. C. 2 Barn. 365, 428. S. C. Andr. 367. S. C. 2 Kely. 287. See tits. "Bishop," " Lectureship" (License), " License," and infra, " Teacher." (p) E. T. York (Archbp.), 6 T. R. 490. R. v. Canterbury (Archbp.) 15 East, 132. (?) R. V. Barker, Burr. 1268. See tits. "College" (Master, Admission), "Dis- senters" (Minister, Admission), " Office" (Admission). [r) Ante, p. 12. Parkinson's case, Comb. 144. R. v. Patrick, 1 Keb. 610. R. T. Lichfield (Ep.), Stra. 1023. S. C. 7 Mod. 217. S. 0. 2 Barn. 365, 428. R.t. Rushworth, W. Kel. 287, citing 1 Sid. 169. R. t. Darlington School, 12 L. J., N. S. 124, Q. B. S. C. 6 Q. B. 682.t S. C. 14 L. J., N. S. 67, Q. B. where see form of return, &c. R. t. Morpeth (Bailiffs), Stra. 58. See tits. " College" (Master, Restoration), "Dissenters," "Office" (Restoration). SCHOOL. 305 tewhip of a free schools) but not if the governors have a discretionary power of amotion. (<) — -.J Teacher ; License. — The writ also lies to command the grant- ing of a license to teach in a grammar, or other public school, (m) But it is a good return to such a writ, that the license is suspended, until a sub- mission to examination " touching his sufficiency in learning."(D) .J Admission. — So the writ lies to command the admission of a teacher to his office, on a suggestion of his due election, and of the demand and refusal, (w) .] Undermaster ; License. — So the writ lies to command the granting of a license to the undermaster of a public school.(x) * .] Restoration. — So the writ lies to command restoration to such an office,(y) on illegal deprivation. L J .] UsJier. — The writ will not be granted where the place is one of mere service, as usher of a private school }(z) but for the usher of a grammar or other public school, it will lie, although he be not a sworn officer, if the office have certain and temporal rights annexed to it.(a) .] License. — The writ lies to command the granting of a license to one duly elected usher of a free grammar school. (6) But the party who licenses may take a reasonable time to inquire as to the character of the party asking the license,(c) and may, therefore, return that he is in- quiring into the truth of an accusation, on a caveat, (c^) («) Hermitage's case, Comb. 210. Harcourt t. Pox, Comb. 213. Northampton's case, Lofft, 549. See tit. " College." it) Ante, p. 12—15 ; Comb. 210, supra. See tit. " Office" (Restoration). (u) R. T. York (Archbp.), 6 T. R. 490. R. v. Kendall, 1 Q. B. STS.f S. C. 4 P. &p. 602. E. v. Canterbury (Archbp.V 15 East, 132. See tits. "Lectureship" (License), and supra, " Schoolmaster" (License). M 6 T. R. 490, supra, n. {p). (w) Ante, p. 12. R. v. Barker, 1 W. Blac. 299, 351. S. 0. Burr. 1265. See supra, "Schoolmaster," and post, tit. "Application" (Demand and Refusal.) {x) E. V. Eushworth, W. Kel. 287. See supra, "Schoolmaster" (License), "Teacher" (License), and tit. "Lectureship" (License). (y) Ante, p. J.2. R. v. Morpeth (Bailiffs), T. 3 Gep. 1, Stra. 58. Com. Dig. tit. "Man." (a;) See tit. "Office" (Restoration), and supra, " Schoolmaster" (Resto-^ ration). (2) Ante, p. 12. R. t. Raines, 3 Salk. 233, 11. . Pollice's case, cited in 2 Barn. 365. See supra, " Schoolmaster," and tit. " Office" (Public). (a) Ante, p. 12. Per Glyn, C. J., in City Works' case, 2 Sid. 112. Stamp's case, 1 Sid. 40. S. C. Raym. 12. Middleton's case, 1 Sid. 169. The Protector T. Craford, Sty. 457. R.T.Morpeth (Bailiffs), Stra. 59. Com. Dig. tit. "Man." (A.) Bac. Abr. tit. " Man." C. ' See tits. " Lectureship," " Office" (Sworn officer). (4) R. T.Litchfield (Ep.), 7 Mod. 217. S. C. Kel. 287. S. C. Stra. 1023. S. 0. 2 Barn. 365, 428. , S. C. Andr. 367. S. 0. Com. 448. R. t. Cory, 3 Keb. 855. S. 0. 2 LcT. 222. And see 1 Vent. 41. Tatler t. Reynolds, M. 10 Wm. 3, cited in 2 Barn. 365. In R. t. Wallis, T. 12 Geo. 1, Parker, C. J., and Powis and Eyre, JJ., held it would lie ; Pratt contra : and the Court said there were scTeral authorities in Styles, since that cSse, that a mandamus would lie as aboTc, and said that of late mandamuses had been carried much further than formerly. See tit. " Lec- tureship" (License). 'See supra, "Schoolmaster" (License), "Teacher" (License), "Under Master" (License). (c) 1 Mod. 217,' supra. S. C. Stra. 1023. Com. Dig. tit. " Man." D. 3. Supra, 'Schoolmaster" (License), p. 254. (d) Supra, p. 254, n. (0). May, 1852.— 20 306 tapping's mandamus. -.] . Restoration. — The writ will also be granted to com- mand restoration to the office of usher,(e) but not if there be visitors, and they hare amoved him ;(/) or where he is appomted durante bene placito merely, (g') Schoolmaster.] See titles College (Master); School (^Schoolmaster); University. Scriveners' Company.] — Admission) Swearing in. — The writ lies to command the Scriveners' Company to admit and swear in one duly entitled to its freedom, in order that he may become and practise as a notary. (A) r*9'iRl *Seal Affixing.] ^Q&ii^Qi Administration (when granted); ^ College; Corporation (^Municipal); Hospital; Recorder (Elec- tion); University (High Steward.) Secondary of Clerk of the Crown.] Swearing in. — The writ has been granted to command a swearing in to the office of Secondary of the Clerk of the Crown. (i) Second Curate.] See titles Cwrafe, p. 113, n. (g); Office [knom to the Law), p. 175, n. (g). Secretary of the Court of Marches.] See title Marches. Serjeant.] The writ lies for the office of Serjeant of a municipal cor- poration. (/) Serjeant of the Mace.] Swearing in. — The writ lies not in gen- (e) Ante, p. 12. R. v. Patrick, 1 Keb. 610. S. 0. Raym. 111. R. t. Rushworth, Kel. 287, citing 1 Sid. 169. See tit. "Office" (Restoration), and supra, "School- master" (Restoration), "Under Master" (Restoration). (/) R. V. St. Catliarine Hall, 4 T. R. 235. And see Dr. 'Witherington's cage, 1 Keb. 2, 50, &c. S. G. 1 Lev. 23. S. C. Sid. 71. See tits. "College" (Visitor), " Visitor." (g) Ante, p. 12, The Protector v. Craford, Sty. 451. Stamp's case, 1 Keb. 5. S. 0. Raym. 12. Bagg's case, 11 Rep. 93 b. Coveney's case, Dyer, 209. See tits. "Office" (Freehold), " Recorder" (Restoration). (A) Ante, p. 12. R. v. Scriveners' (Society) 1 G. & D. 641. Scriveners' Com- pany V. R., 3 G. & D. 272. S. 0. 3 Q. B. 939 ;t 6 & V Vict. c. 90, as to notaries public. R. V. Scriveners' Company, 10 B. & C. 511. S. C. 5 M. & R. 643. In re Taylor, 5 B. & A. 538.t See tits. " Company," " Franchise," " Freedom" (Com- pany, Swearing in), "Freeman," " Office" (Admission, Swearing in). (i) Ante, p. 1 2 ; cited in Townsend's case, 1 Keb. 458. See tit. " OfSoe" (Swear- ing in). (y) 3 Roll. Abr. 456, 1. 20, 32. Com. Dig. tit. " Man." (A.) See tit. " Corpora- tion Municipal," " Office," " Serjeant of Mace." As to the election of Serjeant, see stat. 6 & T Vict. c. 89, App., the requisitions of which should be followed. This statute has not been extended to Ireland. See Stat. 19 Geo. 2, c. 12 (I.), App. SEXTON. 307 eral to sweSr in a (serviens ad olavam), Serjeant of the mace to his ofl&ce, because usually he is but an officer dative and removable at the pleasure of the mayor, like the clerk of the waterworks in London. (A) .] Restoration. — rBut afterwards the Court commanded the mayor of Bodmin to restore the serjeant-at-mace, upon a suggestion that it was an office for life, and not a mere voluntary employment. (?) .] Delivery of Mace, &c. — ^If on the discharge of a Serjeant of mace he refuse to deliver up the mace to his successors, yet a mandamus has been refused to compel him so to do.(7re) Severn, Water Bailipp of.] Restoration. — The writ has been denied to command the restoration of the water bailiff of the river Severn to his office, although a patent oflioer ; Holt, C. J., when refusing the writ, said, "that he was not for granting a mandamus where an ^qc^t assize lieth,"(ft) but it is *apprehended that at this day, the remedy L ^ by assize having fallen entirely into desuetude, it would in such case be granted.(o) Sewers.] Expenditor, Exemption. — ^The writ has been granted to exempt the archdeacon of Bochester from being expenditor to commis- sioners of sewers, it being a secular office and inferior to his degree. (js) .] As to sewers see title Drainage. Sexton.] The writ of mandamus does not lie for a place of mere ser- vice or employment, but for an office as that of sexton it does lie •,[q) although the writ has been granted for this office ever since the time of Lord Holt,(r) yet it has been -confessed to be the lowest in the scale of offices for which the writ has been awarded, (s) This subject is arranged as follows ; — (i) Ante, p. 175, 176. E. v. Winter, 2 Keb. 134, which was as to the Serjeant of Stafford. R. t. Dartmouth (Mayor), 3 Salk. 229. Bac. Abr. tit. "Man." (D.) ; 2 Roll. Abr. tit. " Restitution," pi. 1. {I) Ante, p. 175. R. v. Barnard, 2 Keb. 402, but Twisden, J., doubted, because he wag no officer of goTernment, but like the clerk of the Waterworks in London. Anon., Comb. 287; 3 Salk. 229, 2, where see a return. See tits. "Corporation" (Municipal), " Office," " Swordbearer." (m) R. T. Todd, 2 Jur. 565. See tit. " Insignia." in) Ante, p. 5, n. (A), 19, 20, n. la). River Severn's case. Comb. 347. See tit. "Office" (Public). "^ " ' ' ^-^ (o) See ante, p. 5, n. (A), and tit. " Office." [p) Dr. Lee or Warner's case, 2 Keb. 693, citing 2 Inst. 3. See tits. " Drainage," "Expenditor," "Office." (j) Ante, p. 12. R. v. Raines, 3 Salk. 233, 13, also cited in R. v. Canterbury (Archbishop), 8 East, 218. Tide Burn's Eccl. Law, 319, tit. "Sexton." Isle's case, Ray. 211, S. C. 1 Vent. 143. S. C. Id. 153. S. C. 2 Lev. 18. S. C. March. 101, cited in R. V. Dr. Bland, 7 Mod. 356. See also Oliver v. Ingram, 7 Mod. 267. S. 0. Stra. 1114, where the law as to sextons is fully discussed. R. v. Morpeth (Bailiffs), Stra. 68. R. V. Stoke Damerel (Minister), 1 N. & P. 56.t S. C. 5 A & E. 584.t See tits. " Office," " Schoolmaster," ante, p. 254, u. (n). ir) R. V. London (Aldermen), 2 Barn. '398. Nat. Brev. 218. (s)R. V. Appleford; 2 Keb. 862. See tits. "Constable," "Office" (Ministerial, Inferior), " School," (Schoolmaster.) SbxtoN' — Swearing in - - 257 - 257 Bestoratlon - - 257 . 257 Returns - 258 308 TAPPING'S MANDAMUS. Sexton Election Admission - .J Election. — The writ lies to command the minister and chmeh- wardens of a parish to convene a meeting within the parish, for the pur- pose of electing a proper person to fill the office of sexton.(<) .J Admission. — ^After the election of a sexton, the writ lies to command his admission to his office. («) .] Swearing in. — The writ lies to swear him into his office.(t)) .] Restoration. — The writ lies also to command churchwardens, &c. to restore to the office of parish sexton on nnjust deprivation, it being a freehold, and the duty of the officer being to take care of the church. It was not until after time taken by the Court to consider whether any precedents would warrant the writ in such a case, that it was granted; it was much doubted at first, as it was contended, that a sexton was rather a servant, than an *officer who has a freehold in his office.(w) The *- ^ older cases shew that on the application for the writ, there was usually produced to the Court a certificate from the minister and some of the inhabitants of the parish, of the existence of a custom to choose a sex- ton, whose appointment was for life, and of the fees attached to the office as that he should have two pence per year for every house within the parish. But such certificate is now dispensed with,(a;) it having been settled that if it appear, that the office is elective, and has certain custom- ary perquisites as freehold, as in some cathedrals, the writ will be granted, but otherwise not.(^) Thus, if the sexton by virtue of his office gather all the toll, he will be restored, but not so where he is a mere servant, or there is no suggestion of any of the above special facts, for in the latter case the Court will consider it to be a place at will merely. (2) .J Returns. — A return to a mandamus to restore to the office of sexton, alleged that the prosecutor was not duly elected and sworn sexton (t) R. V. Stoke Damerel, 1 N. & P. 56.t S. C. 5 A. & B. 584.1 S. C. 2 H. & W. 346, cited in R. t. Birmingham (Rector), 7 A. & B. 257.f See tits. "Churchvfar- den," " Office" (Election,) " Parish." (u) Cited in R. t. Barker, Burr. 1267. Nightingale v. Marshall, 3 D. & R. 549.f See tit. " Office" (Admission). (d) March. 101 ; 2 Roll. Abr. 234, I. 35, Com. Dig. tit. "Man." (A.) Anon., 7 Mod. 118. See tits. " Oaths," " Office," (Swearing in), and ante, p. 12. [w) Ante, p. 12. Isle's case, Raym. 211 ; 1 Vent. 143, (cited and approved in 2 T.E. ,183, n. (i), 153. S. C. 2 Keb. 802. S. C. cited in Olive v. Ingram, 7 Mod. 267, H. 32, H. 6, 31. Sexton may be a parson, 2 Keb. 807, 820, S. C. S. C. 2 Lev. 18, nom. B. T. Kingsoleere (Churchwardens). Isle's case, cited in B. v. Rushworth, Kel. 287, and in R. v. Blooer, Burr. 1044. Com. Dig. tit. " Man." (A.) See R. t. Sir Rich. Raines, 3 Salk. 233, 13, 15. R. v. Taunton (Churchwardens), 1 Cowp. 413. Anon., Freem. 21. R. v. London (Mayor), 2 T. R. 182, n. (5). Bac. Abr. tit. "Man." C. See tit. " Office" (Restoration). (x) R. V. Kingscleere (Churchwardens), 2 Lev. 19. See tit. " Custom." (y) Isle's case, 2 Keb. 806, per Hales, C. J., the whole Court agreeing. See also R. T. Stoke Damerel (Minister), 1 N. & P. 56.+ S. C. 5 A. & E. 584.+ S. 0. 2 H. 4 W. 346. See tit. " Office," (Fees, &c.) ' (a) Supra, n. fh) ; and see R. v. Raines, 3 Salk. 233, 13, 15. See tits. "Guard- ians of Poor" (Clerk), '■ Office." SHIP. 809 « according to the ancient custom of the parish, and secondly, that there was a custom of the inhabitants, &o. to elect and remove at pleasure, and that the prosecutor was so removed pursuant to such custom ; which returns were held good, and not inconsistent, (a) Shakes.] See title Company {Shares, Calls.) Sherijt.] Swearing in. — The writ lies to swear in a sheriff to his office. (6) .] Duties, &c. — A performance of all those legal duties of a sheriff, for the neglect of which there is no specific legal remedy, may be commanded by mandamus, (c) .] Delivery of Rolls, &c. — The writ also lies to command the ex-sheriffs to deliver over all official rolls, &c., to the new ones.(d) * .] Compensation. — As to compensation for loss of fees, p^ncq-i see title Compensation {Sheriff^. .] Sheriffs' Court. — As to Sheriffs' Court, see titles Courts In- ferior {Sheriffs' Court) ; Sheriffs' Court). Sheriffs' Court.] See titles Courts Inferior {Sheriff's Court). Sheriffs' Court, London, Judge of.] Swearing in. — The writ has been granted to command the swearing in of the Judge of the Sheriffs' Court, London, the election and nomination of whom is in the common council, and not in the lord mayor or sheriffs.(e) Ship.] Registration. — The writ lies on a proper case to command the registry of vessels as British vessels. (/) .] Certificate of Registration. — The writ will also be granted to command the due granting of a certificate of the registry of a transfer of a ship, pursuant to stat. 34 Geo. 3, c. 6S,{g) if all proper parties have joined in the transfer thereof,(A) and the ship should of course be register- ed.(i) (a)E. T. Taunton (Churchwardens), Cowp. 413. Com. Dig. tit. "Man." D. 3. See post, tit. " Return." (ij'Ante p. 12. Papilion's case, Skin. 64, where see as to how the writ should be directed. B. v. Woodrow, 2 T. R. 732. And see Scarborough's case, Stra. 1180 ; Trem. PI. Cor. 452, where see form of writ. See tit. " Office" (Swearing in). (c) See tits. « Compensation" (Assessing), " Office" (Duties, &c.) (rf)Sheriif of Nottingham's case, 12 Car. 2, B.R. Hurst's case, 1 Keb. 38V. See tits. "Books," " Company," "Corporation" (Municipal), " County," " Records." (e) Ante, p. 12. Thompson v. Goodfellow, 2 Show. 173, citing Proctor v. Philip. Hardr. 311, 327. See tits. " Bristol," " Courts Inferior" (Sheriffs'.Court), " Office'' (Swearing in), " Sheriffs' Court." (/) R. T. Arnaud, 16 L. J., N. S. 50, Q. B., where see form of writ and return. See tits. "Customs," "Office" (Enforcing Duty, &c.), "Registers of Middlesex." iff) E. T. Customs (Collector), 2 M. & S. 223. R. v. The Customs (Collector), I M. & S. 261. See tits. " Act of Parliament," (Certificate), " Customs." (A) Ante, p. 27, 28 ; 2 M. & S. 223, supra. W 1 M. & S. 261, supra, n. (g). 810 tapping's mandamus. Sidesmen.] Election. — The writ lies to command a notice to be giyen to hold a meeting for the purpose of electing sidesmen, (/) for the year ensuing.(7(;) .] Swearing in. — The writ lies also to command the swearing in of a sidesman. (Z) .] Rule. — It is admitted that the rule is absolute in the first instance, in analogy with the practice as to churchwardens, (m) Sister. J See titles Hospital (^Sister, Sestoration) ; Office; Visitor. r*2fi01 *Skinnbrs' Company, Assistant op.] The writ has been ^ granted for the assistant of company as the Skinners' Company.()i) SoTJTHWAEK, BoRODaH CouET OF.] See titles Attorney; Corpora- tion Municipal (^Duties) ; Courts Inferior (^Southwark). Spiritual Court.] See titles Courts Inferior {Spiritual Courts); ' Courts Superior ; Office; Pr actor ; Registrar. Stall.] See titles Bishop; Canon; Cathedral Stall; Dean; Pre- hendiary. Stannaries Court.] See titles Courts Inferior (Stannaries Gowt, Searing). Statute Duty.] See title Sighioay (Statute Duty). Stewaed.] Restoration. — The writ has been granted to restore to the office of steward of a city corporation(o) or Court.(p) .] High, Swearing in. — The writ lies to command the swearing in of a high steward, for he is a public ofllcer.(2) (y) For the nature of this office, and for the origin of the term Sidesmen or Synodsmen, see Burn's Eccl. Law, tit. " Churchwarden." And see tits. "Office," " Parish" (Meeting). [h) R. V. St. James, Westminster (Churchwardens), 5 A. & E. 391,f also cited in Campbell t. Maund, 5 A. & E. STe.f See tits. " Churchwarden" (Election), "Office" (Election), " Overseers." {I) B. T. Middlesex (Archdeacon), 3 A. & E. eiS.f S. C. 5 N. & M. 496.t Ex parte Duffield, 3 A. & E. 6lY.f See tits. " Churchwarden" (Swearing in), "Office" (Swearing in), " Overseers." (m) Ex parte "Winfield, 3 A. & E. 614.f Ex parte Duffield, 3 A. & E. 618.f S. 0. 6 N. & M. 865.f See tits. " Churchwarden" (Swearing in. Rule). See post, tit, " Rule." («) R. T. Oxenden, 1 Show. 219. See tits. "Company," "Franchise," "Free- dom" (Company), "Office." (o) R. V. Halse, 1 Keb. 20. See tits. "Colchester," "Reading" (Steward), "Strat- ford-upon-Avon" (Steward). (p) See tits. " Bristol," " Manor" (Steward of Leet), " Office" (Public). (?) See supra, u. (o), [p). Anon., M. 1652, Sty. 355; Com. Dig. tit. "Man." (A.) ; also cited in the Protector v. Crawford, Sty. 458. See tits. " Colchester,' " Office," " University" (High Steward). i j^ TITHE. 311 Steward of Cotjet Bakon.] See title Manor (^Baron Steward). Steward of Copyhold Court.] See title Manor (Copyhold Court). Steward of Court Leet,] See title Manor (Leet Steward). Stipendiary Curate.] See titles Curate (^Stipendiary) j Salary. Steateord-upon-Avon, Steward of.] Restoration. — The writ does not lie to restore the steward of Stratford-.upon-Avon, it being but an ofGice durante bene placito.(r) Surgeon.] Q&o ii\Xea Eo^ital {Surgeon) ; Office {Public). Surgeons' Company.] ^ei^ ii\XtB Apprentice ; Freedom; Hospital. *SuRVEY0RS OF HIGHWAYS.] See title Highways ('S^'"'- r*ofl-n vei/or.) Surveyor of New Eiver.] See title New River Water (Sur. veyor.) Swoedbearer.] Restoration.'— The writ lies to restore to the office of swordbearer of a municipal corporation, (s) Taxation of Costs.] See titles Compensation {Costs'); Costs; Man- damus ( Costs.) Teacher.] See titles CoZZe^e; School {Teacher) ; University. Thames Court of Conservency.] See title Courts Inferior { Thamet Conservancy.) Tithe.] Modus. — The Court will grant the writ to command, the prosecution of an inquiry as to the existence of a modus, under an inclo- Bure act.(?) But where a tithe commissioner, during the pendency of a suit for the rBCOvery of tithes, had proceeded to inquire as to the validity of a modus, (»•) Dighton T. Stratford Corp.), 1 Sid. 461. See tits. " Colchester" (High Ste- ward of), "Office" (Freehold), "Beading" (Steward), "Steward," "Town Clerk" (Restoration, Returns), and ante, p. 12. (») R. T. Bristol (Mayor), 1 Show. 228, the return being "absence and non-at- tendance on the mayoi- in dirersis progressibua suia per, &c." S. C. Comb. 145. S. 0. Carth. 199. Bac. Abr. tit. " Man."0. See tits. " Office," "Serjeant of Mace," andante, p. 198., [l] Anon;, 2 Chit. 251, See tit. "Inelosure." The rule in such a case has been directed to be ' served on the ricar and impropriator. See post, tit. "Rule" (Service). 312 TAPPING'S MANDAMUS. under stat. 6 & 7 Wm. 4, c. 71, s. 45, but had declined to make His award until the tithe suits should be at an end, the Court refused, under the circumstances disclosed by the case, to command him, by mandamus, to make his award. (m) . j Compensation. — The writ does not lie to command the sum- moning of a compensation jury, in order to assess damage for loss of tithe sustained by a rector or vicar, by reason of land having been con- verted to a purpose which rendered, it incapable of producing tithe, unless the case be especially within an act of Parliament, &c. ; because such rector or vicar is not interested in the land out of which the tithe arises,(!;) but in the latter only when produced. .] Case. — As to a mandamus to state a case, in pursuance of Stat. 6 & 7 Wm. 4, c. 71, ss. 37, 45.(«;) Title.] See titles Dignity; Knight; University (^Academical Be- ) r*9fi9i *TiVERTON, TwENTY-FOUR Men OF.] As to the office of one of the twenty-four men of Tiverton, see tit. Ashburton [Eight Men of.) Toleration Act.] The writ has been granted, on several occasions, to command justices to administer to one duly entitled the oaths, and to permit him to subscribe the declaration required by the Toleration Act, 1 Wm. & M. St. 1, c. lB.(x) Tolls.] See titles Canal Company i^ToUs ;) Highway (^ToUs.) ToLT.] See title Courts Inferior ( ToU.) ToLZEY Court of Bristol.] See titles Bristol; Courts Inferior (Tolzey Court.) Town Clerk.] The writ lies for the office of town clerk, because it is both public, and prima facie a freehold, (y) («) In re Tithe Commissioners, 1 D., N. S. 810. See tits. "Act of Parliament," " Award." (y) Ante, p. 2'7, 23. E. v. Kene Outfall, 9 B. & 0. 882,f also cited in R. v. Lon- don Dock, 5 A. & E. Its, l'75.f See tits. " Act of Parliament," " Compensation." (mi) R. t. Tithe Commissioners, 12 L. J., N. S., 109, Q. B. See tits. "Act of Parliament," "Case," "Courts Inferior" (Case), "Quarter Sessions" (Case). {x) R. V. Denbysh. (J.), 14 East, 284. R. v. Gloucestersh. (J.), 15 Bast, 582. And see tits. "Alderman" (Restoration, Return), "Allegiance" (Oath of), "Col- lege," " Oaths," " OfBce" (Restoration, Return, Oaths). (y) Ante, p. 12. Awdley's case, Poph. 176. S. C. Latch. 123. S. C. Noy, n. Dighton's case, 1 Vent. Y7, 82. B. v. Campion, 1 Sid. 14. The Protector t. Cra- ford, Sty. 457. Com. Dig. tit. " Man." (A.) R. t. New Rirer, 1 Keb. 630, citing Boston Clerk's case. R. v. Hereford, 1 Keb. 716. S. C. 1 Sid. 209. See Stamp's case, Raym. 12 ; Bac. Abr. tit. " Man." (C), and tit. " Ofacfe" (Freehold). TOWN CLEEK. 313 This subject is arranged as follows : — Town Cmrk. Town Ciekk. — ^Restoration 263 Election - 262 Returns - 264 Admission and Swearing in - 262 Records, &c. - 264 Returns 262 Delivery - 264 ]. Election. — The writ lies to command an election of a town clerk; and it w OTild seem, that to such a mandamus, a return " that before the arrival of the writ, one (J. S.) was duly chosen and sworn into the said office," is good.(») .] Admission and Swearing in. — The writ also lies to command an admission and swearing in to the office of town clerk, (a) *The writ lies also to admit, after the death of B., a town clerk _o.„„„, who was elected to the office as reversioner, after the death of B. (6) L ^ .] Returns. — To a mandamus to admit, it is not a good return, that the prosecutor had not taken the oaths before the mayor, according to the stat. 13 Car. 2, e. 1, for he might have taken them before two jus- tices; but to an officer who is bound to take the oaths, it is no excuse that they were not tendered to him.(c) Nor is it a good return that he is not qualified to act.(rf) .] Restoration. — The writ also lies to command restoration to the office of town clerk after illegal deprivation. (e) The writ has also been granted to command restoratidti, or rather ad- (2) Ante, p. 12. R. v. Chapman, 6 Mod. 152, and cases there cited. See stat. 6 & 7 Vict. c. 89, App., as to proceedings necessary to be taken previously to an application for a mandamus to proceed to an election of any corporate officer in any of the boroughs in that act mentioned: this act does not extend to Ireland. See tit. "Office" (Election), and post, tit. "Return." (ffl) Ante, p. 12. R v. Hereford (Mayor), 6 Mod. 309. S. C. 2 Salk. TOl. Town Clerk of Oxon'a case. Comb. 244. See Patrick's case, Raym. 111. R. v. Knapton, 2 Keb. 445, in which case the defendants refused to swear him without payment of a fee. And see Latch. 123, Awdley's case. 5 Com. Dig. tit. " Man." D. 5. R. T. Slatford, 5Mod. 316. S. C. 2 Salk. 428. S. C. Comb. 419. S. C. Holt, 438. R. T. Oxford, (Mayor), 2 Jones, 121; Trem. PI. Cor. 456, where see a form of writ. See tita. "Aldermen," " Councilmen." (J) Awdley's case, Poph. I'r6. S. 0. Latch. 123. S. C. Noy. 78 ; Cora. Dig. tit. "Man." (A.), and see infra, "Restoration." As to an ofiBce in fiera, ante, p. 113, n. (g), 175, n. [i). (ojAnte, p. 187, n. {p). R. v. Slatford, 5 Mod. 316. S. C. 2 Salk. 428. S. 0. Comb. 419. S. S. Holt, 438. R. v. Oxford (Mayor), 2 Jones, 121. See tits. "Oaths," " Office,", (Restoration, Return, Oaths). (rf)Ante, p. 72, n. (c). R. v. Slatford, supra. See tits. "Churchwarden" (Swear- ing in. Returns), " Office" (Admission, Return, Not qualified). (e) Ante, p. 12. Awdley v. Joy, Poph. 176, in which cases are cited of similar writs having been' granted, an. 16 Eliz. ; it is there also stated by Fennor, J., that a like writ of restitution was granted in 43 Eliz. S. 0. Latch. 123. S. C. Noy, 78. E. V. Hereford, 1 Keb. 655. S. C. 1 Sid. 209. R. v. Glocester (Mayor), 2 Show. 504. S. 0. 1 RoU. 409. S. C. 1 Bulst. 189. R. v. Durham (Corp.), 10 Mod. 146. Dighton T. Stratford (Corp.), 2 Keb. 641, 656. S. C. 1 Tent. 77, 82. S. C. 1 Lev. 291. S. 0. Raym. 188. S. C. 1 Sid. 461. See Stamp's case, Raym. 12. R. v. Oxon (Mayor), 2 Salk. 428. Anon., 1 Sid. 255, 257. Verrior v. Sandwich (Mayor), 1 Sid. 305. Campion's case, 1 Sid. 14. S. C. 2 Sid. 97. R. v. Axbridge (Mayor), Cowp. 523. See The Protector v. Craford, Sty. 457, citing Pasch. 2 Car., Latch. 124. Co. Litt. 233. See tit. " Office" (Restoration.) 314 tapping's mandamus. mittance, to the office of town clerk, to which the applicant had been appointed remainderman, the office having fallen into possession, but to which he had never been admitted.(/) So the writ to restore, &c. was granted where a town clerk had been elected alderman, in order to oust him of his office of town clerk, the offices being mcompatibk.{g) So, where the town clerk had been impro- perly elected mayor. (A.) *The writ does not, however, lie to restore a town clerk, remov- L ^"*J able " ad libitum."(i) Nor will the Court restore such an officer, if it be confessed that he was rightly, though informally, removed.(_/) Nor after he has neglected the duties of the office, because that is sufficient cause both of removal and return. (A) .J Returns.-^-A. return to such a mandamus, that the prosecutor was annuatim eligibilis, is not good, inasmuch as the office is prima facie one for life,(Z) unless restrained by charter or preseriptionj which ought to be shewn on the return ; besides, although the prosecutor might be annuatim eligibilis, yet he will continue town clerk until another be chosen. If, however, the return had been " eligibilis pro uno anno tan- tum," it would have been good ; for the office would have expired at the end of the year, whether another chosen or not.(m) A return of an autho- rity to grant, and an appointment to the office, durante bene placito, or ad libitum, and a subsequent removal, is good ; notwithstanding no cause of removal be returned, and the party deprived have not been summoned to answer j(n.) because the office is a merely ministerial one ; but after (/)AwdIey'a case, Popli. 176. S. 0. Latch. 123. S. 0. Noy, 78. Supra, n, {I) (e), in which case Whitlock and Jones, JJ., stated, that in the case of one 'Con- stable, 10 Eliz., it was resolved that the, Court had power of restitution, and cifed Mittlecott's case, whereupon Noy (Oonnsel) said, that there w'ere precedettfsto prove this 'in the times of Edwi 2, Edw. 3, and' Hen'. 6 ; Upon, which it waa -re- marked by the Justices, that "they (the Justices) are the cMef conservMbrs of the peace within the realm, and therefore have power, for the preservation Of the peace in such factious towns (Coventry), to grant destitution;" See nOte to JEddleton's case', 2 Dyerj-332 b, 333, pi. 28. • ■ • . (^)See ante, p. 197, n. (c). Boston's case, cited in Awdley's case, Latch, 123. S. C. Poph. 176. R. V. Godwin, 1 Doug. 397. See Milward t, Thatcher, 2 T. E. 81^ and the cases there cited. See tit. " Office." (Eesloration, Returni "incompati- ble OfiSce). . . , - . . (h) Verrior v. Sandwich (Mayor), 1 Sid. 305 ; 2 Keb. 92 ; Ba,o. Abr. tit "Office," (K.) See ante, tit; " Mayor." [i] Ante, p. 176. R. v. Campion,, 1 Sid. 15 ; 1 Vent. 77, 82 ; supra, n.'(e)i Com. Dig. tit. "Man." (A. B.) Dighton's case, Raym. 188. S. 0. 1 Ley. 291. S. 0. 1 Tent. 77, 82. S. C. 1 Sid. 461. S. 0. 2 Keb. 641, 656. (BlagraVe'S case, 2 Sid. 49, 72, was not argued). Warren's case, Cro. Jac. 540. See tit. " OfBce" (Free- hold). (i Ante, p. 191, 192, n. (c). R. t. Axbridge (Mayor), 1 Cowp. 523. See tit, " Office" (Restoration). ^ \ ^ ". (h) Ante, p. 192, B..(d);l Sid. 14 ; supra, u. (e) ; 1. Mod. 287. Vide 1 Inst. 1. the rule in Norfolk's case, 39 Hen. 6.; Bagg's case, 11 Rep. 99 a. See tit. " Office" (Restoration). (I) 10 Mod. 146, supra. Dighton's case, 1 Vent. 82. See Co. Litt. 110 ; 1 Ler. 262 ; Cro. Oar. 110, ' See post, " Office" (Restoration Return). (m) 10 Mod. 146, supra; 1 Sid. 33. See tit. " Custom," and post, tit. "Return.' (n) Ante, p. 176, u. («). Dighton's case, 1 Vent. 77. S. 0. 2 Keb. 641, 656. S. 0. TREASURY, IiORDS OF. 315 admission into a judicial office, as an alderman, &o., whose office concerns judicature, there cannot be a remoyal without cause, and a custom so to remoTe, is bad.(o) A return that a mayor, for the time being, may elect a town clerk, is good, which, in effect, is a power to the newly elected mayor, to remove at his pleasure the town clerk for the time being, (p) But if the power be to choose a town clerk, with a proviso that he may be turned out at will and pleasure, yet it has been held, that he cannot be deprived without cause and summons. (g') — .] Records, &c., Delivery. — The writ of mandamus will be granted to command a town clerk to deliver to his successor in office all records, &c., for they concern public justice. (r) *TowN Councillor or Councilman.] See titles Councillor; ^^„nr-. Office. t ^t>5] Trade Mark.] See title Corporation, Trading ( Trade Mark.) Trading Corporation.] See title Corporation, Trading. Treasurer of County.] See titles County ( Treasurer) ; Office. Treasurer or Guardians of Poor.] See title Guardians of Foor ^Treasurer.) , Treasuer of New KrvuR.] See title New River Water ( Treasurer.') Treasury, Lords of.] Although there are circumstances, as in cases of compensation, (s) under which a mandamus will lie against the lords of the treasury, yet their lordships in their official capacities have been erro- neously considered to be within the general jurisdiction of the writ, and a much misunderstood instance is the case of E. v. Treasury Lords, (<) in 1 Sid. 461. S. C. 1 Lev. 291. S. 0. Raym. 188. "Warren's case, Cro. Jac. 540. R. T. Campion, 1 Sid. 14, 15. Com. Dig. tit. " Man." (B.) R. v. Slatford, 5 Mod. 316, and cases there cited. Bac. Abr. tit. "Man." (C.) See tit. "Office" (Freehold, Restoration, Eeturns). (o) Ante, p. 39, n. (Z), 101, n. (x), and infra, n. (q\. Awdley's case, Poph. 176, Bupra. See tits. " Alderman" (Restoration, Rettrns,) " Councilman" (Restoration, Eeturns), " OfiBce" (Restoration.) (p) Supra, ji. ii). R. t. Campion, 1 Sid. 14, 15. See tit. " Office," (Freehold.) (?) Supra, n. (i). Dighton's case, 1 Vent. 82, per Twisden, J. But see tit. " Office" (Freehold, Restoration). (j-) Nottingham case, 1 Sid. 31, where see the legal value of the word " Evidences;" also cited in r! t. Wheeler, Cas. t. Hard., by Lee, 99. S. C. Cunn. 155. Bac. Abr. tit. "Man." (D.) See tits. "Attorney" (Rolls), "Books," "Corporation Municipal" (Insignia, &c.), « County," " Manor" (RoUs), " Papers Official," " Records." W' See tit. "Compensation" (Office). (*) 4 A. & E. 286. f S. C. 5 N. & M. 589, 600,f per Ld. Denman, C. J. ; and see 6 N. & M. 508.f See also 6 N. & M. 520,f where the Court said that all that was settled in 5 N. & M. 589,f was that their Lordships ought to make a return, and that beyond that no such rule of law was laid down. See R. v. Hornby, or The Bankers' case, 11 Harg. St. Tr. 136. S. 0. 14How.St. Tr. 1. S. C. 5 Mod. 29. See tits. "Crown," "Customs," "Manor" (Royal Manor), "Pension," "Half-pay." 316 tapping's mandamus. which it appeared prima facie, that a government pension had been graiited, that funds applicable to its payment had been placed by Parliament in the hands of the lords of the treasury, as public officers charged hy statute with the payment of such persons ; that such lords had allotted the fund for the payment, had acknowledged to the claimant that they held it for his use, and that they only refused to pay because he declined to take it clogged with conditions, which they had no right to impose ; upon these facts to which no answer was given, the Court granted the mandamus against their lordships, but in so deciding it did not implicitly infringe, but on the contrajy, expressly affirmed the doctrine, that a mandamus will not lie against the Crown or its servants as such ;(m) and therefore, that notwithstanding a legal right be shewn to something over which the lords of the treasury as such, have control, yet a mandamus cannot properly issue to them in respect thereof.(a!) Thu9, a mandamus will not lie to them as the mere public depositories of money to command the payment by them of a sum of money in gross, (y) r*ORRi * '^ Appeal. — ^If the lords of the treasury refuse to hear L J an appeal over which they as such have jurisdiction by act of Parliament, the Court may and will issue a mandamus to command them so to do, but if they do decide upon it, even though they set out wrong reasons for their judgment, the Court cannot review it.(2) So if their lordships having jurisdiction mistake in point of law, such is not a suffi- cient ground to warrant a mandamus. (a) But if their lordships assume jurisdiction where they have none, the Court will review their decision in order to avoid a defect of justice, but will not grant a mandamus to them. (6) . Rule. — The service of a rule upon the lords of the treasury is usually effected upon their solicitor, (c) Trinity House Hall.] Restoration. — The writ lies to command the corporation of the Trinity House Hall, to restore to the brotherhood of that society(£i) one improperly removed therefrom. (m) In re Baron de Bode, 6 D. 792. S. C. 1 W., W. & H. 332, confirmed by In re Hand, 4 A. & B. 984-1 S. C. 6 N. & M. SOS.f In re Smith, 4 A. & E. 976.f S. C. 6 N. & M. 505.f Ex parte Eicketts, 4 A. & E. 999.t S. C. 6 N. & M. 523.t See tits. " Crown," " Customs." {x) Gidley v. Ld. Palmerston, 3 Brod. & B. 2r5.f S. 0. T B. Moore, 91, cited in R. T. Treasury (Commrs.), 6 N. & M. 513.f (y) In re Baron de Bode, 6 D. 776. S. C. 1 W., & H. 332. See tits. "Crown," " Customs," "Manor" (Royal Manor). (») R. V. Treasury (Lords), 2 P. & D. 502. See tits. " Act of Parliament," " Com- pensation" (Office), "Courts Inferior" (Review of Judgment), "Quarter Sessions" (Review, Judgment), and ante, p. 230, n. (4). (o) Ex parte Pratt, 2 N. & P. 102, cited in R. t. Treasury Lords, 2 P. & D. 503. See tit. "Quarter Sessions" (Hearing). ' (6) R. T. Poole (Mayor), 3 N. & P. 119. S. 0. 7 A. & B. 730,+- cited in R. v. Treasury (Lords), 2 P. & D. 503. [c] R. V. Treasury (Lords), 4 A. & E. 976.+ S. C. 6 N. & M. 505.+ See post, tit. "Rule" (Service). [d] Ante, p. 12. Bagwell v. Jobson, 1 Barn. 144. See tits. " Company," " Cutlers' Company," "Franchise," "Freedom" (Company), "Office" (Restoration). UNIVERSITY. ' 317 Trust.] The Court will not interfere in the case of a trust or other mere equitable right, for the writ of mandamus is only a legal remedy for a legal right where there is no other specific legal remedy, (e) Tetjstees.] The writ lies to command the holding of a meeting of the trustees appointed by a parish act, for the purpose of swearing in and admitting one elected trustee, (ce) So, it lies to command parish trustees to admit their accounts in pursuance of a local act.(/) Turkey Company.] See titles Gompany ; Freedom ( Company.') Turnpike Trustees.] ^qq Hi. Highway (^Toll-gates ; ToUs.) Umpire.] . See titles ^rJiirator ; Award; Savings' Banh. Undermaster of School.] See titles College (Master) ; School ( Vh- dermaster ; University. ♦University.] This subject is arranged as follows: — [*267] UNiTKEBrrv. University. Duty, &c. - - - 267 Begins Professor - - 268 Member - 261 Appointment 268 Admission - 267 High Steward - 268 Academical Degrees - 267 Appointment - 268 Admission - 267 Scholar - 268 Restoration - 267 Removal - 268 Keturns - 268 Eestoration - - 269 -^ — .] Duty, &c. — The writ lies to command an University to give effect to the regular corporate act of the whole body, for in such case the visitor has no jurisdiction, and the Court of B. R. has always inter- fered. () Witness.] The writ does not lie to command a county treasurer to pay the expenses of a witness in a case of felony pursuant to an order of sessions, the proper remedy being by indictment or by attachment, in the inferior Court and not by mandamus. (^) Woodward or London.] Restoration. — The writ of mandamus has been granted to command restoration to the public office of woodward of the city of London, its duties being, to take care that the wood and coal for the use of the City of London be kept according to the proper assize. (i) Wood Whabe Teoman.] See title Yeoman of Wood Wharf. Works.] The writ lies to command the performance of works, under and according to the provisions of an act of Parliament, provided there be no specific legal remedy. (/) *Yeoman op Wood Wharf.] Restoration. — The writ lies |-*ogi n to command restoration to the office of yeoman of the wood wharf, it being both an ancient public office, and a freehold.(fc) York, Sheriffs' Court op.] See titles Attorney; Courts Inferior (Sheriffs'); Sheriffs. !e) R. T. Tonge, 5 M. & S. 120. /) Ex parte Home, T B. & 0. 632.f See tits. " Books," " Company" (Share). g) Bishopp's case, 2 Boll. 106; Com. Dig. tit. " Man." (A.) See tit. " Custom." h) Ante, p. 20. R. v. Surrey (Treasurer), 1 Chit. 650.f See the practice as to an attachment in such case, id. n. (a). R. v. Jeyes, 3 A. & B. 419.f S. C. 5 N. & M. lOl.f S. C. 1 H. & W. 325. See tits. " County" (Treasurer), " Courts Inferior" (Judgment, Execution, &c.), "OfBce" (Ministerial, Inferior), (Officers of Courts). (i) Anon., 1 Barn. 123, 135, 154. Schriven's case, Stra. 832; Bac. Abr. tit. "Man." (0.) See tit. " Office" (Public). U) Ante, p. 18—27. R. v. Eastern Counties Railway, 10 A. & E. 55l.f S. C. 4P. &D. 48. R. T. WeUs (Mayor), 4 D. 562. See tits. "Act of Parliament," "Company," (Directors, Duties, &c.), "Dock," "Inclosure," "Railway" (Duties, &c.). (*) Ante, p. 12. Schriven case, Stra. 832,'citfed in R. v. London (Mayor), H., 6 Geo. 2 ; B. R. 2 T. R. 182, n. (b) ; Com. Dig. tit. "Man." (A.) Bac. Abr. tit. "Man." (C.) See tit. "Office" (Public), (Freehold), "Water House" (Master of). 332 tapping's mandamus. The above alphabetical series is supposed to embrace the substance of all that the reported cases, from the earliest period, down to the 7 Q. B. Reports inclusive, contain upon the subject of " Mandamus." [*282] *CHAPTER THE FOURTH. OF THE APPLICATION TO THE COURT, AND RULE FOR THE WRIT OP MANDAMUS. Having in the preceding pages stated the legal principles which govern the dispensation of the Writ of Mandamus, together with an alphabetical series of the subjects, in respect whereof it has been either granted or denied, we now proceed to treat of those practical proceedings, by means of which such writ is obtained. 1st. Application, Proceedings befo re. 3rd. Rule. Demand and refusal 282 How obtained - 295 Demand 283 Motion for 295 By whom made 283 ■ To what Court - 296 When to be made 283 When granted - 29? To whom made 283 Nisi - 29T Form of 284 Absolute in first instance 291 AffidaYits 285 How obtained • - 298 Refusal 285 Form of - 299 What, form of 285 Service of - 300 By whom made 286 Notice of - 300 Affidavits 286 Affidavit of service and When want of demand or re - notice - 300 fusal to be taken advantag e Enlarging - 301 of 28'7 Shewing cause against rule nisi KoTicE of application to Court How - - 301 for writ 2S1 Who may - 302 2nd. Application foe Rule. 4th. Rule Absolute. Nature 28T When granted - 303 By whom made 288 Against whom obtained - 305 Against whom made 290 Form of - - 305 When to be made 290 How obtained - 306 Affidavits in support of rule 292 Costs - 306 When necessary 292 Amendment of - 306 What to contain 292 Compelling prosecutor to pro- Renewing application - 294 ceed upon - 306 1st. Application, Proceedings previously to.] Demand and Refusal. — It is an imperative rule of the law of mandamus, that, previ- ously to the making of the application to the Court for a writ to com- (-jj-Qoo-i mand *the performance of any particular act, an express and dis- tinct demand or request to perform it, must have been made by the prosecutor to the defendant, who must have refused to comply with such demand, either in direct terms, or by conduct from which a refusal can be conclusively implied ; it being due to the defendant to have the option of either doing, or refusing to do, that which is required of him, APPLICATION, ETC. 333 before an application shall be made to tie Court for the purpose of compelling him. Both the demand and refusal must also be shewn on the affidavits made use of in support of the application for the rule, (a) .] Demand, hy whom made. — The demand may be made either by the prosecutor personally, or by some one by him duly author- ized. (5) .J Demand, when to he made. — The demand should not be premature as to time : thus, in the case of the execution of works by a railway company, under an act of Parliament,(c) unless such demand be made after completion of the objectionable work by the company ; and there- upon compliance be refused, cither in direct terms or virtually, a manda- mus will not be granted, though the act of Parliament have been palpably disobeyed, and though the time assigned for the performance of the work have elapsed ; because, as the benefit of such nn act may be waived by the prosecutor, so, if there have been an acquiescence when the works were finished, and no specific complaint made, it may be, according to the cir- cumstances, that such conduct may operate as a waiver by the prosecutor, notwithstanding he may have complained of the improper nature of the works whilst they were proceeding ; because such complaint, though a proper precaution, does not excuse the omission of a specific demand after the completion, which demand should be expressive of what the prosecu- tor considers to be the effect of the act, &e. * .] Demand, to whom made. — The demand must be made rifC)OA-] personally to those from whom the duty, &c. is required, (li) With respect, however, to applications to justices of the peace individually, to do certain acts which magistrates of that description are in general author- ized to do, the generality of their authority, and the multitude of the per- sons invested with it, may be a sufficient reason for not requiring a pre- vious application to each, before resort is had to the Court of B. K. to correct an improper refusal of either of them to act when duly called upon. But where two persons only are specially designated by the Legis- lature to do a certain act, it is not sufficient to found an application to the (a) See ante, p. 52, n. [n), 84, n. (i). E. v. Brecknock Canal, 4 N. & M. SVl.f S. C. 3 A. & B. 217.t S. C. 1 H. &W. 279. B. t. Ford, 2 A. & E. SSS.f S. C. 4 N. & M. 451. f R. V. Beverlej (Mayor), 8 D. 143. R. v. West Looe, 3 B. & C. 611. \ S. C. 5 D. & R. 600,t per Bayley, J. R. t. Leicester (J.), 4 B. & 0. 891.f S. 0. 7 D. & R. 370.t R. Y. Nottingham (J.), 3 A. & E. 503.t S. 0. 5 N. & M. 160.f R. V. Frost, 8 A. & B. 826.f S. C. 1 P. & D. 75. See post, "Application" (Affi- davits). In most of the titles of the preceding series, as in that of Railway, instances can be found of the necessity of a demand and refusal. (i) R. T. Ford, 2 A. & B. 588.t S. C. 4 N. & M. 451.t R. T. Frost, 8 A. & E. 822.f S. C. 1 P. & D. 75. R. V. West Looe (Mayor), 3 B. & 0. 686.+ S. 0. 5 D. &E. 590.t \ J 1^ I (c) R. T. Bristol Railway Company, 12 L. J., N. S. 106, Q. B. S. C. 4 Q. B. 162.f S. 0. 3 G. & D. 834. See tit. "Railway" (Duties, &c.. Rule). {d] R. V. Stoke Damerel (Minister), 5 A. & E. 584.f S. 0. i N. & P. 56.+ R. t. Wiltshire Canal, 3 A. & E. 477.+ S. C. 5 N. & M. 344.1 R. t. Norwich Rail- way, 3 D. & L. 385. S. C. 15 L. J., N. S. 24, Q. B. See post, "Writ" (Direction). 334^ tapping's mandamus. Court for a mandamus, to shew that an application has been made to one of them only.(e) .J Demand, Form of. — The demand must be express and dis-, tinct, and not couched in general terms ; (/) it should accurately demand a performance of that which the defendant legally can and should do.(^) Thus, where an act of Parliament empowers a company to execute works in a manner therein prescribed, and a party wishes to enforce the proper execution thereof by mandamus, he must, after the work is completed, specifically require the company to perform those things which, according to his opinion, the act requires. (A) A demand in the alternative to do one of two, three, or more things, will, if the duty enjoined form one of them, and there shall have been a general refusal to comply with such demand, be sufficient, (i) In some cases, as an application to inspect documents, &c., the object of the demand should be stated, in order that the defendant may see the propriety of the prosecutor's purpose, and that such inspection, &o., has a proper and definite object, and not the gratification of mere ouri/ osity.(i) r*9S'i1 ■] *Demand; Affidavits. — The demand must • cleiarly appear to have been properly made, by the affidavits(7c) used in support of the application, or the Court may refuse it. .] Refusal, what, Form of. — There must also, as before stated, have been a distinct refusal by the defendant to do the thing, or per- form the duty, &o.,(J) previously to the application to the Court for the writ. As to the form of the refusal, it has been held, that it is not necessary that the word " refuse," or any equivalent to it, should be used by the (e) E. T. Loudon (Ep.), 13 Bast, 425. See ante, tit. "Lectureship" (Application), ante, p. 146, n. (6). (/) R. V. Ford, 2 A. & E. 588. S. C. 4 M. & N. 451,+ aud see R. v. Brecknock Canal, 3 A. &B. 2lY.t S. 0. 4 K. & M. 871-1 S. 0. 1 H. & W. 279. S. C. 4 L. J., N. S., M. C. 105. R. T. West Looe (Mayor), 3 B. & 0. 686.t S. C. 5 D. i: R. 590.f See R. v. Stoke Damerel (Minister), 5 A. & B. 584.f S. C. 1 N. & P. 56,t and post, tit. "Return" (Certainty). (g) R. T. Hughes, 3 A. & E. 425.+ See a form of demand in R. v. Frost, 8 A. & E. 823.t S. C. 1 P. & D. 75. R. T. Zendall, 1 Q. -B. 366.f S. 0. 4 P. & D. 603. See post, " Writ" (Mandatory Clause). (A) R. T. Bristol Railway, 4 Q. B. 162.t S. C. 3 G. & D. 384. S.O. 12 L. J.,N. S. 106, Q. B. Ante, p. 383. (j) R. T. St. Margaret's .Parish,-! P. & D. 116. S. C. 8 A. & B. SSO.f S. 0. 1 V. W. H. 673. (i) Ante, p. 16, n. (e). , R. v. "Wiltsh. Canal, 3 A. & E. 483.+ S. C. 5 N. ■& M. 3U,jn.(d). R. T. Clear, 4 B. & C. 899.t S. C. 7 D. & R. Ses.f See tits. "Books," • " Manor" (Rolls Inspection). (k) Ante, p. 283, n. (a). Ex parte Carlton High Dale, 4 N. & M. 313.t R- v. Kendall, 1 Q. B. 366. f S. 0. 4 P. & D. 602. R. v. Barker, Burr. 1265. S. C. 1 W. Blac. 300. See infra, "Refusal" (Affidavits), and post, tit. "Affida- vits." (I) See ante, p. 283, n. (a). R. v. Bristol Railway, 12 L. J., N. S. 106, Q. B. S. C. 3 G. & D. 387. S. C. 4 Q. B. 162.t R. T. "West Looe (Mayor), 3 B. & C. 686.t S. C. 5 D. & R. 590.t R. v. The Wilts. Canal, 8 D. 623. R. v. Monta- cute, 1 W. Blac. 60. S. C. 1 Wils. 283 ; 1 Barn. 59 ; Bac. Abr. tit. « Man." (D.) APPLICATION, ETC. 335 defendant, but there should be enough, from the whole of the facts, to shew to the Court, that for some improper reason compliance is withheld, and a distinct determination not to do what is required; (to) thus, where the affidavits shewed a readiness by the defendant " to do the works, if inikmnified," such was held not to amount to a refusal, as it left the case short of the point to which it would have been brought if such an application had been made, that any nonperformance afterwards must have amounted to a refusal ; as the delivery of a notice, stating, " we desire a direct answer, and your not giving it will be considered a refu- sal ;" for so direct an application would probably have led to a direct denial ; therefore in similar cases such an application or something equiva- lent should haiie taken place, in order to furnish a ground for the writ.(?i) So, the fact of taking reasonable time to consider before fulfilling the demand, does not amount to a refusal; for the prosecutor should, in such a case, apply again to the defendant, in order to obtain an answer, which shall shew that the defendant has exercised *his judgment on the r^noa-i demand, (o) So, in a case where certain books were offered for inspection as a matter of favour, and not as of right, upon which right inspection was deiqanded, it was held, that although it might be import- ant to assert the right, yet the prosecutor should have said, that " he accepted the liberty of inspection as of right, and not as of favour ;" if, thereupon, the books had been withheld, such would have amounted to a refusal.(^) The Court has however held, that the rescinding of an original resolu- tion on which a dispatch was framed, is equivalent to an absolute refusal to transmit such dispatch, and sufficient to authorize the Court to enter- tain^the subject-matter of the mandamus.(2) ^°j ^"^ answer to a demand that the defendant "will not disobey the order of the Court of B. E.," amounts to a refusal to comply without such an order.(r) So, if it be clear from the acts of the defendant, that he does not intend to comply with the demand, a statement of the facts upon which such supposition of the prosecutor is based, will be considered by the Court as tantamount (ffl) Ante, p. 283, u. [a). R.v. Brecknock Canal, 3 A. & E. 21'7.t S. C. 4 N. & M. sn.f S. C. 1 H. & W. 2V9. • S. C. 4 L. J., N. S., M. 0. 105. R. t. Ford, 2 A. k K 688.f S. 0. 4 N. & M. 451.f R. v. East India Company, 4 B. & Ad. SST.f S. 0. 1 N. & M. 335.f R. T. Kent (J.), 9 B. & C. 285, 287.+ Ex parte Winfield, 3 A. & E. 614.t R. T. Bristol Railway, 4 Q. B. 162.t S. C. 3 G. & D. 387. S. 0. 12 L. J., N. S., Q. B. 106. R. v. Thames Commrs., 8 A. & E. 901,t n. [b). R. t. Middlesex (Archdeacon), 3 A. & E. 615.+ R. v. Stoke Damerel (Minister), 5 A. & E. S84.+ S. 0. 1 N. & P. 56.+ R. v. Norwich (Railway), 15 L. J., N. S. 24, 0. B. S.O.ab. &L. 385. ' V J';; > >-c (n) 3 A. & E. 2l7.t S. C. 4 N. & M. SYl.t S. C. 1 H. & W. 2'79. S. C. 4 L. J., N. S. 105, M. C, supra, n. (m). R. t. Wiltshire Canal, 3 A. & E. 483.t S. C. 5 N. & M. 344,t supra, n. [j) See ante, p. 283, n. (a) (o) 3 A. & E. 483.t S. C. 5 N. & M. 344,t supra, n. (n). R. t. Wilts. Canal, 8 D. 623. R. v. Kendall, 1 Q. B. 366.t S. C. 4 P. & D. 602. if] R. V. Northleach Roads, 5 B. & Ad. 982.t . (?) R. V. East India Company, 4 B. & Ad. 535.+ S. C. 1 N. & M. 335, 349.+ See tit. " East India Company." {r) R. T. Middlesex (Archdeacon), 3 A. & B. eit-f S. C. 5 N. & M. 494.f 336 tapping's mandamus. to a refnsal.(s) So, a colourable adjournment or procrastination of the performance of an act for the purpose of delay, is equivalent to a refusal, and the Court will award the mandamus. (<) But the Court will not award the writ, where tlie refusal has been bona fide, or was justifiable at the time it was made.(M) .] Refusal, hy whom. — The refusal must not only be clear, but must be made by those properly called upon to do the act, &e. Thus, the Court refused a mandamus to permit an inspection of books, &c. by a company, where there had been no refusal by the committee, although there had been a direct refusal by the clerk, in whose possession the books, &o. were, and notwithstanding that previously to such refusal by the clerk, upon an application having been made to the committee, they had given a qualified refusal. (u) . Affidavits. — The refusal must clearly appear by the affidavits, in order that the Court may judge as to its sufficiency :(«;) but the rea- [*287]; I sons *or grounds of the refusal need not be set forth ; it is sufficient to state the fact of refusal, if express, or if inferential, the facts from which such refusal is inferred; and this practice also obtains in those cases where the rule is absolute in the first instance.{x) .J When want of demand or refusal can be taken advantage of, — The objection as to the neglect of a demand, or the absence of a refusal, should, in order to prevent a waste of time, be objected to in the first instance, viz. on shewing cause against the rule for the writ, and cannot be made after the merits of the case have beeii discussed. (y) In M. T., 3 Vict., Lord Denman, C. J., announced, that the Court of B. K. had come to a resolution not to entertain an objection to a rule for a man- damus, on the ground that there had been no refusal to do the thing required by the writ, unless such objection should have been taken at the the outset of the argument in shewing cause, (z) .] Notice of Application to Court for writ. — In general, no notice of the intended application to the Court for a rule to issue a writ of mandamus is necessary, previously to the making of such application, except in those cases in which it is either expressly required by statute, (s) R. V. Birmingliam Canal, 2 W. Blac. 708, and see R. v. Eastern Counties Railway, 10 A. & E. 561.t S. G. 4 P. & D. 48. See ante, p. 283, n. (/i). (t) R. v. St. Margaret, i P. & D. 116. S. C. 8 A. & E. 889 ;+ and see 8 A. & B. 901,+ n. (S). (u) Ex parte Parkes, 9 D. 616. (v) R. Y. Wiltshire Canal, 3 A. & E. 483.t S. 0. 5 N. & M. 344.-|- See also 3 G. & D. 386. S. 0. 4 Q. B. 169,t supra. B. v. Middlesex (Arcladeacon), 5 N. & M. 497 ;f and see R. t. Excise (Commissioners,) 6 Q. B. 981,t n. (i). (w) Ante, p. 283, n. (a). Ex parte Carlton High Dale, 4 N. & M. 313.t R. T. Barker, Burr. 1265. S. 0. 1 W. Blac. 300. And see supra, "Demand" (Affida- vits). (x) Ex parte Winfield, 3 A. & E. 614.+ See post, tit. "Affidavits," and post, p. 298. I ir- 1 > (y) R. v. Bristol Railway, 3 G. & D. 387. S. C. 4 Q. B. 171, f per Ld. Denman, 0. J., citing R. v. The Eastern Counties Railway, 10 A. & E. 531, 545,| and n. (b). S. C. 4 P. & D. 48 ; 2 P. & D. 648; 1 Railw. Cas. 509. (2) 3 P. & D. 123, n. (d). APPLICATION, ETC. 337 &e.,(a) or in ■which the rule being absolute in the first instance, the prac- tice of the Court directs, that notice of the intended application shall be given to the person against whom it is about to be made. (6) 2nd. Application for Kule.] Nature of. — The application to the Court of B. K., for a rule for a writ of mandamus, in all matters affect- ing the public, is ex debito justitise.(c) So if a statute, charter, &c., specially delegate to the Court of B. K. the power of enforcing certain duties and requirements by writ of mandamus,(<^) or make the p^„(jQ, *granting of such writ matter of positive law, the applicant is, on ^ J a proper case, entitled to such writ ex debito Justitiae, and on such occa- sions the Court has no discretionary power either as to the granting or the withholding of it; neither can it either fetter nor delay it.(e) Where, however, the right or power is of a private nature, as in the case of many offices, &c., in which the public are not primarily concerned, it is discretionary in the Court, in the first instance, either to grant or refuse the application ;(/) or to grant a rule to shew cause why it should not issue. But where the granting of the application is in the discretion of the Court, such discretion must be, and is, governed by certain prin- ciples ;(§') that is, agreeably to the justice of the case, and as the interests of the parties seem, in its judgment, to require ;(A) thus, as a general rule, the Court will always refuse the writ, unless the defendant have acted wrongly, (t) .] By whom made. — In general all those who are legally capable of bringing an action, are also equally capable of applying to the Court of B. E. for the writ of mandamus ; so all those who are legally deprived (a) Ante, p. 167, n. (a), 183, n. (/). B. v. Jones, Str. 704. See stat. 6 & 7 Vict, c. 89, s. 5, App., and the dififerent titles of the preceding series, where such notice has been held to be necessary, as tit. " Office" (Election, Notice of Application'). (6) Ex parte Winfield, 3 A. & E. 614.f As to when arule for a writ is absolute, in the first instance, see the several titles of the preceding series, and infra, tit. "Rule." (c) See ante, p. 56, n. (o). Bull. N. P. 199. Anon., 2 Barn. 237 ; Bac. Abr. tit "Man."(E.) B. t. West Looe (Mayor), 3 B. & C. 683.-|- S. C. 5 D. & E. 590.t See ante, tit. "Burgess" (Election, Application). (d) R. T. Greene, 6 A. & E. 548-1 S. C. 1 N. &P. eSl.f See tits. " Act of Par- liament," "Charters," &c., and ante, p. 11. U) See ante, p. 54, n. (a). R. v. ETesham (Corp.), Kel. 244. (/) See ante, p. 112, n. (v). Cas. t. Hard. 99 ; Burr. 2189. Anon., 2 Barn. 237 ; Bac. Abr. tit. "Man." (A.), (E.) B. v. Excise Commissioners, 2 T. B. 385. B. v. Clear, 4 B. & 0. 899.f S. C. 7 D. & E. 393.f E. v. Croydon, 5 T. B. 714. [g] R. T. London (Mayor), 1 T. E. 425, 426. E. v. Palmer, 8 East, 425. B. v. Buller, 8 East, 392 ; Bac. Abr. tit. " Man." (E.) E. v. Luton Eoads Trustees, 1 G. & D. 251. S. C. 1 Q. B. 860.i- B. v. Manchester Eailway, 1 G. & D. 344. B. T. Excise Commissioners, 2 T. E. 381. B. v. London (Mayor), 2 T. B. 177. B. v. Griffiths, 5 B.&; A. 731.+ S. C. nom. B. t. Bristol (Mayor), 1 D. & R. 389.+ Anon., 2 Barn. 236. \ ^ I' 1 ' (h] R. V. Brewers' Company, 4 D. & B. 496.1 S. C. 5 M. & R. 140, 153. E. v. Paddmgton Vestry, 9 B. & C. 461. f R. t. Eastern Counties Railway, 10 A. & B. 543.f R. T. Excise Commissioners, 2 T. B. 385. B. v. Buckinghamsh. (J.), 1 B. &C.489.t 9B.* 0.461.+ > & W. («■) R. T. Chester (^Ep.), 1 T. E. 403. May, 1852.— 22 338 tapping's mandamus. of the power to bring an action, are also equally prevented from applying for such \7nt.(J) Thus the writ will not be granted at the instance of a man outlawed, until the outlawry has been reversed ; and it has heen held, that such reversal must be shewn on the writ, for the Court cannot otherwise take notice oiit;{k) therefore the outlawry of the prosecutor is a good return. The application for the rule, &o., must be made by him or them Trho has or have the immediate right to the subject-matter of the writ; there- fore it will not be entertained, but dismissed, if made by those who have but a remote interest in the eubjeot. Thus where a controversy existed in a municipal corporation, between the freemen under the old L ° J *charter, and the town council, under stat. 5 & 6 Wm. 4, c. 76, as to the exclusive right of the former to some corporation property for their own private use, respecting which a public meeting of the freemen had been held, and' a resolution carried, at the instance of A., a freeman, " that the rents should be paid into the hands of the defendant, to wait until the claim of the freemen should be decided." The rents having been so paid, and a rule nisi having been obtained by A., as a freeman burgess, and inhabitant of the borough, liable to contribute to the borough rate, for a mandamus to the defendant to pay over the money into the hands of the treasurer of the borough ; the Court discharged the rule, and held that the parties to apply in such a case were the town council, trea- surer, or other authorized party, and not any individual having a remote interest in the corporation funds. (?) So an application to restore a deputy officer who has been wrongfully deprived, will be refused, if it be made at the instance of such deputy, because the party who is immediately con- cerned in interest, is the appointor of the deputy, for it is freehold which is concerned, (m) When an application is made, the object of which is to obtain the benefit of certain provisions of an act of Parliament, &c., those for whose benefit such provisions were inserted in the act, &e., should be the applicants for the rule, although they may be neither specially nor nominally mentioned. Thus the Court has granted a mandamus to appoint overseers for a ham- let, upon an affidavit that there were poor belonging to it, notwithstand- ing that the act (18 & 14 Car. 2, c. 12), does not specifically state who is to enforce the appointment.(?i) If necessary, the writ may be obtained on the application of one who is [j) See ante, tit. " Crown Customs," " Manor" (Royal), "Visitor." {k) R. V. Bristol (Mayor), 1 Show. 288. S. C. nom. B. t. Rowe, (Carth. 199- S. C. Comb. 145; Com. Dig. tit. "Man." (B.) See post, tits. "Writ" (Form of) "Return." And ante, p. 27, 28. (I) Ante, p. 94, n. (o). R. t. Frost, 1 P. & D. 75. S. C. 8 A. & E. 822.t S. C. 1 "W. W. & H. 664 ; 2 Jur. 966. B. v. Witham Savings' Bank, 1 A. & E. 321.t S. C. 3 N. & M. 416.-f The stat. 1 "W. 4, c. 21, does not affect the law concerning the parties by whom a mandamus must be prosecuted. R. v. Edlaston (Oyer- seers^, 1 N. & P. 20.t S. C. W. W. & D. 163. fm) See ante, p. 178, n. (o), 252 (e), and see tit. " Office" (Restoration). (n) Ante, p. 32, a. (mi). R. v. Cumberland, 1 M. & S. 193. R. v. Westmoreland, 1 Wils. 138. R. V. Kent, (J.), 14 East, 395. See tit. "Overseers." APPLICATION, ETC. 339 bound to make a return to it. Thus, a writ of mandamus to the overseers and churchwardens of a parish to make a poor's rate, may be issued on the application of one of the overseers, where it appears by affidavit that the other overseer has refused to concur in making the rate ; and it has been held, that the stat. 1 Wm. 4, c. 21, makes no difference as to the parties who may obtain the writ.(o) In certain cases where no particular person has been interested, the Court has granted the writ,(p) in order to avoid a defect of police. * ,] Against whom made. — The application for the rule r^narn should be made against all those, if more than one, whose duty it will be to execute the writ, if it should ultimately issue ;(2') thus if seve- ral persons form but one artificial person or officer, they must all be made the subject of the same rule.(r) The application should clearly disclose to the Court in what official capacity, if any, the writ is intended to be directed. (s) , As to an application against the Crown, see titles Crown ; Customs ; Manor (Royal). .] When to he made. — The application for the rule should not be premature as to time ; for the Court will not grant it before the proper time for the application shall arrive, for until then it cannot be ascertained •but that the defendant will proceed regularly.(<) Thus, the Roman law has a rule, that "nihil peti potest ante id tempus, quo per rerum naturam persolvi possit ; et cum solvendi tempus obligationi additur, nisi, eo pra3- terito, poti non potest." («) The general rule, however, as to the time of the application, is, that it must be made within a reasonable time, after the default, neglect of duty, &c., especially if the applicant have another, ■though not so efficacious a remedy as by writ of mandamus, (z;) If the proper time for the doing of the act, &c., cannot be ascertained, the mandamus will be granted immediately upon default, if it be shewn that by a refusal of it great public inconvenience may accrue j (lo) and it has been held to be no ground of refusing an application for a writ to (o) Ante, p. 220, n. (e), 221, n. (q). R. v. Gadsby, IN. & P. 5'72.t Anon., 2 Chit. 254.t See stats. 1 Wm. 4, s. 21, (E.), and 9 & 10 Vict. c. 113 (I.), App. (p) See ante, p. 32, n. (w), and supra, n. (n). Town of Nottingham's case. Bull. N. P., tit. "Man." Gude's Cr. Pr. 181. See tit. "Act of Parliament" (Applica- tion). (?) E. T. King's Lynn (J.), 3 B. & C. 149, 152 ; Ball. N. P. 195. E. v. Clerken- well (Parisli), Bull. N. P. 200. See ante, p. 284, n. (e), 286, n. (v). As to those wio are subject to the writ, see ante, p. 29, and the several titles of the alphabetical series. [r] E. ■). Middlesex (Archdeacon), 3 A. & E. 615. S. C. 5 N. & M. 494. (s) Papillon's case. Skin. 64. E. t. West Looe, 3 B. & C. 685. S. 0. 5 D. & R. 592. Bac. Abr. tit. "Man." (P.) (0 E T. Attwood, 4 B. & Ad. 484. R. v. Bumstead, 2 B. & Ad. 699. R. v. Mil- verton, (Manor), 3 A. & E. 285. R. v. Kent (J.), 9 B. & C. 286. B. v. London Rail- ■way, 15 L. J., N. S. 42, Q. B. S. 0. 3 D. & L. 399. («) Celsus, lib. 12, D. ; D. 50, 17, 186. [v] See ante, p. 87, n. (A), 184, n. (A). (w) 3 A. & E. 286, supra, n. U). See tits. "Alderman" (Election, Application), " Burgess EoU" (Application). ^"^ ^ 340. tapping's MANOAMtrS- command the execution of the powers of an act of Parliament, that the period of time with reference to which such powers are limited, has ex- pired, (x) The grounds of prematurity are as various as the requisites necessary to complete the prosecutor's right, as want of notice of application, where such is necessary, (^) or the absence of a demand or refusal. rwQi 1 *-'-^ *'^® application for the rule be moved for prematurely, it "■ will be dismissed, with costs, (z) There is no limitation of time within which an application for a rule for a mandamus need be made, except that it should be within a reason- able time ; but if the applicant improperly delay such application, the Court will refuse to interfere, agreeably with the rule, " vigilantibus non dormientibus jura subserviunt."(o) As before stated, the only rule as to the time within which an appHcar tion for the writ must be made, is, that it must be made within a reasm- able time after the right has accrued, such reasonable time to be ascer- tained by a consideration of the circumstances of each particular case. Thus, where allotments had been set out under an inclosure act, to a party claiming them, and possession given about the year 1817, but no road had been made to them, nor any access but through allotments made, or land sold under the act to other persons. On motion in 1829, for a man- damus to the commissioners, who had not then published their ftward, to set out an occupation road to the first mentioned allotments, the Conrt held, that the application came too late. (6) So the Court has refused to command a Court of Quarter Sessions, touching the erection of a road gate, after a lapse of twenty-six years after the erection, leaving the pro- secutor to proceed by indictment for the nuisance, or by an action of tres- pass, if his passage were obstructed, (c) So the Court has refused an ap- plication for a writ to command a canal company to enrol, according to their act of Parliament, certain contracts, &c., relating to certain lands purchased by the company, after a lapse of sixty-five years from the time of such purchase, during which no applicaiton had been made to the oom- pany.(<^) So the Court has refused an application for a writ to make a rate to reimburse inhabitants on whom a fine has been levied for non- s (x) See ante, p. 32, n. (/), 87, n. (/). (y) See ante, p. 287, n. (a), [b), supra, n. (<). In re Lodge, 2 A. & E. 124, n. (J) ; 3 A. & E. 286, n. {d). (z) See post, tit. " Costs." (a) Ante, p. 290, n. (v). R. v. Leeds Canal, HA. & E. 321. S. 0. 3 P. &D. 174. R. V. Chesh. (J.), 15 L. J., N. S. 114, M. C. R. v. Derbysh. (J.), Nolan, 29. R. V. West Riding (J.j, 1 G. & D. 706. S. C. 6 Jur. 506. S. C. 11 L. J., N. S. 80, M. C. See the several titles of this Work as to whom the application in each case is to be, made. (6) Ante, p. 290, u. («), and supra, n. (a). R. v. Cockermouth Enclosure, 1 B. 4 Ad. 378, 380. R. v. Stainforth Canal, 1 M. & S. 32. R. t. Ellis, 2 D., N. S. 361. R. V. McKay, 4 B. & C. 658. R. v. Lancash. (J.), 12 East, 365, 370. B. v. St. Paul's Parish, 1 M. & R. 596. Ex parte Scott, 8 D. 329. SR. T. Cambridgesh. (J.), 1 D. & R. 325. See tit! "Highway" (Toll). ) Ante, p. 60, u. (a). 341 repair of a highway, after an interval of eight years, (e) So the Court will refuse the writ, if the parties who apply have been guilty of great negligence or laches, or *where one of the applicants only is in r^nqoi fault.f/) But where after the assessment by a jury, under a local act, and during a dispute of title, three years elapsed, such a lapse was held to he no ground for refusing the writ.(^) The Ctiuft will require greater promptness in the application, if the applicants have another remedy, but which may not be so efficacious as the writ, as by ejectment.(/i) If, however, the application, under all the circumstances of the case, be not made within a reasonable time, but the delay is accounted for, the Court will grant the rule.(i) .] Affidavits in support, when necessary. — In a matter of right, as for instance, where a mandamus is prayed to restore a man, &c., the Court does not reqnire, although it is usually supplied with, an affidavit of the fact ; but where the writ is asked upon a supposed failure of duty, tiien the Court requires an affidavit ;(_/) for such a writ is never granted merely for asking, some reason must be assigned for it,(A) which is done by the disclosure of a sufficient case upon affidavits. (Q .J What they should contain. — The affidavit should plainly state in what official capacity, if any, it is intended the writ should issue against the defendants.(m) They should also set forth the whole facts, of the case, in order that the Court may see that the prosecutor is entitled r^onoT to the writ ;(?!) that is, what duty, &c. has been *neglected,(o) (fi) R. v. Lancash. (J.), 12 East, 366. And see B. v. Stainforth Canal, 1 M. & S. 32, -where it was held, that the application to command a compensation must be made within a reasonable time. (7) See supra, n. (6), (c), {d), (e). R. t. Fowey, 4 D. & R. 140.t S. C. 3 B. & C. 684.1 E. T. Evesham (Mayor), 8 A. & E. 270.1 S. 0. 3 N. & P. 351. ,• (g)S.. T. Deptford Pier, 1 P. & D. 128. S. C. 8 A. & E. SlO.f Ih) E. T. Stainforth Canal, 1 M. & S. 32. See ante, p. 18— 27, 290, n. {v). (i) 1 M. & S. 33, supra, n. [h). R. v. Powey (Mayor), 4 D. & B. 140.+ S. C. 3 B.&C. 584.1 S. 0. 5 D. & E. 614.t (/) Ante, p. 167, n. (i), 193, n. (<). R. v. Cory, 3 Salk. 230, 6. B. v. Cutlers' Company, Cas. t. Hard. 129. See tit. " Affidavits," post, as to general form of affi- davits. As to the necessary affidavits in each particular case, see the several subjects of the Alphabetical Series. As to filing affidavits, see, post, tit. " Affidavits" (Pil- ing)- [h) E. V. London (Mayor), 1 T. E. 425, 426. R. v. Palmer, 8 East, 425. R. v. BuUer, 8 East, 392. Bao. Abr. tit. "Man." (E.) R. t. Lnton Roads Trustees, 1 G. & D. 251. S. C. 1 Q. B. 860.t R. v. Manchester Railway, 1 G. & D. 344. R. T, Excise Commissioners, 2 T. R. 381. R. v. London (Mayor), 2 T. R. 111. B. v. Griffiths, 5 B. & A. 731.+ S. 0. nom. R. v. Bristol (Mayor), 1 D. & R. 389.+ Anon., 2 Earn. 236. \ ■: i> The formal requisites and general matters incident to all affidavits relating to mandamus will be found treated, post, tit. " Affidavits." (0 4 D. & R. I37.t R. V. Powey (Mayor). (to) Papillon's case. Skin. 64. R. v. "West Looe, 3 B. & C. 685.f S. 0. 5 D. & K. 592.t Bac. Abr. tit. " Man." (F.) See post, tit. " Affidavits." (n) R. V. King's Lynn (J.), 3 B. & C. 147. f B. v. Nottingham Waterworks, 1 N. & P. 480.t S. C. 6 A. & E. 355. S. C. W. W. & D. 166. . R. v. Trinity House, 9D. 565. (o) E. V. North Riding (J.), 2 B. & C. 290.t S. C. 2 D. & R. 510.f B. v. Eastern Counties Railway, 10 A, & E. 557.t S. C. 4 P. & D. 48. See post, tit. « Writ." 342 TAPPING'S MANDAMUS. or omitted ;(2)) but they will be sufficient, if they show no more than a probable cause or necessity for it.(2) If the affidavits do not disclose the existence of such a necessity for the writ, the Court will dismiss the ap- plication. Thus in a case in which, by agreement between the parties, an application was made for a mandamus, merely with the view to obtain the opinion of the Court, whether on the construction of a private act of Parliament, the proceeding by mandamus was a proper one ; the Court stopped the argument, and refused to give any decision, because where there is a doubt as to the mode of proceeding under an act of Parliament, the parties must act on their own responsibility, and not come and ask advice from the Court, which is not bound to give them directions, before a matter is properly ripe for judicial determination, (r) Public justice and public convenience, should be the ground of the application, and the Court will not interfere, unless for the purpose of redressing some serious inconvenience, (s) The prosecutor must, by his affidavits, shew his title to the writ, and support his case, with the best evidence in his power, or the Court will refuse the application for the rule ;{t) thus where the application has rela- tion to a corporation by prescription, &c., the constitution of it, as well as the applicant's right, must be verified by affidavit ;(m) also when moving on behalf of any private corporation, care should be taken to en- sure the production to the Court of the charter, &c., or a copy of it, with the affidavit of its verification, if necessary, for the Court cannot take notice of such a corporation, without being duly informed thereof.(t:) Thus in one case the Court required the statutes of a college, although it appeared by affidavit, that application had been made to the; college to inspect the statutes, and take a copy which had been refused ;{w) for as the Court requires him who calls for its extraordinary interposition, and upon whom the onus lies, to remove any doubts it may have, before it will accede to the application, (x) so it is not incumbent on those who r*9Qd.l ^^^^ cause against a rule for a mandamus *to prove that the pro- L -I ceedings have been strictly regular, or that the prosecutor is not entitled, therefore the Court will not grant the writ if the applicant do not shew by his own statement of the case, that an injustice has been done to (p) R. T. Surrey (J.), 2 Show. 74. R. v. Carter, 4 T. R. 246. (?) Ante, p. 193 n. {r). R. v. Londoa (Ep.), 1 T. R. 333. R. v. Fowey (Mayor), 4 D. & R. IST.f S. C. 2 B. & C. 59.t S. C. 5 D. & R. GU.f (r) R. y. Blackwall Railway, 9 D. 558. M R. V. Portsmouth (Mayor), 3 B. & 0. I51.f S. C. 4 D. & R. IBI.f (t) See ante, p. 56, n. («), 87, n. (A), 212, u. (z), (a). Anon., 2 Barn. 437. B. T. Litchfield (Ep.), 2 Barn. 365. See tit. " Manor" (Admission). As to the necessary quality of the prosecutor's right, see ante, p. 27, 28. [u) Vintners' Company's case. Bull. N. P. 200. But see R. v. Nottingham, (Mayor), Say. 36 ; Bull. N. P. 204, as to form of allegation in writ. R. T. Devizes, Bull. N. P. 195, 204. (») 3 Bac. Abr. tit. "Man." (A). And see R. v. Wheeler, Cas. t. Hard. 99. Case of Tmtners' Company, Bull. N. P. 196, 200. (w) R. T. Canterbury (Archbp.), 7 Mod. 220. (i) E. T. Customs (Collector of Loudon), 1 M. & S. 256. See infra, n. (2). APPLTCATION, ETC. 843 ]iim.(y) Thus when the application is made in respect of an office not known to the law, the nature of the office and duties of the officer, should he specially shewn upon the affidavits, otherwise the Court will dismiss the application. («) The applicant must also shew by his affidavits, that he has complied with all the requisites, preliminary, and necessary, to the obtaining of the writ,(a) Thus where the minister of an endowed dissenting meeting- house had been expelled by a majority of the congregation, the Court refused a mandamus to restore him, applied for in order to enable him to justify his conduct, because it did not appear he had complied with all the requisites necessary to give him a prima facie title. (6) The applicant must also, by his affidavits, shew the Court's jurisdiction over the subject-matter of the application jfc) that he has no specific legal remedy, (c?) and that there has been, if necessary, a demand and refusal, previously to the making of the application. (e) .] Renewing. — Where an application for a mandamus has failed, the Court has the power of allowing such application to be renewed,(/) as upon amended affidavits stating a demand and refusal,(p') or where *after inspection, &c., or because the mandamus is defective, it is desirable to commence the proceedings de novo.(^) But in a case ^ J where a second application has been made, without reference to former proceedings, and a second rule nisi obtained on fresh affidavits, the Court notwithstanding the merits of the case had been discussed on the previous motion, refused to hear it.(i) [y] R. V. London (Mayor), 2 T. R. 180. See ante, p. 292, u. {I). U) Ante p. 186, n. (/). See tit. "Ashburton" (Eight Men of). (a) Ante, p. 21, 28. E. v. "West Looe (Mayor), 5 D. & E. 590.f S. C. 3 B. & C. eTT.f R. V. London Railway, 15 L. J., N. S. 42, Q. B. R. v. Eadnorsh. (J.) 15 L. J., N. S. 151, M. C. See tit. " Office" (Restoration, Application.) (6) See ante, p. 2T, 28. R. v. Jotham, 3 T. R. 575. R. t. Barker, Burr. 1265. S. C. 1 W. Blac. 300, 352. S. C. Andr. 24. See tit. " Office" (Restoration, Applica- tion.) (c) Ante, p. 10—12. See post, tits. " Affidavits," " Writ" (Avernients). [d) See ante, p. 18—27. R. v. Clear, 4 B. & 0. 899. goi.f S. C. 7 D. & R. 393. E. V. Clapham, 1 Wils. 305. R. v. Westowe, (Mayor,) 5 A. & E. 788.-|- S. 0. 1 N. & P. 222.f R. V. Stoke Damerel (Minister), 1 N. & P. 59.f S. C. 5 A. & E. 584.-f R. t. St. Katherine's Dock, 4 B. & Ad. 362.f S. C. 1 N. & M. 121.f R. t. Canterbury (irclibp.), 8 East, 213. E. v.Bristowe, 6 T. E. 168, 169. E. v. England (Bank), 2 Doug. 524. E. V. Nottingham Water Works, 6 A. & B. 372.1 S. 0. 1 N. & P. 481.t R. V. Wyndham, Cowp. 378. fe) See ante, p. 282, n. (a), 285 n. {I), 287, n. [y], and post, tit. " Writ." (/) R. V. West Riding (J.), 12 East 117. R. t. Deptford Pier, 8 A. &E. 917.+ R. T.St. Prancras, 3 A. & E. 544.+ S. C. 5 N. & M. 222.+ E. v. East Lancash. Railway, 16L.J.,N. S. 125, Q.B. As to renewing an application for an ordinary rule, see Chit. Prac. 1426. (g] Ante, p. 282. Ex parte Carlton High Dale (Inhabs.), 4 N. & M. 313.+ But seeExparte Thompson, 6 Q. B. 721.t S. C. 14 L. J.,N. S. 176, Q. B. contra. R. v. Deptford Pier, 8 A. & E. 910, 918.t S. C. 1 P. & D. 128. See post, tit. " Writ" (Ayerment). As to demand and refusal, see p. 282—287. A) R. T.Nottingham, 1 W Blac. 58. London (City) t. Swallow, 2 Keb. 76. W R' f . Pickles, 3 Q. B. 599-1 S. C. 12 L J., N. S. 40, Q. B. cited in 5 Q. B. 599.f The ruling in Sherry v. Oke, 3 D. 349, is questionable. Levy v. Covle, 12 L. J., N. S. 295, Q. B. J J : 344 tapping's mandamus. The general rule on this subject is, that where the applicant fails from incompleteness in his affidavits, the Court will not grant a writ on fresh affidavits supplying the defect ; {j) and the only excepitions to the rule which the Court will generally admit, are where the amendment consists merely in correcting ah error in the title or jurat of an affidavit,(7£) which rule applies to public officers as well as individuals. (?) The Court will', however, sometimes exercise its discretionary power and enlarge a rule, in order to give the applicant an opportunity to file supplemental affidavits.(m) So, in a case where a writ was quashed, on the ground that it was not drawn up in conformity with the rules under which it had issued, and a rule was afterwards obtained for amending the first-mentioned rules, so as to make them agree with the mandamus which was discharged, it was held, that the prosecutor ought to be allowed to make a second applica- tion on the same affidavits, for a rule for a mandamus in the terms of the first mandamus, though th5 object of such application might be the same as that which was sought by the rule for amending the rules, (n) 3rd. Rule. J How obtained j Motion for. — A rule of the Court for a mandamus can only be obtained on motion,(o) and must be made by P^oq„-|,*counsel in open Court in Term,(p) supported by the necessary '■ 'affidavits, statutes, and documents, (g') .J To what Court. — The motion is usually iriade in the Bail Court at Westminster, but the Judge there presiding will, in cases of difficulty, direct it to be made in the full Court, (r) At the time of the passing of the stat. 9 Ann. c. 20,(s) the Court of B. R. at Westminster, the Courts of Sessions of the Counties Palatine, and the Courts of Grrand Sessions at Wales, had severally power to issue the writ, and conseduently to entertain an application for it. Subsequently, however, by stat. 11 Geo. 4 and 1 Wm. 4, c. 70, the jurisdiction of the Court of Sessions of {}) R. v. Great Western Railway, ID. & M. 4T1. S. 0. 5 Q. B., 597.1 S. C. 13 L. J., N. S. 129, Q. B. R. v. Manchester Railway, 8 A. & B. 413.f S. 0. 3 N. k P. 439, impugning 3 D. 349. Ih) 5 Q. B. 597.t S. 0. 1 D. & M. 4'n. h) Supra, n. (i). (m) Doyle v. Douglas, 4 B. & Ad. 554.f See post, p. 301. \n) R. V. East Lancash. Railway, 16 L. J., N. S. 127, Q. B. (o) Ante, p. 5, n. (4). H. t. Excise Commissioners, 2 T. R. 385. R. T. Croydon (Churchwardens), 5 T. R. 714. Anon., 2 Barn. 235, 237. It is often of importance, where the writ is granted by the Court in the first instance, either to proceed to an election upon a vacancy, or to swear and admit churchwardens, or where more than the proper number of persons are elected, on account of adyerse claims and disputed rights, to have the writ of mandamus pre- viously drawn, engrossed, and ready for delivery immediately upon the granting of the rule. Gnde's Cr. Pr. 182. As to requesting the Court to insert in the rule the way or manner such rule is to be served, gee infra, "Rule" (Service). {p) R. V. Heathcode, 10 Mod. 62, per Parker, C. J. Anon., 2 Barn. 236. K. >'. Eye (Mayor), 9 A. & E. 676.f (?) Ante, p. 5, u. (k), 292, n. {k), (I). (r) Ante, p. 5, u. [k). (s) See stat. App. As to "Ireland, see stat. 19 Geo. 2, c. 12, App. APPLICATION, ETC. 345 tie County Palatine of Chester, and the Courts of G-rand Sessions in Walesj were respectively abolished, and replaced by those of the Superior Courts at Westminster; so that, at this day, the only Courts whereby this writ is granted, are the Court of Queen's Bench at Westminster, and the Courts of the Counties Palatine.(<) The writ is now very seldom applied for but at Westminster, for a writ there obtained, and signed at the Crown Office, runs into and has effect within the counties pal- tine, (m) i At Westminster, the Court of B. R. has the exclusive power of dispen- sing the prerogative writ of mandamus, and its authority for so doing is, that it is the highest Court in this kingdom for the preservation of the peace, and, therefore, has several exclusive privileges, of which the power of awarding such writ is one.(w) The writ of mandamus being of a high prerogative nature, (breve re- gium), no place is privileged from its jurisdiction •,(w') it therefore runs into places which have, for other purposes, a distinct and exclusive juris- diction, as the precinct of the cathedral church of Norwich,(a;) or a county palatine. Thus where to a writ of mandamus issued at Westminster, the defendants returned that they were a corporation in *the county of r!)cOQ7-i Lancaster, which is a county palatine, and then alleged that, there- fore, they were not compellable to answer in the Court of B. E.; such last-mentioned Court fined the mayor who made the return 100 marks, and cited the case of the Bishop of Durham, who had been fined 1000 marks for the same cause. (y) So, the claim of cognizance as to the elec- tion of Alderman by the Court of Mayor and Aldermen of London, does not exclude the jurisdiction of the Court of B. R., to issue a manda- mus. (2) .] When granted; Nisi. — If the right to the writ be clear, especially where the prosecutor is entitled to it ex debito justitise, the Court will grant a rule nisi, although there may be no precedent of a rule having been granted in consimili casu ; for where there is a right, law and justice require there should be some remedy;(a) also as each new case as it arose must have been without precedent,(6) so the Court will not now allow itself to be fettered in the exercise of its power of dis- U) See Stat. 6 & 7 Tict. c. 67, App. (u) See infra, u. [y). («) Ante, p. 9, 10, n. (*) ; 3 Bi. Com. 110; 3 Steph. Com. 681. Awdley's case, 1 Poph. 176. Hughs T. Hughs, 1 Keb. 354, per Twyjden, J., and Athow's case there cited. > The writ in Middleton's case, 2 Dyer, 332 b, issued from the Court of B. R., per Doderidge, J., in Awdley t. Joy, Poph. 176. S. C. Latch. 123,— notwithstanding the report in 2 Dyer, 332 b, states that it issued from the Court of C. B. (w) E. T. Patrick, 1 Keb. 610. (x) Lidleston v. Exeter (Mayor), Comb. 422. E. v. Winchelsea (Corp.), 2 Lev. 85. Bac. Abr. tit. "Man." (A.) fe) • Wiggon (Mayor), 1 Sid. 92. Com. Dig. tit. "Man." D. 4. fz) R. 1. London (Mayor), 4 M. & E. 36. S. C. 9 B. & C. 21.t (a) Ante, p. 9. B. v. Cambridge (IT.), Burr. 1660, per Wilmot, J. E. v. Pag- ham Sewers, 8 B. & 0. 359.f (4) R. V. Ely (Ep.), 1 W. Blac. 55. S. C. 1 Wils. 266. 346 tapping's MANDAMUS. pensiag justice, by being told that, in ancient time, such a writ would not have been granted :(c) on the other hand, the Court will in its dis- cretion consider, before the defendant is put to the expense of answering the application, whether or not it will be proper to grant a rule to shew cause. (cZ) The Court will not grant a rule in the alternative either for a manda- mus or a quo warranto. (e) The principles of law which govern the dispensation of the writ, have been treated of in Chapter 3, p. 9, to which the reader is re- ferred. .J Absolute in the first instance.(^f) — The Court has the power of granting a rule absolute in the first instance, and will, in general, do so, when such a, course will advance the justice of the case, or the facts have reference to annual or municipal offices. Thus, in a case to compel the payment of money for the support of paupers, or to make a poor rate,(^) or to compel the reception by overseers of poor of a deserted r*9Q81 *<'^ild,(A) the rule is absolute in the first instance. So is a rule for a mandamus to allow a poor's rate,(t) or to go to the election of a mayor,(y) or of annual municipal officers, especially if the provi- sions of Stat. 6 & 7 Vict. c. 89, s. 5, have been complied mi'h.Qe) The court will also grant a rule absolute in the first instance in all cases where the object of the writ is to admit or swear into an office, pro- vided the right appear plain. (?) Thus, it has been granted in the first instance, for a mandamus to command the archdeacon or other official to swear in a party as churchwarden, chapelwarden, or sidesman, on an affi- davit of due election, demand, and refusal, and of notice to the archdea- con, &c. of the application to the Court ; the ground of refusal need not however appear by the affidavit in support of the rule.(m) So, as to overseers of the poor,(ji) notwithstanding other parties claim to have (c) R. V. Fowey (Mayor), 2 B. & C. 598.+ S. C. 4 D. & R. 132.+ S. C. 6 D. & R. 614.t (d) R. T. London (Ep.), 13 East, 423. (e) R. V. Leeds (Mayor), 11 A. & E. 512 ;f 5 Jur. 548. (/) As to whetlier a rule is absolute in the first instance, or nisi merely, see the several titles throughout the Alphabetical Series. (g) Ante, p. 5, 6, 218, n. (?•); Bull. N. P. 195. R. T. St. Andrew's, T A. &E. 281 ;f and n. (o). R. v. Edlaston (Churchwardens), 1 N. & P. 20.f R. t. Canter- bury (Archbp.), 15 East, 133, 146 1 6 T. R. 490. R. v. Eye (Mayor), 9 A. & E. ere.f S. C. 2 p. & D. 348. S. C. 8 L. J., N. S. 142, Q. B. See ante, tit. " Poor" (Relief Rate.) (A) Ex parte Foundling Hospital, 5 D. 122. See tit. "Poor" (Relief, &c.) li) R. T. Fisher, Say. 160. (j) R. T. Heydon, Say. 208, which is the first case where it was so granted. (k) See Stat. App., and ante, p. 56, n. [p). See tit. " Corporation Municipal." [l) Anon., Chit. 254; Bull. N. P. 199 b. See tit. "Churchwardens" (Swearing iu. Rule), " OfBoe" (Admission, Rule.) (m) Ex parte Winfield, 3 A. & E. 614.f R. v. Litchfield (Archdeacon), 6 N. 4 M. 42.t S. 0. 1 H. & W. 463. Ex parte Penruddock, 1 H. & "W. 347. (n) R. V. Manchester, 7 D. 707. APPLICATION, ETC. 347 been elected. (o) But where the writ is to "restore," the practice is, first to grant a rule to shew cause, (p) In other cases, it is also the practice of the Court to grant the rule absolute in the first instance, as where the rule is for a writ to enforce the granting of probate,(2) or to admit the freedom of a municipal cor- porationjfO or to allow an inhabitant of a parish to inspect parish books,(s) or a copyholder to inspect the manorial rolls. (<) Formerly, the writ issued in the first instance in all cases where its object was to enforce obe- dience to acts of Parliament, charters, or letters-patent ;(m) but at this day some specific ground, as urgency, &c., must be shewn, in order to prevent the rule being nisi, because it gives an opportunity to answer the application, and may prevent unnecessary costs, (i)) .] How ohtained. — The rule, whether absolute in the first instance, or merely nisi, is drawn up by the Master in the Crown Office, (w) * .] Form o/i?M?e.— The Court will, in difficult or doubt- p^nQQ., ful cases, and in cases vrithin stat. 1 Wm. 4, c. 21, suggest the L -' form of the rule,(x) in which case the rule should follow the suggestion. Any number of persons may be included in one rule and writ, if they are bound to execute it, or if they, in their official capacity, form but one corporation, as churchwardens and sidesmen, (y) A single rule for several writs of mandamus is irregular ; so, a rule to stew cause why " one or more'' writs of mandamus should not issue, is an improper form of rule.(z) The rule must be properly directed, or the Court may refuse to make it absolute.(a) It need not, however, specify the name of the defendant, if an officer, it is sufficient if he be designated by his official appellation ;(6) 1 (o) Ex parte Duffield, 3 A. & E. eiT.t [p] Ball. N. P. 199. See Mayor of Truro, 2 Chit. 257.^ Illchester's case, Id. n. (a). E. V. Coventry (Mayor), 3 Doug. 236. See tit. " OfiSce" (Restoration, Eule). (?) Justice T. Jones, 1 Barn. 280. S. C. nom. R. t. Battesworth. See tit. "Will." fr) R. v. Coventry (Mayor), 3 Doug. 236. See tit. " Freedom." («) Anon., 2 Chit. 290.t But see R. v. Arnold, 4 A. & B. 657.1 See tit. "Parish Books" (Rolls, Inspection). (0 1 R. G., H., 2 Wm. 4, s. 102. See tit. "Manor" (Inspection). M Gude's Cr. Pr. 180. (v) R. v. Arnold, 4 A. & B. 659.t M Imp on Mandamus, 115. (x) R. T. Bedford (Corp.), 1 East, 80. R. y. Bridgewater (Corp.), 3 Doug. 382.-J- E. V. Canterbury (Archbp.), 15 East, 121. R. v. Newsham, Say. 211. R. v. BuUer, 8 East, 392. See stats. 1 Wm. 4, c. 21, and 9 & 10 Vict. c. 113, as to Ireland, in App. The general requisites of the rule are the same as those of ordinary rules of Court; see Chit. Prac. p. 1410. {y) See ante, p. 290, n. iq), (r), (s). R. v. Middlesex (Archdeacon), 3 A. & E. 615.t S. C. 5 N. & M. 494:1 ^ ' («) R. V. Bridgenorth (Mayor), 2 P. & D. 311. S. 0. 10 A. & E. 10 ;+ 3 Jur. 384. E. V. Chester (Mayor), 3 Salk. 230. (a) R. T. Ely (Bp.), 2 T. R. 327. R. v. Ipswich (Bailiffs), 2 Salk. 434, 16. As to how the writ should be directed, see post, tit. "Writ" (Direction). (5) R. V. Carmarthen (Corp.), 4 Jur. 365. And see Bull. N. P. 199, 200. 348 tapping's MANDAMtlS. which latter is the preferable course, as it obviates any inconvenience that may arise from the personal change of such oiBee.(c) The body of the rule should be expressed in definite terms, or the man- damus which must follow the rule may be void for generality or other- wise, and, therefore, be liable to be superseded.(cZ) It is, however, suffi- cient if the rule state the object of thewrit, it need not specify the whole mandamus, (e) When the writ is to command an election to an office, the subsisting officer, or officer de facto (if any), must be made a party to the rule ;(/) because, he being materially interested in the event of the ques- tion, should have an opportSunity of protecting himself.(<7) So, where the effect of the writ is to deprive or oust a partyin possession, such party should be a party to the rule and writ,(7i) *Five days is sufficient time to be given by the rule, wherein I -dOUJ j,j^g defendant is to shew cause against it, and the Court will not, as a matter of course, grant further time 3(1) but in a case of difficulty, or where there are several old books, charters, &c. to be inspected, it will enlarge the time for shewing cause. (y) So on the other hand, the Court will, in cases of urgency, mention a short day, as the " next day," upon which cause must be shewn. (/«) But whatever the time may be, it must be correctly inserted in the rule. It is well in cases of anticipated difficult service, that counsel should, when moving for the rule, ask the Court to say what service of the rule it will deem sufficient, and to let it form part of the rule, as " that notice of the rule be given to the county justices, or some of them."(Z) In some cases,(m,) the Court will also, where the justice of the case requires it, or it is convenient that all third parties should be before the Court, order that notice of the rule shall be given to such third parties, as to the solicitor of the Treasury, mayor, town clerk, &c., and that such direction shall form part of the rule.(n) .] Service of. — If the rule contain directions as to service, they (c) See post, tit. "Writ" (Direction). (d) R. T. Liverpool (Borough), 1 Barn. 82. R. v. Holbeclie, 4 T. R. TT9. See the title of a rule against churchwardens, overseers, and inhabitants of a palish; R. v. St. Saviour's, 7 A. & E. 948,t n. (J). S. C. 3 N. & P. 126. S. ClN. &P. 496.f See post, tits. " Quashing Writ," " Supersedeas," " Writ." U) R. V. Willes, 1 Mod. 262. (/) Ante, p. 167, n. (a). R. v. Banks, 1 W. Blac. 445. S. 0. Burr. 1453. [g) R. V. Scawen, Burr. 1453. R. v. Ricketts, 3 N. & P. 153. S. 0. 10 A. k E. 544. -j- And see 11 Geo. 1, c. 4, s. 3. (A) R. V. St. John's Coll., 4 Mod. 233, 368. S. C. Skin. 359, 368, 393, 546. S. C. Comb. 237, 279, 282. S. C. Holt, 436. S. 0. 2 Keb. 168. [i] Canterbury (Archbp.) v. Trinity Coll., 1 Barn. 194. See infra, "Enlarging Rule." {j) R. T. Cambridge (U.), 8 Mod. 148. See tit. " Return" (When to be made.) (k) Ante, p. 295, n. (n). Anon., 2 Barn. 235. (l) See ante, p. 295, n. (0). R. v. Tucker, 5 D. & R. 434.f S. C. 3 B. & 0. 545, 546.f R. V. Mildenhall Savings' Bank, 6 A. & B. 952, 954.t S. C. 2 N. & P. 278. (m) R. T. Cambridge (U.), 1 W. Blac. 547. S. C. Burr. 1647; Say. 211. K. T. Bankes, 1 W. Blac. 444. S. C. Burr. 1452. R. v. Simpson, 1 W. Blac. 457. S. C. Burr. 1463. R. v. St. Peter's, 4 P. & D. 252. S. C. 12 A. & E. 527.f (n) R. V. Treasury Lords, 10 A. & E. 375. f S. C. 2 P. & D. 498. i APPLICATION, ETC. 349 must be implicitly followed ; if, however, there be no such direction, as a general rule, the rule must be served upon those to whom the writ is to be directed ;(o) although it may not be necessary either to serve the copies personally, or to show such original rule at the time of the service, yet it is better in all cases, where practicable, to serve the party himself, and at the same time to produce and shew to him the original mh.(p) .] Notice of. — If the rule contain a direction that a notice of it shalLbe given to particular persons, such notice must be strictly given, (g') — '—.] Affidavit of Service, and of Notice. — Immediately upon ser- vice of the rule, or of notice given thereof, an affidavit of such service or notice, should be made, entitled, and sworn in the same way as the *affidaTit to obtain the rule nisi, in order that such rule may be ■- J ultimately made absolute, (r) . ] Enlarging. — The Court has the power to enlarge a rule, and will do so, upon terms, if necessary, in order to facilitate the attainment of justice; such an application will be granted on motion, supported by affidavits of the circumstances, either at the instance of the prosecutor ;(s) or of the defendant ;(?) or by consent.(«) The specific circumstances which have induced the Court to enlarge a rule, have been to give an opportunity to hear an appeal ; (u) or to make a necessary affidavit, &c. ;(•!«) or in order to amend one. (a) .] Shewing Cause ; how. — The attorney for the defendant should, previously to shewing cause against the rule, obtain from the Crown Office, office copies of the rule, and affidavits upon which it is founded ; briefs of which should be handed to counsel, together with copies of such other affidavits, verified copies of charters or other documents, as his client's case may admit of or require. (^) The original affidavits should be filed at [o] Ante, p. 299, n. (a) : Bull. N. P. 195. R. v. Clerkenwell (Overseers), 8 Geo. 1, Bull. N. P. 200. K 1' [p] Gude's Cr. Pr. 182. The rule should be served before nine o'clock at night. As to the service of rules in ordinary cases, see Chit. Prac. p. 1415. ' (?) Supra, n. (I) (m), In). And see ante, p. 268, n. («). (r) GQde's Cr. Pr. 182. (s) See ante, p. 294, n. (/). R. v. East India Company, 4 M. & S. 278, 279. R. V. Mirehouse, 2 A. & E. GSS.-j- S. C. 4 N. & M. 394.t R. v. Dolgelly Union, 8 A. & E. 563.f S. C. 3 N. & P. 542. R. r. Bankes, 1 "W. Blac. 444. S. C. Burr. 1452. K. T. Simpson, 1 W. Blac. 457. S. C. Burr. 1463. In re Walsall, 1 H. & W. 370. R. V.Birmingham Railway, 2 Rail. Cas. 710. S. C. 2 Q. B. 47.f As to enlarging rules in general, see Chit. Prac. 1419. (*) R. v. Hungerford Market, 2 B. & Ad. 204,f {a). (ul R. v. Cambridge (Mayor), Burr. 2008. [v] Ante, p. 234, n. (m). R, v. East India Company, 4 M. & S. 278, 279. (mi) See ante, p. 295. R. v. Bateman, 1 N. & M. 719.t S. C. 4 B. & Ad. 552.+ W See ante, p. 295, n. (j), (k), (I). R. v. Warwicksh. (J.), 5 D. 382. (y) Ante, p. 293, n. (v). (w) ; Gude's Cr. Pr. 224. R. v. Rotherham (Inhabi.), 12 L. J., N. S. 17, Q. B. ^ . J' By Sr. Off. Rules, r. 15, App., it is ordered, " That copies of the writ of manda- inus, and return and traverse or other pleadings thereupon, andevery other proceed- ing filed on the Crown side of the said Court, shall, when required, be made at the Orovrn Office, and delivered to the respective parties or other persons requiring the 350 TAPPING'S MANDAMUS. the Crown Offioe.(») The counsel for the defendant must shew cause against, on or before the day named therein, or on the expiration of such further time to which it may have been enlarged. If, however, the coun- sel who was to have supported the rule, be absent on the argument, the Court will give judgment; but if counsel subsequently attend, the Court will, in its discretion, allow him, or not, to argue in support of it.(ci) As to what may be shewn as cause against .the rule, it has been held, that after the determination of a point of law, by the Court, upon a r*Qnon *rule nisi for a mandamus, it cannot be again discussed as a special '• case, &o., until there shall have been a return made to thewrit.(Zi) Also in shewing cause against a rule for a second mandamus, the defend- ants are precluded from contending that any of the preliminaries necessary to sustain the &st mandamus did not exist.(c) Thus where a mandamus to impanel a jury and to assess the damages sustained, had issued in pur- suance of a compensation clause in a local act of Parliament, the Court, upon the discussion of a rule nisi for a second mandamus to enforce the the payment of the damages assessed by virtue of the first, would not allow the legality of the first mandamus to be questioned, for in such a case the regularity of all proceedings previously to and at the trial, is to be pre- sumed, no objection having been made at the time of trial.((i) .] Who may shew cause. — The Court will, in general, allow all those against whom the rule nisi has been granted, or upon whom it has been served, or have had notice of it ;(e) or who are legally interested in the question, to shew cause. Thus on a rule nisi for a mandamus to com- mand justices to enter continuances to hear an appeal against a conviction under the turnpike acts; it was held that it was no objection to the counsel appearing to shew cause, that they were instructed by the attorney of the trustees of the road, on which the offence was alleged to have been committed by the applicant, and not by the justice before whom, or the informer by whom the complaint was made, on which the conviction took place, and to whom respectively the rule was ad- dressed. (/) In all cases within the stat. 1 "Wm. 4, e. 21, s. 4, which relates to mat- ters, &c., done in respect of all ofSces other than those provided for by (2) See p. 298, n. (w), and post, tit. " Affidavits" (Filing). (a) R. V. Hughes, 3 A. & E. 429.f S. C. 5 N. & M. 94.f As to ordinary rules, See Chit. Prac. (b) R. v. Leicester (J.), Y D. & R. TOS.f And see 7 D. & R. srcf S. 0. 4 B. 4 C. 891.f See post, tit. " Special Case." (c) R. T. Nottingham Old Waterworks, 6 A. & E. SSS.f S. C. 1 N. & P. iSO.f R. V. Brewers Company, 4 D. & R. 492.f S. C. 5 M. & R. 140, 153. ((?) IN. &P. 480.f S. C. 6 A. & E. 355,t supra. And see 1 N. &M. ISl.f , S. C. 4 B. & Ad. 360,1 where it was objected that the arbitrator had not adjudicated upon one of the matters in difference. . (e) R. V. Treasurer Lords, 2 P. & D. 502, u. (ct). See stats. 1 Wm. 4, c. 21, s. 6, and 9 & 10 Vict. c. 113 (I.), App., and ante, tit. "Visitor," p. 273, n. (6). (/) R. V. Middlesex (J.), 2 jD., N. S. '?19, notwithstanding Johnson v. Marriott|2 D. 343. S. C. 3Cr. &kl83.* APPLICATION, ETC. 351 Stat. 9 Ann. c. 20, the Court has power to require, that not only those to whom the writ -will be direct(jd, but also that all those who have an interest in the subject-matter thereof, shall be heard against the rule to shew cauae.(9') *4th. Rule Absolute.] When granted. — The Court will make the rule absolute for a mandamus, on an affidavit of service ■- -^ if no cause be shewn against it,(A) notwithstanding the title of the appli- cant may not appear clear, but even doubtful ;(^) because as the rule for the writ is not conclusive, but only requires the doing of a certain act, or to shew cause why it is not done, so the defendant may, if he so choose, raise an argument on the return. (y) The Court is inclined to make the rule absolute, if any right be shewn on the part of the prosecutor to that which he seeks, or the case be one which the Court thinks worthy of ex- amination, in order that it may be further and more fully discussed on the return, or the evidence submitted to a jury j such a course being in all cases taken, without determining whether a peremptory writ will, or not, be ultimately awarded.(/(;) The Court will thus make the rule absolute, although the affidavits on which the rule nisi is obtained, contain misre- presentation, scandal and also suppress certain facts, if sufficient remain unanswered, to shew a necessity for the wril;.(Z) So, in some cases, as to proceed to the election of capital burgesses, the rule absolute is granted as of course, unless some strong and special rea- son to induce a refusal of it be assigned. (m) So, both a rule absolute for a writ to put the corporate seal to a certificate of the election of a re- corder,(?i) or to swear in a corporator, (o) are granted as of course. The general rule upon which the Court acts in making the rule abso- lute, and granting the writ is, that if the affidavits raise questions of dis- puted fact, it will grant the writ in order that those questions may be tried ; or if there be questions of law which ought to be put into a more solemn train for inquiry, a similar course will be pursued; but if the arguments on both sides disclose that there is no dispute as to the facts, and the Court has no doubt in point of law, it will not make the rule absolute, (p) As {g) See stat. App. As to Ireland, see stat. 9 & 10 Vict. c. 113, App. A) E. T. Tucker, 5 D. & R. 434.t S. C. 3 B. & C. 545, 546.t (i) E. V. Dr. Bland, Bull. N. P. 200 ; Sid. 169 ; 1 Lev. 23 ; 2 Lev. 14 ; 2 Show. 1i; Carth. 169; 10 Mod. 49 ; Bac. Abr. tit. "Man." (E.) U) Supra, n. (i). E. t. York (Mayor), 4 T. R. 700. See post, tit. " Return." (*) E. T. Bland, 1 Mod. 356 ; Bull. N. P. 196. Anon., 2 Barn. 23Y. R. t. West Looe (Mayor), 3 B. & C. 683.+ S. C. 5 D. & R. 590.+ S. C. 2 D. & R. 181.+ «) See tit. "Affidavit," post. (m) R. V. Grampond (Mayor), 6 T. R. 302. See ante, p. 29Y, n. (a), (b). M E. V. York (Mayor), 4 T. R. 699, 700. See tit. " Recorder." o) 4 T. R. 700, supra, n. (n). (p) R. V. Payn, 6 A. & B. 404.f S. C. 1 N. & P. 524.f ,S. C. 1 W. W. & D. 94, U2. S. C. 2 Jur. 47. R. v. Bishop's Stoke, 8 D. 611. R. v. Dr. Bland, 7 Mod. 355, per Lee, 0. J. R. v. Heathcote, 10 Mod. 63, per Parker, C. J. S. C. Fort. 290 ; 10 Mod. 63,.49, 63. R. v. New Coll., 2 Lev. 14. R. v. London (Mayor), 5 B. & Ad. 233, 237,f and see R. v. Ld. Godolphin, 8 A. & E. 344.f S. C. 3 N. & P. 488.f 352 tapping's mandamus. ^ before stated, wherever there is a fair doubt, *eith€r upon matter [ °"4;J ^^ ^^^^ ^^ matter of law, the Court will make the rule absolute, in order that it may be properly discussed on the return, (g) And even although a strong case of fraud be disclosed,{r) it will direct a return,(s) especially where the prosecutor has no opportunity to right himself by action, &e.(<) So, the Court will not, on motion and affidavits, determine a corporate question of importance, but will direct the writ to issup, that the question may be decided on the return ;(m) and the same as to a dis- puted question of title. («) So, where the affidavits of the defendant, in shewing cause, are silent ,as to any point which, if appearing, would an- swer the application, and when the refusal of the writ might work a great public inconvenience, the Court will make the rule absolute. (jo) But the Court will not, merely for the sake of a return, (x) make the rule for the writ absolute ; as where the defendant's affidavits clearly and distinctly shew that the writ should not issue. (y) If the defendant's affidavits shew that the rule should not have been obtained, the Court will discharge it with costs.(z) So, if the prosecutor have been guilty of laches, &c.(a) If the Court decide against the granting of the writ, on the ground that the application should have been for an information in the nature of a quo warranto, they will sometimes grant a rule for the latter at once, but, in such case, will discharge the rule nisi for the writ of mandamus with costs. (6) Also where a rule nisi for a mandamus has been obtained, and the prosecutor has afterwards obtained a rule for a quo warranto against the de facto officers, the Court will refuse to hear the two rules discussed together, or to discharge the rule for the mandamus as of . course ; but after discharging the rule for the mandamus *on the L -' merits, it may make the rule absolute for a quo warranto.{c) Nor will the Court allow such rules to be discussed together, although it formed part of the rule for the quo warranto, that the motion should come (q) R. V. West Looe (Mayor), 5 D. & R. 599.t S. C; 3 B. & C. eTT.t per Best, J. Anon., 2 Barn. 237 ; Com. Dig. tit. " Man." (A). R. v. Birmingham (Rector), 1 A. & E. 254 it 11 A. & E. 27.t R. v. Ely (Ep.), 1 W. Blac. 57. S. C. 1 Wils. 266; 2 Lev. 14. (r) Goubot V. De Croiiy, 1 C. & M. 772.* S. C. 3 Tyr. 906. S C. 2 D-. 86, cited in R. V. Round, 5 N. & M. 427,t n. (i). S. C. 4 A & E. 139.f S. C. 1 H.: & W. 546. (s) R. V. Jones, 2 Barn. 240. R. v. Litchfield (Ep.), 2 Bam. 365. (t) R. V. Whalley, Stra. 1139. S. C. 7 Mod. 308 ; Com. Dig. tit. "Man." D. 6. (u) R. V. Everet, Cas. temp. Hard. 261. See tit. "Corporation" (Municipal.) (v) R. V. Frost, 8 A. & E. 825.+ S. C. P. k D. 75. See ante, p. 297, n. (a). (k>) R. v. Milverton (Manor), 3 A & E. 286.f S. C. 1 H. & W. 282. g (x\ R. T. Suffolk (J.), 5 N. & M. 144.f S. C. 3 A. & E. 725,t per Patteson, J. (y) Ante, p. 297, n. (d). R. v. London (Mayor), 5 B. & Ad. 233, 237,t and see R. V. Ld. Godolphin, 8 A. & E. 344.+ S. C. 3 N. & P. 488.+ (2) R. V. Chester (Ep.), Com. Dig. tit. "Man." (B). M R. Luton Roads, 1 Q. B. 867,t n. (a). Supra, p. 292. (b) R. V. Colchester (Mayor), 2 T. R. 259. R. v. Beedle and others, 3 A. & E. 475. f See post, tit. " Costs." (c) R. V. Winchester (Mayor,) 7 A. & E. 215.f S. C. W. W. & D. 525. S. C. 1 Jur 738. S. C. 2 N. & P. 274; but see 6 East, 360. APPLICATION, ETC. 353 on for argument at the same time with the motion for the manda- inus.(rf) Sometimes the Court will make the rule absolute, hut direct that no Tfrit do issue, without an order from a Judge for that purpose, (c)' .] Against whom obtained. — The rule nisi can be made absolute against those only who areparties to it, and who have had an opportunity to shew cause against it. Thus, where a rule was obtained, calling on churchwardens and overseers to show cause why a mandamus should not go, directed to them and the twentij principal inhabitants, dsc, it was held to be bad, for these last should have been parties to the rule ; but the Court gave leave to amend, saying that it would be good on new Bervice.(/) .] Form o/Eule. — The Court, on making the rule absolute, will, for the purposes of justice, mould the rule nisi according to the exigen- cies of each particular case, and to that end will frame the rule absolute accordingly. Its form should be attentively considered, as the writ must follow the rule, and the Court cannot mould the writ on an application for a, peremptory mandamus. (g-) Thus, the Court will, if necessary, strike out part of the rule nisi,(A) and make the rule absolute in a modi- fied form ; as to hear an appeal upon certain specific grounds, as upon the first, second, fifth, and sixth grounds of appeal. (?!) So, on an application to compel payment of 5001. compensation, assessed by a jury, and of ano- ther sum for costs, the Court granted the rule absolute for payment of the 500?. only.{j) * .J How obtained. — As to obtaining the rule, see ante, r^qnoT p. 295 ; the practice in the main being the same as that of the rule nisi. As the rule absolute for a mandamus cannot be drawn up, unless the affidavits used on shewing cause against it are filed, so, if the attorney for the defendant decline to file them, or to allow them to be filed, the Court will, on motion, grant a peremptory rule, that the defendant's attorney (d) 1 A.&E. 215.t S. C. 2 N. & P. 274. S. 0. W. "W. & D. 525, supra, u. (c). U) Ante, p. 234, n. (m). In re Bromley, 3 D. & R. 310.f (/) R. f. Clerkenwcll (Churchwardens), Bull. N. P. 200. As to a writ against " Inhabitants," see post, tit. " Writ" (Direction, Inhabitants), is) R. T. St. Pancras, 3 A. & E. 535, 542.t S. C. 5 N. & M. 222.f E. t. Wor- cester Canal, 1 M. & R. 534. B. t. Leicester (J.), 4 B. & C. Sgi.f S. C. 7 D. & K. 370.f R. T. Sandwich (Mayor), 2 G. & D. 28, 35. S. C. 2 Q. B. 895.t K. r. Nottingham Old Water Works, 1 N. & P. 488.1 S. 0. 6 A. & E. 335.t R. v. Wilts. (J.), 8 D. Y19. R. V. Barker, Burr. 1269, where see form of rule. R. v. Carpenter, 6 A. & E. T94, 801.-f S. C. 1 N. & P. 115 ;+ and see R. t. Eye (Mayor), 9 A. & E. 6T5.+ S. C. 2 P. & D. 348. S. C. 8 L. J., N. S. 142, Q. B. (A) R. V. Cumberland (J.), 1 M. & S. 193. R. v. Nottingham Old Water Works, 6 A. & E. 355.+ S. C.l N. & P. 480.+ R. v. Victoria Park, 1 Q. B. 290.+ S. 0. 4 P.&D. 639. ' . •« , W R. V. Suffolk (J.), 1 B. & A. 640.t See ante, p. 232, n. (b). {}) R. V. Nottingham Old Waterworks, 6 A. & B. 355.+ S. 0. 1 N. & P. 480. S. C. W. W. & D. 166 i 1 Q. B. 290,+ supra, n. (A). June, 1852.— 23 354 tapping's mandamus. shall produce the afiSdavits at the Crown Office on a short day, to be named in such rule, in order that they maybe filed. (7c) .] Costs. — Where a rule for a mandamus is made absolute, the costs of the application must, pursuant to stat. 1 Wm. 4, c. 21, s. 6, be made' the subject of a separate application, and will not be considered by the Court on disposing of the rule ; because, when the writ has issued, it may be the return may shew that the defendant has acted justly.(Q It is, however, a general rule, that if the application for the rule, when made against a public officer, be discharged, the Court will, if such appli- cation have been made without good foundation, inflict costs upon the applicant; but if the point were new or doubtful, the Court will not, in its discretion, inflict costs. In all other cases, the Court wiU also exercise its discretion as to costs, (m) .] Amendment of. — If the rule be not such as the prosecutor is contented with, or be misconceived, he should apply to the Court before he issues the writ for leave to amend it,(ra) and the Court will, if neces- sary to meet the justice of the case, so amend it.(o) Although the Court has, in one case, refused to amend an informal rule after the writ had issued, but left it to be either superseded or quashed, (p) yet subsequent decisions shew, that the Court will now amend it in such a case; or, on a proper application, they will make a rule for the amendment of the rule upon which the writ has issued, notwithstanding the writ may have been quashed for not having been in conformity with such last mentioned rule. (2) .] Compelling Prosecutor to proceed with Rule. — After the rule absolute for the writ has been obtained by the prosecutor, he should duly r*^071 P^°''^^'^ *^ 8^® o^* lii^ TJ* ; if; however, he do not do so, the ^defendant should move, under stat. 1 Wm. 4, c. 21, s. 6, or as to Ireland, stat. 9 & 10 Vict. c. 113, for a rule to shew cause why the pro- secutor should not pay the costs of opposing the issuing of the writ of mandamus, or proceed in the prosecution thereof. This rule, when ob- tained, is brought on as an ordinary rule, and the Court will, after having heard it discussed, decide between the parties ; if the prosecutor have not been guilty of laches, it will discharge the rule, but if he have, it will either make it absolute unconditionally, or impose terms upon the prose- cutor, (r) (/c) R. T. Middlesex (J.), 1 Chit. 368. 7) R. T. Salop (J.), 6 D. 28. Ex parte Davies, 5 B. & Ad. 1091.f See post, tit. iosta." (m) Ante, p. 49, n. (q), and see post, tit. " Costs." (n) R. T. Water Baton (Manor), 2 Smith, 54. R. r. Tucker, 5 D. & R. 434.t S. C. 3 B. & C. 545.f R. t. Clerkenwell, Bull. N. P. 200. See post, tit. "Writ," (Amendment). As to the amendment of rules in general, see Chit. Prac. p. 1427. (0) R. T. Bankes, Burr. 1454. S. C. 1 W. Blac. 445. ip) R. T. Wiseman, 1 Barn. 405, 406. (?) R. v. East Lancashire Railway, 16 L. J., N. S. 127, Q. B., and see K. f. Bankes, Burr. 1452. S. C. 1 W. Bl. 455-; Bull. N. P. 200. (r) R. V. Dartmouth (Mayor), 2 D., N. S. 980. S. C. 12 L. J., N. S. 83, M. C. See the stats. App. ( "O POEM, E T C< 355 ^CHAPTER THE FIFTH. [*308] THE WRIT 0]? MANDAMUS, ITS FORM, &C., TOGETHER WITH THE SUBSEQUENT PROCEEDINGS ANTERIOR TO THE RETURN. Hating- in the preceding chapter treated of the application to the Court, and of the rule absolute for the writ of mandamus, we now pro- ceed, agreeably with the following analysis, to treat of the form of the writ, the manner of issuing tbe same, &c., and of such other proceed- ings to the return, exclusive, as are necessary to the due prosecution thereof. The Writ. The "Writ. By whom prepared - .308 Of demand and refusal 323 Form thereof 309 Of absence of specific legal Inducement - 309 remedy - 323 Averments 309 Mandatory clause - - 323 . Substance of writ ,310 Teste and return day 328 According to rule 310 Indorsements - 330 Direction 310 How sued out 330 Corporate body 314 How served - 330 Officers - 317 Filing the writ - 331 ; . College . 311 Cross or concurrent writs 331 Inhabitants of parish 317 "What - - 331 Parish officers 318 Motion for - 331 Justices 318 Kule for 332 How misdirection waived Return 333 or taken advantage of 318 Costs - - - - 333 ■ ' ' Inducement - 319 Alias and pluries writs 333 Averments - - 319 When granted - 333 Of jurisdiction of Court 319 Amendment of writ - 334 Of prosecutor' 3 title 320 Supersedas - 335 Of defendant's duty 322 Quashing - 336 The Writ.] Bi/ wJwm, prepared. — The writ must be prepared by the attorney of the prosecutor, or (if in person) by the party suing out the 8ame.(a) As the success of the prosecutor's case is mainly dependent upon the sufficiency of the writ, and as the majority of such writs are founded *upon either intricate facts, or important principles of law, it is r^oQQ-i advised that they should be drawn by counsel, and, in some in- ^ stances, settled in consultation. •] Form of Writ. — The writ of mandamus is in its form no more than a command by the Queen to those to whom it is directed to do their duty, &c., by the performance of a particular act or acts, as to admit to an office,ireedom, &c., in favour of the prosecutor ; his legal title to such per- [p,] See Or. Off. E. r. 2, App. As to issuing the writ, see infra, "How sued out." 356 tapping's mandamus. formance by those from whom it is required, being stated as inducement to the command or mandatory clause of the writ.(5) The writ has, in form, been likened to a declaration in a personal acti9n(c) in this, that no precise form of words is necessary, provided it be sufficient both in form and in substance ; {d) for two conditions are required for the perfection of the writ, the one, that it be in matter suffi- cient, the other, that it be deduced and expressed according to the forms of law; so that an absence of either of such conditions will vitiate the ■writ.(e) .] Form of; Inducement ; Averments, &c. — As all the principles and rules of pleading in civil actions are also applicable to a writ of man- damus, &c.,(/) so the inducement and averments of such a writ are sub- jected to their governance. Thus, matter of inducement or recital may be generally alleged ; also, incidental matter should not be specially stated ;(j) in other words, they do not require so much certainty as the main aver- ments, or the mandatory clause of the writ,(^) which should be expressed with precision and certainty, (V) or the writ may be quashed, (y) Also, as facts, not evidence, should be averred, so the writ must not be argu- mentative. (Z;) Should the writ be defective for either of these causes, the Court will, in r*^10T '^^^ discretion, either supersede or quash it, and refuse the *peremp- tory writ : thus, where a writ to amove certain fellows of a college for not having taken the necessary oaths to the state, was so framed that it did not appear but that the fellows therein mentioned might have taken the oaths required, at the Quarter Sessions, a peremptory writ was de- nied. (Z) Also, as a writ which appertains to an office, of which the Judges are not judicially cognizant, should specially state the nature of such office, in order that it may appear to the Court that it is one properly the subject of mandamus,(m) so, if such office be not specifically described, the Court will refuse the writ. (6) See ante, p. 3, n. (k), 5, n. {j). R. v. Dablia (Dean), Stra. 536. S. C. 8 Mod. 28. S. C. 1 P. Wms. 348. E. f. Kelk, 1 G. & D. 130. S. C. 1 Q. B. GSO.f (c) R. v. Oxford (Ep.), 1 East, 351. A return has also been likened to a declara- tion, 3 B. & Ad. 278.1 S. 0. 2 N. & M. 126.t See post, tit. "Return." (d) 1 East, 351, supra. R. v. Nottingham (Mayor), Say. 37, per Lee, 0. J. A mandamus, having the year expressed by figures, is not thereby vitiated. Butler V. Cobbett, 11 Mod. 255. R. v. Carpenter, 6 A. & E. 794.+ S. C. 1 N. & P. 775,1 and see 6 A. & E. 794.f (e) Colt T. Coventry (Ep.), Hob. 164. (/) See ante, p. 8, n. (y). iff) R. V. St. Pancras (Trustees), 3 A. & E. 540.f S. C. 5 N. & M. 222,t where see form. R. v. Win, 2 Keb. 738, 742 ; Bull. N. P. 200, and cases there cited. (h) Steph. PI. 409, 5th edit. (0 R. T. Bristol Dock, 6 B. & 0. lOl.f S. C. 9 D. & E. 319,1 where see fom of averments, &c. See infra, " Mandatory Clause," and post, " Return" (Form). (/) See post, tit. " Quashing Writ." (k) R. V. York, 5 T. R. 73. R. v. Hereford (Mayor), 6 Mod. 309. S. C. 2 Salk 701. S. C. Ld. Raym. 560. ' (l) R. T. St. John's Coll., 4 Mod. 241, n. ta). S. C. Comb. 282. See tit. "Col- lege" (Fellows, Admission). (m) Anon., 2 Mod. 316; Com. Dig. tit. "Man." 1 Lev. 162. , S. 0. Eaym. 152. FORM, ETC. 357 ,] Substance of Writ. — The writ, as we have seen, must be suffi- cient in substance, as to which the primary rule is, that " it must he framed in strict accordance with its ride absolute," or it will be superseded if not returned, but if returned, it will be quashed(ii) with costs. Thus, where the rule was, that a writ of mandamus should go to " a mayor and alder- men to call a Hall, and do the business of the corporation," and the man- damus was drawn up, " to assemble the corporation, and admit the several persons who had right to their freedom," not naming them, the Court, on motion, superseded the writ with costs, (o) The writ must not exceed its rule, beyond adding merely incidental re- quirements, as by materially enlarging the substantial terms thereof, otherwise the Court will quash the writ, notwithstanding they might, on application upon the same affidavits, have granted a writ equally exten- sive.(p) .] Direction of Writ. — The Direction is so material a portion of the writ, and, when defective, gives to the defendant a defence so clear and simple, that too much care cannot be bestowed upon it, in order to ensure its accuracy. (2) E. y. Dartmouth (Mayor), 3 Salk. 229, 2 ; 3 Bac. Abr. 530. See tit. " Ashburton" (Eight Men of), and post, tits. " Supersedeas," " Quashing Writ." [n) Ante, p. 305. R. v. Wildman, Stra. S19. S. C. 1 Barn. 405, 406, (although the rule be not drawn up as moved). E. v. Kingston-upon-HuIl (Mayor), 8 Mod. 209. E. T. Water Baton (Manor), 2 Smith, 54 ; Com. Dig. tit. "Man." (A.) R. t. St. Prancras, 11 A. & E. 28. R. v. East Lancashire Railway, 16 L. J., N. S. 127, Q.B. . (0) E. T. Kingston-iipon-Hull (Mayor), 11 Mod. 382. S. C. 8 Mod. 209. S. C. Stra. 5^8 ; Stra. 893. See post, tits. " Quashing Writ," " Supersedeas." [p) E. T. Water Eaton (Manor). 2 Smith, 54. See post, tits. " Quashing Writ," " Supersedeas." (y) See post, tits. " Supersedeas," " Quashing Writ," " Return." The following is an alphabetical series of the usual directions of the writ : Alderman. To A. B., Esquire, an Alderman of our City of , one of the Keepers of the Peace, and Justices assigned, &c., Greeting. Assizes (Nisi Priusj. To our Justices assigned to hold the Assizes, Greeting. . [Crown Court). To our Justices of Oyer and Terminer, and General Gaol Delivery, Greeting. Berwick-upon-Tweed. To the Mayor and Bailiffs of our Borough of Berwick- upon-Tweed, Greeting, &c., or. To the Mayor and Bailiffs of Berwick-npou- Tweed, 4c. Borough Compter. To the Gaoler or Keeper of our Gaol, called " The Bo- rough Compter," in and for our Borough of Southwark, or his Deputy there. Greeting, &c. Borough Corporation. See " Corporation of Borough." Borough Goal. To the Gaoler or Keeper of our Gaol or Prison at , in and for the Borough of , or his Deputy there, Greeting, &c. Central Criminal Court. To our Justices of the Central Criminal Court, and to every of them, Greeting, &c. Cheshire. To the Sheriff of our County of Chester, Greeting. We command you that you do not forbear by reason of any liberty in your Bailiwick, &c. Cinque Ports. To our Constable of our Castle of Dover, and Lord Warden of the Cinque Ports, or his Lieutenant there, Greeting ; or To the Constable of Dover Castle; or To the Constable of the Castle of Dover. Frank v. James, 5 D. T23. Commissary of York. To the Commissary of the Province of York 11 East, 348 b.) Commissioners {Poor Law). To the Poor Law Commissioners, Greeting, &c. 358 tapping's mandamds. ^^o-\-\ 12 T *Tlie Court when it grants the rule for the writ will not '- " usually specify *the pef son, &c., to whom it shall he directed; Commissioners (Tithe). To the Tithe Commissioners for England and Wale Greeting, &c. Coroner. To A. B., Gentleman, one of our Coroners of and for our Oonnty of J Greeting, &c., or when to the whole, To the Coroners of our County of , , or of our City of , Greeting, &c. Corporation of a Borough. To the Mayor, Aldermen, and Councillors of our Borough of , in our County of , Greeting, &c. County Gaol. To the Sheriff of , and to the Keeper of our Gaol at , of and for our said County, or his Deputy there, Greeting, &c. Dover Gaol. To the Mayor and Jurats of the Town and Port of Dover, and to the Water Bailiff and Keeper of the Gaol of the said Town and Port, or to his Deputy there, Greeting, &c. Durham. To the Chancellor of our County Palatine of Durham, Greeting. Elisors. To A. B., and C. D., Elisors, appointed by our Court of , in this behalf, Greeting. Giltspur Street Compter. To the Gaoler or Keeper of our Gaol or Prison in Gilt- spur Street, in our City of London, or his Deputy there, Greeting. Mouse of Correction (Middlesex). To the Governor of the House of Correction for the County of Middlesex, in Cold-bath Fields, or his Deputy there, Greet- ing, &c. Justices of Assize. To our Justices of Oyer and Terminer, in and for our County of , and to every of them. Greeting, &c. Justices of the Peace (Generally'). To the Keepers of our Peace, and our Justices assigned to hear and determine divers Felonies, Trespasses, and other Misdemeanors committed within our County of — —, and to every of them. Greeting. . (Individually). To A. B., and C. D., Esquires, two of the Keepers of our Peace, and our justices assigned, &c., Greeting. Lancaster. To the Chancellor of our County Palatine of Lancaster, Greet- ing, &c. lAeutenant of the Tower. To the Lieutenant of the Tower of London, or his Deputy there. Greeting. Lord Mayor of London. To the Right Honourable J. H., Mayor of our City of London, one of the Keepers of our Peace and our Justices assigned to hear and determine divers Felonies, Trespasses, and other Misdemeanors committed within our City of London, Greeting. Newgate. To the Keeper of our Gaol of Newgate, or his Deputy, there. Greeting. New Prison, Clerhenwell. To the Gaoler or Keeper of our Gaol, the New Prison at Clerkenwell, in our County of Middlesex, or his Deputy there, Greeting. Penitentiary i To the Governor of the General Penitentiary at Milbank, in our County of Middlesex, or his Deputy there. Greeting. Pentonmlle Prison. To the Governor of our Prison called " The PentpnvUle Prison," at Pentonville, in our County of Middlesex, or his Deputy there. Greeting. Queen's Prison. To the Keeper of our Prison called " The Queen's Prison," or his Deputy there, Greeting. Recorder of a JBorough. To A. B., Esquire, Recorder of our Borough of — — , in our County of , our Justice assigned to hear and determine, &o., in our said Borough, Greeting. Sessions (JBorough). To the Recorder of our Borough of , our Justice assigned to hear and determine, &c.. Greeting. Sessions (County). To the Keepers of our Peace and our Justices assigned to hear and determine divers Felonies, Trespasses, and other Misdemeanors commit- ted within our County of , Greeting. Sessions (Petty). To such of the Keepers of our Peace and Justices assigned, &c., as may be in attendance at a Petty Sessions to be held on the day of , at , in our said County, Greeting. Sheriff (Bristol). To the Sheriff of the City of Bristol, Greeting, &c. . (Canterbury). To the Sheriff of the City of Canterbury, Greeting, &c. F E M, ETC. 359 SO that a defective *direetion is at the peril of the prosecutor. (r) rHcQio-i But where an account of the intricate interests of the defendants, as corporate members, or for any other cause, there is great difficulty as to how the writ should be directed, the Court will state to whom it shall be directed. (s) So in cases under stat. 1 Wm. 4, c. 21, or as to Ireland, 9 & 10 Vict. c. 113, the Court will, in its discretion, state to whom and how the writ shall be directed. (<) It is not necessary that the writ should be directed to all thoste against whom the rule nisi is obtained, for the Court will mould the latter when (Carmarthm.) ■ To the Sheriff of the Town and County of Carmarthen,, Greeting, &c. . (Chester). To the Sheriff of the City of Chester, Greeting, &c. \jEly). To the Sheriff of Cambridgeshire, Greeting. . [Exete/r). To the Sheriff of the city of Exeter, Greeting, &c. . (Olouceater). To the Sheriff of the City of Gloucester, Greeting, &c. . [Jlaverfordwest). To the Sheriff of the Town and County of Haverford- west, Greeting, Stc. . [Kingston-upon-Hull). To the Sheriff of the Town and County of Eings- tott-upon-HuU, Greeting, &c. ^^. , [Linooln). To the Sheriff of the City of Lincoln, Greeting, &o. [See post, p. 315, n. («)]'. . [IMchjield). To the Sheriff of the City and the County of the same City, Greeting, &c. . {London). As in London there are two Sheriffs, so the writ should be directed. To the Sheriffs of our City of London, Greeting. — '-. [Middlesex). Although two individuals act as Sheriff, yet in law they constitute but one Sheriff, and the writ must be directed accordingly, To the Sheriff of Middlesex, Greeting. . [Newcastle-upon-'Pyne.) To the Sheriff of the Town and County of New- oaatle-upon-Tyne, Greeting. . (Norwkh). To the Sheriff of the City of Norwich, Greeting, &c. . iNoUingJum). To the Sheriff of the Town and County of Nottingham, Greetuig, &c. . [Oxford). To the Sheriff of the County of Oxford, Greeting, &c. . {Poole). To the Sheriff of the Town and County of Poole, Greet- ing, &c. I . (SouihwarTc, Borough). To the Sheriff of Surrey, &c.. Greeting. . (Southampton). To the Sheriff of the Town and County of Southamp- ton, Greeting, &c. . I tWorcester?). To the Sheriff of the City of Worcester, Greeting, &c. . [Tork), To the Sheriff of the City of York, Greeting, &c. Sauthwairh Borough Court. To the Mayor of our City of London, and the Ke- corder of the said City, and others the Keepers of our Peace and our Justices assigned to hear and determine divers Felonies, Trespasses, and other Misdemean- ors committed within our Borough of Southwark, Greeting, &c.. TothUl-fields Bridewell. To the Governor of the Tothill-fielda Bridewell, or his Beputy there. Greeting.- Tower [Lieutenant of). See tit. "Lieutenant of Tower." Whiteiyross Street Prison.. To the Sheriff of London and Middlesex, and to the Gaoler or Keeper of the Debtors' Prison for London and Middlesex in Whitecross Street, or his Deputy there, Greeting. W R. V. Wigan (Corp.), Burr. 782, 798 ; Stra. 897. R. v. Plymouth (Borough), 1 Bar. 81. Com. Dig. tit. "Man." (C.) But see 13 East, 427. R. v. Rochester (Dean, &c.), 1 Barn. 40. Anon., 2 Barn. 361. Bac. Abr. tit. "Man." (F.) As to the direction of writ to elect and to swear in, see 8 Mod. 112, 128. As to cases within stats. 1 Wm. 4, c. 21, s. 4 (B.), and 9 & 10 Vict. c. 113 (I.), see those stats. App. > 1 \ /> \ It (>) R. V. Loudon Requests' Court, 7 East, 295, infra, u. (t). (t) See supra, n. («), and stats. App. 360 tapping's maAdamtts. making it absolute, according to the justice of the caBe.(M) The writ should, however, follow the rule absolute in this respect.(?)) The writ must be directed to all those who are legally bound to execute it,(w) and to them only;(x) although they may not be those I °^^i #^hose wrongful act, &c., as removal from an office, &c. has occa- sioned the writ. A breach of this rule renders the writ liable to be either superseded or quashed ;(y) thus where a writ directed to a mayor, &c., stated that A. and B. had removed the prosecutor from his office of burgess, and by its mandatory clause commanded the mayor, &c., to command A. and B. to restore him; the Court, on motion, quashed it, for the absurdity of it being directed to one person, to command others, (z) Where the act, the performance of which is commanded by the writ, ia joint, and one party only refuses, and the other or others are willing; nevertheless the writ must be directed against both or all.(a) Thus where one parish officer applies for a mandamus against his fellow officer, to concur in making a rate, &c., the writ must, according to the acknow- ledged and accustomed practice, be against and directed to, both; i. e. as well against the applicant, as the defaulting officer, (i) So where two only have a concurrent jurisdiction, the writ should, it seems, be directed to both, commanding them, or one of them,(c) &c. . Corporate Body. — The writ, when directed to a corpoltate body, should accurately state the name of incorporation, and therein pursue thu act of Parliament, charter, or other instrument of incorporation, for no words of equivalent import can be substituted. (<^) As, however, a body {u\ See ante, p. 305, and see post, Bull. N. P. 200 ; Gude's Cr. Pr. 191. {v) See ante, p. 310, n. («), (o), (/>). \w) Ante, p. 50, n. {w), 158, n.' (J), (Z). Bac. Abr. tit. "Man." (F.) E. T. Abingdon (Mayor), 2 Salk. 699. S. C. Carth. 501. R. v. Gloucester (Mayor), Holt, 451, per Powell, J. S. 0. 1 Roll. 409. S. C. 1 Bulst. 189. Pees t. Leeds (■Mayor), Stra. 640. R. v. Cambridge (V. C), Burr. 1654. R. v. Norwich (Mayor), Stra. 55. R. v. Hereford (Mayor), 2 Salk. 701, 6 ; Com. Dig. tit. « Man." (0.) Prin'a case, 1 Keb. 686. R. v. Patrick, 2 Keb. 67, 68, 164. Estwick v. London (City), Styles, 43. R. v. Oxford (Mayor), 6 A. & E. 351.t S. C. 1 N. & P. 4T4.f R. t. Holt, 3 Keb. 668, 706, 734. R. f. Plymouth (Borough), 1 Barn. 81. E. i. Wigan (Mayor), Burr. 1643. Ex parte Cirkett, 3 D. 327. R. t. Poole (Mayor), 1 Q. B. 621.f S. C. 1 G. & D. 730. R. T. Smith, 2 M. & S. 594. R. v. St. Pancras (Churchwardens), 6 Jur. 391; Ld. Eaym. 1244. (a;) Ante, p. 212, n. {d). R. v. Hereford (Mayor), Salk. 701. E. v. Smith, 2 M. k S. 594 ; but see R. v. Holford, 2 Barn. 330, 350. Anon., 1 Barn. 402. See ante, p. 29. (y) R. T. Gloucester, 3 Bulst. 190. Dr. Witherington's case, 1 Keb. 61. B. T. Croydon Parish, 5 T. R. 713. Estwick v. London (City), Sty. 43, 1. R. v. Sharpe, Gilb. 255 ; 1 W. Blac. 52. S. 0. 1 Wils. 266. But see R. v. Colchester (Town), 2 Keb. 188. ■ R. T. Norwich (Mayor), Stra. 55. See post, tits. "Supersedeas," " Quashing "Writ." (z) See ante, p. 16, n. (4). R. v. Derby (Mayor), 2 Salk. 436. See post, tits. " Supersedeas," " Quashing Writ." (a) See ante, p. 220, n. (e), 221, n. (j). R. v. Pickles, 3 Q. B. 600.f W) Anon., 2 Chit. 254.f See tit. "Poor (Rate Making). U) See ante, p. 145, 146, n. (4). R. y. London (Ep.), 13 East, 427. {d) R. T. Smith, 2 M. & S. 594, 598. Estwick v. London (City), Sty. 43, 32. See POEM, ETC. 361 corporate, by prescription, may have several names by reputation, so it follows, that if it be called by one of such names, though not exactly the right or usual one, the writ will be sufficient, if it describe the official con- ditions of those forming the body corporate, and they must answer the ■writ.(e) But if the corporate body, whatever its title may be, be mis- named, the writ will be quashed, because as such writ cannot have any effect, so no legal object can be obtained by its prosecution. (/) Thus, if the corporate body be " mayor, alderman, and * commonalty" a a writ to the mayor, burgesses, and commonalty, is bad,(5r) So I- ^ where a writ was directed to the hallivis, &c., Gippi, and not Gipwici, it was held to be bad. (A) So because a writ was directed "To the Mayor of the City of Lincoln, in the County of Lincoln," and not "in the County of the City of Lincoln," it was quashed, there being no such person to whom a peremptory mandamus could go.(*) So if the right of election be in the mayor and aldermen, and the mandamus be directed to the mayor, aldermen, and common council, the Court will grant a supersedeas quia improvidi em,anavit.(^j') But if the duty be in the mayor, alder- men, et aV de communi concilio, and the writ be directed to the mayor, aldermen, and common council, it will be well though the word aV be omitted, (/c) The rule that a writ when directed to a corporate body should describe it by its corporate title prevails, notwithstanding a vacancy or vacancies may exist m one or more of its offices, as those of mayor, aldermen, &c., for its name of incorporation is its legal description, so long as it continues to have any corporate existence. (?) Thus if there be no mayor, or one de facto, and not de jure, and although the writ be to command the corpora- tion to proceed to the election of a mayor, yet it must be directed to " the mayor," (&c.(m) form in Carpenter's case, Eaym. 439. Anon., 12 Mod. 232. Dr. Witherington's case, I Keb. 61. R. t. Gloucester (Mayor), Holt, 451, per Powell, J. (e) Whitacre's case, 11 Mod. 61. S. C. Ld. Eaym. 1233, 1283. S. C. Holt, 443. S. 0. 2 Salk. 434. Finch's case, 6 Eep. 65, 66 ; 2 Roll. Abr. 136. (/) Sir T. Jon. 52. Case of Abingdon Town, Carth. 501. S. C. Salk. 700. R. T. Kippon (Mayor), 2 Salk. 433. S. C. Ld. Raym. 563. R. v. Ipswich (Bailiffs), 2 Salk. 434. S. C. Ld. Raym. 1 233. S. C. Holt, 443, 444, 445 ; Com. Dig. tit. " Man." (C); Bac. Abr. tit. "Man." (B.), (J.) in) 2, Salk. 433, supra, n. (/) ; Com. Dig. tit. "Man." (C); Bac. Abr. tit. "Man." (W.) {h) 2 Salk. 434, 435. S. C. Ld. Raym. 1233. S. C. Holt, 443, 444, 445, supra, n. (/); Com. Dig. tit. "Man." (C); Bac. Abr. tit. "Man." (B.) See infra, tits. "Quashing Writ," " Supersedeas." (i) See post, p. 314, n. (/). R. v. Lincoln (Mayor) 12 Mod. 190. S. C. Garth. ^8. S. C.'Ld. Raym. 203, and cases there cited. See infra, tit. "Quashing U) R.T. Norwich (Mayor), Str. 55, Holt, cont. ; Salk. 701, 3; Salk. 231,8; Com. Dig. tit. "Man." (0.); but see R. t. Gloucester (Mayor), Holt, 451; Stra. 640, n. (1), 3rd edit. See infra, tit. " Supersedeas." (*) Pees v. Leeds (Mayor), Stra. 640 ; Com. Dig. tit. " Man." (0.) ; Bac. Abr. tit. " Man." (P.) ^ ' (l) See ante, p. 167, n. (S). R. t. Smith, 2 M. & S. 598; Bac. Abr. tit. "Man." (to) R. t. Pembroke (Corp.), 8 D. 304. R. t. Bridgewater (Corp.), 3 Doug. 379.f 362 TAPPING'S MANDAMUS. ' If the duty, as to elect, &c., commanded by the writ, be that of pmt only of a corpoi-ate body, the writ may, in such case, be directed eitherto such part only, by its portion of the corporate name, or to the whole cor- porate body.(m) Thus where to a mandamus to choose a *mayor, L ^IDJ ^jj.g(jtg^ tQ Jacoho Gourtem, majori, iaUivis, et omnibus princi- palibus hurgensihus hurgi de Abingdon, who, by their constitution, were to choose a mayor out of such persons as should be proposed by the com- monalty; it was objected, that the writ was misdirected, because the name of incorporation was "mai/or, bailiffs, and burgisses ;" but the Court, when overruling the objection, said, " that though the writ might have been directed to the whole corporation, yet it could not be necessary, that it should be directed to more than those, or that part of the corporate body which was concerned in the execution of the thing required, for it is not in the power of others to put the command of the writ in execu- tion. "(o) It is not, therefore, necessary that a writ to a corporate body should, in every case, be directed to the whole corporation (though it may be so), for, as just stated, it is sufficient if it be directed to him or them who alone have the power to execute the writ.(p) If, however, the writ be to be executed by a part only of the corporate body, and the direction be not to such body by its corporate name, but in terms extends the description beyond the part legally liable to execute the writ, the Court, on motion, will either supersede or quash it.(2') Thus, where a writ com- manded "aldermen and commonalty" to elect, &c., which direction was not a command to the body by its corporate name, because, by the char- ter upon which it was founded, some of the commonalty were excepted ; it was held, that as the command extended beyond the persons who were entitled under the charter to concur in the election, such a direc- tion was bad, and avoided the writ.(r) But a writ directed to "The <./or and Burgesses," which commanded them to elect and swear in a E. T. Bedford (Corp.), 1 Bast, .t9, and E. v. Cambridge (Mayor), Burr. 2011. Tajler T. Gloucester (City), 1 EoU. 409. S. 0. 1 Bulst. 189. S. C. 2 Show. 204.'. S. G. 3 Salk. 230, 8. R v. Oxford (Mayor), 1 N. & P. 474.1 S. 0. 6 A. & E. 349.t (n) Patrick's case, 2 Keb. 67; 3 Keb. 706. R. v. Abingdon (Mayor) , 2 Salk. 699. S. C. Garth. 501, overruling Holt's case, Jones, 52. R. v. Gloucester (Mayor), Holt, 450, 451, per Powell, J.; 1 EoU. 409. Pees v. Leeds (Mayor), Stra. 640. E. T. Cambridge (V. C), Burr. 1654. R. v. Norwich (Mayor), Stra. 55. R. v. Hereford (Mayor), 2 Salk. '701, 6. S. C. Ld. Raym. 560. Com. Dig. tit. "Man." (C.) Holt's case, Freem. 441. See Carth. 501 ; Dyer, 333. Estwick's case, 2 Boll. Abr. 456. R. v. Tregouy (Mayor), 8 Mod. 112. S. C. 8 Mod. 128. E.Y.Smith, 2 M. & S. 598. Bac. Abr. tit. "Man." (F.) (o) 2 Salk. 699, suprd, n. («). (p) Ante, p. 315, n. (n), 317. R. v. Gloucester (Mayor), Holt, 450. Harcourt v. Fox, Comb. 213. R. v. Norwich (Maygr), Stra. 55. R. v. Abingdon (Mayor), Ld. Raym. 560. S. C. 2 Salk. 701, 6. R. v. Smith, 2 M. & S. 591. Bac. Abr. tit. "Man." (P.) (?) E. v. Smith, 2 M. & S. 583, 598. R. v. Abingdon, 2 Salk. 701. S. C. Ld. Raym. 560. E. v. Taylor, 3 Salk. 231, 8. E. v. Norwich (Mayor), Stra. 55, Bac. Abr. tit. " Man." (B.), (F.) (r) 2 M. & S. 597, pi^r Ellenborough, C. J., supra. See Case of Abingdon Town, Carth. 501, overruling Holt's case, Jones, 52. Bac. Abr. tit. " Man." (P.) Se? infra, " Mandatory Clause." roRM, ETC. ' 363 mayor, "secundum authoritatem Testrain," has been lield to be good; although the power was to the burgesses to elect, and to the mayor to swear in, for in such a case, the direction must be construed, reddendo singula smgulis.(s) *The result of the above oases, therefore, is, that if the writ be directed neither to the corporation, by its corporate name, nor to ■- -■ those who should execute it, by their proper descriptions, it is clearly bad,(«), and liable either to be superseded or quashed. The writ must not only be directed to the corporation or select body in its proper name, but also in its ofiEioial capacity, as expressed in the rule absolute. («) Thus, in a case where the writ was directed to the two bailiffs of a town to swear in other bailiffs, and they objected "that hav- ing sworn in others, and being now no longer bailiffs, and the writ not being directed to them in their natural capacities, they were not obliged to pay any obedience thereto ;" the Court however, notwithstanding, obliged them to return the writ, upon the assumption, that if the persons sworn in by them had no right to be chosen, they, the defendants, still continued bailiffs, and ought to obey the writ.(w) .] . Officers. — The writ, when directed to an individual, should be addressed to him by^his official name, if the writ have relation to his office, as such a course obviates any inconvenience that may arise from the personal change of such office.(i«) .] . College. — In a writ to a college, the fellows ought to be parties.(a;) But a mandamus directed to the senior fellow, who alone had power to admit, has been held to be good, without the name of the oollege.(y) .] . Inhabitants of Parish.^A writ of mandamus may properly be directed to the " Inhabitants" of a parish, although not in- corporated as such,(z) and those of them upon whom the writ shall be served may be punished for disobedience if they neglect it ; for if the Court think that the writ ought to issue, it will find some means whereby \ (s) R. T. Tregony (Mayor), 8 Mod. 111. S. C. 8 Mod. 127. And see 1 Roll. Abr. 409; 2 Jones, 52, &c.; Com. Dig. tit. "Man." (C.) («) 2 M. & S. 594, supra, H. (y). ■ (u) See ante, p. 313, n. [v). Papillon's case. Skin. 64. B. v. WestLooe, 3 B. & C. 685.t S. 0. 5D. &B. 592.t Bac. Abr. tit. "Man." (P.) (o) Olitlieroe's case, 6 Mod. 133. B. v. Wrexham (Churchwardens), 15 Vin.Abr. 215, pi. 6. Bac. Abr. tit. " Man." (F.) See infra, n. [w). (w) R. V. Cambridge (U.), 1 "W. Blac. 551. S. 0. Burr. 164T. R. v. Cambridge (Mayor), Burr. 2011, in which case the writ was directed "to the late mayor," without specifying his name. R. v. Dr. "Ward, 7 East, 346, n. (5). B. t. Ouze Bank Commissioners, 3 A. & E. 54'4.f See form in Carpenter's case, Raym.-439, and in Taverner's case, Baym. 446. _ (x) R. T. St. John's Coll., Skin. 549. S. C. 4 Mod. 233, 368. See tit; " Univer- sity." As to whom notice of rule should be given, see ante, p. 286, n. [z). {y) Patrick's case, 2 Keb. eY ; 3 Keb. 706 See ante, p. 316, n. (o). (s) R. T. Wix (Inhabs.) 2 B. & Ad. 197, 198, 199.f B. v. S. Saviour's Parish, 7 A. & E. 938.f S. C. 1 N. & P. 496.t S. C. 3 N. & P. 126, where see a form of return by inhabitants. Ex parte Le Cren, 2 D. & L. 571. S. C. 14 L. J., N. 8. 34, Q.B. Seeante, tit. "Parish." 364 tapping's mandamus. *to enforce the execution tliereof.(a) Thus, a mandamus has [ dioj j^gg^ granted to " The Churchwardens and Overseers of the Poor of the Parish of St. James,lGlerkenwell, and to the principal inhabitants thereof," to, &c.(6) So in E. T., 1 Geo. 3, a mandamus was granted to " The Vicar, Churchwardens, and Parishioners of Croydon," to, &o.(c) But in a subsequent case it has been held, that where a duty is perform- ablo by the inhabitants of a parish, a mandamus to enforce the perform- ance thereof is properly directed to " The Churchwardens." Thus, if the right to elect a sexton be in the inhabitants of a parish, and a man- damus to hold a meeting for such election to be granted, the writ may be properly directed to the churchwardens, and not to the inhabitants gene- rally.((^) .] . Parish Officers. — If one parish officer as a churchwar- den, should apply for a mandamus against his fellow officers to concur in an act, as the making a rate, &c., the ■?rrit must include the whole of the parish officers, as well the applicant,(e) as the defaulting officers, and con- sequently be directed to them. .] . Justices. — The writ when against justices of the peace, should be directed to all of them who, having jurisdiction, have refused to exercise it.(/) .] How misdirection waived or taken advantage of. — A misdi- rection may be waived by the -defendant, on his making a return answer- ing the exigency of the writ, either in the wrong name of the writ, or by his right name,(^) notwithstanding the return may be inBufficient.(A) If it be wished to take advantage of a misdirection, the defendant should deny the supposal of the writ, and return " no such officer," '' no such corporation," &c., and thereupon the writ, if it be defective, will be either superceded or quashed, because it cannot be executed.(i) It is for *this cause, that the writ need not aver that those to whom it is '- -^ directed, are those whose duty it is to execute the writ;(y) for, as before stated, if it be not directed to the proper person, that fact may and {a] 2 B. & Ad. 203,f supra, n. {«) lb) 2 B. & Ad. 199,} n. (c), supra, n. («). And ante, p. 305, n. (/). (e) 2 B. & Ad. 199,f n. (c), supra, n. (z). And ante, p. 305, n. (/). (d)R. V. StokeDamerel, 5 A. &B. 588.t S. 0. 1 N. & P. 56-1 See a direction to a parish governed by a local act, 11 A. & E. 27,1 n. See ante, tits. "Parish," " Sexton," " Vestry." (e) Ante, p. 314, u. (6). See tit. "Poor" (Rate). Anon., 2 Chit. 254. See tit. " Poor" (Rate). (/) See p. 234, n. (q), 242, n. {a). Carly v. Hardy, 6 Mod. 139, 164. S. C. Holt, 407 ; but see R. v. BUis, 12 L. J., N. S. 20 M. C. See tit. "Quarter Sessions" (Ap- peal, Application), Petty Sessions, Warrant, Application). (g) Holt 446, per Keeling, J., in R. v. Mills, 1 Keb. 623. (A) R. T. Smith, 2 M. & S. 594. R. t. Tregony (Mayor), 8 Mod. 129. E. t. York (Mayor), 5 T. R. 14. (i) Ante, p. 310, n. (y). Dr. Witherington's case, 1 Keb. 68, and cases tliere cited. Anon., Godb. 44, pi. 52 ; and see R. v. Maiden ; R. t. Ipswich (Bailiffs), 2 Salk. 434. S. C. Ld. Raym. 1233; Bull. N. P. 201 ; Bac. Abr. tit. "Man." (I.) infra, p. 319, n. [p). See post, tits. " Supersedeas," " Quashing Writ." (J) R. T. -Ward, Stra. 893. FOKM, ETC. 365 stould be returned. (/e) The prosecutor is, however estopped from deny- ing that the defendants are a corporation, officers, &c., if he have so de- scribed them by the direction of his writ.(Z) If the writ be so misdirected that it cannot be amended, the Court will, on motion, before filing, supersede it quia improvido emanavit ; but after return, the motion must "be to quash it,(m,) for their cannot be restitution on a mandamus ill directed. (n.) The Court will, in its discretion, upon application, grant a new writ.(o) The defendant, as before stated, may by his return traverse the supposal of the writ, and so raise the question of misdirection or not.(^) .] Inducement; Averments, &c. — Although matter of recital or inducement should not be generally alleged, yet it must be in substance sufficient to warrant the mandatory clause of the writ, otherwise the writ will not shew upon its face the right of the prosecutor to thlM which he seeks, which is a defect for which the Ceurt will either supersede or quash it.(2) .] Averment of the Jurisdiction of the Court. — The writ must also contain a statement of all facts, necessary to shew the Court of B. R. that it has jurisdiction over the subject of the writ, and in order to afford the defendant an opportunity of traversing such averment.(?') Thus, where a mandamus was applied for " to swear in one who had been elected to be one of the Eight Men of Ashburton pourt," the Court of B. B. re- fttsed the writ ; because, as it was not expressly stated what the office was, nor what was the place of the eight men, so the writ did *not ri^iono-i shew to the Court that the place was such for which a mandamus was the proper remedy. (s) If on the face of the writ it be not shown that the Court has jurisdic- tion, or if it disclose matter which shews that the prosecutor is not entitled to it, the Court will either supersede or quash it, and it has been held, that such defect cannot be supplied by matter appearing in the return ; for unless the writ be supported, the return cannot come before the Court. [k] Ante, p. 318, n. (i) ; Trem. Ent. 45, 452, 461, 465, 483. E. v. Ward, Str. 892, 897. S. 0. Fitzg. 123, 194. S. C. 1 Barn. 252, 294, 381. E. v. Clapham, 1 Ven. 110; and see 1 East, 346 (c) ; Com. Dig tit. "Man." (0.) (i)E. V. Halse, 1 Keb. 20. E. v. Slythe, 9 D. & E. 229.f See post, tits. "Eeturn," "Pleas." (m) R. T. Norwich (Mayor), Stra. 55, 180. S. C. Salk. 699, '701, 433. E. v. Plymouth (Borough), 1 Barn. 81. E. v. Tregony (Mayor), 8 Mod. 111. Dr. With- erington's case, 1 Keb. 11. See post, tits. " Supersedeas," " Motion to Quash." (n) Holt's case, Jones, 52. See ante, p. 314, n. (/), 318, u. (i). io) Harcourt t. Pox, Comb. 213. (p) Ante, p. 318, n. (j), (k) ; Bac. Abr. tit. " Man." (F.) E. v. Ward, Stra. 893. See Holt, 446. See supra. (?) Ante, p. 309, n. {ff). E. v. St. Pancrag, 6 A. & E. 314.t S. C. 1 N. & P. 50T.t See post, tits. "Mandatory Clause," " Supersedeas," " Quashing Writ." (r) Ante, p. 10, 11, n. («), 30, n. (J), 78, n. (v), 113, n. (g). E. v. Gadsby, 1 N. « P. SfS,! citing E. V. Oxford (K.), 1 East, 345. E. v. West Eidiug (J.), 1 T. E. 46T. R. V. Margate Pier, 3 B. & Ad. 220.f See tits. " Ashburton" (Eight Men of), " Curate," " Guildford" (Approved Men of), " Office" (Known to the Law), " Tiver- ton" (Twenty-four Men of). (») Ante, p. 43, n. (s), 75, n. (c), 174, u. (/), (g), 186, n. (I). 366 tapping's mandamus. Thus, where a writ of mandamus commanded the delivery up of all papers relating to the office of clerk of the Court of Requests, but did not shew any claim by the defendant to detain them by virtue of any right, it was held that the writ was bad, as it did not shew that the detainer was hy other than a private individual, and that the defect could not be supplied by a return, which disclosed that the defendant claimed to detain them as clerk of the same office, (i) The Court of B. E,. will not, in order to supply a remedy, exercise a jurisdiction which does not belong to them ;(«) and, therefore, will, at any time before the peremptory mandamus shall issue, suffer itself to be in- formed, and examine whether the writ be so framed as to give them juris- diction. (?)) .] Averment of Prosecutor's Title. — The writ should contain allegations of all such facts, as are necessary to shew that the prosecutor is legally entitled to the relief he prays, otherwise it is liable to he quashed. (10) Thus, where a mandamus to command an ordinary to license a curate, merely stated that he had been duly nominated and appointed by the inhabitants of a township, to be curate of the church of P., without stating the consent of the rector, or either the existence of any endowment, or of a custom for the inhabitants to make such nomi- nation and appointment, the Court quashed the writ for insufficiency, (a;) [-^09-1 -1 *The rules as to the «averments of title are as follows. That where the facts stated in the writ are sufficient, if not denied, to entitle the prosecutor to have what he claims, it is no objection that they are stated generally ; thus, in the case of a mandamus to swear in one elected a freeman of a corporation, an averment that the prosecutor is duly elected, and ought to be sworn in, is sufficient, though so generally stated; because, if these facts be true, he ought to be sworn in. But where it may be answered that, admitting all the facts stated to be true, yet that the prosecutor is not- shewn to be entitled to what he asks, such is a fatal objection to the substance of the writ.(y) Where the law casts a right upon the prosecutor, it is sufficient to state such right generally ; but if he claim against common right, he must (t) E. V. Hopkins, 4 P. & D. 550. S. 0. 1 Q. B. IGl.f In R. t. Eound, 4 A. A; K. 139.f S. 0. 5 N. & M. 427,1 the official character of the defendant appeared. Sec post. tits. " Supersedeas," " Quashing Writ," " Quashing Return." - (u) R. V. Leicestersh. (J.), 1 M. & S. 444. R. v. Bettesworth, Stra. 857. M R. r. Margate Pier, 3 B. & A. 224.f See tits. " Supersedeas," " Quashing.". (w) Ante, p. 27, 28, 113, n. (ff), 130, n. (I), and infra, "Mandatory Clause." R. T. Oxford (Ep.), 7 East, 345, 350. R. v. St. Pancras, 3 A. & E. 539.t S. C. 5 N. & M. 222.t R. V. Oxford (Ep.), 7 East, 600. R. v. West Riding (J.); 7 East, 350. S. C. 3 Smith, 341; 7 T. R. 48, 53. Peat's case, 6 Mod. 310, per Holt, 0. J. B. v. Nottingham (J.), 2 Barn. 56. R. v. Eastern Counties Railway, 4 P. & D. 46. S. 0. 10 A. & E. 569.t R. v. Margate Pier, 3 B. & A. 220.t R. v. Newbury (Mayor), 1 Q. B. 759.f R. T. Coopers' Company, 7 T. R. 467. See tit. " Advocate of Doc- tors' Commons," and the several titles of the series, and post, tit. " Quashing Writ." {x) 7 East, 345, 350, supra, n. (w). See infra,. "Mandatory Clause." And ante, p. 143, 144. (y) 7 East, 350, supra, n. (w). 367 shew how. Therefore, where in a mandamus to an archdeacon to admit and sweari to the office of churchwarden, it was held, as the parishioners by whose election the prosecutor claimed could only have a right to elect a churchwarden by custom, that such custom should have been fully stat- ed upon the writ, (a) Where a statement of title is necessary, the averment of a prima facie one is sufficient to induce a return. (a) Thus, where a mandamus to account before auditors, under the Vestry Act, stat. 1 & 2 Wm. 4, c. 60, aveifed, "that the auditors duly appointed, and acting under and by vir- tue of an act, &c., in exercise of the powers given to them by the said act," had summoned the said parties to account ; it was held, that it was not necessary to state more fully the adoption of the act by the parish, and the due appointment of auditors. (6) So, debito modo electus is all the inducement that is stated in a writ to a municipal body, to admit and swear in a corporator. (c) So, where a writ suggested, that the applicant had a right to an admission to an office, upon payment of a reasonable fine, such was held to be a sufficient allegation, without shewing how, or by whom, it was to be assessed. (rf) Where, however, the. circumstances of the case are such, that .„^„., no *averment of title is necessary, all mention of it should be L -' avoided. Thus, a mandamus to restore, should not shew the nature of the right to the office, (e) .] Averment of Defendant's Duty, &c. — The writ must expressly state the act, &c., or those facts which constitute the nature of the duty, &c., required to be performed by the defendant,(/) and an absence of such an averment will render the writ liable to be either superseded or quashed. ((7) The writ must clearly show upon its face, that it is the defendant's duty to execute it.(7i) But where a writ of mandamus stated the election of a presentee to a vicarage by a majority, and commanded the Master, who had refused to affix the seal to the appointment, to do so, it was held, , that an allegation in the writ as to his power to affix the seal, was suffi- (z) Needham's case, Trem. 469; T East, 350, supra. Harris's case, Trem. ill. Dunkin's case, Id. 501. Baker t. Baker, Id. 505. R. v. The West Riding (J.), 7 T. R. 50. R. T. Lyme Regis (Mayor), 1 Doug. 80. See tit. " Custom." [a] 1 East, 351, supra, n. [w], per Ellenborough, C. J., Peat's case, 6 Mod. 310. E. V. Slatford, 5 Mod. 318, per Holt, C. J. R. t. Coopers' Cotapany, 1 T. R. 543. E. T. Tappenden, 3 Bast, 186. R. v. Win, 2 Keb. 738. 742 ; S. C. nom. R. t. Marches (President), 1 Le(r. 306. S. C. 1 Vent. 110. Com. Dig. tit. " Man." 0. 2. (i) R. T. St. Pancras, 3 A. & B. 535.t S. C 5 N. & M. 222 ;f 7 East, 345, supra, n. [m). Peat's case, 6 Mod. 310 ; Com. Dig. tit. " Man." C. 3. ' (c) 7 East, 345, supra, n. (m) : Trem. Plac. Cor. 467. R. v. Dublin (Dean), Stra. 636. S. C. 8 Mod. 27. [^ E. T. Hastings (Mayor), Gas. t. Hard. 862 ; Steph. on PI. p. 409 ; also Chit, on PI. tit. "Inducement." fe) R. T. Nottingham (Mayor), Say. 56. See ante, p. 194, n. [v). (/) Ante, p. 29, and R. v. Ward (Dr.), Stra. 897, and see tit. "Office." ig) See post, tits. " Supersedeas," " Quashing Writ," p. 335, 336. (h) R. T. Dr. Ward, Stra. 893. S. C. Pitzg. 123. S. C. 1 Barn. 252, 294 ; Trem. Entr. 452, 453, 454. R. t. Clapham, 1 Tent. 110. S. C. 2 Keb. 738, 742 ; 7 East, 351, 347, n. (c). E. ,. West Riding (J.), 7 T. R. 53. 368 TAPPING'S MANDAMUS. cient, which stated, that he had the custody of one of the keys of tie chest in which it was kept, and had positively refused to affix the seal, and claimed a right to withhold it.(i) The writ need not particularly set forth hy what authority the defen- dant's duty exists.(y) Thus, a mandamus to a commissary to admit a deputy registrar, which stated quod minus rite recusavit, has been held to be sufficient, though it was objected, that it did not state the defen- dant's right to admit.(7<;) So, a mandamus to a dean to grant probate, which averred that the dean, juxta juris, exigentiam recusavit, has been holden sufficient, though it was objected, that it did not show the dean's title to grant probate, by an allegation that there were bona notabilia.{Z) The writ must with great certainty call the attention of the defendant to his duty, and to the execution of the writ, otherwise it may be quash- ed for insufficiency in substance. (m) Thus, the Court has quashed a writ of mandamus, which commanded a bishop to license J. E. to be chaplain or curate of the church or chapel of P., upon the bare averment that he had been duly nominated and appointed by the inhabitants of the i] B. V. Kingston (Mayor), Stra. 578 ; Com. Dig. tit. " Man." 0. 2. June, 1852.— 24 370 tapping's mandamus. admit all persons having a riglit to their freedom who should appear be- fore them to .demand it," such writ was, on motion, superseded, as being complicated, and because every person's right was distinet.(a:) The above rule as to singleness of interest obtains, although the prose- cutors may have been successors in the same office, in respect of which the claims arise. (3/) The same writ may, however, command several persons to be admitted to an office, if in the aggregate they form but one officer, as bailiff, sheriff, &c. ; but not, as before stated, several persons into several offices of the same kind, as aldermen, common councilmen, &c., for, in the latter oases, each must have a separate writ.(z) r*qncT *The Same writ may command several persons to do several acts, if the performance of all such acts be necessary, in order that the ultimate object of the writ may be obtained. Thus, where a Court Leet, by custom, presented to the steward the person whom the commonalty had chosen to be mayor, the Court of B. E. granted a writ to command the steward to hold a, Court Leet, and to the burgesses to attend it, and to present him who had been chosen mayor.(a) So, all matters which are incidental or necessary to the primary object of the writ, may be commanded by its mandatory clause. Thus, a writ, the primary object of which is, to compel the hearing of an appeal, usually and properly commands the sessions or recorder to enter the appeal, or to enter continuances and hear and determine the merits of the appeal, and also, if the facts of the case warrant it, to take the recognizances of the applicant and his sureties for trying such appeal, and thereupon forthwith to discharge him put of custody, &c.(6) ■ The writ may command the doing of an act at the instance of one prosecutor, although the performance of such act may have the effect of perfecting the rights of several persons, (c) The mandatory clause has no peculiar formula j if, therefore, the legal construction of the language, whatever it may be, shews to the Court that the prosecutor is entitled to that which he seeks by the writ, it will be sufficient. The mandatory clause differs materially in substance as between the cases of judicial, and ministerial acts. Thus, in the former case, it com- mands generally, and not specifically, as "to give sentence," without saying " what sentence ;" in the latter case, however, the terms of the [x) See ante, p. 93, n. («) ; Bac. Abr. tit. " Man." B. E. v. Wildman, Stra. 893. R. T. Kingston (Mayor), Stra. 5V8. S. 0. 8 Mod. 209. S. C. U Mod. 382. [y) Ex parte Scott, 8 D. 328 ; 4 Jur. 5'79. (z) Ante, p. 101, (w). R. t. Ipswich (Bailiffs) 1 Barn. 407. R. v. Bridgewater (Corp.), 3 Doug. 382 ; Stra. 1180 ; 8 East, 271. R. v. Twitty, 2 Salli. 434. (a) Ante, p. 150, n. [x). R. t. Middlehurst (Borough), 1 Wils. 283. R. v. Christ- church (Borough), Bull. N. P. 200. See tit. " Manor" (Leet). (J) Ante, p. 232, n. (a). R. v. Newcastle (J.), 1 B. & Ad. 933.f R. v. Abing- don, Ld. Raym. 559. S. C. 2 Salk. 699. («) R. V. Ld. Montacute, T., 24 Geo. 2 ; 1 W. Blac. 60. S. C. 1 Wils. 283; Bull. N. P. 196; Bac. Abr. tit. " Man." (B.) FORM, ETC. 371 clause are specific, as " to swear in A. B. as cturchwarden," and not generally "to swear in a cliurchwarden."((i) Where tlie object of the writ is to command the execution of the provisions of an act of Parliament, &c., the language of such act should be adopted.(e) As to the form of mandatory clause in the case of a discretionary power, see title Discretion.{f) *If restitution be sought to an ofSce, which is not one of profit, rHtoofs-i but :of freedom and government merely, as that of alderman, the mandatory clause should not allege it to be a place of profit, for all the precedents of such writs are without any suggestion of pecuniary loss j it is a sufficient ground for the writ, that there has been a loss of "prece- dency'' or ^' authority." (^') In all cases of franchise, the writ should command admission, restora- tion, &c. to the "privilege, &c.," and not to the " place and oflS.ce, &c. ;" as to the "privilege" of freeman. (A) The mandatory clause usually does, and properly should, always con- tain an alternative sentence,(i) which was formerly, when the writs were in Latin, expressed thus, "si ita est," or "si vobis constare poterit," or "velcausam nobis significesj" the legal signification of which sentences is, that the mandatory part of the writ is to be obeyed, only if it can legally be commanded. (_/) The existence of such alternative clause is not necessary to the validity of the writ, it having been first held, that the writ was sufficient without such words, if there were other words, aa "sicut informamur," which shewed that the writ was not a peremptory one,(/i;), and afterwards that the writ, being a mandatory writ, the person to whom it is directed ought to make a return or obey, although there be no Such clause, nor any equivalent expression. (Z) The mandatory clause must be supported by, and not exceed in legal vake the averments of title, grievance, &c. forming the inducement of the writ.(m) Thus, where a writ commanded " aldermen and common- alty" to elect, &c., which direction was not a command to the body by [i] See ante, p. 13, n. [a), (b), (c), 112, n. (w), 185, n. (j), (r), and tits. "Lec- tmeship" (License), "Office" (Officers, Judicial, &c.), "Visitor." (e) See. tit. "Act of Parliament," and ante, p. 314, u. (d). (/) See ante, p. 12—15. (g) See ante, p. 37, n. (n), 101, n. (u), 191, n. (a), 194, n. (v). See tit. '-Prece- dence." U] Snpra, n. (g), and see tit. " Freeman" (Restoration, Writ). (») The alternative clause is said to have been first introduced in Bagg's case, 11 Kep. 93. See post, tit. " Peremptory Writ." U) Ante, p. 6, n. (n), 10, n. («). R. v. Heathcote, 10 Mod. 53. Thompson v. Mmonds, T., 4 Jac. B. R. ; 2 Roll. Ab. 456, pi. 4 ; 2 Dyer, 332 (6), n. 28). (*) R. V. St. John's Coll., 4 Mod. 233, 236. S. C. Comb. 279, 280. S. 0. Holt,. 436. S. 0. Skin. 359, 386 ; 4 Mod. 241, n. la) ; but see London (City) v. Swallow, 2Keh. 50, 76. ' \ /> \ ■" > J!^ 5- ■'• °''™' 5 ^°^- 314. S. 0. Comb. 239. S. C. Skin. 669. S. C. Holt, 190; Com. Dig. tit "Man." (0. 3). 607"+ ^^^' ^' ^^''' ^^^' ^- ^- ^'- Pancraa, 6 A. & E. 316.t S. 0. 1 K. & P. 372 tapping's mandamus. its corporate name; also by the charter upon which the writ was founded, some of the commonalty were excepted ; it was held, that as the man- datory clause extended beyond the persons who were entitled under the charter to concur in the election, so the writ was repugnant, and there- fore void. (re) The mandatory clause should, like the body of the writ, expressly state r*^971 *^^^ ^^^^ required of the defendant,(o) and with great certainty *- call his attention to it.(jj) The mandatory clause must not only clearly and accurately express that which it commands the defendant to do, but such command must not exceed, but be in exact conformity with the legal obligation of the defen- dant, or the Court will, on motion, quash it, for the Court cannot mould the writ as it would the rule. Thus, in a case arising on the Vestry Act, Stat. 1 & 2 Wm. 4, c. 60, which enacts, that the auditors shall meet twice at least in each year at the board room of the vestry, and a majority of the said auditors being present at such meetings, shall audit the accounts of such vestry, and the vestry are required " at every such meeting" to produce a true account in writing, &c., and the auditors are to have the same power of examining the accounts of certain other boards, and are to audit them in the same manner. A mandamus issued, calling upon a board to attend with, and produce to the auditors their accounts, at such time and place, or at such times and places, as a majority of the auditors might appoint, and then and there give such information as to the ac- counts as they might be enabled to give, "according to the directions of the act." It was held, that the writ exceeded the authority given by the act of Parliament, and that the generality of the command was not qua- lified by the words " according to the directions of the said act," as such expression required the defendant to look dehors the writ, in order to ascertain the duty which was required of him.(2) Such accuracy is necessary, notwithstanding the writ may contain a recital properly stating and limiting the right, as its generality cannot be satisfied by obeying a limited requisition stated in a recital, and because the defendant is not bound to refer to any part but the mandatory clause, in order to ascertain what is required of him.(r) Therefore, where a mandamus is awarded for purposes partly legal and partly not, as where {«) Ante, p. 316. R. v. Smith, 2 M. & S. 597. See post, tits. "Supersedeas," "Quashing Writ," p. 335, 336. (o) Ante, p. 322, 323. E. v. Ward, (Dr.), Stra. 897. (p) Ante, p. 322, n. (m). R. v. Bristol Dock, 9 D. & E. 309. S. C. 6 B. & C. 181,f per Bayley, J. (?) R. T. St. iPancras, 3 A. & E. 535.f S. C. 5 N. & M. 222.t E. v. Tucker, 3 B. & C. 547.t S. C. 5 D. & R. 434.t R. v. St. Pancras, 6 A. & E. 316.t S. 0. 1 N. & P. 507.t R. V. Eastern Counties Eailway, 2 Q. B. 569.t S. C. 2 G, & D. 1 ; bnt see R. T. Bristol Dock, 6 B. & 0. ISl.f S. C. 9 D. & R. 309.f The objection should not be taken advantage of by a return in the nature of a demurrer, but by motion to quash. R. t. Suffolk (J.), 5 N. & M. 144,t per Patteson, J. York Eail- way V. Miluer, 15 L. J., N. S. 379, Q. B. E. v. Stamp Commissioners, 16 L. J., N. S. 75, Q. B.; Bac. Abr. tit. "Man." B. See post, tits. "Supersedeas," "Quashing Writ." {t) E. v. St. Pancras, 6 A. & E. 316.f S. C. 1 N^ P. 507.t 373 a writ exceeds an obligation imposed on the *defendant by an act poogi of Parliament, &o., the Court will not in part enforce it by a •- ■• peremptory writ limiting its effect, but will quash it; for although the Court will, for the purpose of justice, mould the rule for the writ, yet it cannot mould the writ itself ;(s) also, the writ must be executed in the terms in which it has issued, or not at all.(<) The word "/ort/jwM,"' so frequently used in- the mandatory clause, does not mean that the defendant is to perform or do instantly all that is required, but that he is to set about the performance, &c. directly, and do at once all that can be done.('M) The final sentence of the mandatory clause, exclusive of the teste and date, ia, " and how you shall have executed this our writ, make known to us at Westminster, on the day of (Keturn day), then returning to us this our said writ," which last eight words are those which render necessary the service of the original writ on the defendant, or on one of them if more than one, in order that he may file it.(t)) Having noticed the several material averments and the mandatory clause of the writ, it remains to add, that if any of those averments be omitted, or the writ be repugnant, or stultify itself, or be vitious for any defect apparent upon the face of it, it is said in the language of lawyers to be felo de se, for which defect it is liable, if not amenable, to be either superseded or quashed. (jo) Thus, a writ has been said to be felo de se, which shewed that there was a general visitor, and that the object of the writ was entirely within his jurisdiction ■,(x) which writ the Court quashed, notwithstanding it commanded the doing of that which the visitor had required, for where there is a visitor, the Court has no power ; which rule prevails, whether the King, or a private individual, be the visitor.(y) .] Teste and Return Bay. — Eule 8 of the Crown OflEice Rules which abrogates the practice under Eule, M. T., 4 Ann., thus provides for the teste and return of the writ of mandamus, " Every writ of ^^^ncn *inandamus shall be tested and made returnable on a day certain ■- ^ before the Queen at Westminster, and there shall be eight days at least between the teste and return of every such writ of mandamus, where the act required to be done is in London, or within forty miles thereof, and (») Ante, p. 16, n. (n). R. v. St. Pancras, 3 A. &E. 535.t S. C. 5N. & M. 222.t K. V. Eastern Counties Railway, 10 A. &E.562.f S. C. 4P. & D. 48. E.T.Thames Commissioners, 5 A. & E. 815.1 See post, tit. » Quashing Writ." fi) Ante, p. 323, n. ((). (m) E. t. Ouze Bank (Commrs.), 3 A. & E. 550,f per Patteson, J. See R. v. Eastern Counties Railway, 10 A. k E. 556.f S. C. 4 P. & D. 48. (u) See post, tit. " Filing the Writ." As early as the reign of Hen. 2, it was usual fur writs to contain the clause, " Et habeas ibi hoc breve." Glau. Lib. 1, cc. 13, 14, 15, &c. ; Lib. 2, c. 2, &c. !o) See post, tits. " Supersedeas," " Quashing Writ," p. 335, 336. (a;) Dr. Walker's Cas. t. Hard. 218, 219, per Lee, J. See R. v. Sparrow, T Mod. 395, per Lee, C. J., and R. v. Newbury (Mayor), 2 G. & D. 109. S. C. 1 Q. B. 751.+ S. 0. 6 Jur. 821. (y) Dr. Walker's case, Andr. 178, in marg.'; Bac. Abr. tit. "Man." (B.) See post, tits. " Supersedeas," " Quashing Writ," p. 335, 336. 374 tapping's mandamus. fourteen days in all other cases."(2) The practice which obtained previ- ously to the making of the above rule, required that the writ must have been tested in Term ; and if not, the Court always, upon motion, either superseded or quashed it, (a) and refused to award an alias, but in general granted a new writ. The number of days between the teste and return remains unaltered by the above rule ;(6) that of M. T., 4 Ann., which regulated the previous practice on this point, though not couched in the same terms as the new rule, yet is expressed in language, the legal effect of which appears to be the same. By a decision upon the rule, M. T., 4 Ann., it has been held, that notwithstanding the words " at least," the proper time is " one day inclusive and the Other exclusive," so that a writ tested on the 14th might have been returnable on the 28th. (c) The writ, although it may not be tested of a day prior to that on which it was granted by the Go\irt,(d) yet in practice it is tested on the same day on which the rule absolute for the writ bears date,(e) whether the rule has been made absolute in the Term in which the writ may have issued or not, in other words the writ ought to bear date the same day as the rule absolute, and to date with any other date is a misprision.(/) The Court will, in its discretion, amend the writ if improperly tested in Vacation notwithstanding a return may have been made.(5') The Court has and will on a proper case dispense with the above rule and direct the return to be made within a shorter time. But if ^without the special direction of the Court, the mandamus be L -' drawn up so as to allow less time than the rule requires between the teste and the return, the Court will supersede the writ for irregularity, though the rule upon which the writ was granted may have been absolute in the first instance. (A) .] Endorsement. — The writ, when prepared and settled must be («) See Cr. Off. Rul., App. (a) Bac. Abr. tit. "Man." (B.) Moneyer's case, 1 Sid. 304. S. 0. nom. E. t. Starling, 2 Keb. 91 ; Stra. 539. Grey v. Willoughby, Moore, 465, pi. BSV. Champion T. Skipweth, 1 Sid. 308. See Briefe Kitzh. 203 ; Com. Dig. tit. " Man." C. 4. See form of teste. R. t. St. Andrew's (Parish), 7 A. & E. 284.f S. C. "W. "W. & D. 395 ; 1 Jur. 706. R. v. Conyers, 15 L. J., N. S. 300, Q. B. And as to form of ancient teste, ante, p. 267, n. (i). See post, tits. " Supersedeas," " Quashing "Writ." (J) See B. T. Dover (Mayor), St. 407. Anon., 2 Salk. 434, where see method of computation ; Com. Dig. tit. " Man." C. 4. (c) Anon., 2 Salk. 434 ; Stra. 407 ; Com. Dig. tit. " Man." C. 4. R. v. St. An- drew's Parish, 7 A. & E. 281.t See rule 7 A. & E. 283,t n. (J), and 11 Mod. 64, 65, the operation of which.rule was not confined to corporations, 7 A. & E. 284.f (d) Anon., 2 Salk. 434, 15. See R. v. St. Andrew's (Parish), 7 A. & E. 281.+ S. C. W. W. & D. 395. (e) R. T. Payn, 6 A. & E. 402.f S. C. 1 N. & P. 524.+ Anon., 2 Barn, 236.+ (/) R. T. Conyers, 15 L. J., N. S. 300, Q. B. Supra, n. («) (?) R. T. Conyers, 15 L. J., N. S. 300, Q. B. See post, tit. " Amendment." (A) R. T. St. Andrew's (Parish), 7 A. & E. 281.f S. C. "W. W. & D. 395 ; 1 Jur. 706. 'The Court there awarded an alias writ, but it is apprehended that the defec- tive writ should, in accordance with practice, have been quashed. Sterling's case, 1 Sid. 304. S. C. 2 Keb. 91. Grey v. Willoughby, Moore, 465, pi. 657. See post, tit. " Supersedeas," &c. POKM, ETC. 375 engrossed on parchment by the prosecutor's attorney, or (if in person) by the party suing out the same, and endorsed with the name and address of such attorney or party suing out the same ; it is also usual to endorse on it " By rule of Court." .] Horn sued out. — The writ, in order to be sued out, must be taken to the Crown Office, together with the rule absolute, and on pay- ment of 6s., the proper officer will sign it, impress it with a stamp there kept for that purpose, and make an entry or minute of the issuing of such writ, together with the name and address of the attorney or party issuing the same, in a book also there kept for that purpose. (i) Thence it must be taken, as in the case of an ordinary Queen's Bench writ of summons, to the Seal Office, to be there sealed. .] How served. — The writ should be served personally, (if possi- ble), upon him or them to whom it is directed. (^■) The prosecutor's attorney should, if there be several defendants, make so many copies of the writ as may be requisite for service, reserving one copy for himself. If the writ be directed to one person only, the original should be personally served on such person : but should it be directed to several persons, the original should be delivered to him whese duty it is to make the return, and return the writ, as the mayor, &c., and a copy merely served upon the others at the same time showing to them the original. (/i;) Thus the service of a writ of mandamus upon a municipal corporation should be effected by the delivery of the writ to the mayor, he being the most visible part of the *corporation,(?) and a copy to the other officers at the same time shewing to them the original L J writ. The writ itself should, in general, be personally served as above noticed, for it is expressly stated therein that it must be returned to the Court, which cannot be unless the defendant or one of them, if more than one, be so served. (m) If, however, personal services of the writ may not have been effected, there should be personal service of the side bar rule to return the writ, otherwise an attachment cannot be obtained. (w) Personal service of the writ, though in general necessary, has, in some cases been dispensed with.(o) Thus where a mandamus had been granted (t) Bac. Abr. tit. " Man." B. ; C. Off. Eules, r. 2, App. The hours of attendance at the Crown Office are from 11 a. m. Jo 3 p. m. during the Vacation, and from 11 a. m. to 5 p. m. in Term time, except between 10th August and 24th October, when the office closes at two o'clock. (}) R. V. Exeter (Mayor), 12 Mod. 251. See supra, tit. " Direction." \k) Ante, p. 328, n. (v). R. t. Exeter (Mayor), 12 Mod. 251, and cases there cited ; 6 Mod. 152. R. T. Fowey (Mayor), 4 D. & R. ISQ.f S. C. 2 B. & 0. 684,f and see the service in R. v. Cambridge, (Mayor,) 4 Q. B. 802.f As to other services see the several titles throughout the Work. Gude's Cr. Pr. 183. And post, tit. " Attach- ment." il) R. V. Chapman, 6 Mod. 152. R. v. Esham (Mayor), 2 Barn. 265. (m) Gude's Cr. Pr. 183, ante, p. 328, n. {v), and supra, n. (/c). (n) R. V. North Riding (J.), 1 Q- B. 155.t Corner's Crown Prac. 237, 228. R. v. Fowey (Mayor), 5 D. & R. eu.f S. C. 4 D. & R. 132.-|- S. C. 2 B. & C. 584 ;t Gude's Cr. Pr. 183. See post, tit. " Return" (When to be made.) (o) R. V. Fowey (Mayor), 5 D. & R. eU.f S. C. 2 B. & C. 584.f S. 0. 4 D. &R. 132.-)- See supra, n. (/). 376 tapping's mandamus. for an election under stat. 11 Geo. 1, c. 4, s. 2, and a rule made that public notice should, according to the provisions of that act, be affixed in the market place, which was accordingly done, the Court granted an attachment for disobedience, against a member of the corporation, who had been served with a copy of the rule, notwithstanding neither the original mandamus nor the rule had been shewn to him at the time of such service, for the public notice directed by the act is primi facie sufficient. The application for the attachment would, however, have been well answered, if the party could have shewn that he had no notice of the manda- mus. (p) .] Filing the Writ. — The original writ, together with the return made thereto, must be filed by the defendant upon whom it has been served, at the Crown Office, according to the exigency of such writ, on or before the day of the return thereof, under pain of an attachment, (g) A motion to file the writ is not now necessary, it must also be filed without a rule first granted for that purpose, (r) .] Cross or concurrent Writs; What. — A cross or concurrent writ of mandamus is one which is issued to eifect a particular object, a rule or a writ for the same purpose having been previously granted to other parties, (s) .] Motion. — The motion for a rule for a cross or concurrent r^qqoT *writ may be made at any time after the granting of the rule for L -^ the first writ, (i!) ■.] . Rule. — The rule for a cross or concurrent writ, is ob- tained upon motion to the Court for that purpose,(M) it is not granted as of course, but with difficulty, because the granting it tends not only to harass and oppress those to whom it is directed, by incurring the double expense and trouble consequent upon two returns, but in some cases, as of an election, would, if the writ issued, cause a double election ; if, how- ever, some special reason appear by affidavit, or there be reasonable cause to suspect that he who has obtained the rule for the first writ, does not really mean to, or will improperly prosecute it, the Court (u) will grant a (p) R. T. Edyrean, 3 T. E. 352. Iq) Crown Oif. Rules, r. 11, App. m Crown Off. Rules, r. 14. See post, " Rule to return Writ." (s) R. T. Wigan (Corp.), Burr. 782. R. v.*Scarborough (Corp.), Say. 105. R v. Haslemere (Corp.), Say. 106. R. t. Oxford (Corp.), Cas. t. Hard. 178, citing Bo- rough of Evesham's case probably. S. C. Stra. 949, but not S. P. Com. Dig. tit. "Man." (B.) [t] R. v. Scarborough (Corp.), Say. 105. R. t. Haslemere (Corp.), Say. 106 ; the application for the cross writ was in each case made two days after the application for the first. (u) See ante, p. 295, n. (o). (v) The Court will require specific affidavits of facts, and not mere suggestions of suspicion founded upoh mere imagination. R. v. Wigan (Corp.), Burr. 782. S. C. 2 Ld. Ken. 584. ' Although R. v. Oreford (Borough), B. R. M. 1737, was a case of a concurrent mandamus granted without afiSdavits, yet Ld. Mansfield, C. J., Burr. 784, said, that both that and Evesham's case, P. 6 Geo. 2, B. R., were dis- posed of without argument and opposition, whereas R. v. Scarborough (Corp.), and E. V. Haslemere (Corp.), supra, n. (C), were debated and fully considered. The roRM, ETC. 377 rule to sliew cause why a mandamus should not issue. If, however, a party have been sworn in by virtue of a peremptory mandamus, the ,Court will not grant a rule for another writ, in order to try the legality of his election, but will leave the parties to any other remedy they may have.(w) Although upon the discussion of the rule, any argument tending to shew why such cross or concurrent writ should not issue may be urged, yet usually the single question raised is, whether there exists any reasonable cause to suspect that the party who has obtained the first writ does not really mean to carry it into execution, and upon the Court being satisfied upon this point, it will either make the rule absolute or refuse it. The rule will, in general be discharged if the party who obtained the first rule will \mdertake peremptorili/ to execute the writ he has applied for.(a!) So if the application be only quia timet, i. e., founded on a mere suggestion, that the first writ may be suppressed, the Court will refuse it, for the Court will not presume that any person *will dare to suppress r^qqo-i such a writ.(y) So if there be merely delay in prosecuting it, the Court will not award a second writ ;(«) but in such a case the Court usually orders a day before which the writ must be executed, to be inserted in the former mandamus, and imposes such other terms as are calculated to en- surd its due execution. (a) But where in the case of a writ to proceed to an election, it appeared that the time for proceeding to such election had passed, and that the terms imposed upon the prosecutor, when the rule nisi for the cross or concurrent writ was refused had not been complied with, the Court awarded a concurrent writ and said that if previously there had been good ground to suspect delay, it would then have granted the concurrent writ.(6) As to rule, &c., see ante, p. 295, 303. . j Returns. — The defendant must mate a return to each writ ; he must obey both.(c) .] Costs. — ^As to the costs or concurrent writs, see post, tit. " Costs." .J Alias or Pluries Writ; when granted. — At common law, if no return, or an insufficient one(cZ) had been made to the first writ, or the writ was, after the filing of the return, when it was too late to amend it, found to be defective, the ordinary practice was to issue an alias, and if same case (R. v. "Wigan Corp.), also discloses that the Master of the Crown Office, during the argument, reported to Lord Mansfield, that it was not the practice to grant cross or concurrent writs of mandamus of course or without special reasons. See R. T. Turner, 2 Jones, 215. Com. Dig. tit. "Man." (B.) See ante, tit. "Rule" (AffidaTits), and post, tit. " Affidavits." (w) R. V. Turner, Sir T. Jon. 215. h) R. V. Wigan (Corp.), Burr. V84. S. C. 2 Ld. Ken. 584,. (y) R. T. Scarborough (Corp.), Say. 105. See supra, n. [v). (2) R. T. Haslemere (Corp.), Say. 106. See supra, n. [v). \a\ Say. 106, see supra, n. (z). E. V. Plymouth (Borough), 1 Barn. 130. (6) Say. 106, supra, n. (v). (e) R. v. Harris, Burr. 1422. S. C. 1 W. Blac. 430. See post, tit. " Return." [d) R. T. Corye, Sty. 87. 378 TAPPING'S MANDAMUS. necessary, a pluries writ, each retarnable immediately, (e) In extraordi- nary cases, however, the Court would, previously to stats. 9 Ann. c. 20, and 1 Wm. 4, c. 21, where justice required it, compel a return to the first or the alias writ,(/)), 331, u. (m), (q). 388 tapping's mandamus. of the writ, to obtain a side bar rule, (which is not peremptory), to " Ee- turn the ■Writ."(^) Prior to the passing of the stat. 9 Ann. c. 20, the rule to " return the writ" was not usually granted in any case of mandamus, until an alias and pluries writ had first been severally issued, although the Court had power to grant it sooner ; but as that statute restrained the Court from exercising this indulgence of alias and pluries writs in respect of annual offices of municipal corporations only, by compelling a return to the first writ of mandamus, so the practice as to all other cases, except those pro- vided for by such statute, remained as'at common law. The granting of the alias and pluries writs having, on account of the delay thereby occa- sioned, been much complained of, and as such act of 9 Ann. c. 20, had pointed out a direction in one class of cases, so the Court made it the riile of their practice in all ; accordingly, it has, since the above statute, been the constant course to grant a rule for a return to the first mandamus in all cases ;(?) and recently, by the Crown Office Kules, r. 13, it is ordered, that a side bar " rule to return a writ" may be obtained according to for- mer practice, without any actual motion for the same, which rule shall require such return to be made within four days next after the service of such rule if served in London or Middlesex, and within eight days in all other cases, (m) If the writ have not been personally served, a copy of the rule must be served on those to whom it is directed, viz., those to whom the writ and copies were directed or ordered to be served, the original rule being at the same time shown, otherwise the Court will not grant an attachment ;(«) but if the writ have been personally served, in such case personal service of the rule is unnecessary, (o) If the return be not made and filed according to the exigency of the r*^4fi1 ^'^1 ^^^ Court will, upon an affidavit of service, and of the non- *compliance, grant an attaohment.(p) As, however, it is not usual for the Court at once to grant an attachment, but only a rule nisi, upon an affidavit of service, both of the side bar rule, and also of the writ and copies, it is more advisable for the prosecutor to be prepared with an affidavit of service of the original writ and copies in the first instance, to avoid the proceeding of a side bar rule, as the Court will, on motion and production of such an affidavit only, grant a rule nisi for an attachment, (k) Glide's Cr. Pr. 184. (l) Ante, p. 6, n. (p), 332 (e). Dacosta v. Russia Company, Stra. '783. S. C. Pitzg. 4. S. 0. 1 Barn. 24 ; stat. 1 Wm. 4, c. 21, s. 2 ; Com. Dig. tit. " Man." D. 6 ; 2 Salk. 429; Ld. Baym. 391, 848, 1233 ; 6 Mod. 25 ; Skin. 669 ; Bac. Abr. tit. " Man." (H.) Mayor of Coventry's case, Holt, 440. An affidavit of service was nsflally produced. (m) See rule, App. As to duration of rule in town cases, R. v. Bettesworth, Stra. 851, 956, 1111. S. C. T Mod. 218. (n) R. V. North Rid. (J.), 1 Q. B. ISS.f to) Gude's Cr. Pr. 184. See ante, p. 331,n. (n). (p) See rule ante, p. 6, n. (o), 331, n. (j). See post, tit. " Attachment." RETURN, ETC. S89 witliDUt resorting to a side bar rule, so that the trouble and delay of a side bar rule and service may thus be avoided altogether, (j) The Beturn.] When necessari/. — In the preceding Chapter we have shewn, that the mandatory clause of the writ commands in the alterna- tive, that is, either to perform the act or duty therein stated, or to shew cause, &c., therefore the defendant may at once proceed to the execution of the writ j which course, though he pursue, yet strictly he should make a return that he has done so,(»') it having been decided, that the Court will not only refuse to supersede the writ, on affidavit that its mandatory clause was obeyed before the writ was granted,(s) but wiU rigidly adhere to the incontrovertible maxim of law upon this subject, that "the writ must be returned as executed, or its execution legally excused(«) or justi- fied." Where the command of the writ is executed, the form of return is nothing more than a succinct statement that the writ has been complied with, following the words of the mandatory clause, and adding " as by the aforesaid writ is commanded."(M) ■■ If, however, by the arrival of the return day, or by the expiration of any further time for the return, the defendant may not have had sufficient time to execute the command of the writ, such a fact may be returned, by stating that "from time to time divers matters and things have been exe- cuted for the purpose of complying with the writ, and that further matters and things are in the course of procedure." (w) *The writ need not be answered, where the return is to the jurisdiction of the Couit,(w) nor in such a case can the prosecu- ^ J tor effectually take exceptions to such return, because the writ is bad. (a;) If the defendant do not intend to perform the act or duty commanded by the mandatory clause of the writ, nor to subject himself to an attach- ment, he must proceed to obey the alternative part of such clause by making " a return" thereto, which usually consists either of traverses which contradict some material suggestion or ground of the writ, or of a special statement of the merits of the defendant's case, which latter, on account of its great importance and difficulty in framing, should in gene- ral be prepared and settled by counsel ;(y) for notwithstanding how dif- (q) Gude's Or. Pr. 184, 185. (r) Ante, p. 6, n. (n), 340, n. (a). R. v. Milverton (Manor), 3 A. & B. 286,f n. (d); BuU. N. P. 201. («) Anon., 1 Barn. 362. (<) Latch. 229, per Keeling, C. J.; 2 Keb. 168. R. v. Lyme Regis (Mayor), 1 Doug. 154. Bagg's case, 11 Rep. 93 b. R. t. Clapham, 1 Vent. 111. R. v. Abing- don (Mayor), 2 Salt. 432. S. C. Ld. Raym. 559. S. C. Holt, 436, 438, 441. R. v. StirUng, Say. Hi. Bao. Abr. tit. " Man," (I.) See ante, p. 340, n. (a). M R. V. Lowton Parish, 11 Mod. 301. See " Mandatory Clause," p. 323. (»).R. T. Ouze Bank Commissioners, 3 A. & B. 549, 550,f per Littledale, J. See also Stra. 163. S. 0. Ld. Raym. 1479, as to return of " tarde," and also ante, tit. "Drainage" (Rate, Return), p. 121. Iw) R. T. Patrick, 1 Keb. 611. Ix) R. T. New Coll., 2 Lev. 15. (y) Bull. N. P. tit. " Man." Com. Dig. tit. " Man." Gude's Cr. Pr. 183. 390 tapping's mandamus. ficult soever the framing of a returu may be, the Court will not assist the defendant, nor direct how it shall be made.(z) .] Species of Return. — Returns to writs of mandamus are of three kinds: 1st. Traverses; 2nd. Special Eeturns, or those of confes- sion and avoidance ; 3rd. A statement in the nature of a Demurrer to the writ. Before we proceed to consider returns agreeably with the above analysis, we wish to make mention, in order to avoid repetition, of a few points which have relation to returns in general. . Description of Defendants.''— T\l&. return, as to the description of those making it, should be expressed according to its legal operation, and should not set out the actual fact or facts in extenso. Thus, a return made by the mayor and major part of the aldermen, &o., should be ex- pressed to be by the inayor, aldermen, &c. ; for the act of the mayor and a majority of a corporation, is the act of the whole. (a) So where a writ was directed to the head of a college by his Christian and surnames, a return, though neither Subscribed by him, nor under the common seal, was held to be good ; the latter not being necessary, because the writ was not directed by the corporate name. (6) But where a return was expressed in this form, " we do humbly certify that did.nominate and appoint, &c." omitting " we" the return was disallowed. (c) As to the return or waiver of a misnomer of the defendant, see ante, p. 318, 319.(c?) ■ . Relation of Return as to Time. — The return to a writ L J of ^mandamus as to the time of its being made, has legal relation to the teste and date of the writ ; and in framing a return, this presump- tion should be steadily kept in view, or the return may be successfully objected to for insufficiency. (e) .J 1st. Return hy way of Traverse. — In the first place we will treat of the form of a traverse, and in the second, as to the substance.. . . Form of Traverse. — It has been stated in several parts of this work,(/) that the general rules of pleading are applicable to cases of mandamus, and their incidental proceedings ; which observation has no greater force than when it has reference to returns by way of traverse, the form of such returns having been constantly said to be the same as that of common traverses in a personal action.(^) The traverse should, in terms, follow the suggestion or supposal of the Com. Dig. tit. " Man." D. 2. See ante, p. 308, 309. ^_^ R. V. Shrewsbury (Mayor), 7 Mod. 203. R. v. Abingdon (Mayor), 2 Salk. 431, 432. Dighton v. Stratford-updn-Avon, 2 Keb. 641. S. C. Ray. 188. (6) R. v. St. John's Coll., 4 Mod. 241. S. C. Skin. 368. S. C. Ld. Raym. 126, 664. Thetford's case, 1 Salk. 192. (c) R. T. Lancaster (J.), 2 Barn. 430. (d) R. V. Ipswich (BaiUffs), 2 Salk. 434. S. 0. Ld. Raym. 1233. S. 0. Holt, 433. (e) R. T. Round, 4 A. & E. 142.f S. C. 5 N. & M. 427.+ S. C. 1 H. & W. 546. (/) Ante, p. 8, n. {y), 309, a. (/). [g) See Steph. on Plead. Ind. tit. " Traverse.". See forms of traverse, ante, p. 73, 194. RETURN, ETC. 391 writ ;(A) for if any legal fact, necessarily supposed for the purposes of the ■writ fail, the foundation of the writ fails, (i) Also, as the prosecutor is supposed to know his own title best, so he is bound by the terms in which he alleges it ; therefore if the title, as he states it, be denied by the re- turn, it is enough ;(j) which doctrine is precisely the same as one which obtains, as to traverses in personal actions, namely, that " a party may, in general, traverse a material allegation of title or estate, to the extent to /which it is alleged, though it need not have been alleged to that extent." (Ji) Thus if the writhe generally to " swear in those chosen j" the return may be generally, that " they were not chosen," for the exact supposal of the writ is alone traversed ; so for the like reason, if the writ specially set forth that " they were chosen ' debito modo,' " the return may, in such case, traverse " that they were not chosen debito modo but such a (non ,debito modo) return to a general writ, without such words (debito modo) has been often held to be ill,(0 *as being a negative pregnant, ^j,n,Q.-, which formerly was held to be a fatal defect, but which, at this L ■' day, would scarcely be held to be a good ground of demurrer,(»i) The traverse must not be too large, by being in the conjunctive, as " not duly elected, and admitted and sworn ;" but should be in the dis- junctive, " not duly elected, or admitted or sworn. "(ra) A similar rule obtains as to traverses in personal actions, (o) .] Substance of Traverse. — As to the substance of a return by way of traverse, it is a rule that every distinct and material allegation contained in the writ,(p) must, if it be intended to contradict them be traversed.(g') (A) See ante, p. 8, n. (y). Lambert'^ case, Carth. ITO. E. v. Dover (Mayor), 16 L. J., N. S. 97, M. C; Bac. Abr. tit. "Man." (I.); 2 Salk. 434; 5 Mod. U; Stra. 1235; 1 Show. 253; Andr. 105. U) R. V. WiUiams, 8 B. & C. 683. S. C. 3 M. & E. 404, per Parke, J. (j) R. T. Lyme Regis (Mayor), 1 Doug. 81 a. E. T. Maiden (Mayor), Ld. Raym. 481. S. C. 2 Salk. 431. (k) Steph. on PI. 282, 5th edit. [1) See ante, p. 13. R. v. Twitty, T Mod. 83. S. G. 2 Salk. 433. S. 0. Holt, 442; 16L. J., N. S. 97, M. C, supra; Gas. t. Hard. 130, n. (1); Gom. Dig. tit. " Man." D. 3. R. v. Hill, 1 Show. 253. Lambert's case. Garth. 170. S. C. 12 Mod. 3. E. T. Aldborough (Mayor), 10 Mod. 100. S. C. 1 Keb. 308. R. v. Williams, 8 B. & C. 683.f S. 0. 3 M. & R. 405. E. v. Lyme Regis (Mayor), 1 Doug. 80, 81 a, 83, 84. Crawford v. Powell, Burr. 1013. E. v. Taunton St. James, Cowp. 413. See E. T. Kelk, 12 A. & E. 559.1 R. t. Hereford, 1 Keb. 655, 660, 716. S. C. 1 Sid. 209, 210. R. v. Chester CCity), 5 Mod. 11. R. v. Ward (Dr.), 2 Keb. 284. (m) E. V. Chester (City), 5 Mod. 11 . R. v. Ward (Dr.), 2 Keb. 284. E. v. Lyme Regis (Mayor), 1 Doug. 80, 84. E. v. Maidstone (Corp.), 1 Keb. 660, 665, 733. Hereford's case, 1 Keb. 716. S. 0. 1 Sid. 209. E. v. York (Mayor), 5 T. E. 75. See Steph. on PI. 419, 421, 422, 5th edit. (n) R. T. Lyme Eegis (Mayor), 1 Doug. 79> 85 ; Steph. on PI. 281, 5th edit. ; Com. Dig. tit. " Man." D. 3 ; Bac. Abr. tit. " Man." (I.), u. Jo) See Steph. on PI. 281, 5th edit. (p) Anon., 2 Barn. 106. See form of traverses, 1 G. & D. 343; also with an absquehoc, 2B. &Ad. 200.f See stats. 9 Ann. c,20, s. 2 (E.),andl Wm.4,c, 21 (E.), App. and 19 Geo. 2, o. 12 (I.), and 9 & 10 Vict. c. 113 (L), App. See Steph. on PI. 278, 5th edit. (?) E. T. York (Mayor), 5 T. R. 70. E. v. Ward, Fitzg. 195. R. v. Saltash (Mayor), Raym. 432. S. C. Jon. 177. E. T. Williams, 8 B. & G. 683.f S. C. 3 M. & E. 405. R. V. London (Mayor), 3 B. & Ad. 276.f R. v. Durham (Mayor), Burr. 392 TAPPING'S MANDAMUS. As such of the material suggestions and allegations of the writ, which are not denied or traversed by the return, are, in contemplation of law, admitted by the defendant to be true ;(»•) so the return should be so framed that the defendant does not estop himself from relying on all the merits of his defence. Thus, where a return to a mandamus to compel the affixing of a common seal, merely insisted on the right to withhold consent, and to refuse the seal ; the Court held, that the defendant could not object that there was no corporate resolution under seal, nor that the writ ineffi- ciently stated the custody of the seal, nor that no presentation had been actually tendered for signature, nor that the majority having only voted orally, might retract their resolution. (.s) So where the defendant has adi mitted a particular fact, for one purpose, he cannot, by the same return, deny the truth of such fact for another. (<) A traverse of immaterial matter is, however, bad.(M) * Whilst the common law strictness, as to the certainty requisite L J to a return prevailed, many cases were decided, in which returns were held to be bad, because defective for that description of uncertainty termed " negative pregnant," that is " such a form of negative expression as implied or carried within it an affimative ; thus a return of non fuit debito modo electus, to a writ which merely alleged an " election" has been, for such cause, held to be bad ;(«) and also a return which alleged "non fuit amotus per nos."{ic) So a return of " nunquam fuit debito modo admissus," has been held to be a bad return ; the Court holding that it should have been non fuit admissus generally, and the alleged ground of the decision was, that if the return were false, the prosecutor could not upon such an allegation, found an action upon the case for a false return. (x) A difference of construction has, however, been held to exist between " debite amotus" and " non debite electus" or " admissus," in this, that non debite electus implies " elected," and therefore must shew how which is otherwise in the case of debite amotus. (^) It has also been held that a return which alleged that a corporate body were not duly assembled, to proceed to the election of a recorder, was bad, because it 129. E. V. Kelk, 12 A. & E. 559.-i- S. C. 4 P. & D. 185. R. v. Brancaster (Church- •wdns.), 7 A. & E. 459.t S. 0. 2 N. & P. 580. R. v. Payn, 6 A. & B. 404.t S. C. 1 N. & P. 524.t See infra, n. (r). (r) Supra, n. (q). E. v. Buckingham (Corp.), 10 Mod. 74. R. v. Thames (Com- missioners), 5 A. & E. 804.f E. 10 A. & E. 248-1 S. C. 2 P. & D. 518. R.V. North Midland Railway," 11 A. &B. 955.t S. C. 3 P. & D. 622. S. 0. ■W.W. & D. 650. Com. Dig. tit. " Man." D. 3. R. t. New Windsor (Mayor), 1 Q. B. W.t S. C. 14L. J., N.S.319, Q. B. (z) E. V. York (Archbp.), 6 T. R. 493, cited in R. v. Kendall, 4 P. & D. 618. S. 0. 1 Q. B. 366.+ R. V. Brancaster (Churchwardens), 7 A. & E. 459.-|- S. 0. 2 N. & P. 580. June, 1852.— 26 402 tapping's mandamus. as to suoh part Only as is bad, and in its discretion put the proseeutor to plead to or traverse the rest, (a) The following matters of return have been allowed to be returned together, as not being either inconsistent or repugnant. Thus there is neither inconsistence nor repugnance in stating first, "non debito modo electus," and secondly, "that a tribunal authorized to decide upon the election, had adjudged such election to be void."(6) So where the right of election of an alderman is, by custom, in the citizens, but the Court of Aldermen has the power of rejecting the party returned to them as elected, it is not inconsistent to return to a mandamus to ad- mit to the o£5ce of alderman, that the prosecutor "was elected, by the r*5?fil 1 *<^iti26iis according to the custom, but was rejected by the Court of Aldermen, and so was not duly elected."(c) So to a mandamus to be sworn and admitted into the office of freeman, returns that " the prosecutor was not elected," and " that he was not approved by the lord of the manor," have been held to be consistent. (rf) So returns that ^*the prosecutor was not duly elected sexton according to the ancient custom of the parish,", and also, " that there was a custom for the churchwardens and inhabitants to remove at pleasure, and that the prosecutor was re- moved pursuant to such custom," have been held to be consistent.(e) So to a mandamus to the lord of a manor to hear a plaint, a return " that in 1835 the plaint was set aside and annulled for certain errors, and that afterwards, in 1838, in obedience to the writ, the defendants heard the plaint again, when for the same errors, and for others, it was adjudged that the plaint had been rightly set aside in 1885, so that they could not take further cognizance of the plaint," has been held not to b& repugnant; because they stated both that the plaint had been proceeded with in obe- dience to the writ, and that it could not be so proceeded with.(/) So returns " that A. was not a burgess," " that he was not eligible to the oiEce of common councilman," and " that he was not elected," have been held not to be inconsistent causes to a writ to admit to the office , of common councilman, (g') As before stated,(^) the inconsistency or repugnance of returns is a (a) K. T. Cambridge (Mayor), 2 T. R. 456, 461. B. v. Londoii (Mayor),4 M.&R. 53. E. V. London (Mayor), 9 B. & C. 1, 20.f R. v. York (Mayor), 5 T. R. 66; Com. Dig. tit. " Man." D. 3, 5 ; Vin. Abr. tit. " Man." R. ; Bac. Abr. tit. " Man." (I.) K. T. York (Archbp.), 6 T. E. 493. See post, tit. "Pleas," &c. (6) R. T. London (Mayor), 9 B. & C. 26.t S. C. 4 M. & R. 36,- 59. R. v- London (Mayor) 5 B. & Ad. 233, 241.-t- B. London (Mayor),'2 N. & M. 126, 130. See ante, tit. "Oftce"' (Election). (c) R. V. London (Mayor), 2 N. & M. 126,f where see a form of return. \d) WriglitT. Fawcett, Burr. 2041. R..v. York (Mayor), 5 T. R..n. E. v. Nor- wich (Mayor), 2.Salk. 436, n. (a). (e) See ante, p. 258, n. (a), R. v. York (Mayor), 5 T. E. Tl. E. v. Taunton (Churchwdns.), Cowp. 413. Wright T. Fawcett, Burr. 2040 ; 2 Salk. 436, n. (a)- Com. Dig. tit. " Man." D. 3. (/) E. T. Old Hall (Manor), 2 P. & D. 515. S. 0. 10 A. & E. 256.t (g) See ante, p. 100, n. (m). E. v. Cambridge (Mayor), 2 T. E. 456, where see form of return. Com. Dig. tit. " Man." D. 3. (A) See ante, p. 360, n. (y), (z). RETUEN, ETC. 403 fatal defect ;(i) for as on a declaration, in which two inconsistent counts are joined, the plaintiff cannot have judgment :{j) so on a mandamus where the causes returned are either inconsistent or repugnant, the whole return is had, and the Court will, on motion, quash it, and award a peremptory writ,(/^), and so put the defendant, in the case of an *office, to r^ggo-i bring a quo warranto ;(Z) notwithstanding one of the inconsistent causes would have been good, if it had been returned by itself; for by being connected with another, it is made repugnant and contradictory, which raises an objection to the whole return, for the Court cannot know upon which part of it to rely.(m). The following matters of return have been adjudged to be inconsistent and repugnant, and the returns in which they were joined have been quashed. Thus a return "that D. was elected,'' which ended by stating " that he was not elected," was quashed for inconsistency, as it was im- possible to reconcile those statements.(«.) So a return " that the prosecu- tor was duly elected," " that he was removed for non-attendance," and '/ that his election was void, he not having taken the Sacrament," has been quashed for repugnancy, (o) So it has been held to be inconsistent to state in a return " that the corporation were not duly assembled on the 15th January," and afterwards to state " the election of another corpor- ate officer, to wit, on the 15th January/," the day, in such case, being material.(p) So the joinder of several inconsistent matters of returns, as misbehaviour, bribery, and not elected, ( q) have invalidated a return. If, however, the inconsistency or repugnancy be in matter of mere sur- plusage, the return will not thereby be vitiated. (r) Thus, if in one part, a return be "quodfuit amotus 21 Aug.,' and in another part "that he (») E. T. London (Mayor), 9 B. & C. l.f S. C. 4 M. & E. 36. B. v. Norwich (Mayor), Ld.Raym. 1244. S. C. 1 Salk. 436. S. C. Holt, 444. E. v. Old Hall (Ma- nor), 2 P. & D. 51T. S. C. 10 A. & E. 256.-|- As to what is a sufficient allegation of an inconsistent fact to avoid return, see 2 T. E. 460, 461. (j) 2 T. R^ 461, per BuUer, J. ) B. V. Cambridge (Mayor) 2 T. B. 456; 461. R. v. London (Mayor), 4 M. & E. '63. E. T. York (Mayor), 5 T. B. 66. Vid. Com. Dig. tit. " Man." D. 3, 5 ; Via. Abr. tit. " Man." R. ; Bac. Abr. tit. "Man." (I.) On the motion, objections may be taken to the several causes for inconsistency, and to the causes individually for other defects ; 5 T. B. 66, supra. .. (l) Wright V. Fawcett, Burr. 2041. R. v. Cambridge (Mayor), 2 T. B. 459. .- (m) R. V. Cambridge (Mayor), 2 T. E. 456 ; Ld. Eaym. 1244. S. C. 2 Salk. 436. E. V. York (Mayor), 5 T. B. 66. B. v. Taunton (Churchwardens), Cowp. 413. Wright V. Fawcett,, Bnrr. 2041. E. v. Lyme Begis (Mayor), 1 Doug. 1,81, u. P. Com. Dig. tit. " Man." D. 3. (n) E. V. Norwich (Mayor), 2 Salk. 436, IV. S. C. Ld. Baym. 1244. S. C. Holt, 444. R. T.London (Mayor), 9 B. & C.20.-|- S. C. 4M. & E. 36,59. See 2 T. E. 459, siipra, n. (m). ' • (o) R. T. Pomfret (Mayor), 10 Mod. 107. See ante, p. 55, n. {g). Ip) E. v. York (Mayor), 5 T. E. 66. {q) 2 Salk. 436. S. C. Ld. Eaym. 1244. S. C. Holt, 444, supra, n, (n). Com. Kg. tit. "Man." D. 5. R. v. Kendall, 4 P. & D. 616. S. C. 1 Q.B. 3€6.t And see B T. E. 66, and 4 D. & E. 330.t S. C. 2 B. & C. 764.t (r) Ld. Hawley's case, 1 Vent. 144. S. 0. 2 Keb. 770, 796. E. v. Coventry (Mayor), 2 Salk. 430. S. C. Ld. Eaym. 391> Bernardston'a case, 1 Vent. 145. B. v. Durham (Corp.),. la Mod. 146. 404 tapping's MANDAMrS. continued in office until the 25th December," which is contradictory, yet the return is good, because the contradiction exists ; in that which is mere surplusage, (s) -.] 3rd. Return in nature of a Demurrer to the Writ. — ^As the defendant cannot demur to the writ, so he may, by his return, submit that he is not bound by law to execute it, which submission being in the „„„„, *nature of a demurrer, should be treated accordingly ; that is, a concilium obtained, and the point argued.(<) .] Engrossing. — The draft return having been obtained from counsel carefully drawn and settled, should be engrossed by the defen- dant's attorney on parchment for filing. If the return be short, it may be engrossed on the back of the writ, or a copy, as the case may be, in the same manner as a return of " non est inventus," in the ordinary case of a writ of execution ; or it may, according to the almost invariable prac- tice, especially if the return be of any length, be engrossed upon a sepa- rate parchment, to which the writ or copy, as the case may \>e,(u) should be annexed, it having been endorsed with a minute or memorandum, that the schedule or parchment annexed to such writ, constitutes and is the return. (y) The form of the indorsement may be as follows : " The exe- cution of this writ appears hy the Schedule hereto annexed. The answer of A. B., &c., is)- (j) See ante, p. 342, n. (o). {k) See ante, p. 342, n. (o). R. v. Bath (Mayor), 6 Mod. 152. See also B. V.Mon- day, Cowp. 538. {I) R. T. Abingdon (Mayor), 2 Saik. 431. S. C. Holt, 440. R. v. Hoskins, Gas. temp. Hard. 188. Powell v. Price, Comb. 41, 213, but see ante, p. 342, and the case of Abingdon Town, Garth. 499, 500, where a return by the mayor alone to a writ, directed to the whole corporation, was on debate held to be bad. Bao. Abr. tit. " Man." (G.) See post. tit. " Action, &c., for false Return." (m) R. T. Chapman, 6 Mod. 152. S. C. Holt, 443. See ante, p. 324, n. (m). ln\ Anon., Dyer, 182 b, E. T. 2 Eliz. B. y. Abingdon (Mayor), Holt, 440. (0) Ante, p. 365, n. {II). R. v. Wigan (Mayor), Burr. 1641, 1646. (p) See ante, p. 366, n. (c). B. v. Abingdon (Mayor), 2 Salk. 431. S. 0. Holt, 440, supra, n. (o). ETC. 409 that Term in which the writ is returned, hut not after. (2) The Court, if they grant the rule, will not, by such disavowal, allow the prosecutor to be, prejudiced, but will impose terms on the disavowments, such as by com- manding them to put in a return by a limited time. Indeed the disavow- ants usually pray, as a part of their rule, that they may be at liberty to file another return, &o.(r) .] Afnendment of Return. — At common law a return was not allowed to be amended after it had been filed, not even in matter of mere form.(s) In process of time, however, this strict rule became somewhat relaxed, and a clerical mistake was allowed to be amended after the Term in which the return was made or filed. (<) Thus, a return that one Far- rington, " non fuit electus, et perfeetus in locum et officium, unius com- munis concilii, ac un' alderman' eivitat' Cicestr'," was allowed to be amended (because they were several offices, and the prosecutor might have been chosen to one and not to the other), by adding " vel aliquem eorum," it being only a mistake of the clerk of the Crown Office, his instructions being general, (m) At a subsequent period the doctrine as to amending mistakes in *a return, although not reduced to any certain rule, was extended rHtofson beyond mere clerical errors, but in such case was entirely a matter for the Court's discretion. There is no certain rule, but the principle which governs the Court is, " that an amendment shall or shall not be permitted to be made, as it will best tend to the furtherance of justice."(«) Thus, the Court has refused to permit the defendants, after verdict on a traverse to a return to a mandamus, to make amendments verifying the description of the condition of a borough. (m;) But, on the contrary, a mistake in a return in setting forth a conviction, that the prosecutor had been found guilty of the charges in the third and fourth articles, without having stated in the preceding part that the complaint consisted of four articles, was allowed to be amended ; and this, although by the recital of the complaint in the return it seemes'rather to be stated as containing only two, and that it did not therefore .certainly appear that the articles on which the prosecutor was convicted were the same which were set forth as containing the accusations against him.(a;) [a) Supra, n. {p). {r) R. v. Abingdon (Mayor), 2 Salk. 431. S. C. Holt, 440. (s) See ante, p. 334, n. (m). London (City) v. Bastwick, Sty. 33. B. v. New Col- lege, 2 Lev. 14. Coutanche t. Le Euez, 1 East, 134 ; 7 T. R. '704. See ante, tit. "Writ" (Amendment), 334, 335. [t] See ante, p. 334, (0). B. v. Chichester (Mayor), 1 Show. 273. R. v. Lyme Eegis (Mayor), 1 Doug. 135; Com. Dig. tit. "Man." D. 5. Dr. Widdrington's case, 1 Ley. 23. R. v. Grampound (Mayor), 7 T. R. 701 ; Bac. Abr. tit. " Man." (w) 1 Show. 273, supra, n. (t), and see R. v. Lyme Regis (Mayor), 1 Doug. 136, • n. (4). See ante, tit. "Writ" (Amendment), p. 334, 345. (e) R. T. Grampound (Mayor), 7 T. B. 699 ; 1 Doug. 135, n. (P.) R.v. Marriott, 1 D. & R. 167.^ B. v. Bristol (Mayor), 1 Show. 288. S. C. Comb. 145. See stats. 4Ann. c. 16, 9 Ann. c. 20. ^ (w) 1 Doug. 135, n. (F.) ; but see B. v. Armstong, Andr. 109. R. v. Grampound (Mayor), 7 T. B. 702. [x) 1 Doug. 135, supra, n. {w). 410 tapping's mandamus If the defendant be dissatisfied with, or his return be insufficient, he may apply to the Court, on motion, for a rule to show cause why it should not be amended,(y) taking care to state the particular amend- ments, as they should be inserted in the rule nisi.(a!); In granting the rule, the Court will, as such amendments are, as before stated, entirely within the discretion of the Court, impose its own terms on the defendant j thus, in one case, an amendment was allowed, upon the defendant under- taking, if an action for a false return should be brought, to take short Dotice of trial, and not to bring a writ of error if there should be judg- ment against them.(o) Gn motion to quash, the return for being hypotketical or uncertain, &c., the Court will usually giye leave to amend. (6) .] Invalidating Return. — ^Having, in the preceding pages, at some length, shewn the necessary constituents of a valid return, we now proceed to detail how far a defective return may be invalidated, and to premise some new rules for construing a return, in order that its legal suffi- ciency may be readily tested. In order io ascertain whether a return be or not a legal answer to the writ, it is unnecessary to comment upon every portion of it, or to show r*^701 *^^^^ every part of it is valid, for it is sufficient if on the whole it disclose a fair legal reason why the mandamus should not be obeyed ; therefore, in order to judge whether the one be or not an ade- quate answer to the other, the allegations of the writ must be looked at, and the return considered in relation with them.(c) Thus, where a writ suggested a due election of the prosecutor by the persons entitled to elect j a return thereto, which stated facts and documents from which it appear- ed that there was no right in the electors, was held to be sufficient, although it did not deny the right in direct terms. (<^) The principle upon which this decision was founded is the well acknowledged one, that the return must answer not the words only, hut the materiality of the writ; therefore, a return which seems to be guarded and not to deny the sub- stance of the writ is bad.(e) Again, ■(^here to a writ directed to A. mayor, &o., it was returned, that before the writ was awarded, A. was removed from his office of mayor, that B. was elected thereto and then was mayor, (y) E. T. Marriott, 1 D. & R. 166,t and see 11 A. & E. 21, 28,f n. (z) 1 Doug, 135, supra, n. (w). (a) 1 Doug. 136, supra, n. (w). (6) R. V. London Dock, 5 A. & E. les.j- S. 0. 6 N. & M. 390.t See post, tit. ' ' Invalidating Return." (c) R. T. Yorfs;- (Archbp.), 6 T. R. 492, 495, per Grose, J. R. v. Monmdiith (Mayor), 4 B. & A. 49'r.-j- R. v. Lyme Regis (Mayor), 1 Doug. 85. R. v. Illchester (Bailiffs), 2 B. & 0. '?66.-|- S. C. 4 D. & R. 330,t per Bayley, J. B. v. Welbeck (Inhabs.), Stra. 1143. Com. Dig. tit " Man." D. 3. E. t. Dartmouth (Mayor), 3 Salk. 229. (d) R. T. Kendall, 1 Q. B. STS.f S. C. 4 P. & D. 602. See ante as to the defect of argumentativeness, p. 357, n. (c). (e) Ante, p. 348—351. R. t. Lyme Regis (Mayor), 1 Doug. 85. E. v. York (Mayor), 5 T. R. 70. R. v. Ward (Dr.), Fitzg. 195. E. v. Saltash (Mayor), Eaym. 432. S. C. Jon. 177. 411 it was held that auch a return was bad', for by a collusive resignation of his office hf A. the writ might be evaded. (/) The rule as to the construction of a return by pteatimption and intend- ment was prior to the passing of stat. 9 Ann. c: 20,{g) that the return must he taken to he true until falsified in an action for a false return,(Ji) hut such rule was subject to an exception where the matter of the return appeared to the Court to be false as to such facts of which they were judi- cially cognizant, or where the return had any patent defect, as repug- nancy, &o.(i)' At this d&,y however, by means of those legislative enact- ments,(y), which have so closely assimilated the pleadings incident to the writ of maiidamns to those which obtain in personal actions, and. left the procedureby-way of action for the false return, entirely at the pleasure tad discretion of the prosecutor, (/<;) *the above rule has become p,^q 71 -i not only of rate application, but other- rules by which th« validity *• of a return may be tested have been introduced. The first of thiem is, that no legal fact shall he intended in a return to a mandams, unless pro- pedy expressed therein.^) Thus where to a mandamus to restore to the office of clerk of the peace, it was returned that the prosecutor bad impro- perly refused to deliver the county rolls tb the custos rotulorum upon feqnesty that articles had been exhibited against him in sessions^ that he had there '■ also refused, and that thereupon he was removed by orddr of the justices acccording to the stat. 1 Wm. & M. st. 1, c. 21, to this re- turn it was objected, that it did not shew that the articles were in writ- ing, as they should have been agreeably with the above statute, and the Court in giving judgment said, that " nothing is to be intended in a return to a ffiandamus," and as the word "articles" did not ex vi termini import sfiMting,^m) they quashed the return. ■ The second rule is, that " The Court will not in order to support a re- turn, draw an inference if there be no legal facts stated, from whence such inference can be deduced." Thus, where to a Writ of mandamus to com- mand the defendaiits to certify the election of A. B. as recorder, the re- turn stated, that the mayor and sheriffs of the said city and the major part of the aldermen, those who had been sheriffs and of the common council were not duly ussemhled in the common hall of the said city to (/) E. T. Saltash (Mayor), Bay. 431, 365. S. C. Jon. Ill; Oonij Dig. tit. "Man."D. 4. (g) See App., and aute,.p. 6, 11. (g), [r), 1, («). ' Aa to Ireland, see stat. 19 Geo. 2, c. 12, App. (A) R. T. London (Mayor), 12 Mod. IT. S. C. Skin. 293. Anon., 1 Keb. T9. R. T. tyme Regis (Mayor), 1 Doug. 159. Braithwaite's case, 1 Vent. 19. R. v. Ox- ford (Mayor), Palm. 455. R. t. York (Archbp.), 6 T. R. 491. (i) R. T. London City, Skin. 293. (y) See ante, p. 1, n. (v), 8, n.- (a), (y), and stat. 9 Ann. c. 20, s. 1, extended by stat. 1 Wm. 4, c. 21, App. As to Ireland, see stats. 19 Geo. 2, c. 12, and 9 & 10 Tict. c. 113, App. , . , . (4) Ante, p. 6, n. (q), (r), 1. (I) R. T. Bristol (Mayor), 1 Show. 288. R. t. London (City), Skin. 293. S. 0. 12 Mod. 17. (m) R. t: Evans, 1 Show. 822. S. C. Holt, 188. S. C. 4 Mod. 31. S. C. 12 Mod. 13. See supra, n. (I). 412 tapping's mandamus. ^proceed to the election of a recorder, for the said city as by the writ was supposed. The Court in quashing the return held, that the defendants ehould have shewn in what particular they were not assembled for the purpose of electing a recorder, inasmuch as they had admitted by such return that they were assembled, but alleged it was for some other pur- pose, (ji) The third rule is, that, " if a return contain legal facts sufficient to swpport an inference necessary to its validity, the Court will draw such inference and uphold the return." Thus where a return alleged fuit amo- tus per majorem et burgenses, it was held to be sufficient though the power by the charter, &c., was given to the mayor and burgesses who had been mayors, because as in such a case it shall be intended, that all the burgesses were present and assented, so if the major part of them who had been mayors did not assent, an action might be brought for a false return, (o) *The fourth rule is, that " The Court cannot assume an illegality *- -'or legal foAds inconsistent with a return in order to invalidate it," as that an assembly to elect, &o., was unduly convened, which does not by the return appear to have been so.( j») The same rule has been propounded by Buller, J. (2) thus " if a return be certain on the face of it, that is sufficient, and the Court cannot intend facts .inconsistent with it for jthe purpose of making it bad." The fifth rule is, that "The Court in construing a return wiU not pre- sume either for or against its validity. (r) The sixth and last rule as to construing a return, is that, " The Court will taize notice of such legal facts of which they are judicially cognizant, though they he not particlarly stated." Thus in a return to a mandamus to restore to a municipal office, if it be stated that the prosecutor was re- moved by the municipal body at large for a corporate offence, it is unne- cessary to aver that a power of removal for such offence is vested in such corpor?ition, because the law takes notice that such a power is inherent in its constitution. (s) .] Motion to quash Return. — The legal formulae by which a de- fective return may be invalidated are two, the one by "motion to quash," which is resorted to, when the return is vicious by reason of any clear and well acknowledged defect; the other by "demurrer," which is when the return is insufficient for defects which are not so apparent to the Court, but that they require the invalidity of the return to be tested by a solemn argument. The proceeding by " demurrer" has by a late in) R. T. York (Mayor), 5 T. K. li ; Bac. Abr. tit "Man." (J.) (0) Braithwaite's case, 1 Vent. 20 ; Com. Dig. tit. "Man." D. 3. (p) E. T. Shrewsbury (Corp.), Kel. 284. S. 0. Stra. 1051. S. 0. 1 Mod. 201 . Bac. Abr. tit. "Man." (J.) R. v. W. Riding (J.), 16 L. J., N. S., M. 0. lYl. Uj) R. T. Lyme Regis (Mayor), 1 Doug. 159. IrS R. T. Lyme Regis (Mayor), 1 Doug. 158, per Ld. Mansfield. (s) See ante, p. 199. R. v. Lyme Regis (Mayor) 1 Doug. 159. R. v. Cambridge (Mayor), 2 T. R. 459. See Steph. on PI. p. 383, 5th edit. 413 statute(<) been substituted for that of " concilium," which in effect was exactly the same. As the statute of 9 Ann. o. 20, is altogether silent as to the formulae, whereby a return when insufficient should be invalidated, the Court of B. E. in the absence of any express direction, adopted a practice similar to that which obtains in the case of vicious pleas in personal actions ; viz. that when the return is upon the face of it palpably a tricky one, framed only for the purpose of delaying the prosecutor, (a) the Court will on motion, quash it and in some cases award to the prosecutor a peremptory *mandamus.('v) The Court of B. K. has often and expressly _,_^ stated, that it has the jurisdiction of interfering summarily in such L -' cases where it deems it proper to do so,{w) and that it is perfectly dis- cretionary with such Court to determine the validity, of the whole or part of a return either on demurrer (formerly concilium), or on motion to quash.(x) The Court will not however quash a return on motion, unless it be manifestly frivolous or contemptuous,(3/) or clearly bad on the face of it,(z) so that if the return be not frivolous, &c., or clearly bad upon the face of it, its validity must be argued on a demurrer, and not on a rule to qnash,(a) and the Court will refuse to hear the return discussed on motion to quash on the ground of urgency of the circumstances, but in such a case will direct the case to be argued on an early day upon de- murrer.(6) If, therefore, the return be prima facie sufficient, the Court will not inquire into the truth of the facts returned, but will on motion to quash the return, consider only whether the matter of fact returned be a sufficient answer or not to the mandamus.(c) The Court will quash a return if, as before stated, it be upon its face palpably a tricky one, framed only for the purpose of delaying the prose- cutor ; so if it be hypothetical or uncertain ; but in the latter cases leave (!) See Stat. 6 & 7 Vict. c. 61, s. 1, App. As to Ireland, which is governed by a legislative provision, in effect exactly the same, see stat. 9 & 10 Vict. c. 113 (6), App. • (u) See Chit., Prac. 265. B. v. Payn, 3 P. & D. 625. S. C. 11 A. & E. 955.f S. 0. 2 Kail. Cas. 1. S. C. 1 Jur. 54. (») E. V. Oundle (Manor), 1 A. & E. 291. f S. 0. 3 N. & M. 484.-|- K. v. Cam- bridge (Mayor), 2 T. R. 460, 461. Formerly, if one contemptuously made an ill return, the Court amerced him, and refused to allow him to quash the return and make another. Anon. 12 Mod. 410. S. 0. nom. Lord v. Francis, Holt, 170, 171, ante, p. 266, n. [x), (y). (w) E. V. Payn, 3 P. & D. 625. S. C. 11 A. & E. 955.1 S. 0. 2 Rail. Cas. 1. (x) E. V. St. Katherine's Dock, 4 B. & Ad. 360.t S. C. 1 N. & M. 121.t R. v. Payn, 3P. &D. 625. S. C. 11 A. & B. 955.t S. C. 2 Rail. Cas. 1. R. v. Swansea Har- bour, 8 A. & E. 449,+ n. (a). S. C. 1 P. & D. 512. R. v. Nottingham (Mayor), Say. 36, per Lee, C. J. (y) E. V. Payn, 6 A. & E. 392, 403.+ S. C. 1 N. & P. 524.f See R. t. St. Saviour, 7 A. & E. 925, 936.+ S. C. 3 N. & P. 126. S. C. 1 N. & P. 496.1 R.V.Kendall, 1 Q. B. 374.f S. 0. 4 P. & D. 602. S. C. 10 L. J., N. S. 137, Q. B. R. v. Williams, 3 M. 4; E. 404. S. C. 8 B. & C. eSl.f (a)4B. & Ad. 360.t S. C. 1 N. & M. 121,i- supra, n. [x). R. v. Hungerford Market, 4 B. & Ad. 335,+ n. R. v. St. Andrew, 10 A. & B. 739.t (a) Ante, p. 372, n. («) ; 7 A. & E. 925.t S. C. 3 N. & P. 126. S. C. 1 N. & P. 496,+ supra, n. (y). R. v. Harham Roads (Trustees), 4 Jur. 50. (b) 7 A. & B. 925.-J- S. 0. 1 N. & P. 496.f S. C. 3 N. & P. 126, supra, n. (y). (c) Ante, p. 6. E. v. Williams, Say. 141, per Ryder, C. J. 414 tapping's mandamus. to amend is usually all'owedj(cQ but not if it be quashed, as in the former case, for insufficiency of inerits.(e) So, the Court will *quash it L '*'*] jf jt i^e repugnant and contradictory. (/) Also, as the defendant ought not to embarrass the record with matter which makes it impossible for the prosecutor to plead, or to know what it is he has to answer, so the Court will quash a return which is defective for this cause. (^) So if a return consist of several independent matters, which are inconsistent, the whole return must be quashed.(A) But the Court will quash only part of a return consisting of several independent answers, some of which are sufficient in law, and some not, provided they are not inconsistent ;(i) and in that case will direct an issue as to the other part, which if found by the jury for the defendant, will be sufficient to prevent a peremptory mandar mus.(/) The Court will not quash a return on affidavits of its falsity,(A) nor because it was filed too late.(Z) . Application ; Affidavits. — If the ground of the motion to quash be any defect apparent on the return, or because of its invalidity in point of law, affidavits are not required ; but if the case require that any fact or facts should be deposed to, such affidavits must be produced, (rni) . Ride. — The rule nisi for quashing a return, where it is palpably defective, need not go into the Crown paper ){n) in such case, the Court will either appoint an early day for its argument, or direct it to be brought on as an ordinary rule. .] Shewing Cause. — In shewing cause against the rule, nisi, the defendant may insist upon any objection to the writ, which shews that it should not have issued. (o) {d) Ante, p. 369, n. (6). K. v. London Dock, 5 A. & E. les.f S. C. 6 N. & M. 390.t See ante, tit. " Writ" (Amendment). (e) R. V. Norwich (Dean), Stra. 159. R. v. March, Burr. 1005. R. v. Raines, 3 Salk. 232, 11. R. v. St. Andrew, 10 A. & E. I^Q.^ R. v. Doncaster (Mayor), Burr. U5. R. T. Eastern Counties Railway, 10 A. & E. 555.-|- S. C. 1 Rail. Cas. 509. S. C. 4 P. & D. 48 ; and see 3 A. & E. 544.t R. T. Wix (luhabs.), 2.B. & Ad. 203.-J- See ante, tit. " Amendment," p. 368, 369. (/) Ante, p. 361, n. [k). R. v. Old Hall (Manor), 10 A. & E. 253.t R, t. Nor- wich (Mayor), 2 Salk. 436, 17. S. C. Ld. Raym. 1244. S. C. Holt, 444. [g) R. T. Old Hall (Manor), 10 A. & E. 253.t R. v. Norwich (May.orjj 2 Salk, 436. S. C. Ld. Raym. 1244. (A) R. T. York (Mayor), 5 T. R. 69, 1i, per Ld. Kenyon,.C. 3. E. v. Norwich (Mayor), Ld. Raym. 1244. S. C. 2 Salk. 436, 17. R. v. Cambridge (Mayor), 2 T. R. 456 ; Bac. Abr. tit. " Man." (J.) See ante, p. 361, n. (i). As to double and inconsistent returns, see ante, p. 360^362. (i) See ante, p. 360, n. (a). R. v. North Midland Railway, 11 A. & B. 956,f n. (i). S. C. 3 P. & D. 622. R. v. London (Mayor), 3 B. & Ad. 255.t R.T.Cam- bridge (Mayor), 2 T. R. 456. (j) R. V. Cambridge (Mayor), 2 T. R. 461, and supra, n. {h). (k) R. T. Payn, 6 A. & E. 392.t S. C. 1 N. & P. 524.1- K. v. West Riding (J.), 1 T. R. 46t. R. T. Old Hall (Manor), 10 A. & E. 256.+ Goubot v. De Crouy, 1 Cromp. & M. 772.* S. C. 3 Tyrwh. 906. S. 0. 2 D. 86. E. v. Round, 5 N. & M. 427,t n. (b). S. C. 4 A. & E. 139.t (I) R. T. Kendall, 1 Q. B. 374,t per Lord Denman, C. J. (m) R. T. St. Katharine's Dock, 4 B. & Ad. 360.+ S. C. 1 N. & M. 121.+ And see 6 A. & B. 405.f S. C. 1 N. & P. 528.f Ui) R. T. St. Katharine's Dock, 1 N. & M. 121.-f- S. 0. 4 B. & Ad. Seo.j- . (o) See p. 336, ii. (m), 338, n. (c). See stat. 6 & 7 Vict. c. 67, s. 1 (E.), and 9 R E T U R Jf, ETC. 415 * . ^MZeJ.6sotoe.-7-If upon argument,; the Court be ofr^q-ci opinion that the return is insufficient, a rule to quash it will be granted, which .must be drawn up and entered, in the Crown Office, but need not be served, and a peremptory writ of. mandamus ordered to is8ue.(j)). .] Demurrer to Return. — We have by the few lastly preceding pages, briefly considered the former of the alternative formulae by which a return may be invalidated, viz. a " motion to quash ;" we now proceed to consider the latter of such legal formulae, namely, the . proceeding by way of " demurrer," which has by a late statute(2!) been substituted for a "concilium," which in effect was precisely equivalent to a demurrer ;(r) for thereby the whole question of law, including that of the goodness of the writ of mandamus itself, was considered, (s) and also that if a judg- ment establishing the validity of the return in law were given, the prose- cutor could not afterwards traverse the facts contained in it.(t) So where on a return, a concilium had been obtained, and the return on r:|!Q7(3-i argument held insuflicient in law, and a peremptory, mandamus awarded, the -Court would, not, at the instance of th« party m?^hing such return, withhold the peremptory writ, and direct the prosecutor to demur to the return, in order that the case might go to- a Court of Error, (m) & 10 Vict. c. .113, a. 6 (I.), App. R. v. St. Katharine's Dock, 1 N. & M. 121.f S. C. 4 B. & Ad. 360, 363,1 per Parke, J. R. v. Margate Pier, 3 B. & A. 220.f R. v. BriBtow, 6 T. R. 168. See ante, tit. "Writ" (Amendment). Formerly the Court would only hear one counsel of a side on the same day ; Comb. 280. As to affidavits to be used on argument, see R. v. Harham Road (Trustees), 4 Jur.'so. (;)) See ante, p. 339;Gude's Cr. Pr. 186. R. v. Ouze Bank Commissioners, 3 A. & E. 549.f R. V. Liverpool (Mayor), Burr. 135. R. v. Doncaster (Mayor), Burr, f 45. And see 5 T, R. 69 ; Ld. Raym. 1244. S. C. 2 Salk. 436, IT. (?) See ante, p. 372, n. (t). .w~ K. T. Oundle (Mayor), 1 A. & E. 297, 299.-|- S. C. 3 N. & M. 484.+ R. v. Eastern Counties Railway, 10 A. .& E. 558.-t- S. C. 4 P. & D. 48. R. v. Dublin (Deari), Stra. 537. R. v. Birmingham Railway, 2 Q. B. 47.t S. C. 1 G. & D. 324. See Stat, 9 Ann. c. 20, s. 2. R; v. London (Mayor), 3 B. & Ad. 259. The mode of obtaining the opinion of the Court upon a return, by way of " Con- cilium" was this, — the prosecutor obtained a motion paper signed by counsel, indorsed '! to move for a ' Concilium' to quash the return, and for a peremptory mandamus," which being taken to the. Crown. Office, the rule was drawn up and entered, and the case inserted in the Crown paper for argument ; the subsequent proceedings were similar to those of demurrer. Gude's Cr. Pr; 185, 186. R. v. St. Pancras (Trustees), 3 A. & E. 535.+ S. C. 5 N. & M. 222.+ Cr. Off. Rules, r. 22, App. ^ "* ' The rule must have been obtained by the prosecutor before he had pleaded, for ifter having taken that step he was not at liberty to withdraw his plea and set down the return for argument on concilium ; a rule nisi for that purpose has been discharged on the ground that the effect of it would be to deprive the defendant of the opportunity of taking the case to a Court of Error. Wilsford v. Doncaster (Mayor), Burr. 738. R. v. York (Mayol-), 2 G. & D. 685, n. {a). R. t. West Riding (J.), 5 Q. B. l.f R. v. Old Hall (Manor), 10 A. & B. 555.t S. C. 2 P. & D. 518. S. C. W. W. & D. 650. See ante, p. 372, n. {t). (s) Ante, p. 338, n. (c), 374, n. (o). R. v. Eastern Counties Railway, 10 A. & E. 558.t S. C. 4 P. & D. 48. S. C. 1 Rail. Cas. 509. (t) R. V. Oundle (Mayor), 1 A. & E. 299,^ per Patteson, J. R. v. London (Mayor), 3 B. & Ad. 275.+ S. 0. 2 N. & M. 126.-t- R. v. Payn, 11 A. & E. 957.t (u) R. V. Oundle (Manor), 1 A. & E. 283, 297.t S. 0. 3 N. & M. 484, 496.t 416 tapping's mandamus. It is singular that although the stat. 9 Ann. c. 20, s. 2, permits tte prosecutor merely to plead to, or traverse a return, yet should allow the defendant to reply, take issue or demur to such plea or traverse, or in other words that the power to demur should have been specifically given to the defendant and not to the prosecutor. It was this distinction which gave rise to the practice, that where an insufficient return was filed, the prosecutor was allowed to make an application to the Court, in the nature of a demurrer, and called a " concilium" to quash it, which if it were granted and were ultimately successful, a peremptory mandamus was at once awarded, as there could be no proceeding by writ of error.(j;) This method of procedure being found to be in many cases greatly inconveni- ent, the more so as writs of mandamus had of late years very much increased, and were frequently awarded in cases of considerable import- ance, it became necessary for the purposes of justice that the prosecutor should have the power to demur to a return made to any such writ, in order that the decision of the Courts having jurisdiction over them, as to the validity of such return, should be reviewed by a Court of Error for remedy, whereof it is by stat. 6 & 7 Vict. c. 67, s. l,(w) enacted, that in all cases in which the prosecutor of any writ of mandamus shall wish or intend to object to the validity of any return, then or thereafter to be made to the same, he shall do so by way of demurrer to the same in such and the like manner as is now practised and used in the Court of B. K., or the Courts of the counties palatine in personal actions, and thereupon the same writ and return and the said demurrer shall be entered upon record in the said Courts respectively, and such and the like further pro- ceedings shall be thereupon had and taken as upon a demurrer, to plead- ings in personal actions in the said Courts respectively, and the said Courts respectively shall thereupon adjudge either that the said return is valid in law, or that it is not valid in law, or that the writ of mandamus is not valid in law, and if they adjudge thatjthe said writ is valid in law, r*q>77-i hut *that the return thereto is not valid in law, then and in every such case they shall also by their said judgment award that a peremptory mandamus shall issue in that behalf, and thereupon such peremptory writ of mandamus may be sued out and issued accordingly, at any time after four days from the signing of the said judgment, and it shall be lawful for the said Courts respectively, and they are thereby required in and by their said judgment to award costs to be paid to the party in whose favour they shall thereby decide, by the other party or parties. («) R. v. Cambridge (Mayor), 2 T. E. 460, 461. E. v. Oundle (Manor), 1 A. & B. 297, 298.t E. T. Eastern Counties Eailway, 10 A. & E. 558.f S. 0. 4 P. & P. 48. S. C. 1 Eail. Cas. 509. As to obtaining time to demur, see stat. 9 Ann. c. 20, B. 6, App. As to quashing return, see ante, p. 312 — 375. As to Ireland, see stat. 19 Geo. 2, c. 12, App. (w) See stat. App. As to Ireland, see the provision totidem verbis in stat. 9 & 10 Vict. c. 113, s. 6, App. RETURN, ETC. 417 As before stated,(a;) it is discretionary -witli the Court either to deter- mine the validity of a return on motion to quash, or to direct the prose- cutor to demur, in order that the case be set down in the Crown paper for argument.(y) If the return be clearly bad on the face of it, the Court will quash it on motion ;(z) but if it be not clearly bad upon the face of it, nor frivolous, or if it raise matters of law, its validity must be argued on demurrer, and not on a rule to quash it. (a) So, if the return disclose a case of difficulty, the Court usually orders it to be brought on in the Crown paper,(6) or if it involve an abstruse question of law will direct it to be set down in the special paper for an argument.(c) The form and practice of a demurrer in the case of a mandamus is by Btat. 6 & 7 Vict. c. 67, s. 1, (E.), and 9 & 10 Vict. c. 113, s. 6, (I.), the same in all respects as a demurrer in the case of personal actions, (li) The demurrer must be entered at the Crown office, and a copy filed there beside the one delivered to the opposite party. .] Joinder in Demurrer. — There must be one and only one side bar rule to join in demurrer which must be drawn up and served upon the opposite party, (and no peremptory rule given thereon), it expires in four days next after service. (e) The joinder must be entered at the Crown office, and delivered and filed as the demurrer, and on de- aio-n^ fault being made *judgment by default may be signed. (/) If on L J th) other hand a joinder in demurrer be filed and delivered, either party M.See tit. " Quasjiing Return," p. 3'r2— 375. [y] E. T. St. Katharine's Dock, 4 B. & Ad. 360.f S. 0. 1 N. & M. 121.f (2) See tit. " Quashing Return," ante, p. 372— 3T5 ; 4 B. & Ad. 362.f S. C. 1 N. &M. 121.t Ante, Tp. 372, n. (K): [a] E. T. St. SaTionr's (Parish), 3 N. & P. 126. S. C. 7 A. & E. 925.1 E. v. Payn, 3 N. & P. 165. E. T. Eound, 4 A. & E. 139.i- S. C. 5 N. & M. 427-1 S. C. 1 H."& W. 546. E. v. St. Margaret (Parish), 1 P. & D. 124, n. [b). S. C. 8 A. & B. 889.t S. C. 2 P. & D. 510. (6) 4 B. & Ad. 360.t S. C. 1 N. & M. 121,f supra, u. [y). E. v. London (Mayor), 3 B. & Ad. ^55.t S. 0. 2 N. & M. 126.f , [c] E. V. Mildmay (Dame), 5 B. & Ad. 256.t S. C. 2 N. & M. 778.f (i) For the practice of a demurrer in personal actions, see Chit. Prac. 827 — 837, 8th edit. As' to cases within the stats. 1 Wm. 4, c. 21, s. 4 (E.), and 9 & 10 Vict. c. 113, 8. 3 (I.), (see stats. App.), it is thereby provided in whose name the demurrer shall be joined, and the proceedings to judgment carried on. See ante, p. 302, n. [g), 313, n. (4 342, n. (r). (e) Cruwn Off. Rules, r. 18 ; see rules, App. Form of rule : — "Saturday, the day of , in the year of the reign of Queen Victoria. In the Queen's Bench. (Venue.) The Queen on the prosecution of S. B. & J. E. aget. J. W. and T. C, Chapelwardens. Unless the defendants shall join in demurrer with the prosecutors, within four days next after service of this rule upon the attorney or agent for the said defend- ants, let judgment be entered for the said prosecutors against the said defendants, for want of a joinder in demurrer. ' Side Bar. By the Court." (/) Crown Off. Rules, r. 19, App. And see tit. " Pleas" (Judgment by defatilt). June, 1852.— 27 418 TAPPING'S MANDAMtTS. (usually the party demurring), may proceed without a previous motion or a rule for a " concilium," to set down (at the Crown office) the demurrer for argument. It has however been held that, when the business of a vacation sittings has been appointed, a demurrer cannot be argued at such sittings without the consent of the Court and of all parties. If, however, it be so agreed, the demurrer may be set down at such sittings to be argued as on a concilium, and with the same consequences.(g') .] Paper Boohs. — In all cases entered for argument in the Crown paper, the prosecutor or his attorney should deliver a paper book of the proceedings to each of the two senior Judges of the Court, and the defen- dant or his attorney should in like manner make and deliver a paper book to the third and fourth Judges of the said Court respectively, two days before the day on which the case will be put in the paper for argument ; and such several paper books should in all cases, (except where a special case is reserved for the opinion of the Court), contain in the margin thereof, or appended thereto, and to be delivered therewith, the points intended to be argued, but should not contain any other observation or matter, than such points for argument, together with copies of the pro- ceedings, and a copy of the rule nisi to quash, or for a concilium. Judg- ment may be given by the Court against a party neglecting to deliver paper books to the Judges, or delivering the same without the points for argument, if the Court shall so please. (^) The briefs for counsel are the same as in ordinary cases, (t) Where necessary for the attainment of justice, and to try the validity of a return, the Court of B. E. will, on motion, grant a rule to inspect corporation books, &c., though the corporation be not a party to the *dispute;(y) but such a rule will not be granted until after the L -^ filing of the return, (A;) because, until then, the Court cannot see that such inspection will be necessary. (Z) The Court never grants a rule to inspect corporation charters, as copies of them may be obtained at the Rolls. (m) .] Argument. — The case is called on for argument in its turn, and the arguments are conducted as in a demurrer in a personal action.(?i) It is also the practice, on a demurrer to a return to a mandamus, to hear one counsel only on each side.(o) It has been held, that when a return to a mandamus has been made, {g) R. V. Kendall, 1 Q. B. SU.f S. C. 4 P. & D. 602. S. C. 10 L. J., N. S. 137, Q. B. (A) Crown Off. Rules, r. 23, App. See form of points of demurrer. R. v. Con- yers, 15 J. L., N. S. 300, Q. B. R. v. Arnaud, 16 L. J., N. S. 52, Q. B. (i) See Chit. Prac. 833. (y) R. V. Newcastle Hostmen, Stra. 1233 ; Gude's Or. Pr. 189. {k) K. T. Nottingham, 1 W. Blac. 58. B. y. Surrey (J.), Say. 144, (the practice is otherwise on Quo Warranto). il) Anon., 1 Barn. 26. Anon., 2 Salk. 430. Com. Dig. tit. " Man." D. 2. m) R. V. Tucker, 1 Barn. 28. Anon. 2 Salk. 430. n) R. V. St. Pancras (Trustees), 3 A. & E. 535, 538.-J- S. C. 5 N. & M. 222.t o) 11. V. Gordon, 1 B. & A. 526,t n. (a). RETtJEN, ETC. 419 and a. concilium obtained, the counsel objecting to the return, i. e, coun- sel for the Crown, is entitled to begin, and must be heard first, though the opposite counsel take an objection to the form of the writ,(oo) as in the case of a demurrer in a personal action, (j?) No objection to a return can be made, except for defects apparent upon the face of it.(2) Nor will the Court permit a point that has been decided on the rule nisi for the writ to be again discussed on the demurrer.(?-) Thus it is then too late to raise objections which impugn the propriety of originally issuing the writ,(s) as that the proper remedy was indictment, and not mandamus. (<) It was formerly held, that it was too late, when arguing on the validity of a return, to make any objection to the writ itself, for the several rea- sons : first, that the defendant should have applied to the Court to have quashed it ; secondly, that he, by making a return, precluded himself from objecting to that which he had elected to answer ;(m) and lastly, be- cause after the rule for the writ has been made *absolute, it was a r:| ^^^ '^ thereby declared to be the same as in an action on *the case for a false return ;(i) except in cases within the stat. 1 Wm. 4, c. 21, s. 4, which enacts, that the Court of B. R. will direct who shall join issue, and in whose name the proceedings shall be carried on.(i) A complete copy of the issue need not be delivered, if the whole of the pleadings have been separately delivered. (/) .] Notice of Trial. — The form, &c. of the notice of trial is the same as that of such a notice in a personal action. Although by stat. 9 Ann. c. 20, s. 2, the prosecutor of a mandamus, to which there is a return, and issue taken on the facts therein alleged, may try the same in such place as an issue in an action on the case for a false return should or might have been tried, yet it has been held, that if all the material facts are alleged in one county, and issue taken thereon there, the prose- cutor cannot issue the venire facias into another county, though he might originally have alleged the facts there, and have there brought his action for a false return, (/c) The trial may also be had at the sittings of Nisi (/) Cr. Off. Rules, r. 18, App. The following is a form of rule: — " , the day of , in the year of the reign of Queen Victoria. (Venue). The Queen on the prosecution of S. B. and J. B. agsl. J. W. and T. C, Chapelwardens of B. Unless the defendants shall reply to the pleas to the return of the said defendants to this writ of mandamus, within four days next after service of this rule upon the attorney or agent for the said defendants, let judgment be entered for the said pro- secutors against the said defendants for want of a replication. Side Bar. By the Court." {g) See Cr. Off. Rules, r 19, App. See tit. " Judgment by Default," ante, p. 386, 387, and tit. " Return" (Demurrer, Joinder). (A) See stat. 9 Ann. i;. 20, s. 2, and 1 Wm. 4, u. 21, App. As to Ireland, see stats. 19 Geo. 2, c. 12, and 9 & 10 Vict. c. 113, App. See tits. "Damages," post, p. 392, and "Costs," p. 394. («) See stats. 9 Ann. c. 20, s. 2, and 1 Wm. 4, c. 21, App. As to Ireland, see stats. 19 Geo. 2, c. 12, and 9 & 10 Vict. u. 113, App. (/) Corn. Cr. Pr. 232. (A) R. V. Newcastle-upon-Tyne, 1 East, 115. Com. Dig. tit. " Man." D. 6. But see stat. 38 Geo. 3, c. 52, s. 1, App., which empowers the Court to award the venire into another county on application for that purpose. As to Ireland, see stats. 19 Geo. 2, u. 12, and 9 & 10 Vict. c. 113, App. PLEA, ETC. 427 Prius in Middlesex, in wliieh county the writ is issued, or at the assizes for the county where the place is situate, and the cause originated. (Z) .] Subpoena. — As to subpoena for witnesses, it must, in accord- ance with the late rule,(OT) be tested of the day on which it is actually issued. It is issued at the Crown Office. The service is the same as in personal actions, (w) . .J Record. — The record is made up by the party who gives notice of trial. It must be sealed at the Seal Office, and carried in, in like manner as a nisi prius record in a personal action. (o) * .J Jury Process. — The jury process is, in general, the r^qooi same as in personal actions, (j)) It was always the practice of the clerks in Court at the Crown Office, to insert in the jury process the substance of the issues to be tried ; but since the conduct of the proceedings has, by virtue of stat. 6 Vict. c. 20, devolved upon the attorneys of the Court of B. E. at Westminster, the issues are sometimes very shortly expressed, as thus : " To try upon their oath the several issues joined upon the return to our writ of mandamus, directed to, &c., commanding them to, &c." The writ of Venire Facias Juratores must be tested as of the day on which issue is joined, or if there be a continuance, on the day of the last continuance, previous to the award of the distringas juratores, and must be made returnabk either on a day certain, or immediately, before the Queen at Westminster, either in the same, or the next Term, as occasion may require, (j) The writ of Distringas Juratores must be tested as of the day of the return of the venire facias juratores, and must be made returnable on [l] Gude's Cr. Pr. 187. (m) Cr. Off. Eules, r. 3, App. In) Chit. Prac. 327—333. (o) The following is a form of Nisi Prius Record, as given in Corner's Cr. Off. Forms, p. 145. " Pleas before our Lady the Queen at '^Westminster of [the Term of the return to the writ} Term, in the year of the reign of our Sovereign Lady Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. Amongst the Pleas of the Queen Roll. {County). Amongst the I Some time ago, that is to say, [ore the day of the Teste of ihe Man- Records of this f damns'], our Lady the Queen sent to [the direction of the writ], her Year, No. — . J Writ, close in these words, that is to say : ViCTORU, &c., [to the end of the Writ of Mandamus]. On which said day of , [the day of the return of the writ], in this same Term, before our said Lady the Queen at Westminster, [the .party making the return] returned the said writ as follows, that is to say, [copy the return, or, when ihe return is on a separate Schedule, say], the execution of this writ appears by the Schedule hereunto annexed, the answer of within mentioned, [copying the indorsement on the writ], which said Schedule is as follows, that is to say, [then copy the return as on the Schedule, and the ^sequent pleadings in order. The Jury process in the same form as upon Indictment imth Special Issues, except that the name of the Prosecutor is inserted in lieu of that of the Queen's Coroner and Attomey]." [p) Anon., 2 Barn. 24. Snook v. Southwood, R. & M. 429. See stats. 9 Ann. c. 20, and 1 Wm. 4, c. 21, App. See Chit. Prac. 342. (?) See Cr. Off. Rul. r. 6, App. 428 tapping's mandamus. a day certain in the next ensuing Term, before the Queen at West- minster, (r) A special jury may be obtained as in personal actions. .] Trial. — A trial at Bar may be obtained as in personal ac- tions, (s) The trial at nisi prius of issues in fact in a mandamus case, does not differ from the trial of such issues in a personal action. Viva voce evi- dence(<) must be adduced, and must fully support the issues raised for trial ; and no other issues but those raised can be tried. (m) .] Jeofails, &c. — By stat. 9 Ann. c. 20, s. 6,(«) the stat. 4 Ann. c. 16 (Jeofails), is extended to writs of mandamus. r*RQm * ■] Amendments. — The remedial stat. 9 Geo. 4, c. 15, authorizing the amendment at the trial, of variances between mat- ters in writing or in print produced in evidence and the record, does not, in terms, embrace trials on writs of mandamus, but on the contrary would seem to exclude them. By stat. 3 & 4 Wm. 4, c. 42, s. 23, which recites, that great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances(M)) as to some particular or particulars between the proof and the record, and setting forth on the record or document on which the trial is had, of contracts, customs, prescriptions, names, and other matters or circumstances not material to the merits of the case, and by the misstatement of which the opposite party cannot have been pre- judiced ; and the same cannot in any case be amended at the trial, except where the variance is between any matter in writing, or in print produced in evidence, and the record ; and that it is expedient to allow such amend- ments, as thereinafter mentioned, to be made on the trial of the cause, it is enacted : that it shall be lawful for any Court of Record, holding plea in civil actions, and any Judge sitting at Nisi Prius, if such Court or Judge shall see fit so to do, to cause the record, writ, or document, on which any trial may be pending before any such Court or Judge in any civil action, or in any information in the nature of a quo warranto, or proceedings on a mandamus, when any variance shall appear between the proof and the recital, or setting forth on the record, writ, or document, on which the trial is proceeding, of any contract, custom, prescription, name, or other matter, in any particular or particulars in the judgment of any such Court or Judge, not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his ac- tion, prosecution, or defence, to be forthwith amended by some officer of (r) See Or. Off. Rul. r. 1, App. (s) Anon., 2 Barn. 106. See Chit. Prao, 357—360, 8th edit. (t) Stevenson T. Newenson, Ld. Raym. 1353; Stra. 583; 1 Doug. 83. Smith v. Armourers and Braziers' Company, Peake N. P.O. 199. (u) Vaughan t. Lewis, Garth. 229. (v) App. See also 1 Wm. 4, C.-21, App., and as to Ireland, see stats. 19 Geo. 2, c. 12, s. 16, and 9 & 10 Vict. c. 113, App. (w) In the act this word is, by mistake, "vacancies." PLEA, ETC. 429 the Court, or otherwise, both in the part of the pleading where such vari- ance occurs, and in every other part of the pleadings which it may become necessary to amend, on such terms aa to payment of costs to the other party, or postponing the trial to be had before the same or another jury, or both payment of costs and postponement, aS such Court or Judge shall think reasonable ; and in case such variance shall be in some particular or particulars in the judgment of such Court or Judge, not material to the merits of the case, but such as that the other party may have been prejudiced thereby in the conduct of his action, prosecution, or defence, thfift .such Court or Judge shall have power to cause the same to be amended, upon payment of costs to the other party, and withdrawing *the xeoord, or postponing the trial, as aforesaid, as such Court or rsiioqi n Judge shall think reasonable, and after any such amendment, the ttial shall proceed; in case the same shall be proceeded with in the same manner in all respects, both with respect to the liability of the witnesses to he indicted for perjury, and otherwise, as if no such variance had appear- ed. And in case such trial shall be had at Nisi Prius, or by virtue of such writ, as aforesaid, the order for the amendment shall be indorsed on the postea, or the writ, as the case may be, and returned together with the record or writ ; and thereupon such papers, rolls, and other records of the Court from which such record or writ is issued, as it may be neces- sary to amend, shall be amended accordingly ; and in case the trial shall be had in any Court of Kecord, then the order for amendment shall be entered on the roll, or other document, upon which the trial shall be had, provided chat it shall be lawful for any party that shall be dissatisfied with the decision of such Judge at Nisi Prius, sheriff, or other officer, respecting his allowance of any such amendments, to apply to the Court from which such record or writ issued, for a new trial, upon that ground; and in case any such Court shall think any such amendment improper, a new trial shall be granted accordingly on such terms as the Court shall think fit, or the Court shall make such other order as to them may seem meet. Also by sect. 24, it is enacted : that the said Court or Judge shall and may, if they or he think fit, in all such cases of variance, instead of causing the record or document to be amended as aforesaid, direct the jury to find the fact or facts according to the evidence, and thereupon such finding shall be stated on such record or document ; and notwith- standing the finding on the issue joined, the said Court, or the Court from which the record has issued, shall, if they think the said variance imma- terial to the merits of the case, and the misstatement such as could not have prejudiced the opposite party on the conduct of the action or defence, give judgment according to the very right and justice of the case. And by sect. 25, it is enacted : that it shall be lawful for the parties in any action or information after issue joined, by consent, and by order of any of the Judges of the said superior Courts, to state the facts of the case in the form of a special case for the opinion of the Court, and to agree that 430 TAPPING'S MANDAMUS. a judgment shall be entered for the plaintiff or defendant by confession, or of nolle prosequi immediately after the decision of the case, or other- wise, as the Court may think fit, and a judgment shall be entered accord- ingly, (x) • The Judge on the trial may reserve leave to move to enter a ■- ^ verdict *as in personal actions,(y) aijd a motion for that purpose may be made accordingly. («) .1 Verdict. — If either a verdict, or a judgment on demurrer, by nil dicit, or for want of replication, or other pleading, be given for the prosecutor, he shall recover damages and costs as he might in an action on the case for a false return, to be levied by ca. sa., fi. fa., or elegit; also, he shall have granted to him a peremptory writ of mandamus with- out delay, as may be if the return be adjudged, on " motion to quash" or "demurrer," insufficient in law.(a) If, however, judgment be for the defendant, he shall recover costs, to be levied as aforesaid; but if such judgment be against him, he shall not be liable to be sued in another action for such return. (6) .] Damages. — The stat. 9 Ann. c. 20, s. 2, (extended by stat. 1 Wm. 4, c. 21), provides as to Damages, that in case a verdict shall be found for the prosecutor, or judgment given for him upon demurrer, or by nil dioit, or for want of a replication or other pleadipg, he shall reco- ver his damages and costs in such manner as he might have done in an action on the case for a false return, such costs and damages to be levied by oa. sa., fi. fa., or elegit.(c) It has been held, that where a jury which had tried traverses under stat. 9 Ann. c. 20, s. 2, omitted to find damages, the Court could neither award judgment, nor direct a writ of inquiry for the purpose of assessing them, but would direct a venire de novo,(d) or an action for the damages might be brought ; because, as by such statute, the traverses there men- tioned are given in the stead of an action for a false return, and as in such action it cannot be said, that the damages are collateral, so neither can it be said, that they are collateral in a proceeding under the statute fa;) See tit. "Special Case," post, p. 411. M R. v. St. Pancras (Parisb), 7 A. & E. 752.1 S. C. 5 D. 722. (z) R. T. Baldwin, 8 A. & E. 947, 949.f S. C. 3 P. & D. 124 ; 3 B. & Ad. 279,t per Lord Tenterden, C. J. (a) Com. Dig. tit. " Man." D. 6. See also R. v. Kelk, 1 G. & D. 131. S. C. 1 Q. B. 660 ;t 2 Tidd, 997, 9th ed., citing R. v. Glamorgan (Mayor), 2 Smith, 8, where poundage was held to be recoverable as in personal actions. See stats. 9 Ann. c. 20, s. 2, and 1 Wm. 4, u. 21, App. As to Ireland, see stats. 19 Geo. 2, c: 12, and 9 & 10 Vict. c. 113, App. (6) Com. Dig. tit. "Man." D. 6. See stats. 9 Ann. u. 20, s. 2, and 1 Wm. 4, c. 21, App. As to Ireland, see stats. 19 Geo. 2, t. 12, and 9 & 10 Vict. i>. 113, App. See infra, " Damages." (o) As to Ireland, see stats. 19-Geo. 2, c. 12, s. 2, and 9 & 10 Vict. c. 113, s. 2, App. (d) Kynaston v. Shrewsbury (Mayor), Oas. temp. Hard. 295. S. C. Stra. 1052. S. C. 7 Bro. P. C. 396 ; Bull. N. P. 199, 203. R. v. Fall, 1 Q. B. 640.t S. C. 1 G.' & D. 117. S. C. 5 Jur. 886. S. C. 10 L. J., N. S. 145, Q. B. ; Com. Dig. tit. " Man." D. 6 ; Bac. Abr. tit. " Man." (K.) PLEA, ETC. 431 for they are consequent and dependent upon the issue, and the jury arc *to inquire of damages as parcel of the charge. But such doctrine r^qoo-i has 6een held not to extend^to a traverse under stat. 1 Wm. 4, c. '- -■ 21 s. 3, which extends the provisions of stat. 9 Ann. o. 20, to all writs of niandamus, and entitles prosecutors who recover on a traverse to dana- aees and costs, whether or not they are so interested as to be entitled to sue in " case" for a false return. (e) But where a jury omitted to find damages on a traverse, it was held, that the Judge who tried the cause might order from his recollection the verdict to be entered on the postea for nominal damages, though the associate's indorsement on the nisi prius record, was only, " Verdict for the Crown," the entry of nominal dam- ages in such case being quite of course, and entirely a matter of form in which the jury could not exercise any discretion. (/) The statute 1 Wm. 4, c. 21, s. 3, like that of 9 Ann. c. 20, was not intended to interfere with the common law right of parties to damages, but its sole object was to extend the provisions of the stat. 9 Ann. c. 20, with regard to the mode of enforcing those rights. ((/) Thus, by stat. 1 Wm. 4, c. 21, s. 4, it is recited, that as writs of mandamus, other than such as relate to the offices and franchises mentioned in or provided for by the stat. 9 Ann. c. 20, are sometimes issued to officers and other per- sons, commanding them to admit to offices, or do or perform other matters in respect whereof the persons to whom such writs are directed, claim no right or interest, or whose functions are merely ministerial in relation to such offices or matters and it may be proper that such officers and persons shall in certain cases be protected against the payment of damages or costs to which they may otherwise become liable, it is therefore enacted, that it shall be lawful for the Court to which application may be made for any writ of mandamus other than such as relate to the said offices and fran- chises mentioned in or provided for by the said act 9 Ann. c. 20, if such Court shall see fit so to do to make rules and orders, calling not only upon the person to whom such writ may be required to issue, but also all and every other person having or claiming any right or interest in or to the matter of such writ, to shew cause against the issuing of such writ and payment of costs of the application, and upon the appearance of such other person in compliance with such rules, or in default of appearance after service thereof to exercise all such powers and authorities, and make all such rules and *orders applicable to the case as are or may be given ^„_ . -, or mentioned by or in any act passed, or to be passed during this L -' present session of Parliament for giving relief against adverse claims made upon persons having no interest in the subject of such claims, provided always that the return to be made to any such writ, and issues joined in (e) 1 Q. B. 648,+ supra, n. (d). See. stats. App. As to Ireland, see stat. 9 & 10 Vict.c.U3,App.' ' ' ^ ' (/) R. V. Fall, 1 Q. B. 636.+ S. C. 1 G. & D. 117. S. C. 5 Jur. 886. S. C. 10 li. J., N. S. U5, Q. B. (y) Fall V. R., 2 G. & D. 806. . S. C. 1 Q. B. 656.f S. C. 13 L. J., N. S. 187, Q. B. As to Ireland, see stat. 9 & 10 Vict. t. 113, App. 432 tapping's mandamus. fact or in law upon any traverse thereof, or upon any demurrer, shall be made and joined by and in the name of the person to whom such writ shall be directed, but nevertheless the same sjiall and may, if the Court shall think fit so, to direct, be expressed to be made and joined on the be- half of such other person as may be mentioned in such rules, and in that case such other person shall be permitted to frame the return, and conduct the subsequent proceedings at his own expense, and in such case if any judgment shall be given for or against the party suing such writ, such judgment shall be given against or for the person or persons on whose be- half the return shall be expressed to be made, and who shall have the like remedy for the recovery of the costs and enforcing the judgment, as the person to whom the writ shall have been directed might and would other- wise have had. (A) The recovery of damages on an issue, raised upon the return, bars an action for a false return. (i) Thus, by stat. 9 Ann. c. 20, s. 3, it is pro- vided, that if any damages shall be recovered against those making the return, then that they shall not be liable to be sued in any other action or suit for making such return, (j") .] Costs. — By the stat. 9 Ann. c. 20, s. 2, it is enacted ; that in ease a verdict shall be found for the prosecutor, or judgment given for him upon a demurrer, or by nil dicit, or for want of a replication or other pleading, he shall recover his damages and costs in such manner as he might have done in an action on the case for a false return, such costs, &c. to be levied by ca. sa., fi. fa., or elegit; and in case judgment shall be given for the person making such return to such writ, he may recover his costs of suit to be levied in manner aforesaid. The statute 1 Wm. 4, c. 21, s. 3, extends the provision of the stat. 9 Ann. c. 20, to all writs of mandamus, and prosecutors are thereby entitled to recover damages and costs as in an action for a false return notwithstanding they have neither private nor particular interests in the thing commanded to be done, so as to have been entitled to sue for a r*RQ''1 *^^^®^ return, (/c) and the party whether prosecutor or defendant, L _ J succeeding on an issue joined upon a traverse of a return of a madamus under the above statutes, is entitled to the costs of the applica- tion for the writ, as well as the costs of the subsequent proceedings with- out an express rule of Court for that purpose. (Z) Where, however, a Ui) As to Ireland, see a similar enactment, 9 & 10 Vict. c. 113, s. 3, App. (i) See post, tit. "False Return," and stats. 9 Ann. c. 20, s. 3, and 1 Wm. 4, c. 21, App. As to Ireland, see stats. 19 Geo. 2, c. 12, s. 3, and 9 & 10 Vict. c. 113, App. See ante, p. 392, n. (b). (/) See stat. App. As to Ireland, see stat. 9 & 10 Viot. c. 113. See post, tit. "Action, &c., for False Return." (7c) Fall v. R. (in error), 2 G. & D. 803. S. C. 1 Q. B. 660.+ S. C. 13 L. J., N. S. 18'7, Q. B. R. T. FaU, 1 G. & D. 117. S.C. 1 Q. B. ese.f R. v. St. Pancras, 2 D., N. S. 955. As to costs generally, see tit. " Costs," post. As to Ireland, see stats. 19 Geo. 2, c. 12, and 9 & 10 Vict. c. 113. See ante, p. 393. m R. V. Fall, 1 G. & D. 117. S. C. 1 Q. B. 633.+ S. 0. 5 Jur. 887. R. v. Keli, 1 Q. B. 660.t S. 0. 1 G. & D. 127. S. C. 5 Jur. 888. R. v. Newbury (Mayor), PLEA, ETC. 433 prosecutor has a verdict on some only of several issues raised upon tra- verses to a return, he is not entitled to the costs of the issues on which he has succeeded, either under stats. 4 Ann. c. 16, 9 Ann. c. 20, or R. H., 2 Wm. 4, (I.) 74, or R. H., 4 Wm. 4, 7, the return not being a pleading in the cause.(»i) . Judgment. — Judgment is given in pursuance of the verdict in the same manner as a judgment after verdict in a personal action, (n) So, it may like such a judgment be amended, quashed, &c.(o) A rule for judgment must not be given. (p) .] Mow Signed. — In all cases of judgments required to be signed on verdicts given at nisi prius, the postea must be produced at the Crown Office, and judgment shall in four days next after return of the distringas, or at any subsequent time be marked thereon by one of the Masters or the assistant Master, unless a rule shall have been granted non obstante veredicto, or to arrest judgment in cases wherein such rules may by the practice of the Court be obtained. (g) In other cases the practice is as in an action on the case for a false return. (r) .] Entry of Proceedings, and Judgment on the Roll. — Formerly it was not the practice to enter the proceedings on the roll, for it was not till 12 Wm. 3, that a rule of Court was made, which ordered that all proceedings in cases of mandamus should be entered of the same *term they came in.(s) But, notwithstanding this rule, it was not L ■' usual to enter up judgment on the return of a mandamus, except in those cases in which peremptory writs issued ;{/) so that prior to the stat. 9 Ann. e. 20, which for the first time allowed a traverse to a return, &c., such entry could be of little practical utility, but after the passing of that sta- tute, when traverses became frequent, and a writ of error thereon could be brought, entries also became frequent, and some care was taken in framing them ;(m) also as since the passing of the stat. 6 & 7 Vict. c. 67,(«)) the prosecutor may demur to the return in order to test its vali- 11 L. J., N. S. 149, Q. B. S. 0. 2 G. & D. 109. S. C. 1 Q. B. 751.+ S. C. 6 Jur. 821. (m) R. t. Malmesbury (Aldermen), 3 G. & D. 482. S. C. 3 Q. B. 511.-f S. C. 6 Jur. nor. S. C. 11 L. J., N. S. 318, Q. B. See Chit. Prac. p. 13'7Y, 8th edit. (n) E. T. Luton Roads, 1 Q. B. Seo.f S. 0. 1 G. & D. 250. S. 0. 10 L. J. R., N. S., Q. B. 263. R. v. Malmeshury (Aldermen), 3 Q. B. 577.+ S. C. 3 G. & D. m. S. C. 11 L. J., N. S. 318, Q. B. S. C. 6 Jur. 1107. (o) As to judgment on demurrer, see ante, tit. " Return" (Demurrer), p. 380. As to judgment by default, see ante, p. 380, 386. (p) See Or. Off. Rul. r. 21, App. (q) See Cr. Off. Ral. r. 20, App. (r) See stats. 9 Ann. c. 20, s. 2, and 1 Wm. 4, c. 21, App. As to -Ireland, see stats. 19 Geo. 2, c. 12, and 9 & 10 Vict. c. 113, App. See ante, p. 383, n. («), (/), 387, n. («), 392, n. (a). (») See ante, p. 2. In R. t. Dublin (Dean), Stra. 539, 542, Fortescue, J. (temp. 9 «eo. 1), says, " entries of mandamuses are of late date ; perhaps in Ireland they ao not enter them yet." See form of entry of traverses in B. v. Fall, 1 Q. B. 636.+ S. C. 1 G. & D. 117. S. C. 5 Jur. 887. (<) Enfield v. Hills, 2 Lev. 239. See a form of entry of a judgment, 1 P. Wms. 351;1Q.B. 649.t W Stra. 542, supra, n. (a). (») As to Ireland, see stat. 9 & 10 Vict. c. 113, s. 6, App. June, 1852.— 28 434 tapping's mandamus. dity, and bring a writ of error thereupon, so it is incumbent, that the writ, return, demurrer, &c., be entered of record as in personal actions, for upon a demurrer to a return it is enacted, by sect. 1, of such act, that the said writ and return, and the said demurrer shall be entered up on record. .] How entered. — The entry roll of the judgment should be com- pleted in accordance with the postea by the attorney of the successful party, and when the costs are taxed, the amount of the Master's allocatur must be inserted in the roll, to which when necessary, a number will be given at the Crown Office, after which it should be carried to the inner treasury department of the Queen's Bench Office, to be there preserved amongst the records of the Court, (w) It would seem, that in accordance with the practice in personal actions,(a;) the roll need not be carried in at once, but may be after any lapse of time. It must, however, be so carried in before it can be used for the purposes of evidence, or before a writ of error can be brought upon the judgment.(y) .] Nunc Pro Tunc. — When a defendant dies before judgment, leave will be, on a proper ease, given to enter up judgment nunc pro tunc.(2) .] As in Case of Nonsuit. — By stat. 9 Ann. c. 20, (extended by stat. ,1 Wm. 4, c. 21), it is declared : that if any material fact contained in a reiturn to a mandamus shall be traversed, such further prdceedings shall be had thereupon, as if an action had been brought *for a L -I false return ; therefore, when the case is ripe for such a step, judgment as in case of a nonsuit may be obtained. (a) .] Non Obstante Veredicto. — Judgment non obst3,nte veredicto may be obtained, as in personal actions, (6) on behalf of either party .(c) .] Motion in Arrest of Judgment. — There may be a motion in arrest of judgment as in the case of personal actions. (cZ) .] Motion for a New Trial. — A rule for a new trial may be moved for misdirection, &c. as in personal actions, (e) (w) Corner's Cr. Pr. p. 236. {x} See Barrow v. Croft, 4 B & C. 388.-|- S. C. 6 D. & E. 386.f M See supra, n. (w). [z) Snook T. Mattock, 5 A. & E. 240,f the practice on this point being identical with that in civil actions. See Chit. Prac. p. 460, 8th edit. (a) Wigan t. Holmes, Say. 110. K. v. Scott 1 D. & L. 212. E. y. Stafford (Mayor), 4 T. E. 689 ; 3 T. E. 661, n. (d) ; and 1 T. E. 492, u. (d) ; 3 B. & Ad. 279,f per Ld. Teuterden, C. J. As to Ireland, see stats. 19 Geo. 2, c. 12, and 9 & 10 Vict. c. 113, App. (b) See stats. 9 Ann. c. 20, and 1 "Wm. 4 c. 21. E. t. Manchester Eailway, 3 G- & D. 269. S. O. 3 Q. B. 533, 538,t where see form of entry ; 3 B. & Ad. 279,1 per Lord Tenterden, C. J. As to Ireland, see stats. 19 Geo. 2, c. 12, and 9 & 10 Vict, c. 113, App. (c) E. T. Darlington School, 6 Q. B. 682, 697.t S. 0. 14 L. J., N. S. 6l, Q. B., where see a form of the entry. (d) Pees T. Leeds (Mayor), Stra. 640. Buckley v. Palmer, 2 Salk. 431 ; stats. 9 Ann. c. 20, and 1 Wm. 4, c. 21 ; 3 B. & Ad. 2l9,f per Tenterden, 0. J. And see 1 East, 555. See stats. 9 Ann. c. 20, And 1 Wm. 4, c. 21 (E.), and 19 Geo. 2, u. 12, and 9 and 10 Vict, c, 113 (L), App. (e) E. T. St. Pancras, 7 A. & E. 752.f See stats. 9 Ann. c. 20, s. 2, and 1 Wm 4, c. 21, (E.), and 19 Geo. 2 c. 12, and 9 & 10 Vict. c. 113 (I.) App. PLEA, El C. 435 . Writ of Error. — As at common law, a writ of error does not lie except upon a judgment, or on an award in the nature of a judgment; tte words, of the writ being, " si judicium redditum sit," &o.,(/) so, it was at an early period held, not to lie to review the decisions or judg- ments of the Court of B. R., or Courts of the Counties Palatine, on the award of peremptory writs of mandamus, consequent upon a verdict in an action for a false return ; because there was no record upon which error could be brought, it being a mere award of the writ j((7) and it was also held that the bringing of a writ of error in such a case, did not operate as a supersedeas to the peremptory writ.(A) Afterwards, by the stat. 9 Ann. c. 20, it was enacted, amongst other things, that in certain cases therein mentioned (municipal ofi&cers), when *a writ of mandamus should issue, and a return should be made raconeT thereunto, it should be lawful for the prosecutor to plead to, or L J traverse, all or any of the material facts contained within such return, to which the defendant might reply, take issue, or demur ; and such further proceedings in such manner should be had therein for the determination thereof, as might have been had if the prosecutor has brought his action, on the case for a false return. In such cases, therefore, where by virtue of the statute the parties resorted to pleadings, a writ of error has been held to lie, if the case were put in a proper train ; because they then as- sumed the form of a personal action in which judgment and costs were given,(i). Subsequently by stat. 1 Wm. 4, c. 21, the above provision of the stat. 9 Ann. c. 20, has been extended to writs of mandamus in all other cases, and to the proceedings thereon ;(/) and, therefore, by virtue of these statutes, error can be brought in all cases, excepting where the prosecutor avails himself of his common law remedy, by action for a false return. Neither of the above acts of Parliament, however, gave to the prose- cutor a power or authority to demur to the return of the defendant, in order that a decision upon it as to its validity could be reviewed by a Court of Error; which being deemed expedient, and that a certain mode of effecting the same should be ordained and established, it is by stat. 6 & (/) Co. Litt. 288, b. Jacques T. Cesar, 2 Wms. Saund. 101, d, n. (1). R. v. York (Mayor) 6 Jur. 1082. (g) Bac. Abr. tit. " Man." 287. Dublin (Dean) v. Dowgatt, 1 P. Wms. 348. R. T. Trinity Chapel (Dean), 8 Mod. 27. S. C. Stra. 536 ; Fort. 329. Dublin (Dean), T. E. 1 Bro. P. C. 73, 2nd edit. R. v. Hearle, Stra. 625, 628. S. C. 3 Bro. P. C. 178. Kynaston v. Shrewsbury (Mayor), Stra. 1051. St. David's (Ep.) v. Lacy, Ld. Eaym. 639, 545. R. v. Clarke, 2 East, 79, 81. R. t. Manchester Railway, 3 Q. B. 539.f S. C. 3 G. & D. 269. But see Dr. Patrick's case, 2 Keb. 259. S. C. Sid. 346, pi. 12. (A) Bull. N. P. 200 ; Bac. Abr. tit. "Man." (M.) ■ M See ante, p. 398, n. {y) ; 6 N. & M. 512,t n. (6), citing R. v. Manor, 3 N. & M. 496.f S. 0. 1 A. & E. 297 jf 1 Bro. P. C. 73, supra, n. (g) ; Bull. N. P. 204. See stat App. As to ]>eland, see stat. 19 Geo. 2, c. 12, App. (.;)See stat. App. R. v. Oundle Manor, 1 A. & E. 283, 297.t S. C. 3 N. & M. ■W,t-and cases there cited. S. C. 1 N. & M. 586.t See ante, p. 7, n. («). The stat. of 1 Wm. 4, c. 21, does not apply to Ireland, but its provisions have been substaatively, enacted for Ireland by stat. 9 & 10 Vict. c. 113, s. 6, App. 436 tapping's mandamus. 7 Viot. e. 67, s. l,{7e) enacted ; that the prosecutor shall impugn the va- lidity of a return by demurring thereto, and by obtaining judgment on such demurrer. It is also enacted by sect. 2 : that whenever any such judgment shall be given, or whenever issue in fad, or in law, shall be joined upon any pleading in pursuance of the recited acts of 9 Ann. c. 20, and 1 Wm. 4, c. 21, or either of them, and judgment shall be given thereon by any of the Courts aforesaid, it shall be lawful for any party to the record in any such cases, who shall think himself aggrieved by such judgment, to sue out and prosecute a writ of error, for the purpose of reversing the same, in such manner and to such Court or Courts, as a party to any personal action in the said Court, may now sue out and prosecute a writ of error upon the judgment in such action ; and such r*qQQi *^^^ ^^^ ^^^^ proceedings shall thereupon be had and taken, and "- such costs awarded, as in ordinary cases of writs of error upon judgments of the said Courts respectively in personal actions ; and if the judgments of such Court be reversed by the Court of Error, the said Court of Error shall thereupon, by their judgment, not only reverse the same, but shall also, in addition thereto, give the same judgment which the Court, whose judgment is so reversed, ought to have given in that behalf; and if by their said judgment they shall award that a peremp- tory writ of mandamus shall issue, the same shall and may accordingly be issued by the proper officer, in the office from which such writs issue, as the case may be, upon production to him of an office copy of the said judgment of the Court of Error, which shall be his warrant for so doing. Provided always, that bail in error, to the amount of fifty pounds, or such other sum as may be by any rule of practice thereafter provided, shall be duly put in within four days after the allowance of the said writ; and the same shall afterwards be duly perfected, according to the practice of the Court wherein the said original judgment was given ; otherwise the plaintiff in error shall be deemed to have abandoned his writ of error, and the same shall not be further prosecuted. (Z) It is also, by sect. 4, enacted : that the said Courts of Error may and are directed to make from time to time, and as often as they shall see occasion, such rules of practice in reference to the said application, and the proceedings thereon, and in reference to the writs of error therein mentioned, and the proceedings thereon, and the amount of bail to be taken, as the said Courts respectively may deem necessary to effectuate the intention of the aet.(m) (i) See Stat. App. The provisions of tlie aboTe statute liaTe been substantively enacted for Ireland by stat. 9 & 10 Vict. c. 113, s. 6, App. [I) York Railway y. Milner, 15 L. J., N. S. 319, Q. B., is a case of error under this Stat. _ (m) No rules have as yet been drawn up under this power, so that the prac- tice of error in cases of mandamus is governed by the above stat. 6 & T Vict. c. 6*7, S. 2. PLEA, ETC. 437 Tlie course of proceedings in error on a mandamus are, as above stated, assimilated to those in error on a judgment in a personal aotion.(»i) .] Joinder in Error. — There must be only one side bar rule to join in error, which must be drawn up and served, (and no peremptory rule given thereon ;) it expires in four days next after service, (o) and on default being made, judgment by default may be signed.(j>) Execution, Writs of.] If no proceedings in error, or otherwise, *whioh operate as a stay of execution, be talcen, writs of execu- r:|ciQf)-| tion for damages and costs, or costs alone, as the case may be, issue as in personal actions. As to execution on a judgment by default, see ante, p. 386, stats. 9 Ann. c. 20, s. 2, and 1 Wm. 4, c. 21 (E.), App. ; and as to Ireland, stats. 19 Geo. 2, c. 12, and 9 & 10 Vict. c. 113, App. As to execution on a judgment on a verdict, see ante, p. 392. As to judgment on a demurrer to a return, see ante, p. 380, 381, 392. Every writ of execution should be tested as of the day on which it actually issues, and may be made returnable either on a day certain in Term, or immediately after the execution thereof; and the party suing forth the same, must indorse thereon the place of abode and addition of the party against whom the same is issued, or such other description of him as such party suing out such writ may be able to give.(g') It has been held, that cases of mandamus under stat. 9 Ann. c. 20, where the parties plead, and damages and costs are given, are actions within the statute 48 Geo. 3, c. 46, s. 5, regulating the costs of writs of execution, and the indorsements thereon. (»•) Peeemptokt Writ op Mandamus.] What. — ^A peremptory man- damus is not a judicial writ founded upon a record, but a mandatory writ which the Court of B. K. grants when it is satisfied of the prosecu- tor's right.(s) .] When, granted. — ^By the stat. 9 Ann. c. 20, s. 2 (extended by stat. 1 Wm. 4, c. 21, to writs of mandamus in all cases,) it is enacted : that where any mandamus shall issue to which a return shall be made, and upon issue joined thereon a verdict be found for the persons suing such mandamus, or judgment be given for them, a peremptory mandamus shall be granted without delay, as if the return had been adjudged insuf- ficient in law. (^i) [n] E. T. Darlington School, 14 L. J., N. S. 67, Q. B. S. 0. 6 Q. B. 682, 70'?.+ bee ante, p. 397, 398. (o) Cr. Off. Rul. r. 18, App. ; the joinder need not be signed by counsel. h] Or. Off. Eul. 1-. 19; and see ante, tit. "Judgment by default," p. 386. }) Cr. Off. Rul. r. 10, App. [A R. v. Glamorgan (Mayor), 2 Smith, 8 ; Chit. Prac. 561, 562, 8th edit. ») Foot V. Prowse, Stra. 698 ; Com. Dig. tit. " Man." D. 6. \t) See ante, p. 7, n. iw) ; Bac. Abr. tit. "Man." (M.) As to Ireland, see stats. 19 Geo. 2, c. 12, and 9 & 10 Vict. c. 1 13, App. 438 TAPPING'S MANDAMUS. By the subsequent act of 6 & 7 Vict. c. 67, s. 1, the prosecutor is empowered to object to the validity of a return by demurrer, upon which the Court is also empowered, if they adjudge that the return is not vahd in law, to award, by such judgment, a peremptory writ shall issue, which may be sued out and issued accordingly, at any time after four days from the signing of such judgment. (m) Also by sect. 2 of the same statute, r*d.ftl 1 ^* ^^ enacted : that where any judgment on demurrer to a *return shall be given, or whenever issue in fact or in law shall be joined upon any pleadings, in pur|uance of the acts, or either of them, recited in such act of 6 & 7 Vict. c. 67, and judgment shall be given thereon, it shall be lawful for any party to the record in any of such cases who shall think himself aggrieved by such judgment, to sue out and prosecute a writ of error ; upon the determination of which the Court of Error is empowered to award a peremptory writ of mandamus, which shall and may accordingly be issued by the proper of&cer in the office from which such writs issue, upon production to him of an office copy of the said judgment of the Court of Error, which shall be his authority and war- rant for so doing. («) As in many cases it is discretionary with the Court whether it will or not grant the rule nisi for the writ, so whether or not a peremptory man- damus shall issue, is in such cases also entirely within its discretion ;(w) such discretion must be, however, honestly exercised, that is, agreeably with justice, and as the interests of the parties litigant seem to require.(a;) Thus, where there appears to be the least right for the plaintiff, a peremp- tory mandamus should be awarded. (y) So the Court will direct a peremp- tory mandamus, though part of the return be unanswered, if such part be immaterial or afford no answer to the writ; (z) but if such unanswered part be material, the Court will refuse the writ,(a!) because the prosecutor in such a case has no right to it; so that if it^appear from the whole of the return that the prosecutor should not have a peremptory mandamus, the Court will not grant one,(6) as where a prosecutor's right to restorar tion to an office has ceased by lapse of time.(c) (u) See ante, p. 399, also stat. in App. As to Ireland, see a similar enactment, Stat. 9 & 10 Vict. c. 113, s. G, App. [v) See ante, tit. " Error," p. 397 ; also stat. 6 & 7 Vict. c. 67, App. As to Ireland, see a similar enactment, 9 & 10 Vict. c. 118, s. 7, Ap. (w) Ante, p. 287, 288, 297. R. v. Baldwin, 3 P. & D. 126. S. C. 8 A. & B. 949.f R. V. GriiHths, 5 B. & Aid. 731.f S. C. nom. R. ». Bristol, &c., 1 D. & R. 389.t (x) See ante, p. 288, n. (^), (i). (y) See ante, p. 9, 10. R. v. Hull, 11 Mod. 391. R. v. Oxon. (Mayor), 2 Salt. 428. Buckley v. Palmer, 2 Salk. 431. Veal's case, Ray. 431. R. v. Cambridge (Mayor), 12 A. & E. 7l4.t S. 0. 4 P. & D. 294. S. C. 10 L. J., N. S. 25, Q. B. (z) See ante, p. 303, n. (l). R. v. Poole (Mayor), 1 Q. B. 616.+ S. 0. 1 G. & D. 728. S. 0. 9 L. J., N. S. 231, Q. B. ia) Clarke t. Leicestershire Canal, 6 Q. B. 898.f (6) 1 D. & R. 389,f supra,'n. (w). R. t. Featherstonbaugh, Burr. 530. R. v. Newcastle, Bull. N. P. 203, 207. R. v. Campion, 1 Sid. 44. R.t. Axbridge, Cowp. 623 ; 2 T. R. 81. R. v. Richardson, Burr. 530, 534. R. t. Lyme Regis, 1 Doug. 157. R. V. Tidderley, 1 Sid. 14. R. v. Rippon (Mayor), Salk. 433. S. C. Ld. Raym. 563. Bassett t. Chichester, 1 Sid. 286. R. v. Twitty, 7 Mod. 83, n. (a). S. 0. 2 Salk. 434. S. C. Holt, 442. Com. Dig. tit. " Man." D. 5. (c) See ante, p. 192, n. (e). PLEA, ETC. 439 A peremptory writ will also be awarded if the matter of a return be *for any cause insufficient in substance. (d) So, if the return be j.^.(.n-. for any cause quashed(e) or falsified, in an action for a false re- L J turn in the Court of B. R.,(/) or on a feigned issue. («/) The Court will not, however, grant a peremptory writ, though the re- turn to the writ fail, or be objectionable either in point of form or sub- stance, if the facts stated on the return justify the Court in refusing such writ as a matter of discretion. Thus where the return to a writ to rein- state in a municipal office, disclosed that the prosecutor had been removed for non-residence, and that he had accepted another incompatible office. (A) So the Court will refuse to issue the peremptory writ in any ease in which it is dear the writ, if issued, cannot have any useful effect,(i) or where the object of the writ is illegal,(_/) or where the prosecutor has no title to such writ.(A;) So the peremptory writ will be refused, if the writ upon which it is founded be substantially defective. (?) Thus a peremptory mandamus cannot be limited, but must be in exact accordance with the writ upon which it is founded ; *so if such writ be bad, the Court r^fAno-i will refuse to grant a peremptory mandamus thereupon, (m) A peremptory mandamus sometimes goes by consent on withdrawal of the return by leave of the Court,(M) ante, p. 367. ;■ (£} See ante, p. 1, n. (w), 358, 380 ; 3 Bl. Com. Ill ; Bac. Abr. tit. " Man." (M) ; Ktzherbert Nat. Brev. 330, E. R. v. Patrick, 2 Keb. 168, per Keeling, C. J. R. v. Li¥erpool (Mayor), Burr. 736. R. v. Doncaster (Mayor), Burr. 145. B. t. Ouze Bank (Commrs.), 3 A. & B. 544.f R. v. Lyme Regis, 1 Doug. 85. R. v. Oion. (Mayor), 2 Salk. 429, 435 ; Com. Dig. tit. " Man." D. 5, D. 6 ; Stra. 559. See ante, tits. "Error," "Return" (Quashing, Demurrer). (e) See ante, p. 369. B. v. Leicester (Mayor), Burr. 2089. R. t. York (Mayor), 5T. R. 69. R. T. Norwich (Mayor), Ld. Raym. 1244. R. v. St. Bartholomew Parish, 2 B. & Ad. SOe.f R. v. Bristol Dock, 6 B. & C. 193.+ S. C. 9 D. & E. 309.1 R. T. Dr. Harris, Burr. 1421. S. C. 1 W. Bl. 430. (/) Wright V. Sharpe, U Mod. 175. S. C. 1 Salk. 288. S. 0. Holt, 301. Buck- ley T. Palmer, 2 Salk. 430 ; Com. Dig. tit. " Man." D. 6. See stat. 9 Ann. c. 20, b. 2, and 1 Wm. 4, c. 21, App. ; Bac. Abr. tit. " Man." (M.) Enfield v. Hills, 2 Lev. 238. See post, tit. " Action, &c., for False Return." {d) R. t. Harris (Dr.), Burr. 1423. S. C. 1 "W. Bl. 430. M. 24 Geo. 3, Gude's Or. Pr. 201. See post, p. 412. [h] See ante, p. 192, 196, 131. R. t. Bristol (Mayor), 1 D. & R. 389.t S. C. nom. R. V.Griffiths, 5 B. & A. '?31,-|- and see R. v. Bank of England, 2 B. & A. 620 ;f Bull. N. P. 207. (i) See ante. p. 15, (v), (w), (x) ; Bac. Abr. tit. "Man." (M.), citing R. v. Griffiths, 6B. & A. 731.f R. V. Luton Roads, 1 Q. B. SeCf S. C. 1 G. & D. 250. R v. Manchester Railway, 3 Q. B. 533.f S. C. 3 G. & D. 369. (j) See ante, p. 16. R. v. St. Pancras (Parish), 3 A. & E. 541, 542. S. C. 5 N. &M. 222.f ^ ' [k] See ante, p. 21, 28, 288, 320. R. v. Tidderley, 1 Sid. 14. Basset v. Barn- staple (Mayor), 1 Sid. 286. R. v. Lyme Regis (Mayor), 1 Doug. 84. R. v. Raines, 3 Salk. 233. Clarke t. Leieestersh. Canal, 6 Q. B. 898.+ Bassett v. Chichester, 1 Sid. 286; Bac. Abr. tit. "Man.",(M.) n. (I) See ante, p. 305, n. () R. V. Heathcote, 10 Mod. 56. S. C. Port. 290, and cases there cited. (w) See Stat. App. As to Ireland, see stat. 9 & 10 Yict. o. 113, App. See post, tit. "Abatement," p. 410. 441 ] Eow obtained. — It has been shewn, (as) that at common law, if the defendant returned a legally sufficient cause why he should not exe- cute the duty, &o. commanded by the mandatory clause of the writ, although such cause may have been false in fact, yet the Court would not try the truth of such return, upon affidavits, but in the first instance assume it to be true, and decline to proceed further upon the mandamus, which course compelled the prosecutor, if the return were false, to shew such falsity by the extraneous proceeding of an action on the case for a false return, and that if it were found by the jury to be false, the prose- cutor not only recoyered damages equivalent to the injury sustained, but also if such action had been brought in the Court of B. R., had awarded to him a mandamus, peremptorily commanding the defendant to do his duty, &c. It is therefore clear that as the proceedings on the mandamus were terminated by the return, and as the proceeding by action for a false return, was altogether collateral to the mandamus, and & peremptory m&n- damus no part of the judgment in such an action, the prosecutor could only obtain such last-mentioned writ on an application to the Court, by way of motion, supported by affidavits of the falsity of the return, and the production of the postea, &c. By Stat. 9 Ann. c. 20, s. 2,(»(') which, although it introduced, as to municipal offices, a traverse, &c., to the return, yet' merely directed the traverse, &c., and subsequent proceedings, to be the same as if the prose- cutor had brought his action on the case for a false return ; it therefore followed that as a, peremptory mandamus did not, as we have just seen, form part of the judgment in such an action; so under this statute, the prosecutor, if he recovered a judgment, was obliged to obtain the peremp- tory writ on motion to the Court, supported by affidavits of the facts of his ease, whereupon the act directs that such peremptory writ shall be granted to him without delay. By Stat. IWm. 4, c. 21, s. 3,(^y) the enactments of the 9 Ann. c. 20, *relating to returns to the writs of mandamus therein mentioned, rHc^riK-i and the proceedings thereupon were extended to all other writs of mandamus; therefore for all cases within this clause of the statute, the prosecutor was and is obliged, after he has obtained judgment, to move the Court, as before stated, for his peremptory writ. Also section 4 of the same statute, which provides for the protection of certain officers to whom writs of mandamus in certain cases are directed, against the damages or costs thereof, enacts : that if any judgment shall be given for or against the party suing such writ, such judgment shall be gtren against or for the person or persons on whose behalf the return shall he expressed to be made, and who shall have the like remedy for the re- covery of costs, and enforcing the judgment, as the person to whom the iA Ante, p. 6, n. (r), and see post, tit. " Action, &c., for false return." y) See Stat. App. As to Ireland, see stat. 19 Geo. 2, c. 12, App. yy) See Stat. App. As to Ireland, see stat. 9 & 10 Vict. c. 113. See ante, p. 6,ii.H383,n. (/), 393,u. (e). 442 TAPPIKQ'S MANDAMUS. writ shall have been directed, might or otherwise would have had. So that all 'successful prosecutors within this section are compelled to adopt the common law means of obtaining the peremptory writ, namely, by mo- tion, supported by affidavits. However, by stat. 6 & 7 Vict. c. 67, s. l,(z) which ordains, that the prosecutor, in order to object to the validity of a return to a mandamus, must demur thereto, provides, that if the Court shall adjudge " that the return is not valid in law, then and in every such case they shall also, by their said judgment, award that a peremptory mandamus shall issue in that behalf, and thereupon* such peremptory writ of mandamus may be sued out and issued accordingly at any time after four days from the signing of the said judgment." Therefore a prosecutor, who success- fully demurs to a return, and obtains a judgment quashing it, is saved the common law inconvenience of making an application to the Court for the peremptory writ, because the Court directs it, by its judgment, to issue. Also by sect. 2, of the same statute,(a) which provides a vrrit of error upon judgments upon either fact or law, in cases of mandamus, also directs, that if the Court of Error, by ihsir judgme7it, shall award that a peremp- tory writ shall issue, the same shall and may accordingly be issued by the proper officer, in the office from which such writs issue, as the case may be, upon production to him of an office copy of the said judgment of the Court of Error, which shall be his authority and warrant for so doing. Thus, in cases of judgment for the prosecutor, on a writ of error, he is relieved from the common law inconvenience of making a separate appli- cation for such writ. r*40fi1 *"'"'^ ^^^ above cases of demurrer to the return, and a writ of I ,, error, the enactments above set forth, shew how the peremptory writ is obtained and issued, it remains therefore to state more specifically than has been done, how such writ is obtained, when the proceedings are by motion at common law. .] Motion where and when made. — The writ must be moved for in the Court of B. E. at Westminster. (6) After judgment for the prosecutor, a rule nisi for a peremptory manda- mus is granted on motion, supported by an affidavit of the facts, and read- ing the mandamus, return, traverse, entry of postea, &c.(c) Four days must have elapsed after the return of the postea, because the defendant has so long to move in arrest of judgment, &o.{d) (z) See stat. App., and ante, tit. " Return'' (Dennurrer), p. 375 — 381. As to Ire- land, see a similar enactment 9 & 10 Vict. c. 113, s. 6, App. (a) See stat. App., and also ante, tit. " Error," p. 397 — 399. As to Ireland, see a similar enactment stat. 9 & 10 Vict. c. 113, s. 6, App. (b) Ante, p. 5, n. (/), 296, n. (t). (c) E. V. Baldwin, 8 A. & E. 949.+ S. C. 3 P. & D. 124 : Bae. Abr. tit. "Man." (M.), n. ; Skin. 669, pi. 1. (d) Bucliley v. Palmer, Holt, 440. S. 0. 2 Salk. 430, 431. Bac. Abr. tit. " Man." (M.), Enfield v. Hills, 2 Lev. 238. PIiEA, ETC. 443 The peremptory writ must not be moved for^ nor will the Court award it until the proceedings on the first mandamus are complete/ and there is iudgment upon the whole record, for it cannot he awarded on part of a record ; thus where a mandamus issued, which commanded payment of two distinct sums, the return to which writ the prosecutor traversed, and the issues found for him as to one sum, and substantially in his favour as to the other, but as a rule nisi had been obtained to enter a verdict as to the latter, the Court refused to award a peremptory mandamus to enforce payment of the first sum, pending the rule as to the second. (e) So if the meremptory writ should be obtained before judgment signed, the Court, on motion, will set it aside, with costs. (/) The prosecutor need not, how- eter, delay the motion for the peremptory writ, until the judgment shall he entered up formally.(^) The Court will grant a peremptory mandamus, after judgment, for the plaintiff, in an action for a false return, notwithstanding a bill of exceptions was tendered at the trial ; if, however, a rule for a new trial has been ob- tained, it is otherwise ; for such a rule stops the issuing of the peremptory writ. (A) So pending a writ of error in an action for a false return, the Court will not grant a peremptory writ.(t) But if judgment *for ri^An'ji the defendant in an action for a false return, be reversed in the Exchequer Chamber, or in the House of Lords, a peremptory mandamus will be awarded of course, without any express judgment.(y) The mere production of the postea falsifying the return, has been held sufScient to support a motion for the peremptory writ.(/c) Such action for a false re- turn must, however, have been brought in the Court of B. R., because as the peremptory writ recites the fact prout constat nobis per recordum, that cannot be said of the records of an action in another Court, of which the Court of ]B. R. cannot take notice. (Z) -^ — .] Rule Nisi and Absolute. — The rule nisi is argued and made absolute, or disposed of as an ordinary rule.(m) The Court will sometimes grant a peremptory writ, but restrain the ' issuing thereof until a particular day, in order that the Court may in the mean time consider the case more fully, (m) (e) Enfield t. Hills, 2 Lev. 238. R. v. Baldwin, 8 A. & E. Ul.f S. C. 3 P. & D. 124 S. C. 1 W. W. & II. 681. See 2 Salk. 428, 438. Foot v. Prowse, Stra. 697. E. T. Lutton Roads, 10 L. J., N. S. 263, Q. B. S. C. 1 G. & D. 248. S. C. 1 Q. B. 860.f See stat. 9 Ann. c. 20, s. 1, App. (/) Supra, n. (e). Neale v. Bowles, 1 H. & W. 584. m Poote v. Prowse, Stra. 697. Coin. Dig. tit. " Man." D. 6. [h] Wright T. Sliarpe, 11 Mod. 175. S. C. 1 Salk. 288. S. C. Holt, 301. Buck- ley v. Palmer, 2 Salk. 430, and cases there cited. Eilfield v. IIlUs, 2 Lev. 238. S. C. Sir T. Jon. 116. (») Huding T. Newel, Stra. 983. Com. Dig. tit. " Man." D. 6. Bac. Abr. tit. " Man." b'J Foote T. Prowse, Str. 697. Com. Dig. tit. " Man." D. 6. (Ic) Tall T. Reg., 2 G. & D. 809. S. C. 1 Q. B. 656.-1- Foot v. Prowse, Stra. 697, 698 i 5 Bac. Ahr. 287, " Man." (M.) Bac. Abr. tit. " Man." (M.) [l) Anon., 2 Salk. 428. S. C. Ld. Baym. 125, nom. Green v. Pope. S. C. Comb. »I10. ^ S. C. Skin. 670. Com. Dig. tit. " Man." D. 6. m) See ^.nte, p. 295—306. (i) R. T. Tappenden, 3 East, 191. Bac. Abr. tit. " Man." (M.) 444 tapping's mandamus. -.] When Writ peremptory in first Instance. — A peremptory writ of mandamus is seldom awarded in the first instance,(o) and never as against those, not parties to the proceedings.(p) Thus, the Court has refused a peremptory writ to the master of college to remove A. B. &c., because they were not made parties to the first writ.(2) In cases of great urgency however, the Court will grant a peremptory writ in the first instance without waiting for a return. Thus, where a gaoler refused to deliver up the body of a person, who had died while a prisoner in execution in his custody, to the executors of the deceased, the Court issued a mandamus peremptory in the first instance. If in such a case the defendant have any answer to the writ it may be given, not by way of return, but in shewing cause why an attachment should not issue. (r) Notice of the motion for the writ should be given to those against whom it is sought, (s) So as to elections to municipal offices un- der Stat. 6 & 7 Vict. c. 89, s. 5.(i!) .J Form, of Writ. — ^In form the peremptory writ is the same as *the writ upon which it is founded,(M) except that it not only has L -' not the alternative sentence, namely, vel causam nobis significes, or si ita est, &c., or si vobis constare poterit, or sicut informamur, &c., but has the word "peremptorily" inserted in the mandatory clause,(i') it therefore peremptorily commands the doing of the act, &c. As to whom the peremptory writ is to be directed in cases within the stat. 1 Wm. 4, c. 21, s. 5, see ante p. 313. (lo) .] How issued. — The peremptory writ is prepared and engrossed, and signed and sealed at the Crown Office, and served the same as the former writ,(a;) also if there have been a mistake in the service of the peremptory writ, the Court will allow a new one to issue. (y) A side bar rule may be had to return it as before mentioned,(«) and upon an affidavit of personal service of the writ, the Court will grant an attachment for contempt, against the party or parties who have been served with the writ or copies thereof, for refusing to pay obedience to such peremptory writ, (as) .] Return. — The Court will nofhear a return to a peremptory (o) R. T. Eye (Mayor), 9 A. & B. e^e.t S. C. 2 P. & D. 348. S. 0. 8 L. J., N. S. U2, Q. B. (p) R. T. Baldwin, 8 A. & E. 949.f S. C. 3 P. & D. 124. (?) R. T. St. John's Coll., Skin. 549. (r) R. T. Fox, 2 Q. B. 246.1 S. 0. 1 G. & D. 566. nom. In re Wakefield (Bailiff). S. 0. 11 L. J., N. S. 41, Q. B. S. 0. nom. In re Jewison, 5 Jur. 989. See R. t. Bye (Mayor), 9 A. & E. BTe.-l- See also In re Long, 14 L. J., N. S. 23 Q. B. S. C. 14 L. J., N. S. 144, Q. B. («) Anon., 1 Barn. 22T. {t) See stat. App. (u) Ante, p. 308—331. As to direction, see R. t. Ipswich (Bailiffs), 2 Salk. 435. S. C. Ld. Raym. 1233. (v) See ante, p. 326. R. v. St. John's Coll., Skin. 359. S. C. Holt, 436. Iw) See stat. App. As to Ireland, see stat. 9 & 10 Vict. c. 113, App. (x\ Gude's Cr. Pr. 186. See ante, p. 330, and see ante, p. 405, n. (2), 406. (y) Lyme Regis T. 20 Geo. 3, Gude's, Cr. Pr. 191. («] Ante, p. 344 ; Gude's Cr. Pr. 186. (a) R. T. Salop (Churchwardens), Bull. N. P. tit. " Man." p. 198 ; Gude's Or. Pr, 186. See post, tit. " Attachment." PLEA, ETC. 445 nandamns, though it state an attempt made to comply with the writ, and ;he causes by which it was frustrated, a return not being in general re- jeivable to such a writ. (6) If, however, the circumstances of the case re- luire it, the Court will quash the peremptory writ, and allow a defendant to make a return to the first writ.(c) There should, however, be a leturn in the nature of a certificate, alleg- ing that the writ has been complied with, and such a proceeding is a ne- cessary one, and if not filed the Court will grant an attachment, (c?) . ]. Setting it aside, &c. — If the peremptory writ have prema- turely or improperly issued a rule to set it aside, or quash it with costs may be obtained on motion.(e) So, if it have been unnecessarily issued. (/) *So, if the peremptory writ be upon the face of it bad in substance Buch insufficiency will form a valid answer to a rule for an attach- L -' ment against those who have refused obedience to it.(5') The role to quash or set aside the writ is put into the Crown paper on a rule for a concilium, which rule should specify the day on which the case will be put into the paper for argument, and should be drawn up and served six days at least before such day if the venue be within forty miles of London, and eight days in all other cases. (A) — — .] Amendment of Writ. — As to amendment generally, see title Writ [Amendment), ante, pp. 334, 335. The Court, as we have seen, has power to and will for the purposes of justice mould the rule for a mandamus, (i) but cannot remould the writ after it has issued, and award a peremptory mandamus in a more limited or other form than the original mandamus, the peremptory writ must go ia the terms of the original writ or not at all.(/) (J) Holt, 446. E. T. Poole (Mayor), 1 G. & D. Y28. S. C. 1 Q. B. 616.+ S. 0. 9I,.J.,N.S. 231, Q. B. (c) E. T. Owen, Skin. 669, cited in 5 Bac. Abr. 281, nh edit., tit. "Man." (A.) R. T. Luton Eoads, 1 Q. B. 860.f S. C. 1 G. & D. 250. See infra, n. (e). (rf) See ante, p. 346, and supra, n. (a); Gude's Cr. Pr. 186. R. v. Milverton (Manor), 3 A. & B. 286,t n. [d ) ; Bull. N. P. 201. (e) See ante, p. 335, 336. R. t. Baldwin, 8 A. & E. 94'7.t S. C. 3 P. & D. 124. S. C. 1 W. W. & H. 681. In re Long, 14 L. J., N. S. 146, Q. B. See supra, n. (c) (/) Hogg T. King's Lynn (Mayor), T. 24 Geo. 3 : Gude's Or. Pr. 192. See ante, p, 335, 336. [g) E. T. Poole (Mayor), 1 G. & D. '728. S. C. 1 Q. B. 616.-f- S. 0. 9 L. J., N. S. 231, Q. B. See post, tit. " Attachment," and ante, p. 335—339. il] Cr. Off. Rul., r. 22, App. See ante, p. 335, 336. (i) See ante, p. 305, u. [g], 313, n. (w), 323, n. [t). [j) E. T. St. Pancras, 5 N. & M. 219.t S. C. 3 A. & E. 535.f See R. t; Leices- ter (J.), T D. & R. 393.t S. C. 4 B. & C. 891.t E. v. West Riding (J.), 5 Q. B. l.f S. C. 3 G. 4 D. no. S. C. 1 D. & M. 590. S. C. 12 L. J., K. S. 148, M. 0. 44S tapping's mandamus. [*410] *CIIAPTEE. THE EIGHTH. OP VAUIOTJS PROCEEDINGS OP OCCASIONAL OCCUIIRENCE, AND ALSO OP THE SUBJECTS OF COSTS AND ATTACHMENT. Having treated of the ordinary proceedings of a writ of mandamus, from the commencement to the award of the peremptory writ, we now proceed to notice a few 'incidents of occasional occurrence, with which a mandamus case is sometimes varied, and also of the subjects of costs and attachment. Abatement of Weit - 410 Costs — Against whom granted Imteepleadee . 411 Justices • - - 418 Special Case - 411 Inhabitants, &c. - - 418 Costs . 411 Officers, &c. - - 419 Feigned Issue . 412 How obtained - - 419 Bill of Exceptions - 412 Motion for . - 419 Aebiteation 412 Affidavits - - 420 Affidavits 413 Rule nisi - - 421 When required 413 Security for costs . - 421 How entitled - - 413 Forma Pauperis - - 421 Body of Affidavit - - 413 Taxation - 421 Jurat - 414 Attachment. Filing 415 Nature of - 421 Amendment of - 415 When granted - - 422 Costs. How obtained - - 423 When granted . - 415 Motion - 423 Against whom granted - 418 Eule nisi - i 423 Bishop - 418 Shewing cause - 423 Corporation Municipal - 418 Writ, form of - 424 Abatement of Writ.] By stat. 9 Ann. c. 20, s. 1, it is enacted, that the prosecutor may plead to or traverse all or any of the material facts contained within the return, to which the defendant shall reply, take issue or demur, and such further proceedings, and in such manner be had therein for the determination thereof as might have been had if the pro- secutor had brought his action on the case for a false return -jQc) therefore, the rules of law and practice as to abatement by death, &c., *in L -■ cases of mandamus are the same as in personal actions.(?) Also by stat. 1 Wm. 4, c. 21, s. 5,(m) it is enacted that in case the return to any writ within the purview of that act, be expressed to be made on behalf of any .person other than him to whom the writ is directed, such writ or the proceedings had thereupon, shall neither abate nor be discontinued by the death or resignation of, or removal from office of the person making such return, but the same shall and may be continued and carried on in the name of such person, and if a peremptory writ shall be awarded the same shall and may be directed to any successor in office or right to such person. (k) See stat. App. As to Ireland, see stat. 19 Geo. 2, c. 12, App. (I) See Chit. Prac. 1406—1409, 8th edit. (m) See stat. App. As to Ireland, see stat. 9 & 10 Vict. c. 133, App. VARIOUS PROCEEDINGS. 447 Interpleader.] The law and practice of interpleader in personal actions, are by stats. 1 Wm. 4, c. 21, g. 4, and 1 & 2 Wm. 4, c. 58, s. 8 (n) made applicable to cases of mandamus. Special Case.] Tlie Court will, on shewing cause upon the rule nisi for the writ, by consent order such rule to be enlarged, and direct that in the meantime, the facts upon which it would have been argued shall be stated in a special case for their opinion, the decision upon which to decide wliether the rule nisi shall be made absolute, or not.(o) So after a re- tum,ith'e Court will, on motion to quash the writ for insufBcienoy, by con- sent direct the facts to be stated in a special case, the result of the argu- ment upon which to determine whether the peremptory writ shall be granted, or not.(p) So a verdict may be found upon a feigned issue, or upon a traverse, &c.,(2) subject to the opinion of the Court upon a special case.(r) For the preparation and conduct of a special case, see Chit. Praot. 807, 8th edit. .] Costs. — The party in whose favour the Court gives judgment on a special case, is entitled, under stat. 9 Ann. c. 20, s. 2, to such costs as he would have obtained in an action for a false return. (s) *&IGNED Issue.] The Court will, upon shewing cause upon ^^ / -. n-i the rule for the writ, by consent order the rule nisi to be enlarged, and direct (as the cheapest and best course) that, in the meantime, the matters in dispute shall be tried by feigned issue, the verdict upon which to decide the fate of the rule.(«) So the Court will direct it where facts are disputed by a return. («) K consent be withheld by either party, the Court will determine the rule against the party so withholding it.(u) A verdict may be found on a feigned issue, subject to a special case.(M>) M See Stat. App. See Chit. Prac. 1211, 8th edit. As to Ireland, see stat. 9 & 10 Vict. c. 113, App. (o) R. -v. Nene Outfall (Commrs.), 9 B. & C. 876.f R. v. Drake, 6 M. & S. 116. E. T. Baker, 7 A. & E. 502.f S. 0. 2 N. & P. 375. R. v. House of Correction (GoTernor), 2 N. & M. ISS.f [f) B. f. London Dock, 5 A. & E. les.f S. C. 6 N. & M. 390,f where see form of case. E. t. Stafford (Marquis), 7 East, 521. See infra, u. (u). (?) R. Y. Kelb, 12 A. & E. 559.t S. C. 4 P. & D. 185. R. v. St. Andrew's Parish, 13 L. J., N. S. 341, Q. B. (f) Snook T. Mattock, 5 A. & E. 239,f post, p. 412, n. (w). R. v. London (Mayor), 9 B. & 0. 8.t S. C. 4 M. & R. 54, 55. See ante, tit. " Trial," and stat. 3 & 4 Wm. i, 0. 42, s. 25. (») R. .. Kelb, 1 Q. B. 607.t S. 0. 1 G. & D. 127. S. C. 9 L. J., N. S. 362, Q. S. See generally as to costs, tit. " Costs," post, 415. (i) E. T. West Riding (J.), 12 East, 117. R. v. Paddington Vestry, 9 B. & C. ^^ E. T. "Winchester (Commissary), 7 East, 578. R. v. Blooer, Burr. 1044. R. T. Barker, Burr. 1269. R. t. Cheshunt Roads, 5 B. & Ad. 439,t n. (a). And see 8 A. &E.562.f E. V. London rEp.), 1 T. R. 333, 334. R. v. Guy, 6 Mod. 89. Sau- djB T. Sandys, 1 Q. B. 316.t The practice as to feigned issues in cases of mandamus is the same as in ordi- aary cases. See Chit. Prac. 807—813, 8th edit. m R. T. Thames Commissioners, 5 A. & E. 815. f "JR. y. Bedford Level, 6 East, 369, 370. S. C. 2 Smith, 535. (w) Snook v. Mattock, 5 A. & B. 239.+ R. v. West Riding (J.), 12 East, 117 . Seeante,p.411,n. (r). ' b v /; i 448 tapping's mandamus. If a mandamus be not returned, because the mayor and others to whom it is directed are of different opinions, the Court, instead of granting an attachment, will by consent direct the right to be tried by a feigned issue.(x) But before the Court will allow a feigned issue, it will see that there is some good ground for it ; it will not be granted merely for ask- ing,(y) because it usually directs the peremptory mandamus to stay, until after the determination of the feigned issue. (z) Bill op Exceptions.] By virtue of the stat. 9 Ann. c. 20, extended by stat. 1 Wm. 4, c. 21, the law of " Bill of Exceptions," as it obtains in personal actions, is applicable to cases of mandamus ;(a) but it has been held, that the mere tender of a bill of exceptions at the trial, is no cause for staying the granting of the peremptory writ after judgment for a false return. (6) ' Arbitration.] Sometimes the matters of a rule for a mandamus are referred to arbitration, and when such is the case, the proceedings are the same as in personal actions, (c) * Affidavits.] It is not within the scope of this Work to treat L J of affidavits in general, ((^) but merely to state such variations from their form in personal actions, as are necessary to render, them applicable to the cases of mandamus. .] When required. — In all cases where the prosecutor is entitled to the writ ex debito justiti», as a mandamus to restore to an office, the Court never requires affidavits of the facts, although it is usual to have the facts deposed to ; but where the application is to the discretion of the Court, it expects and requires an affidavit.fe). .] How entitled. — The affidavits for the application for the writ may be entitled, "In the Queen's Bench/' but should not have any other heading as of the cause, or otherwise ; for at the time the rule is moved for, there cannot be a cause in the Court : (/) after there is cause in Court, the affidavits must of course state it, and correctly. Thus, where a writ applied for by the Earl of Radnor, was directed to the trustees of a turn- [x] Ante, p. 342, n. (g). B. t. Rye (Jurates), Burr. Y98. S. G. 2 Ld. Ken. 485. Com. Dig. tit. "Man." D. 6. {y) E. T. London (Ep.), 1 T. R. 334. (z) See tit. " Peremptory Writ." R. v. Dr. Harris, 1 "W. Blac. 431. S. C. Burr. 1420, 1423, where see form of rule. See also R. v. Dr. Hay, 1 W. Blac. 640. S. 0. Burr. 2295. Bac. Abr. tit. " Churchwardens," (A.) Com. Dig. tit. "Man." (D.) (a) See stat. App. As to Ireland, see stat. 19 Geo. 2, c. 12, App. (b) R. ,. Sharpe, 11 Mod. 175. (c) See stats. 9 Ann. c. 20, extended by 1 Wm. 4, c. 21, App. As to Ireland, see stats. 19 Geo. 2, c. 12, and 9 & 10 Vict. 113, App. In re Palmer, 9 A. & E. 463.t S. C. 1 P. & D. 492. See Chit. Prac. 1461, 8th edit. id) They will be found treated at large. Chit. Prac. 1445, 8th edit. (e) See ante, p. 287, 288, 292, 293. R. t. Cory, Holt, 439. See the several titles throughout the alphabetical series. (/) R. V. Warwicksh. (J.), 5 D. 382. Ex parte Nohro, 1 B. & C. 26T.t K- T. Hare, 13 East, 188. Kennet v. Avon Canal, 7 T. R. 451. VAKIOUS PROCEEDINGS. 449 ike road, it was held, that an affidavit entitled " The trustees of the H. oads, on the prosecution of the Earl of Eadnor," was improperly entitled, nd eould not be read.(g') The rule as to entitling affidavits is this, that although affidavits in sup- loit of an application for the rule need not be entitled where there is no lause in Court, yet that affidavits in answer must be entitled in the same fay as the rule is, which they are produced to oppose. (A) ■ .] Body of Affidavit. — The matter of every affidavit must be in icoordance with the facts of each case, and such facts should be stated nth certainty and precision, and be sufficient in substance to support the notion.{i) As to the substance or body of the affidavit, it is sufficient to state lenerally the title of the applicant,(y) his right, or the wrong for which ^he seeks redress, and shew that he has complied with all the forms j.^.-. .-. lecessary to constitute such right. (A) It must also shew the juris- iiction of the Court, and the legal obligation of the party against whom Ihe motion is made, to do the act, or discharge the duty,(Z) and in what Bharacter it is required of him,(m) the demand and refuisal, where neces- sary,(?i) and the absence of any specific legal remedy, (o) The Court of B. K. will presume omnia rite acta, in pursuance of a mandamus granted, in the absence of affidavits shewing the irregularity. So that, m such a case, if the proceedings be regular, there is no need of iffidavits shewing such regularity. (^) The Court will make the rule for the writ absolute, although the affida- vits on which the rule nisi is obtained, contain misrepresentation, scandal, and also suppress certain facts, if sufficient remain unanswered to shew a necessity for the writ.(g') {}) E. T. Hamham Eoads, 5 Jnr. 408. R. v. Great Western Railway, i D. & M. «1. S. C. 5 Q. B. 597.+ S. 0. 1 D. & L. 874. And see tit. " Costa" (Affidavits), post, p. 415. ^ " (A) In re Grantliam, 4 D. & L. 427. (•) BuU. N. P. 196. E. T. Pickles, 3 Q, B. 599.+ R. t. London (Mayor), 5 B. & Ad.233,237.t K. V. Sargent, 5 T. R. 466. R. v. Cumberland (J.), 4 A. & E. 696,t n. (o). R. v. Bateman, 4 B. & Ad. 554.+ R. v. Jotham, 3 T. R. 577. See tte general form of an affidavit, R. t. Merchant Taylors, 2 B. & Ad. 115.f (;) See ante, p. 320, 322. R. v. Eastern Connties Railway, 10 A. & E. 531.t S. Y,t -^ D. 48. S. C. 1 Rail. Cas. 509. R. v. Jotham, 3 T. R. 577, and see Burr. 1265. E. T. Frost, 8 A. & E. 822.+ S. C. 1 P. & D. 75. S. C. 1 W. W. & H. 664. K. T. Warwicksh. (J.), 6 Q. B. 751.-J- (k) See ante, p. 294 ; 3 T. R. 577, supra, p. 294, n. (a). R. T. Bateman, 4 B. & Ad. nt c • ^' ^'^"' 4 B. & C. 899.t S. C. 7 D. & R. 393.+ (() See ante, p. 322. Ex parte Duffield, 3 A. & E. 617.+ R. v. Oxford (Ep.), 7 East, 345; Bull. N. P. tit. "Man." W See ante, p. 292, n. (m). R. v. West Looe (Mayor), 3 B. & C. 683.+ S. C. 5D&R.690.t S. C. 2 D. ^ R. 181.t ^ ' " ' si rt T. Borough of St. Ives, Bull. N. P. 195. R. v. Bristol Railway, 7 Jur. 233. the affid • ™^ "^"^^1> P- 282. See each title as to any particular requisites in (») See ante, p. 294, ,i. (d), 323. 4SnY o n Nottingham Old Waterworks, 6 A. & E. 370, 371.+ S. C. 1 N. & P. *»0-t S.C.1W. W. &D. 166. (?) hee ante, p. 303, a. (l), R. v. Payn, 1 N. & P. 524.+ S. C. 6 A. & E. 393.+ Jdhe, 1852.— 29 450 TAPPING'S MANDAMUS. Supplemental affidavits maybe used, and frequently are ; (»•) but an omission in the prosecutor's affidavits, may be supplied by a reference to those of the defendant, (s) .1 Jurat. — The form of the jurat is the same as that portion of an ordinary affidavit in a personal action. It has, however, been settled, that affidavits not entitled " In the Queen's Bench," and sworn before A. B., a commissioner, &c., without stating him to be a commissioner of such Court, cannot be read ; but those sworn in Court, or before a Judge of the Court, though not entitled in the Court, may be read.(<) So when sworn before a commissioner, the jurat must contain the place where sworn, otherwise it cannot be read.(M) *The affidavits need not be stamped.(z)) L J .] Filing. — The affidavits should, as on motions in civil cases, be filed, and under special circumstances, or in the case of enlarged rules, the Court will name a time before which all affidavits intended to be used must be filed, (w) Office copies of such affidavits may be obtained at the Crown Office, on payment of 2s. Qd., if under five folios, and of 6rf. per folio, if over that sum.(x) Affidavits, although they have been once used and filed, may be again used, on any subsequent occasion, in the same matter,(y) by or against either party.(2:) Thus, where a rule nisi is discharged, and an application in another form is made, the affidavits upon which the first rule was moved, may be used and read. (a) .J Amendment of. — The Court will, on motion, and a proper case shewn, allow the prosecutor to enlarge the rule for the writ until the fol- lowing Term, and in the mean time to amend the title of an affidavit, on which the rule was obtained ; and for that purpose to take it off. the file, and reswear it on payment of costs, the defendant having leave to file affi- davits in reply. (6) Costs.] When granted. — As to costs after verdict on a traverse to a S. C. 1 W. W. & D. 142. The rule which prevails when a criminal information is moved for does not apply to applications for a mandamus. M See ante, p. 295, n. (m). R. v. Mirehonse, 2 A. & E. 636.f U\ R. T. Mein, 3 T. R. 596. («) R. T. Hare, 13 East, 188. Kennet y. Avon Canal, T T. R. 451. And see White T. Irving, 2 M. & W. 12Y.* The rule of R. G., H. T., 2 Wm. 4, s. 6, as to swearing affidavits before the attor- ney in the cause, does not apply to proceedings on the Crown side of the Court ofB. R. ; ID., N. S. 865. (u) R. V. West Riding (J.), 3 M. & S. 493. iy) Stat. 4 & 5 Vict. c. 34, s. 1 ; 1 Q. B. 453, 463,+ n. (a). S. C. 1 G. &D. 28; 1 G. & D. 728. S. C. 1 Q. B. 616.t S. C. 9 L. J., N. S. 231, Q. B. (w) Chit. Prac. 1421, 8th edit. R. v. Middlesex (J.), 1 Chit. 368. lx\ Cr. Off. R., r. 15, App. [y) R. V. Payn, 6 A. & E. 403.t S. C. 1 N. & P. 524.-t- And see 10 A. & E. f32,t n. (a). R. T. Canterbury (Archbishop), 15 East, 120. (z) 6 A. & E. 403.t S. C. 1 N. & P. 524,+ supra, n. (y). ■ (a) R. V. West Riding (J.), 1 Q. B. 629.t S. C. 1 G. & D. 198. (6) See ante, p. 295, n. (/), [I). R. y. Warwicksh. (J.), 5 D. 382. And see 8 A. & E. 419.f S. 0. 3 N. & P. 439. ^ ' VARIOUS PROCEEDINGS. 451 return, under stat. 9 Ann. c. 20, s. 1, extended by stat. 1 Wm. 4, e. 21, g. 3 (c), see ante, p. 392, 394, 395. As to the costs of ministerial, offices, &c., in cases within the stat. 1 Wm. 4, c. 21, s. 4,(d) see ante p. 394. As to costs of a demurrer to a return, under stat. 6 & 7 Vict. c. 67, s. l,(e) see ante, p. 378, 380, 381. As to costs of a writ of error, brought by virtue of stat. 6 & 7 Vict. c. 67 8. 2,(/) see ante, p. 389, 399. ♦Notwithstanding the above statutory provisions it was found, that the subject of costs had not been provided for in many cases, ^ -' among others, where the prosecutor failed to issue his writ after he had put the defendant to the expense of opposing the rule nisi, &c., it was, therefore, enacted, by stat. 1 Wm. 4, c. 21, s. 6, extended by stat. 9 & 10 Vict. c. 113, s. 5, to Ireland, for the purpose of making some further pro- vision for the payment of costs on applications for mandamus. That in all cases of applications for any writ of mandamus whatsoever, the costs of such application whether the writ shall be granted or refused, and also the costs of the writ if the same shall be issued and obeyed, shall be in the dis- cretion of the Court,(g') and the Court is thereby authorized to order and direct by whom and to whom the same shall be paid. Under the same statute as we have just seen,(A.) the Court may also in its discretion, order third parties to pay costs including those of both writs, although it be not expressed in such return that it was made on behalf of such third parties, (i) Such statute, has however, been held not to apply to cases where the proceedings for the writ had commenced before such statute came into force.(M). / Among the general rules which guide the discretion of the Court in granting or refusing costs are the following, viz. that costs are awarded to the successful party, unless strong grounds of exemption be shewn, (/) although the mandamus may have been obeyed and no return ma,Ae.[jj) (c) See stats. App. As to Ireland, see stats. 19 Geo. 2, c. 2, and 9 & 10 Vict. c. 113, App. ■ {d) See stat. App. As to Ireland, see a similar enactment stat. 9 & 10 Vict. c. • 113, 8. 3, App. (e) See stat. App. As to Ireland, see a similar enactment stat. 9 & 10 Vict. c. 113, s. 6, App. (/) See stat. App. As to Ireland, see a similar enactment stat. 9 & 10 Vict. c. 113, s. 1, App. (y) See stats. App. E. t. Oundle (Manor), 1 A. & E. 299,t n. (o). R. v. St. Saviour's, T A. & E. 948, 550.+ S. C. 3 N. & P. 126. S. C. 1 N. & P. idG.j See 8A.&E. 8'n,t(a). E. T. West Eiding (J.), 1 D. & M. 590. S. C. 5 Q. B. 1, lO.f a. 0. 3 a. & D. no. E. T. Surrey (J.), 15 L. J., N. S. 117, M. C. A) Snpra, n. (^) ^ " («■) R. V. WestEiding (J.), 1 D. & M. 590. S. 0. 5 Q. B. 1,+ where see form of rule. S.C.3G.&D, no. ■» 'I (m) R. V. Wix (Inhabs.), 2 B. & Ad. 203, 204. E. v. Hungerford Market, 2 B. & I ^'b'^ "■ (''^' ^*®' ''• (")• -^^ *° 1=°^*^ '"i general, see Chit. Prac. 1359. 5178+0 ^'^P''™^) SirT. Jon. 111. E. v. Eastern Counties Eailway, 2 Q. B. 452 tapping's mandamus. So, if the prosecutor make an experimental motion and fail, tlie Court will award costs to the defendant,(/i;) unless the case be a doubtful one, or one in which the decision of a Court of Law is required as a guide for future cases. (Z) *It is also a general rule on this subject, that where the defend- ant by the want of fulness in his return, has to a certain extent misled the prosecutor, the Court in its discretion will not grant him the costs of his defence. (m) Thus, where cause was shewn against a rule nisi for a writ of mandamus against churchwardens, and no objection was made, that under a local act of Parliament which was also a public one, the directors of the poor were responsible for the matter sought by the writ to be enforced, which being granted, upon the return thereto, such objection was successfully raised, the Court in its discretion refused to compel the prosecutor to pay the costs incurred antecedently to the return, because after the rule granted, reasonable grounds existed for pro- secuting the writ.(K) It is also a general rule, that where a judicial decision has been given, the party who comes forward only to defend a judgment in his favour, and which he is entitled to suppose a right one, shall not pay costs. Thus, where on the trial of a writ of inquiry under a railway act, the sheriff stopped the case on a preliminary objection, whereupon a rule having been obtained, calling on the sheriff to shew cause why a manda- mus should not issue, directing him to proceed with the inquiry, &c., which notwithstanding the railway company opposed, yet the writ issued, and was obeyed, the Court refused to award the costs against the com- pany.(o) Although it is a general rule, that if in moving for a mandamus the costs of the application be included, then the party so moving must run the risk of paying costs, if the rule be refused ;(_p) yet in some cases, where a rule is moved with costs, the Court in discharging it will not in its discretion grant them to the successful party.(g') (k) See ante, p. 306. R. v. Heywood, 1 M. & S. 630. R. t. Merchant Tailors' Company, 2 B. & Ad. 130,f per Teuderden, 0. J. R. v. Bankes, Burr. 1453. R. T. Chester (Ep.), 1 T. R. 396. R. t. Harrison, 16 L. J., N. S. 33, M. 0. {I) See ante, p. 49, n. (q), (r), 306. R. v. Rye Harbour, 5 B. & Ad. 1094,f n. R. V. Oundle (Manor), 1 A. & B. 290,t n., 299. S. 0. 3 N. & M. 484.t R. v. Thames Navigation, 5 A. & E. Sll.f R. v. Saviour's, 3 N. & P. 354. R. v. West Riding (J.), 5 Q. B. ll.f S. C. 3 G. & D. ITO. S. C. 1 D. & M. 590. And see 1 T. B. 396, and 15 East, 158 ; 8 A. & E. 871,1 (a). R. v. Hull Railway, 13 L. J., N. S. 257, Q. B. S. C. 8 Jur. 491. S. 0. 6 Q. B. 70. (m) R. T. Round, 4 A. & E. 139.f S. C. 5 N. & M. 427.+ And see 6 A. & B. 406.t S. C. I N. & P. 524.t («) R. V. St. Pancras, 2 D., N. S. 955. (o) R. T. Middlesex (Sheriff), 5 Q. B. 365.t S. C. 3 G. & D. 549. S. C. 13 L. J., N. S. 14, Q. B., citing R. v. Bingham, 4 Q. B. 877 ;f qu. whether the company, not being immediate parties to the rule, were liable to costs. But see R. t. Sur- rey (J.), 15 L. J., N. S. 117, M. C, and post, p. 419, n. (6). (p) R. v. Kirke, 5 B. & Ad. 1092.+ R. v. Glamorganshire (J.), 15 L. J., N. S. 110, M.C. 6 V ;. I (?) R. V. Payn, 6 A. & E. 406.-i- S. C. 1 N. & P. 524.t S. C. 1 W. W. & D. 99. VAEIOUS PROCEEDINGS. 453 A defendant is entitled to treble costs on a mandamus, if his act be a thing done in pursuance of a statute, which gives such treble costs, (r) A party who has obtained a mandamus to restore him to an ofiioe, *cannot recover the costs of the application as consequential dam- rjic^^i g-i ages in an action for the amotion, indeed such an action cannot be ^ maintained, unless it appear that the defendants were individually and maliciously active in procuring the amotion.(s) .] Against whom — Bishop. — See that title. r.] Corporation Municipal. — The Court has in its discretion under stat. 1 Wm. 4, c. 21, s. 6, ordered the council of a borough corpo- ration to pay the costs incident to a mandamus, and to the application for costs, notwithstanding the delay which occasioned the writ arose from a doubt on the part of the council, whether the vacancy under discussion was an extraordinari/ one, upon which point counsel had erroneously advised them.(<) When the application is made against the council of a municipal cor- poration, the rule, if granted, should not be drawn up for payment of the costs "out of the borough fund," notwithstanding such expenses are of right payable out of that fund.(M) The Court will however mould the rule nisi in this respect, and make it absolute against the defendants generally, for the Court will act on so much only of the rule as is good,(i;) and this, although thef only application for payment have specifically required payment by the council out of the borough fund. .] Justices. — ^When a rule or any application against justices is discharged, it is a matter of course that costs are awarded to them if cause have been shewn on their behalf, or they have been put to any (!xpense.(M>) If, however, the point raised be one fairly admitting of dis- cussion, the Court will exercise its discretion as to the costs. (a;) But where a rule nisi for a writ to justices is discharged with costs to be paid by the prosecutor, the parish which appeared to support the refusal /if the justices is'not entitled to costs under the above principle, although served with the rule nisi, notwithstanding the justices did not appear by counsel, (y) .] Inhabitants. — ^Where a mandamus is obtained against the W R. T. Kelk, 1 G. & D. 121. S. C. 1 Q. B. 660-1 S. C. 5 Jur. 888. W Harman v. Tappenden, 3 Esp. 278. S. C. 3 Bsp., 278, ante, p. 403. (t) R. T. Cambridge (Mayor), 4 Q. B. 801.t S. 0. 14 L. J., N. S. 82, Q. B. (m) 4 Q. B. 801,-(- supra, n. (t). As to what payments the borough fund is charge- able with, see E. t. Leeds (Mayor), 4 Q. B. 796,1 and cases there cited. m 4 Q. B. 805,f supra, n. {t). Ex parte Turner, 1 W. W. & H. 305. (w) See ante, p. 49, n. (g). R. t. Devon (J.), 1 Chit. SS.f R. v. Worcester- sluie (J.V 2 B. & A. 233,1 per Abbott, C. J. R. v. Mirehouse, 2 A. & E. 644.t S. tj. 4 N. & M. 394.t R. v. Greame, 2 A. & E. 618.t R. v. Dyer, 2 A. & E. 614-1 S. ^. 4If. & M. 550-t R. T. Stafiford (J.), 5 N. & M- 100,t per Denman, C. J. S. C. 3A.&E. 425.-J- R. V. MiUs, 2 B. & Ad. 581.+ R. v. Hughes, 3 A. &rE. 432.+ S. C.5N.&M.94.t See post, p. 419, n. (J). . ' W 2 A. & E. 606.t S. 0. 4 N. & M. 550,+ supra, n. (w). R. v. Cambridge (J.V 4N.&M.438.t S- C. 2 A. & B. 370.+ See ante, p- 49, n. (r)- ^ ' W R. V. Staffordsh. (J.), 1 D. 507. R. v. Monmouthsh. (J.), 1 B. & Ad. 895.+ And see Stat. 1 Wm. 4, c. 21, s. 6, App. 454 tapping's mandamus. r*41Q1 *inliabitants of a parish, &c., the Court will make the rule for costs absolute, against those only who have caused the costs. Thus, where, a return by inhabitants was quashed, the Court in granting the costs ascertained which of the inhabitants joined in making the return, and made the rule for costs absolute against them only.(«) The Court will, on a proper case, order churchwardens, &c., as such to pay the costs, but not to be personally liable. .] Officers, &c. — Where public functionaries, such as clergymen, schoolmasters, &c., endowed under an act of Parliament, are obliged to come before the Court for "a mandamus to obtain their dues under the act, the Court will award costs to them.(o) So, where a public officer has decided as the Court thinks rightly, it is proper to, and the Court will give him his costs, for if an officer, required by law to pronounce a decision, be brought before the Court by a motion impugning such deci- sion, the general rule is, that he shall have his costs if the application fail.(6) Officers, whose functions are merely ministerial, are protected by stat. 1 Wm. 4, c. 21, s. 4, against the payment of costs and damages in cer- tain cases where writs of mandamus are directed to them.(c) .] How obtained — Motion. — Before the stat. 1 Wm. 4, c. 21, s. 6, no application for costs was necessary where there was a successful action for a false return, or where a traverse was taken and found for the prosecutor, because under stat. 9 Ann. c. 20, s. 2, the costs of obtaining the writ were included either in the costs of the action, or in those of the traverse, on the granting of the peremptory writ.(d) But as there were no means of giving costs to the prosecutor, where for instance the writ was obeyed, or where the teturn was quashed, or to the defend- ant when the return was held good, these cases were provided for by the former statute, s. 6 j(e) therefore, in such cases the costs are obtained by a distinct motion to the Court,(/) they having been previously de- manded. ((;) (z) R. T. St. Saviour's, 3 N. & P. 126, 354. S. C. 1 N. & P. 496.t S. 0. 7 A. & E. 925.t And see 5 Q. B. IS.f (ffl) R. T. St. Saviour's Parish, 3 N. & P. 345. S. C. 7 A. & E. 925.-|- (J) R. T. Bridgenorth (Mayor), 2 P. & D. 318. S. 0. 10 A. & E. TO.f R. T. Oxford (Mayor), 1 N. & P. 4T9.t S. C. 6 A. & B. 349,t ante, p. 4lT, n. (o). (c) See ante, p. 342, 343. See stats. App. As to Ireland, see stat. 9 & 10 Viet. 0. 113, App. (d) See ante, p. 404, 405. («) See stat. App. See ante, p. 405. R. v. Fall, 1 Q. B. 660, 651.-|- S. 0. 1 G. & D. 117. S. C. 5 Jur. 887. As to Ireland, see stat. 19 Geo. 2, c. 12, App. (/) R. V. St. Pancras, 2 D., N. S. 955. See 3 A. & E. 286,t (d). See 8 A. & E. 87l.t S. C. 1 P. & D. 172. R. T. Wix (Inhabs.), 2 B. & Ad. 197, 203-1 See form of rule, 2 A. & E. 370.i- S. C. 4 N. & M. 438 if 7 A. & B. 948.t S. C. 3 N. & P. 126. S. C. 1 N. & P. 496).t Ex parte Davies, 5 B. & Ad. 1091,t n. (ffl). E. v. Kirke, 5 B. & Ad. 1089, 1094,t n. (a) ; 2 B. & Ad. 204,f n. (a), 348, u. (a). R. v. Thames Comiuissoners, 8 A. & B. 905.f [g] R. T. Scott, 1 D. & L. 212. See ante, p. 418, n. (d), post, p. 420, n. (i), and tit. "Demand and Refusal." w. i- . r VARIOUS PROCEEDINGS. 455 * _. Affidavits in su^ort of Motion. — The affidavits in >sup- n^,n^, port of the motion should shew what has been done on the writ, >- J for a return may have been made, and till the result of the whole pro- ceeding is before the Court, there are no proper means whereby to ascer- tain whether or not the ease be a fit one for costs.(/t) The affidavits should also shew that the costs were demanded before the motion made.(i) The Court will in deciding upon the application, refer for its guidance to the affidavits filed in support of the application for the writ, if it be elear that both applications are made between the same parties ;(_;') the applicant cannot however refer to such affidavits, unless the rule for costs be drawn up on reading such affidavits, as it would be very embarrassing to those shewing cause, if a rule could be supported by affidavits, of which no notice has been given. The practice upon this point(^) is settled by a rule of Court of Easter Term, 1843, by which it is ordered, that in every case in which the Court shall grant a rule for the payment of costs incurred by the application, for any writ of mandamus, or the proceed- ings thereon, or to compel any person not a party to an original rule, to pay the costs of such original rule, such rule for costs shall be drawn upon reading all the affidavits filed in support of and in opposition to the original rnle.{Q If the affidavits be defective, the Court will dismiss the application, but if the rule be discharged on the ground that the affidavit on which it was moved was defectively entitled, or the jurat defective, the Court will hear a fresh application, but not where the defect of form is in the body of the affidavit.(m) Thus, where such an affidavit was wrongly entitled "The Queen against The Directors of the Great Western Railway Com- pany," instead of "The Queen v. The Great Western Railway Com- pany," and also at the beginning recited, that a mandamus had been obtained " against the directors of the company," whereupon the rule had been discharged, the Court refused to hear a fresh application, shewing no ground of application which might not have been presented before, the same affidavits being used with these defects *amended;(TO) for a second motion, for costs cannot be made on affidavits corrected ■- ^ in the title and body as to the description of the defendants, though not altered in any other material respect. (I) R. T. Bingham, 4 Q. B. S'TT.-j- See R. v. Thames Commissioners, 8 A. & B. (») R. T. Seott, 1 D. &; L. 212. i) R. T. Kirke, 5 B. & Ad. 1089, 1093.t See ante, p. 415, n. (y). (*) R. V. St. Peter's Coll., 1 Q. B. SU.f R. t. Kirke, 5 B. & Ad. 1089,f being referred to by the ofBoers of the Court, which the Court said came on late on the last day of Term, and was not much considered. (!) 4 Q. B. 653,t infra, n. (o). [m] See ante, p. 294, 295. R. v. Great "Western Railway, 1 D. & M. 471. S. C. 5Q. B. 597.f S. C. 1 D. &L,874. R.'v. HarnhamRoads, 5 Jur. 408. R. y. War- wicksh, (J.), 5 D. 382. R. v. Manchester Railway, 8 A. & B. 413, 42V.-i- S. C. 3 ,f ■ */• *39. R. V. Deptford Pier, 8 A. & E. 910, giV.f S. C. 1 P. & D. 128. For tie form of affidavits in general, see tit. "Affidavits," ante, p. 413—415. W 1 D. & M. ill. S. C. 5 Q. B. 59'7.t S. C. 1 D. & L. 864, supra, u. (m). 456 tapping's mandamus. .] Rule Nisi, Form o/— But by the rule E. T., 1843.(o) It is ordered that in every case in which the Court shall grant a rule for the payment of costs, occasioned by the application for any writ of mandamus, or the proceedings thereon, or to compel any person not a party to an original rule, to pay the costs of such original rule, such rule for costs shall be drawn up on reading all the affidavits filed in support of and in opposi- tion to the original rule.(j)) .] Security for Costs. — Security for costs may be obtained in mandamus cases as in personal action, but the Court will not compel an interested relator in a mandamus to give security for costs on the ground of his poverty, or that other persons have induced him to apply for the writ.(2) .] Formd Pauperis. — The Court upon a proper case made, will allow the prosecutor to prosecute the writ in formi pauperis.(r) .J Taxation. — ^The costs are taxed at the Crown Office by the Queen's coroner and attorney or Master in the Crown Office, on an ap- pointment made for that purpose, which is obtained at the Crown Office, no allocatur is given, but the amount, when ascertained, is inserted in the judgment roll.(s) Attachment.] Nature of. — Any contempt of Court is punish- able by attachment ; and the neglect of a mandamus, as by not making a return to it has been by many authorities declared to be such a con- tempt. («) The attachment which issues for not returning a mandamus is, as before stated, a writ on contempt, in nature of an execution, and so not bailable by r*4oon ^^^ sheriff; therefore, if the sheriff should in such a *case, take bail, it is a misdemeanor for which an attachment will be granted against him.(M) .] When granted. — If no return be made, the Court will, on affi- davit of personal service of the writ, without a rule to return it, grant an attachment. (■«) Where the service has not been personal, a side bar (o) 4 Q. B. 653,f Bupra, n. [I), (p) Ante, p. 430, n. [I). \q) R. T. Malmesbury (Mayor), 9 D. 359. S. C. 5 Jur. 366. S. C. 10 L. J., N. S. 129 Q. B. See Chit. Prac. 1230. A mandamus may be sued out in forma pauperis, 9 D. 359, infra, n. (r). M Dr. Free v. St. John's Coll., cited 9 D. 361. See Chit. Prac. 1121, 8tb edit. (») Corn. Or. Prac. 99. See ante, tit. "Judgment," p. 395, 397. {t) R. V. Heathoote, 10 Mod. 56. R. v. Rye (Mayor), Burr. 798. R. t. "Wix (In- habs.), 2 B. & Ad. 203. f There were formerly two sorts of attachment upon a mandatory writ, viz., one which punished the contempt which was awarded on the neglect of an alias writ, and the other, which entitled the party to his action for damages, which was granted for delaying the execution of the pluries writ. Anon., 12 Mod. 164. AnoiL 12 Mod. 348. As to the general \)ractice of attachments, see Chit. Prac. 1516, 8th edit. (u) R. T. Baskerville, Bac. Abr. tit. " Man." (H.) (v) Ante p. 6, u. (o), 344, n. [d). R. v. Oxford (Mayor), Palm. 451, the Court also fined the Mayor 5Z. See R. v. Evesham (Corp.), Kel. 144. R. v. Heathcote, 10 Mod. 56. R. T. Rye (Mayor), Burr. 798. S. C. 2 Ld. Ken. 468. R. r. Wix (In- habs.), 2 B. & Ad. 203.f Bac. Abr. tit. " Man." (H.) VARIOUS PROCEEDINGS. 457 i) to return the writ must have been obtained, and personally served the defendant, upon which, if disregarded, an attachment may be ed. Bommon law the general practice was, that if no return were made landamus, the Court would usually award an alias and pluries, but "ault of a return to the pluries, the Court, on production of an affi- jf service, granted an attachment without hearing counsel to excuse ntempt.(a5) The Court would, however, usually grant a little time, vo or three days, for the return of each writ.(y) After the passing ts. 9 Ann. c. 20, s. 1, and 11 Geo. 1, c. 4, s. 9, and 1 Wm. 4, c. lich directed that the first writ of mandamus, in all cases, should be led ; a neglect so to do rendered the defendant liable to an attach- although in practice it was not granted without a peremptory rule irn the writ. (2) an attachment will be granted, if a frivolous return be made. (a) So, defendant contemptuously make an insufficient return. Thus, if the disallowance of one return, a second bad one be made, the Court rant an attachment. (6) if the peremptory writ be not obeyed, an attachment may issue. (c) where the defendants had evaded signing a poor's rate, in obedience rrit of mandamus, by keeping out of the way *so as not to be r#4oQ-i I with the writ, an attachment was granted for the con- ■id) — .] Sow obtained — Motion. — The writ is obtained on motion, rted by the necessary affidavits. There must be an affidavit or affi- 1 of service of the writ, or copies thereof; although the Court will, discretion, enlarge the rule a few days, to admit of such affidavit of e.(e) Where the writ is served on all those to whom it is directed, here an attachment is desired against all of them, it is enough to oe an affidavit of service at the time of shewing cause upon the iment, if the other side call for it. But where the writ is not serv- on all, and an attachment is sought only against those who have Or. OfiF. Rul. r. 13, App. See ante, p. 344, 345. The more usual practice is, er, to sign judgment by default. See ante, p. 386, 387. 5ee ante, p. 333. R. v. Thetford (Mayor), 6 Mod. 25. R. v. Winton, 5 T. R. Luon. 2 Salk. 434. R. t. Oxford (Mayor), Palm. 455 ; Com. Dig. tit. "Man." Bull. N. P. 203. Sometimes an attachment was granted for not returning it writ. Comb. 234. See ante, p. 344, 345. Per Holt, 0. J., 6 Mod. Ca. 25 ; Com. Dig. tit. " Man." D. 6. Anon. 12 Mod. R. T. Owen, Skin. 669. i-nte, p. 333, 344, 345. Mayor of Coventry's case, 2 Salk. 429 ; 6 Mod. Gas. rin. 669 ; Palm. 455. 3ee ante, p. 352, n. [r). R. v. Robinson, 8 Mod. 366. 3ull. N. P. 197, 198. Anon. 12 Mod. 410. S. 0. Nom. Lord v. Francis, Holt, '1- 4 i.nte, p. 408. R. v. Poole (Mayor), 1 G. & D. 728. S. Cf. 1 Q. B. 616.t S. C. 3., N. S. 198, Q. B. I. Y. Edwards, 1 "W. Blac. 636. S. 0. Burr. 2105. See also B. v. Wheeler, llac. 331. R. T. Elkins, 1 W. Blac. 640. See Bac. Abr. tit. " Attachment." lee ante, p. 344, 345, 346. R. v. Esham (Mayor), 2 Barn. 265. The affiavit be correctly entitled. See ante, tit. "Affidavits," 313, 315. 458 tapping's mandamus. been served, it has been held, that they ought to have an opportunity of answering such affidavit of the special service, and, therefore, it should be produced on moving for the rule.(/) The affidavit of service should identify the defendants to be those who should return the writ, or it will be insufficient, (gr) .] Rule Nisi. — The rule is an ordinary one, and nisi in the first instance. .] Shewing Cause. — Any substantial objection to the validity of the writ may be taken, on shewing cause against the rule for an attach- ment; for such an objection, if it had been previously brought to the knowledge of the Court, must have prevailed, so, the Court is bound to abstain from enforcing performance of such writ ; therefore, an attach- ment cannot issue if the writ be vicious, as for instance, if it be miscon- ceived in its most important clause, the mandatory part.(^) But an objection that the writ does not contain the clause " vel causam nobis significatis," is one of which the Court, before return made, will not take cognizance. (t) So, where it was objected that the affidavit of service was not filed, the Court overruled the objection. (_;') The rule is made absolute or discharged, as in ordinary cases. (A) If the affidavits upon which the rule for the attachment is granted, be r*4.94l siil'Stantially defective, the defendants may move to discharge such *rule, though no cause was shewn against it.(?) But if the rule be properly obtained, the Court will seldom discharge it, except upon payment of costs, (m) .j Form of Writ; Defendants. — In all cases, other than corpo- ration cases, the attachment will be granted against all those, if more than one, to whom the writ is directed ; though when they are before the Court, the punishment will be proportioned to the offence of each.(n) So, when an office is filled by two, who in law make but one officer, as the sheriff of Middlesex, the attachment must be granted against both, though one alone be morally guilty of the contempt. Thus, where a mandamus was directed to two bailiffs, and no return was made, the Court granted an attachment against both ; though affidavit was made, that one was willing to make a return, but could not, because the other had got the writ into his hands, and would not relinquish it. The Court, in giving judgment, said, they were both to be considered as one officer, and that it (/) R. V. Eshatn (Mayor), 2 Barn. 265. (g) R. T. Newcastle-upon-Tyne (Corp.), 1 Barn. 385. (A) R. V. Poole (Mayor), 1 G. & D. Y32. S. C. 1 Q. B. 616,t per Ld. Denman, C. J. S. C. 10 L. J., N. S. 198, Q. B. See Chit. Prac. 1523, 8th edit. (i) R. V. Owen, Skin. 669. See ante, p. 326. (j) R. T. Evesham (Corp.), Kel. 244. [k) R. V. Somerset Sewers (Commissioners), 1 East, 70. See Chit. Prac. 1523, 8th ed. See ante, tit. "Application" (Rule), p. 301, 307. (I) R. T. Newcastle-upon-Tyne (Corp.), 1 Barn. 385. \m) Gude's Cr. Pr. 185. {n) R. T. Poole (Mayor), 1 G. & D. 729. S. C. 1 Q. B. 616 ;t Bull. N. P. 201. See 6 Mod. 152; Bac. Abr. tit. "Man." (H.) As to form of writ in general, see Chit. Prac. 1523, 8th edit. COLLATEEAL PROCEEDINGS. 459 36 endless to try in all cases wliieli was in the right. (o) In the I municipal corporation, however, the attachment will be granted those particular individuals only who refuse to execute the writ ; erefore, they alone must be named in the rule for the attach- [frit of attachment must be tested and made returnable on a day in Term before the Queen at Westminster ; it must also be signed >own Office,(3) and afterwards sealed. (r) D the manner of executing an attachment, see Chit. Prac. 1523, t. *CHAPTER THE NINTH. [*425] ! COLLATERAL PROCEEDINGS BY WAY OF ACTION, OR CRIMINAL fORMATION FOR A FALSE RETURN TO A WRIT OF MANDAMUS. ING in the preceding pages shewn how a return to a writ of man- when legally insufficient, may be invalidated by " Motion to '(a) or "Demurrer," (6) and also how, since the stat. 9 Ann. c. 20 [ed by stat. 1 Wm. 4, c. 21, (e) ), the truth of a return in point of ,y be impeached by a " Plea," either by way of " Traverse," (li) or !S,sion and Avoidance," it is proposed in the present Chapter to )th of an " Action on the Case, and a Criminal Information for a leturn," which at common law were, as we have seen,(e) the only B whereby the validity of such a return in point of fact could be ^ a jury. for a false betuen - 425 lat a false return - - 428 what Court to be brought --429 intiffs - - - - 429 'endants 430 :laratiou - - - - 430 dence, &c. - 431 ■diet, &c. - - 432 Action, &c. — Error, &c. 432 Costs - - 432 Information for a false return 432 Wben it lies 432 Motion 433 Venue - - 433 Evidence - - - 434 Verdict - - - 434 DOW come to treat of those legal formulae which, at common law, , y. Bridgnorth (Bailiffs), 1 Barn. 53. S. 0. Stra. 808 ; Bull. N. P. 201 ; ig. tit. "Man." D. 6; Bac. Abr. tit. "Man." (H.) I. V. Poole (Mayor), 1 G. & D. ^28. S. C. 1 Q. B. eie.f S. C. 9 L. J., N. Q. B. ; Bull. N. P. 191, 198, 201 ; Anon. Comb. 327. r. Off. Rul. r. 4, App. 36 tit. "Writ" (issuing), ante, p. 330, also Chit. Prac. 1523, 1524, 8th edit., Gs tinpi*p PI t"pH se ante, p. 369, 372—375. (b) See ante, p. 369, 375—381. !e stats. App. As to Ireland, see stats. 19 Geo. 2, c. 12, and 9 & 10 Vict. c. P- nte, p. 385, n. (r). (e) Ante, p. 6, n. (q), (r), 383, n. (a). 460 tapping's mandamus. were the only proceedings which the prosectitor could adopt, if the return, though legally sufficient, yet was false as to the facts upon which auch sufficiency was founded ; in order to fully understand which, it will be necessary shortly to premise some few observations upon the legal history of this portion of our subject. At common law, it will be remembered,(/) a return to a mandamus ^.„„, *was not traversable ; (y) because, as it by "filing" became a L ^ record,(A.) the prosecutor was not allowed to aver against the truth of it -.(i) the practical effect of which doctrine was, that if the return were good in law upon the face of it, fliough false in fact, the prosecutor was denied all relief by the further prosecution of his writ, because he was estopped by the return j so that the only course left open to him for the wrong done him by the defendant of thus ousting him of his remedy by mandamus was, that he could maintain against him an action on the case,(y) called an "action for a false return," which in form and effect was no other than the ordinary action for a false return, to which sheriffs and other ministerial officers are subjected, when they by a false return to ordinary judicial writs, &c., work an injury to another's estate. The pro. secutor could not, however, avail himself of this common law remedy of an action, (or criminal information for a false return,)(y) until the Court had upon argument adjudged the return to be sufficient in law, and such judgment had been formerly entered up; because the prosecutor could not be prejudiced by an invalid return, as he might proceed to quash it; also, if previously to such a judgment, an action were commenced, and a verdict and damages recovered, for instance, for a loss of office, and the prosecu- tor afterwards succeeded in invalidating the return upon argument, as be- fore stated, he would thereupon be restored to his office, and also retain the damages recovered in the action for the loss of his place -.(Jc) therefore, the prosecutor was, and still is obliged to aver in his declaration, that the return has been held to be, and is sufficient in law. The common law being therefore so oppressive, dilatory, and expen- sive, as almost to render the proceeding by mandamus worthless, the attention of the Legislature was at length drawn to the subject, and by the passing of the remedial stat. of 9 Ann. c. 20,(1) a remedy for the grievance was provided, but in the cases of municipal offices only; which statute, after reciting that persons who have a right to the office of mayors, or other offices within cities, towns corporate, boroughs, and g (/) Ante, p. 6, n. (j), [r), 383. [g) 5 N. & M. 42'7,t n. (a). R. v. Holmes, Burr. 1644. See ante, p. 383. (A) See ante, p. 365, n. («). (i) R. v. Round, 4 A. & E. 139.t S. C. 5 N. & M. 427,f n. (a). And see Bagg's case, 11 Rep. 99, b. ; Com. Dig. tit. " Man." D. 6. Rich t. Pilkington, Garth. 171 ; Bull. N. P. 198 ; Bac. Abr. tit. " Man." (L.) (y ) Or a criminal information, if the circumstances warranted it. See post. (*) See ante, p. 383. Enfield v. Hills, 2 Lev. 236, 238. S. C. Sir T. Jon, 116. R. V. London (Mayor), 3 B. & Ad. 276, 279.+ R- v- London (Mayor), 5 B. & Ad. 233.t Com. Dig. tit. " Mant" D. 6. [I) See Stat. App. As to Ireland, see stat. 9 & 10 Vict. c. 113, App. COLLATERAL PROCEEDINGS. 461 places, or to be fiw^'esses ort freemen thereof, have either been illegally turned out, or have been refused to be admitted thereto, and have no *other remedy to procure themselves to be admitted or restored, r#407T than by writs of mandamus, the proceedings on which are very ^ ■' dilatory and expensive — enacted : that the persons prosecuting such writ m&jjplead to (that is, may confess and avoid,) or traverse, all or any of the material facts contained within the return, to which the persons making such return, shall reply, take issue, or demur, and such further proceedings, and in such manner, shall be had therein for the determina- tion thereof, as might have been had if the persons suing such writ had brought their action on the case for a false return ; and if any issue shall be joined on such proceeding, the persons suing out such writ shall try the same in such place, as an issue joined in such action on the ease should have been had ; and in case a verdict shall be found, or judgment given for them upon demurrer, or by nihil dicit, or for want of a replica- tion, or other pleading," they shall recover damages and costs, and a peremptory writ of mandamus shall be granted without delay for them for whom judgment shall be given, as might have been if such return had been adjudged insufficient j and in case judgment shall be given for the persons making such return, they shall recover costs, such damages and costs to be levied by ca. sa., fi. fa., or elegit.(m) By this statute, therefore, a power in certain cases to plead to, or traverse the return, was conferred upon the prosecutor : so that in those cases to which such sta- tute referred, the proceedings, by being assimilated to the common law formulse of a personal action, became at once transformed from their once oppressive, dilatory, and expensive condition, to one of great efficacy, despatch, and inexpensiveness. The cases which alone were within the purview of the above statute, and as to which it conferred the valuable privilege of traversing, or of confessing and avoiding the return, appears to have been limited only to the particular cases of the admission or restoration to certain municipal offices ;(w) so that to the mass of the subjects of mandamus that statute does not extend ; therefore, the proceedings as to them remained after that statute as they did before such statute, that is, according to the course of the common law.(o) The effect which this highly remedial statute was intended to, and did produce, was evidenced by the immediate increase in the number of appli- cations for the writ which were made to the Court of B. K., not only in cases to which such improved formulse was applicable, but also in those which were still subjected to the dominion of the common lawj where- upon the Legislature, with the view of extending the provisions of the above stat. of 9 Ann. c. 20, and of rendering the *practical /omw- r*428'l fe of the writ in all cases uniform, by stat. 1 Wm. 4, c. 21, s. 3, which recited, that the provisions of the act 9 Ann. c. 20, relating to the (m) 5 N. & M. 42?,! n. [a). [n) 5 N. & M. 427,t n. (o) (o) Bull. N. P. 204, cited in 5 N. & M. 427,t n. (a). 462 tapping's mandamus. writs of mandamus therein mentioned, had been found useful and conve- nient, and the same ought to be extended to the proceeding on other such Yjfrits — enacted : that the several enactments contained in the said statute, relating to the returns to writs of mandamus, and the proceedings on such returns, and to the recovery of damages and costs, should be, and the same were thereby extended and made applicable to all other writs of mandamus, and the proceedings thereon.(p) The effect of which enact- ment is, that the prosecutor of a writ of mandamus in any ease may now plead to, or traverse the return, and, therefore, speedily try his right upon the merits, as in a personal action^ without having recourse to the circui- tous and collateral proceedings of an action, or information for a false return ; and as s. 3, of the latter statute, provides : that if any damages shall be recovered against those making the return, then that they shall not be liable to be sued in any other action or suit for making such return,(j) it is clear, that the prosecutor cannot take both courses, so that the more efficacious one introduced by the statute, is that usually resorted to ; although undoubtedly the prosecutor may at this day avail himself of his common law proceeding of an action on the case, or information for a false return,(j') as circumstances may require. .] What a False Return. — If a return be true in words, yet false as to the substance of the facts, an action for a false return will lie against the defendant,(s) so, a return to a traversable allegation, if untrue in fact, will support such an action. («) So, such an action will lie as well for a "suppressio veri," as for an "allegatio falsi." Thus, if there be two charters, the one giving a power of amotion to select part of a corpo- ration, and the other of a later date, confirming the former as to every thing, but restoring the right of amotion to the body at large, and the writ of mandamus state a removal by the select part, but the return in answer set forth the old charter only, notwithstanding all the facts in that return would be true, yet certainly an action on the case might be main- r*4.9Q1 ^*i^^*i ^°'' ^^^ deceit. So, that wherever in a return there is a ^suppression of a truth, or the expression of an untruth, and the prosecutor is injured thereby, he may maintain such action. (m) Also if a return be improperly made by one defendant in the name of others, such_is a false return in law.(t;) As a return must have been adjudged to be sufficient in law before an action on the case, or information for a false return can be successfully [p] See Stat. App. As to Ireland, see stat. 9 & 10 Vict. c. 113, s. 2, App. [q) See App. As to Ireland, see stat. (r) E. V. Williams, 8 B. & C. 683.t S. C. 3 M. & R. 405. R. v. London (Mayor), 3 B. & Ad. 276.f R. t. Durham (Mayor), Burr. 129. R. v. Kelk, 12 A. & E. 559.t R. V. Brancaater (Churchwardens), 7 A. & E. 459.t S. C. -2 N. & P. 580. K. v. Payn, 6 A. & E. 404.+ S. C. 1 N. & P. 524.+ S. 0. 1 "W. W. & D. 99, 142. S. 0. 2 Jur. 47. (s) R. V. Lyme Regis, 1 Doug. 159, per Buller, J. Braithwaite's Case, 1 Doug. 182, n.; 1 Vent. 19; 6 Rep. 186, n. (G.); Garth. 171. (n) R. T. Round, 4 A. & E. 142.t S. 0. 5 N. & M. 427.t S. C. 1 H. & W. 546. iu) 1 Doug. 156, 157, supra, n. (s) ; Bac. Abr. tit. " Man." (L.), n. (») See ante, p. 344, n. (A). See ante, 341, 342, 343, 344. OOLIiATEEAL PEOCEEDINGS. 463 brought,(«)) so, if the return be either frivolous or immaterial, no action will lie upon it, but a peremptory mandamus should be moved for. (a) — — .J In what Court. — An action on the case for a false return may be brought in any Court, but in order to obtain a peremptory mandamus, such action must be brought in the Court of B. R., because as every pe- remptory mandamus should recite the fact of prout constat nobis per re- cordum, how can that be done if the proceedings are, for instance, in the Court of C. B. ? as one Court cannot judicially take notice of the proceed- ings of another.(3^) Yet, in an action for a false return, judgment in which was given for the defendant, which upon a writ of error in the Ex- chequer Chamber affirmed in the House of Lords was reversed, the Court of B. R. granted a peremptory mandamus before judgment entered saying it was a mandatory writ, and not a judicial one founded upon the record. («) .j Plaintiffs. — ^Where two or more persons receive a joint dam- age or expense they may join in an action for a false return. Thus, where two churchwardens had obtained a mandamtis to the official to be sworn, who refused and made a false return, it was held they might join in a suit against him for such return.(a) So, where the mandamus, and the whole prosecution and charge thereof is joint, a joint action for a false return will lie, for such action is not brought for the office, &o., but for the un- just return. (6) So, where sixteen people joined in an application for a mandamus to register the certificate of a place of *meeting for the religious worship of dissenters, and they all joined in an action for L J a false return, it was held, that they might, for they had all jointly sued and prosecuted the mandamus as their joint charge, which were the dam- ages the plaintiffs sued to recover.(c) If, however, the interest be separate, or the damages be several in such cases, two or more cannot join in such an action, and the objection is one in arrest of judgment, (d) .] Defendants. — If a false return be made by several, the action against them may be either joint or several, it being founded on a tort (w) See ante, p. 383, n. [d). \x) See ante, p. 352, 3T3. Crawford v. Powell, 1 W. Blac. 229. S. 0. Burr. 1013. (y) See ante, p. 407. Anon., 2 Salk. 428. S. C. Ld. Raym. 125. S. C. 5 Mod. 316. E. T. Green, Skin. 6^0. S. C. Holt, 183. Bac. Abr. tit. "Man." (M.) . (s) See ante, p. 407 ; Bull. N. P. 198, 202. Philips v. Bury, 2 Salk. 413. Fal- dowe V. Ridge, Cro. Jac. 206. S. C. Yclr. 74; 2 Vent. 295. Hicks t. Sherburn, Bac. Abr. tit. " Man." 287, (M.) [a) 3 Salk. 302, 1. Weller v. Baker, 2 Wils. 414. Ward t. Brampston, 3 Lev. 362. S. C. 1 Danvers, 6, pi. 10. S. C. 2 Wms. Saund. 116, a, b, n. 3. Anon., 2 Salk. 428. S. 0. Raym. 125. S. C. 5 Mod. 316. Vide 12 Mod. 349, 371. Bac. Abr. tit. " Man." B. (6) 3 Lev. 362, supra, u. («). Linley Chapel (Inhabs.) v. Chester (Ep.), cited in 3 Lev. 363. (c) Green v. Pope, 1 Ld. Raym. 125. Ward v. Brampston, 3 Lev. 362. See Fall V. Eeg. 1 Q. B. 657, 658.f S. C. 2 G. & D. 808. S. C. 13 L. J., N. S. 187, Q. B. Bac. Abr. tit. " Man." (L.), n. (d) See supra, n. (c). Butler v. Rews, 12.Mod. 349. R. v. Andover (Town), 12 Mod. 332. S. 0. 2 Salk. 433. S. C. Holt, 441. Butler v. , 12 Mod. 371. 464 tapping's mandamus. and a species of the action on the case.(e) Thus, if a return be made by a mayor and aldermen, the action may be brought either against all or against the mayor only, but if in the latter case it appear upon the evi- dence that he voted against the return, but was overruled by the majority, the plaintiff will be nonsuited. (/) An action on the case for a false return to a writ of mandamus lies against a corporation, whether or not the return be made by such corpo- ration under its corporate seal,(gr) or although if be neither signed nor sealed. (7t) It may also be brought against the whole corporation by tte name of the writ,(i) or against any particular member of it(y) in his per- sonal name.(7i;) The action on the case for a false return to the mandamus, is as to its pleadings, &c., essentially a civil action, and is therefore governed by all the rules of pleading and practice applicable to such actions. .] Declaration. — In a declaration for a false return to a manda- mus, it need not be alleged that the defendants ought to have obeyed it, for by making a return and alleging a reason why they could not obey the writ, that is admitted.(Z) It should however, be positively shewn upon *the face of the declaration, that the return has been adjudged to L -I be and is sufficient in law.(m) An action for a false return to a writ of mandamus is local, and must be laid at the election of the plaintiff, in the county where the return was made, or in the county where the Court sits, in which it is" recorded for such a return consists of two falsities, viz., that of the fact falsely re- turned, and the falsity of returning it on record, (m) The Court will not change the venue on the application of the defendant without the plain- tiff's consent, (o) U) See Chit, on PI., " Parties to Actions." Rich v. Pilkington, Garth. lU. (/) Bac. Abr. tit. "Man." (L.). R. v. Chapman, 6 Mod. 152. {g) Argent v. St. Paul's (Dean), 3 Doug. 238. (h) Mayor of Thetford's case, 1 Salk. 191, 4. Bac. Abr. tit. "Man." (L.) U) See ante, p. 342, 344. R. v. Halse, 1 Keb. 20 ; Ld. Raym. 564, per Holt, C.J. (j) R. V. Chapman, 6 Mod. 152, and cases there cited. S. 0. Holt, 443. [k] R. v. Rippon (Corp.), 1 Com. 86, c. 55. S. C. Ld. Raym. 564. S. C. 2 Salk. 433. Vaughan v. Lewis, Garth. 227, (where see form of declaration). Rich t. Pilk- ington, Garth. 171. Argent v. St. Paul's (Dean), 3 Doug. 238. Enfield v. Hills, Sir T. Jones, 116. S. C. 2 Lev. 236. S. C. 3 Keb. 859. {I) Mayor of Norwich's case, 12 Mod. 322. The following cases contain forms of declaration in an action for a false return. To admit a sexton, 2 B. & C. 313.f S. C. 3 D. & R. 549.-}- For not accepting a surrender, 4 M. & S. 486. For not ap- pointing a sexton, 10 East, 259. For not calling a parish meeting to license a curate, 6 D. & R. 517.f To admit an alderman, 3 P. & D. 505. So swear in churchwardens, 2 Lut. 1012, which declaration was drawn by Pollexfen and Holt, ore C. J. Com. Dig. tit. " Return." (F.) (m) See ante, p. 429. R. v. London (Mayor), 3 B. & Ad. 276, 279-1 R- v. Lon- don (Mayor), 5 B. & Ad. 233.+ Enfield t. Hills, 2 Ley. 236, 238. S. C. Sir T. Jones, 116. Com. Dig. tit. "Man." D. 6. (ra) See ante, p. 388, n. {k). Anon., 12 Mod. 515. S. C. 2 Salk. 669. Lord T. Francis, 12 Mod. 408. S. G. Holt, 170. Russell v. Succlin, 1 Sid. 218. E. T. Newcastle-upon-Tyne (Mayor), 1 East, 115. (o) See 12 Mod. 515, supra, n. (n). COLLATERAL PROOEEDINQS, 465 .] Evidence, &c. — In an action for a false return, the defendant may have inspection, &c., and copy of charters, &c.(j>) The evidence in each case must necessarily vary with the facts of each return. The following decisions on the sufficiency of evidence in certain cases appear in the books. In an action for a false return of " non fuit dectus," the plaintiff need not prove having taken the Sacrament within the year before election, if the trial be above six months after the election, and there have not been any prosecution,(g') and upon such an issue as to a corporate officer, Lord Holt has said, if one be irregularly chosen at first, and afterwards his title be recognised and his name entered in the corporation books, or regularly chosen into a superior dignity, such should be taken to be such evidence of a good election as ought not to be con- troverted.(r) That which is only a circumstance and not the point of truth, or falsity of the return need not be proved, as that the plaintiff after he was elected, presented himself to be sworn. (s) It should be proved that the return was made by the defend- ant.(<) *The delivery of the writ need not however be proved.(M) L ■^J But as in the case of a corporation, the return need neither be signed nor sealed, so, it will be sufficient evidence against the mayor in an action for a false return, that the mandamus was delivered to him, and such a return- has been made, unless he prove it is not his return. («) The Court allows the propriety of issuing the writ of mandamus to be questioned, (to) but it seems the validity of the writ may be impugned, if the action be brought in B. Il.(a;) .] Verdict. — If the action be brought in the Court of B. E., and a verdict be found for the plaintiff in such action, the return thereby proved to be false is no return in contemplation of law,(y) and a peremp- tory mandamus will be awarded,(z) upon motion on reading an office copy of the record in the action or information. (a) (p) Aaon., 2 Salk. 430. Com. Dig. tit. " Man." D. 2. But see ante, p. 378, 379, u. (m). (?) Crawfordv. Powell, Burr. 1013. Com. Dig. tit. " Man." D. 6. As to evidence on non fuit electus, see Ld. Eaym. 1354 ; Stra. 1145. S. C. 1 Mod. 365 ; Bull. N. P. 206, 206. (r) Lord V. Francis, 12 Mod. 408. S. C. Holt, 170. Piper v. Dennis, 12 Mod. 253. B. T. Monmouth (Mayor), 4 B. & A. 496.t (a) Batson t. Sayer, Stra. 728. Com. Dig. tit. " Man." D. 6. (() Vaughan v. Lewis, Carth. 229. K. v. Chalice, Ld. Raym. 848 ; Bull. N. P. 205. See ante, p. 341, 342, 343, 344, 430, n. (/), and post, p. 434, n. {r). (m) See post, p. 434. R. t. Chapman, 6 Mod. 152. S. C. Holt, 443. (») See ante, p. 363. R. t. Exeter (Mayor), Ld. Ray. 223. Bull. N. P. 209. Bac. Abr. tit. " Man." (L.) M R. T. Clarke, 2 Bast, 82. Green v. Pope, Ld. Kay. 126. Bac. Abr. tit. "Man."(L.) [x) See ante, p. 374, n. (o). Green v. Pope, Ld. Ray. 125, 126, Clarke t. Lei- cestershire Canal, 6 Q. B. 600.t [y] R. T. Heathcote, 10 Mod. 57. B. v. Ely (Ep.), 2 T. B. 319. Bowles v. Neale, 7 0. & P. 262.f (2) See ante, p. 402, n. (/). B. v. Green, Skin. 670. S. C. 2 Salk. 428. S. C. Ld. Raym. 125. S. C. 5 Mod. 316 ; 11 Co. 99 b ; Com. Dig. tit. " Man." D. 6. (a) Gude's Or. Pr. 188. June, 1852.— 30 466 tapping's MANDAMrS. The Court, if necessary, will refer certain points to arbitration, (6) .] Error. — A writ of error lies in an action for a false return to 3 mandamus, and operates as a supersedeas to a peremptory mandamus.(c) It is the same as in a personal action. Costs.] The rules as to costs are the same as in personal actions.(cr) Information foe a False Return.] When it lies. — ^If the writ of mandamus have not been brought in respect of a private right, but public government is concerned, so that an action for a false return cannot be maintained, and the case be not within the stat. 9 Ann. c. 20, so that the return may be traversed, and if proper, a peremptory mandamus awarded, and the matter be one in which no one is particularly interested, the Court will, on application, grant a criminal information against all the parties who made such false return, in order that the disputed facts may be tried.(e) Thus, such an information will be *granted against a L J mayor, for making a return against the votes of the majority ;(/) and notwithstanding the return may be under the common seal, yet such an information may be moved against the particular persons who pro- cured it.(^) A criminal information will not, however, lie against justices, for hav- ing made a false return to a mandamus, unless such return be corruptly and wilfully false )Qi) nor where the return depends upon a matter of doubtful law.(i') But where justices had made a false return to a man- damus, to appoint overseers for a township, and the Court had thereupon granted a rule nisi for a criminal information, and on shewing cause against that rule, contradictory facts were disclosed which were directed to be tried by an issue, and after an issue had been prepared and delivered, the justices abandoned the issue, and obtained a Judge's order for staying proceedings, without prejudice to the question of costs, the Court ordered the justices to pay the prosecutor the costs of preparing and delivering the issue, (y) So such an information will be granted against justices of (6) See ante, p. 412. Dr. Widdrington's case, Eaym. 68. S. 0. 1 Sid. 'Tl. (c) Ending t. Newel, Stra. 983. See ante, p. 406, and tit. " Error," 397. \d) See Chit. Prac. tit. "Gusts." (e) R. V. Spotland (Overseers), Gas. t. Hard. 184. Bac. Abr. tit. " Man." (L.) Surgeons' Company's (Case), 1 Sallt. 3'74 ; Ld. Raym. 584. E. v. Pettiward, Burr. 2452, 3. R. V. Lancashire (J.), 1 D. & R. 485.f R. v. Nottingham (Mayor), Bull. N. P. 199, 203. Anon., Lofft. 185. R. v. Chapman, 6 Mod. 152. S. C. Holt, 442. Fall T. R. 1 Q. B. 644, 645.t S. C. 2 G. & D. 808. Com. Dig. tit. " Man." D. 6. (/) See ante, p. 341, 342, 343. The case of Abingdon Town, Garth. 500. S.C. 12 Mod. 308. S. C. 1 Salk. 431. S. C. 2 Salk. 699. S. G. Holt, 440. S. C. Ld. Raym. 559. {g) See ante. p. 430. The case of the Surgeons' Company, Com. Dig. tit. " Man." (D. 6). (A) R. T. Lancash. (J.), ID. & R. 485,-f- and n. (a). R. v. Spotland, Cas. t. Hard. 184. S. C. 1 Barn. 13?. See B. v. Pettiward, Burr. 2452. [i) E. V. Pettiward, Barr. 2452. {j) See 1 D. & R. 485,t supra, n. (*). COLLATERAL PROOEEDINQS. 467 the peace for disobedience to a peremptory mandamus ■,(h) or for making a shuffling and evasive return. (Z) .] Motion. — ^The rule for a criminal information is obtained by application to the Court, on motion, supported by affidavits of the facts ;(w) the Court will easily grant it, but the rule is, in the first instance, a rule to shew cause only ;(n) it cannot, however, be moved for, until the return shall have been filed and allowed. (o) .] Venue. — The Court will not change the venue in an informa- tion for a false return to a mandamus,(p) and has distinguished the case of an action for a false return, from an information in this respect. (g) * .J Evidence. — A copy from the Crown Office of the writ rifAOA-\ and return thereto is sufficient evidence against the defendant on the trial of the information •,{r) the delivery of the writ need not be prov- ed ;(?•) nor will the Court suffer the propriety of issuing the writ of man- damus to be questioned, (s) .] Verdict. — After the return has been falsified by a verdict for the prosecutor, a peremptory mandamus will lie as of right. (<) But the motion for such writ cannot be made till four days after the return of the postea, because the defendant has so long to move in arrest of judg- ment.(ii) As no damages are recoverable by the prosecutor, so the Court imposes a fine(«) upon the defendants, if unsuccessful. [k) E. V. Corbett, Sayer, 267, where see the special terms upon which the rule was discharged. U) See ftnte, p. 352, n. («). (»i) See ante, p. 295, 296. Anon., LofFt. 185. The case of the Surgeons' Com- pany, 1 Salk. 373, 16. E. v. Pettiward, Burr. 2454. For the full practice of a cri- minal information, see Com. Cr. Pr. p. 168. (ffl) Anon., 1 Bam. 327. Surgeons' Company's (Case), 1 Salk. 374. R. v. Cor- bett, Sayer, 267. (o) See ante, p. 383. Bull. N. P. 199. Bac. Abr. tit. " Man." (L.), n. E. v. Lancaster, 1 D. & E. 485. Supra, n. (A). (p) R. V. Barton, Say. 146. \q) E. T. Oxford (Mayor), Say. 146. (t) See ante, p. 432. B. v. Chapman, 6 Mod. 162. S. C. Holt, 442, 443. See tit. "False Return" (Evidence). i) R. V. Clarke, 2' Bast, 82.' Green v. Pope, Ld. Bay. 126. (() See ante, p. 402, n. (/). Buckley t. Palmer, 2 Salk. 430, 431. (m) See ante, p. 406, n. {d). Case of the City of Exeter, P. 12 Wm. 3, B. R., and see 1 Salk. 374. Supra, n. (n). («) 1 Salk. 374, cited in 5 Bac. Abr. 286, tit. "Man." (L.), 7th edit. Ca. temp. Hard. 184. Bull. N. P. 203 ; 1 G. & D. 121, 123. S. C. 1 Q. B. 644;-}- Burr. 2452 ; 1 D. & R. 485,t supra. Buckley t. Palmer, 2 Salk. 431. R. v. Abingdon (Mayor), 2 Salk. 431, 432. S. 0. Carth. 500. S. C. Ld. Raym. 559. APPENDIX TO THE LAW AND PRACTICE OF THE WRIT OF MANDAMUS. FOEM A. A Letter from King Hen. IV. to the certain Sheriffs to raise men for the defence of the Mngdom against the invasion of Oiceyn Ghndourdy. Dated Thursday, 2Qth May, 2 Een. IV. 1401. Treschier t foial, Nous vous salvons en vous signifiant que yce Jendy le XXTJ. jour de May a nous estoit apportee certeine nouvelle a nre ohastel de Walyngford que Oweyn Glendourdy t autres noz rebelx de nre pays de Gales se sont levez t de nouvelle assemblez en les marches de Kermeidyn aiant en purpos dentrer en nre roiaume ove fort main pour destmir nre lange Angloys t tons noz foialx lieges t soubgiez qui Dieux defende et pour resister a la malice de noz ditz rebelx nous suymes ordennez a de- partir demain de nre dit ohastel et de tener nre chemyn vers les parties de Wircestre. Par quoi nous mandons que ovec les chiyalers escuiers gentz darmes t le pluis sufiSsanta archrs de nre countee dont vous estes nre vis- counte vous soiez devers nous [par la ou nous soions] en tout hast possible sauns defaute sur la foye t ligeance que vous nous devez t come vous de- sirez la salvacioun de nous t de nre roialme. Donne soubz nre signet a lavandit nre cbastel le Jeudy suisdit.Ca) (ffl) Bibl. Cotton. Cleopatra, f. Ill, f. 115; 2 Nicolas Proc. Priv. Coun. 54. The above is a specimen of a " Letter Missive, " which shews the condition of the writ of mandamus some centuries before it became a judicial writ. See ante, p.3,n.(A). APPENDIX. 469 *FORM B. [*436] Privy Seal commanding the Treasurer and Chamberlains of the Exchequer to deliver to the Bishop of lAncoln certain articles of plate, dec. (L : 3 J 18,1. No. 2.) (a) Edward p la g'ce de Dieu Eoi d Engletre Seign' d Irlaunde t Dues d Aquitaine as Tresorier t Chambreleins de nre Escheqier saJuz. Nous vous mandoms q la vessele d argent t les jueuxl on^able Piere en Dieu lEvesq, de Nicole q feurent p^s de lui, en temps nre ts eh Seignr t Piere t livez a nre ch clerc Thomas de Usflete p les mains Nichol de Falle t puis sont devenuz en vre garde, et auxint les tentes t pavilions le dit Evesq, q vo' avez en garde facez liver a mesme 1 Evesq, ou a son attournea p endenture. Don souz nre p've seal a Estaunford le xxvi. jour d Averil 1 an de nre regne pimer. FORM C. 6 Hen. VIII. — Prim/ Seal directing the delivery to the Ambassadors {about to re/pair to France") of the treaty of Amboise, 1492. (Me- moranda, p. 149. (6) Henry by the grace of God King of England and of Fraunce and Lorde of Ireland. To the Tresourer and Chamberlains of our Eschequier greet- ing, Where as a certain bonde and writing obligatory heretofore made by King Charles of Fraunce undre his grete seal and signe manuell unto the late King our Fader whome God pdone bering date at Ambasie the xiii"" day of Decembr the yere of our Lorde God m'.cccolxxxxii remaigneth in the Tresourye of our said Eschequier. We for divse consideracons us and Or Counsaill moeving woll and carrvounde you to deliv the said bond and writing unto or ryght trusty cousyn th Erie of Worcestre O"- Cham- blain the Prior of Seint Johns Jertm w'in this or reame and Doctor West , 0' Counsaillors which we nowe sende in or ambassade unto o' derest brother and cousyn Kyng Loys of Fraunce, And these o' bes shal be yo"' suffi- cient warrant and discharge in that behalf. Yeven undre Or prive seale at c manr of Gylforth the xxis* day of August the vi"" yere of our reigne. Ptjede. (a) See Palgrave's Anc. Exr., Kal. & Inv., vol. 2, p. 143. The above " Privy Seal" shews an ancient condition of the writ of mandamus. (b) See Palgrave's Anc. Exr., Kal. &c., vol. 2, p. 402. See preceding form of " Privy Seal," n. (o). 470 TAPPING'S MANDAMUS. [*437] *FOKM D. 3 Ed. III. — A writ commanding the Treasurer and Chamberlains of the Exchequer to deliver to John de Stonore, Chief Justice, of the Bench, and successor of WiUielmus de Herle, late Chief JvMice thereof, the Rolls which had been brought in by the latter. (L : 3 j 18, 2. No. 1). (a) Edwardus Dei gra Kex Angt Ds Hibnn t Dux Aquit Thes t Camar suis : saltm. Cum constituim' dilcm t fidelem nrm Johem de Stonore Capitalem Justic nrm de Banco ad plita in eodem Banco una cum aliis fidelibz nris scdm legem t consuetudine regni nri tenend qamdiu nob plar cuit t mandavim' dUeo t fideli nro Willo de Herle qd rotulos t omia alia officiu illud tangencia que in custodia sua existunt, ad Scacm nrm sine dilone venire fac vob p indenturam inde conficiend, liband. Yob man- dam' qd rotulos t omia alia dcm officiu tangencia que pfatus Wills vob ut pmittitr libabit, pfato Johi p indenturam modo debito inde conficiend, libetis ad faciend ea que ad officiu suu ptinet in hac parte. T. me ipo apud Grlouc tcio die Septembr anno r. n. tcio. p. ipm Kegem t cons. Ajarecedent of a writ of restitution [ante, p. 3, n. (»i)] before Fortescue, Chief Justice of the Queen's Bench in the time of Hen. VI., cited in Middleton's Case, E. T., 16 Eliz., 2 Dyer, 332 6. See Offidna Brevium, p. 189.(6) Rex maiori(6) ciuitatis London salutem. Cum Eichardus Anable de London pewterer juxta legem et cons regni nostri Angliae, temporibus nostris et progenitorum nostrorum Eegum Angliae hactenus pro quibus- cunque ligeis nostris et progenitorum nostrorum pr»dictorum visitat et approbat in curia nostra coram nobis per breue implacitaverit Thom Faw- coner de London mercer, nuper Escbaetorem ciuitatis nostrse praedictae, de r*4381 l^^'^s'^^''^ transg in *breui illo specificat eidem Ricb. (vt. dicitur) ■ iUatis, tamen ex parte prsedioti Ricbardi in curia nostra prsedicta coram nobis grauem querelam recepimus, continent quod licet idem Ri- chardus a diu in libertatem et franches infra eandem ciuitatem habere et gaudere, sicut caeteri conciues, status et codicionis suae eiusdem ciuitatis, habere et gaudere consueuerunt, vt unus de conciuibus eiusdem ciuitatis, (a) See Palgrave's Anc. Extr., Kal. &c., vol. 2, p. 148. This form exhibits the present writ of mandamus in its condition of " Parliamentary Writ." See ante, p. 3, n. (l) 251, n. (z), 269, n. (w). (i) In the report of Middleton's case, 2 Dyer, 332 b, it is stated that a similar writ to the one in Anable's case was made in the same Term, but that it was in a better form, inasmuch as it was directed to the mayor, alderman, and sheriffs of London, with words to restore the prosecutor to his former liberties, &c. APPENDIX. 471 a tempore quo admissus fuit quousque ipse querelam suam prsedictam de transgres prsedict versus praef Thomam in curia nostra coram nobis mouis- set, et prof fuiset pacifice at quiete gaudebat et habere solebat. Vos occasion motionis querelse praediotse, versus prsedictum Thomam, et pro- secutionem eiusdem alibi quam coram vobis infra ciuitatem nostram prae- dictam ipsum Eichardum libertates suas infra ciuitatem nostram. pdictam amittere eausare intenditis, et ostea et fenestras ipsius Eichardi mansionis suae infra eandem ciuitatem claudi et serari fecistis, et plura alia graua- mina sibi intollerabilia, imposuistis et imponi fecist, quo minus idem Richardus iusticiam suam dictse querelse trasgressionis prsedictse, in dicta curia nostra coram nobis libere, sicut ligeus noster consequi possit, in nostri contemptii et ipsius Kichardi dapnum grauissimum, et in hac parte pernitiosum exemplu ao regalise corona nostrae et dignitatis maximam derogationem : precipue cum prasrogatiua regaliae nostrae, qua nos et pro- genitores nostri supradicti de iure vsi fuerimus sicuti dignitati nostrse regi* copetet vt ius coronae nostrse personse nostrse annexum, quod qui- libet ligeus noster qui huiusmodi ius suum cora nobis prosequi voluerit, et illud ibid liber cosequi possit, absque aliqua indignac, vexatione, graua- mine, seu impedimento ea occasione sibi alibi per aliquem imponend. ToBis igitur mandamus firmiter iniungen, quod si ostia aliqua, aut fenestras mansionis ipsius Richardi ea occasione claudi feceritis, ea sine dilatione aperiri faciatis, ipsumque Richardum seu conquerent prsedictos, ac eorum aliquem occasionibus prsedictis non molestantes in aliquo seu grauantes, et si quid in contrarium feceritis, id sine dilatione eidem Richardo relaxetis et emendari faciatis. Teste J. Fortescue.(a) (a) Many Judges have, when speaking of the antiquity of the writ of mandamus, erroneously referred to Bagg's case, 11 Rep. 93 b, temp. 13 Jac. 1, as beingthe first writ that was granted for a municipal office. The above case, temp. Hen. 6, and also Middleton's case, prove the falsity of the assertion. See ante, p. 2, n. (/). APPENDIX ENGLISH STATUTES RELATINO TO THE HIGH PREROGATIVE WRIT OF MANDAMUS. [*439] *9 Anne, c. 20. An Act for rendering the Proceedings upon Writs of Mandamus, and Informations in the nature of a Quo Warranto, more speedy and effectual ; and for the more easy trying and determining the Rights of Offices and Franchises in Corporations and Boroughs.(^a) Whebeas divers persons have of late illegally intruded themselves into, and have taken upon themselves to execute the offices of mayors, bailiffs, portreeves and other offices vrithin cities, towns corporate, bo- roughs and places, within that part of Great Britain called England and Wales ; and where such offices were annual officeSj it hath been found very difficult, if not impracticable, by the laws now in being, to bring to a trial tod determination the right of such persons to the said offices within the compass of the year; and- where such offices were not annual offices, it hath been found difficult to try and determine the right of such persons to such offices, before they have done divers acts in their said offices prejudicial to the peace, order, and good government within such cities, towns corporate, boroughs and places, wherein they have respec- tively acted. And whereas divers persons who had a right to such offices, or to be burgesses or freemen of such cities, towns corporate, boroughs or places, have either been illegally turned out of the same, or have been refused to be admitted thereto, having in many of the said cases no other remedy to procure themselves to be respectively admitted or restored to their said offices or franchises of being burgesses or freemen, than by writs of man- la) Only so much of this statute is given as appertains to the subject " manda- mus." This statute is stated by Foster, J., in B. v. Williams, Burr. 402, 408, to have been drawn by Powell, J., with great care and attention, its object being to prcCT-ide for speeding prosecutions, and to quicken the removal of the usurpers of miiiioipal ofBoes. R. v. Heathcote, 10 Mod. 54, per Eyre, J. S. C. Fort. 290. APPENDIX. 473 damns, the proceedings on which are very dilatory and expensive, where- ty great mischiefs have already ensued, and more are likely to ensue, if not timely prevented : for remedy whereof. It is enacted, That from and after the first day of Trinity Term, in the year of our Lord one thousand seven hundred and eleven, where any writ of mandamus shall issue out of the Court of Queen's Bench, the Courts of Sessions of Counties Palatine, or out of any the Courts of Grand Sessions in Wales, in any of the cases aforesaid, such person or persons who by the laws of this realm are required to make a return to such writ of mandamus, shall make his or their return to the first writ of mandamus. {b) 2. That from and after the said first day of Trinity Term, as often as in any of the cases aforesaid any writ of mandamus shall issue out of any of the said Courts, and a return shall be made thereunto, it shall and may be lawful to and for the person or persons suing or prosecuting such writ of mandamus, to plead to, or traverse all or any the material facts contained within the said return : to which the *person or persons r^AAn-i making such return shall reply, take issue, or demur ; and such further proceedings, and in such manner shall be had therein, for the determination thereof, as might have been had if the person or persons suing such writ had brought his or their action on the case for a false return; and if any issue shall be joined on such proceedings, the person or persons suing such writ shall and may try the same in such place as an issue joined in such action on the case should or might have been tried ; and in case a verdict shall be found for the person or persons suing such writ, or judgment given for him or them upon a demurrer, or by nil dicit, or for want of a replication or other pleading, he or they shall recover his and their damages and costs in such manner as he or they might have done in such action on the case as aforesaid ; such costs and damages to be levied by capias ad satisfaciendum, fieri facias, or elegit ; and a peremptory writ of mandamus shall be granted without delay, for him or them for whom judgment shall be given, as might have been, if such return had been adjudged insufficient; and in ease judgment shall be given for the person or persons making such return to such writ, he or they shall recover his or their costs of suit, to be levied in manner aforesaid. 3. Provided always, That if any damages shall be recovered by virtue of this act against any such person or persons making such return to such writ as aforesaid, he or they shall not be liable to be sued in any other action or suit, for the making such return ; any law, usage, or custom to the contrary thereof in anywise notwithstanding. 6. That it shall and may be lawful to and for the said Courts respec- tively, to allow to such person or persons respectively, to whom any writ of mandamus shall be directed, in any of the cases aforesaid, or to the (6) See Stat. 11 Geo. 1, t. 4, s. 6, post, p. 444. 474 tapping's mandamus. person or persons who sliall sue or prosecute the same, such convenient time respectively, to make a return, plead, reply, rejoin or demur, as to the said Courts respectively shall seem Just and reasonable ; anything herein contained to the contrary thereof in anywise notwithstanding. 7. That after the said first day of Trinity Term, an act made in the fourth year of her Majesty's reign, intituled, " An Act for the Amend- ment of the Law, and the better Advancement of Justice," and all the statutes of jeofayles, shall be extended to all writs of mandamus and proceedings thereon, for any the matters in this act mentioned. 1 Geo. 1, ST. 2, c. 13. An Act for die further Security of His Majesties Person and Govern- ment, and the Succession of the Grown in the Heirs of the late Princess Sophia, being Protestants ; and for Extinguishing the Hopes of the Pretended Prince of Wales, and his Open and Secret Abetters.(a) * By sect. 11, it is enacted. That if any head or member of any college or hall within either of the Universities of Oxford or Cambridge, that are or shall be of the foundation, or that do or shall enjoy any exhibi- tion, being of (or as soon as he shall attain) the age of eighteen years, shall neglect or refuse to take and subscribe the several oaths in this act mentioned, according to the true intent and meaning of this act, or to produce a certificate thereof, under the hand of some proper officer of the respective Court, and cause the same to be entered in the register of such college or hall within one month after his having taken and subscribed f^A4-i -1 the said oaths ; and if the ^persons in whom the right of election of such head or member shall be, do neglect or refuse to elect some other fitting or proper person, in the place or stead of such head or member so neglecting and refusing to take and subscribe the said oaths as aforesaid, by the space of twelve months after such neglect or refusal, that then, and from thenceforth, it shall and may be lawful unto and for the king's most excellent majesty, his heirs and successors, under the great seal or sign manual, to nominate and appoint some fitting person, qualified according to the local statutes of such college or hall, to succeed to the place of such person who shall neglect or refuse to take and sub- scribe the said oaths ; and that every person so to be nominated and ap- pointed, shall have and enjoy such place to which he shall be nominated and appointed as aforesaid, to all intents and purposes whatsoever, and all benefits, privileges, and advantages to the same belonging and appertain- ing, as if such person had been elected and chosen by the proper electors of such college or hall. (a) Only so much of this statute is given as has relation to the subject "manda- mus." See ante, tits. " College," p. 76, and « University," p. 267. APPENDIX. 475 12. That if the head of any college or hall in either of the universities, or other person or persons lawfully authorized to admit, shall refuse or neglect to admit such persons so nominated and appointed under the great seal or sign manual as aforesaid, by the space of ten days after such ad- mission shall be demanded of him or them, who ought to make such ad- mission to such place as he shall be nominated to as aforesaid, that then and in such case the local visitor or visitors of such college or hall is hereby authorized and required to admit and place such person so nomi- nated and appointed to such place as he shall be nominated to as aforesaid, within the space of one month after the same shall be demanded of such visitor ; and in case such visitor shall neglect or refuse to admit as afore- said, during the space of one month after the same is lawfully demanded of such visitor, that then it shall and may be lawful to and for the Court of King's Bench at "Westminster, to issue out a writ of mandamus to be directed to such visitor or visitors, to admit such person to such place, and to proceed upon the said writ, according to the course of the said Court in such cases. 13. Provided always, That any person who by any neglect or refusal according to this act, shall lose or forfeit any office, may be capable of a new grant of the said office, or of any other, and have and hold the same again, such person taking the said oaths in such manner as aforesaid, so as such office be not granted to, or actually enjoyed by some person at the time of regranting thereof. 14. Provided also, That nothing herein contained shall be construed to extend to any person in his majesties service on board the fleet, or to any person whatsoever who shall go beyond the seas before the first day of November next, so as such person take the said oaths, and subscribe thereunto as aforesaid, according to the appointment of this act, within three months after his return. *11 Geo. 1, c. 4.(a) [*442] An Act for Preventing the Inconveniences arising for want of Elections of Mayors, or other Chief Magistrates of Boroughs or Corporations being made Vjpon the Days appointed hy Charter or Usage for that Purpose, and directing in what Manner such Elections shall be after- wards made.(h) Whereas in many cities, boroughs, and towns corporate within that (a) Only so much of this act is given as appertains to tlie subject " mandamus." This act is continued by the 1 Wm. 4, and 1 Vict. c. IS, s. 26, which see post, 450, and being a remedial one, receives a liberal construction. B. v. Pole, B. R. T. 7 & 8 G^o. 2. [b] The contests in the City of London, as to the election of municipal ofiicers, induced the passing of this act. R. v. Heathcote, 10 Mod. 63. 476 tapping's mandamus. part of G-reat Britain called England, Wales, and Berwick-upon-Tweed, the election of the mayor, bailiff, or bailiffs, or other chief officer or officers is by charter or ancient usage confined to a particular day or time, with- out any provision how to act or proceed, in case no election be then made; and it frequently happens that by such charter or usage particular acts are required to be done at certain times, in ordBr to and for the completing of such elections, and by the contrivance or default of the person or per- sons who ought to hold the Court, or preside in the assembly where such elections are to be made, or such acts to be done, or by accident it hath sometimes happened, and may frequently do so, if not timely prevented, that no Courts or assemblies have been held, or elections made, or such acts done within the time fixed for that purpose ; in which cases, if elec- tions of such oflScers could not afterwards be made or completed, or, in consequence of such omission, the corporation should be dissolved, great mischiefs might ensue : for remedy and prevention whereof it is enacted. That if in any city, borough, or town corporate, within that part of Great Britain called England, Wales, and Berwick-upon-Tweed, no election(c) shall be made of the mayor, bailiff or bailiffs, or other chief officer or officers of such city, borough, or town corporate, upon the day, or within the time appointed by charter or usage for such election, or such election being made, shall afterwards become void, whether such omission or avoid- ance shall happen through the default of the officer or officers who ought to hold the Court, or preside where such election is to be made, or by any accident or other means whatsoever, the corporation shall not thereby be deemed or taken to be dissolved or isabled from electing such officer or officers for the future : but in any case where no election shall be made, as aforesaid, it shall and may be lawful for the members or persons of such city, borough, or corporation, who have right to vote, or be present at, or to do any other act necessary to be done, in order to or for the completing of such election ; and they, or such of them as shall not be hindered by any reasonable impediment or excuse, are hereby required respectively to meet or assemble together in the town-hall, or other usual place of meet- ing for making such election, within such city, borough, or town corporate, upon the day next after the expiration of the time within which such election ought to have been made, unless such day shall happen to be Sun- day, and then upon the Monday following, between the hours of ten in the morning and two in the afternoon of the same day ; and that the mem- bers or persons having right to vote at, or to. do any other act necessary to be done in order to such election, or such of them as shall be so assembled or met together, shall forthwith proceed to the election of a mayor, bailiff or P^ . . - *bailiffs, or other chief officer or officers for siich city, borough, or '■ J corporation, and to do every act necessary to be done in order to (c) The words " no election," mean no legal election ; therefore, although there may have been an election de facto, the Court will, in some cases, award a man- damus according to the provisions of the act. R. v. Newsham, Sayer, 211. R. v. Bankes, Burr. 1454. E. v. Colchester (Mayor), 2 T. R. 259. APPENDIX, 477 or for the completing of such election, in such manner as was usual in, or in order to the election of such officer or officers, upon the day, or ■mthin the time appointed by charter or usage for such election ; and in case, upon such day of meeting hereby appointed for such election, the mayor, bailiff or bailiffs, or _ other proper officer or officers, who ought to have held the Court, or presided at the assembly for such election, or doing any other act necessary to be done in order to such election, if the same had been made or done on the day fixed, or .within the time limited by charter or usage for that purpose, shall be absent, then such other person, having a right to vote, being the nearest then present in place or office to the person or persons so absenting himself or themselves, shall hold the Court, or preside in the meeting or assembly hereby appointed, and shall have the same power and authority in all respects therein, as belongs to the mayor, bailiff, or bailiffs, or other chief officer or officers of the same city, borough, or town corporate, at any court or assembly for the election of officers for such place, or for doing any other act necessary to be done in order to such election. 2. That if it shall happen that in any city, borough, or town corporate within that part of Grreat Britain called England, "Wales, and Berwick- upon-Tweed, no election shall be made of the mayor, bailiff or bailiffs, or other chief officer or officers of such city, borough, or town corporate upon the day, or within the time appointed by charter or usage for that pur- pose, and that no election of such officer or officers, shall be made pur- suant to the directions hereinbefore prescribed, or such election being made, shall afterwards become void, as aforesaid, in every such ease it shall and may be lawful for his Majesty's Court of King's Bench, upon motion to be made in the said Court, to award a writ or writs of manda- mus, requiring the members or persons of such city, borough, or town corporate, having a right to vote at, or to do any other act necessary to be done in order to such election respectively, to assemble themselves upon a day and at a time to be prefixed in such writ or writs, and to pro- ceed to the election of a mayor, bailiff or bailiffs, or other chief officer or officers, as the case shall require, and to do every act necessary to be done in order to such election, or to signifie to the said Court good cause to the contrary, and thereupon to cause such proceedings to be had and made as in other cases of writs of mandamus, granted by the said Court for elec- tion of officers of corporations, and of the day and time appointed in and by any such writ or writs of mandamus for holding such assembly, public notice in writing shall, by such person as the Court shall appoint, be affixed in the market-place, or some other public place within such city, borough, or town corporate, by the space of six days before the day so appointed, and such officer or other person respectively shall preside in such assembly as ought to have presided at the election of such mayor, baihff or bailiffs, or other chief officer or officers, or at the doing any other act necessary to be done in order to such election, in case the same 478 tapping's mandamus. had been made or done upon the day hereinbefore prescribed for that purpose. 3. And whereas in certain boroughs and towns corporate within that part of Great Britain called England, Wales, and Berwick-upon-Tweed, the mayor, bailiff or bailiffs, or other chief oflScer or officers, is or are to be nominated, elected, or sworn at a Court Leet, or view of frankpledge or some other Court, and by reason of the contrivance or default of the lord, or his steward, or such other officer, by or before whom such Court ought to be held, in not holding the same, or by some accident it hath happened, and may hereafter happen, that no due nomination, election, or swearing of such mayor, bailiff or bailiffs, or other chief officer or officers, hath been or shall be had or made, be it further enacted. That in every such case it shall and may be lawful to and for his Majesty's Court of .King's Bench, upon motion to be *made in the said Court, to L -' award a writ of mandamus, requiring the lord, or his steward, or other officer, by or before whom such Court ought to be held, to hold, or cause to be holden, such Court Leet, or other Court, and to do every other act necessary to be done by him in order to such nomination, election, or swearing, at such day and time as shall be for that purpose judged proper by the Court of King's Bench, and shall be appointed in such writ, or to signifie to the said Court good cause to the contrary, and thereupon to cause such proceedings to be had and made as in other cases of writs of mandamus granted by the said Court for holding of any Court, and of the day and time appointed in and by any such writ of mandamus for holding such Court, publick notice in writing shall by such person as the said Court of King's Bench shall appoint, be affixed in the market-place, or some other publick place within such borough, or town corporate, by the space of six days before the day so appointed ; and where a nomination of persons in order to the election of any such mayor, bailiff or bailiffs, or other chief officer or officers, is to be made at such Court Leet, or other Court, in every such case, after such nomination made, all and every act and acts necessary to be done in order to such election, shall be had, made, and done at such assembly, and in such manner and form as the same ought to have been had, made and done, in case such election had been made upon the day next aft«r the expiration of the time prescribed for such election, by the charter or usage of such borough or corporation, according to the directions hereinbefore mentioned. 6. That where any writ of mandamus shall issue out of the Court of King's Bench, in any of the cases aforesaid, the person or persons to whom such writ shall be directed shall make his or their return to the first writ of mandamus.{a) (o) See Stat, 9 Ann. c. 20, s. 1. APPENDIX. 479 12 Geo. 3, c. 21. An Act for giving Relief in Proceedings upon Writs of Mandamus for ike Admission of Freemen into Corporations^ and for other Purposes therein mentioned.Q)) Whereas divers persons, who have a right to be admitted citizens, bur- gesses, or freemen, of divers cities, towns corporate, boroughs, cinque ports and places, within that part of Great Britain called England and Wales, being refused to be admitted thereto, have, in many oases no other ordi- nary remedy to procure themselves to be admitted to the franchises of being citizens, burgesses, or freemen, than by writs of mandamus, the proceedings on which are very dilatory and expensive; and, although any such writ of mandamus is obeyed, the person applying is nevertheless put to great and unnecessary trouble, delay, and expense : And whereas by the laws now in being, in many cases no provision is made for giving costs to the party suing out any such writ where the same is obeyed ; for remedy whereof, it was enacted, that from and after the iirst day of August, one thousand seven hundred and seventy-two, where any person shall be entitled tb be admitted a citizen, burgess, or freeman of any such city, town corporate, borough, cinque port, or place, and shall apply to the mayor, or other person, officer or officers, in such city, town corporate, borough, cinque port, or place, who hath or have authority to admit citi- zens, burgesses, and freemen therein, to be admitted a citizen, burgess, or *freeman thereof; and shall give notice, specifying the nature of r*4^^K-] his claim, to such mayor, or other officer or officers, that if he or they shall not so admit such person a citizen, burgess, or freeman, within one month from the time of such notice, the Court of King's Bench will be applied to for a writ of mandamus, to compel such admission ; and if such mayor, or other officer or officers, shall, after such notice, refuse or neglect to admit such person, and a writ of mandamus shall afterwards issue to compel such mayor, or other officer or officers, to make such admission, and, in obedience to such writ, such persons shall be admitted by the said mayor, or other officer or officers, a citizen, burgess, or free- man of such city, town corporate, borough, cinque port, or place, then such person shall (unless the Court shall see just cause to the contrary) obtain and receive from the said mayor, or other officer or officers so ne- glecting or refusing as aforesaid, all the costs to which he shall have been put in applying for obtaining and serving such writ of mandamus, and enforcing the same, by a rule to be made by the Court out of which such writ shall issue, for the payment thereof, together with the costs of apply- ing for, obtaining, serving, and enforcing the said rule ; and if the rule so to be made shall not be obeyed, then the same shall be enforced in (6) Only so much of this statute is given as appertains to the subject " man- damus." 480 TAPPING'S MANDAMUS. suet manner as other rules made by the said Court are or may be enforced by law. 38 GEO. 3, c. 52. An Act to regulate the Trial of Causes, Indictments, and other Proceed- ings, which arise within the Counties of certain Cities and Towns Cor- porate within this Kingdoni.{a') [1st June, 1798. Whekeas there at present exists, in the counties of cities and of towns corporate within this kingdom, an exclusive right, that all causes and offences which arise within their particular limits should be tried by a jury of persons residing within the limits of the county of such city or town corporate; which ancient privilege, intended for other and good pur- poses, has in many instances been found, by experience, not to conduce to the ends of justice : And whereas it will tend to the more effectual administration of justice, in certain cases, if actions, indictments, and . other proceedings, the causes of which arise within the counties of cities and towns corporate, were tried in the next adjoining opunties : In order therefore to remedy this mischief for the future, it is enacted, that from and after the passing of this act, in every action, whether the same be transitory or local, which shall be prosecuted or depending in any of his Majesty's Courts of Record at Westminster, and in every indictment re- moved into his Majesty's Court of King's Bench by writ of certiorari, and in every information filed by his Majesty's attorney or solicitor general, or by the leave of the Court of King's Bench, and in all cases where any person or persons shall plead to or traverse any of the facts contained in the return to any writ of mandamus, if the venue in such action, indict- ment, or information, be laid in the county of any city or town corporate within that part of Great Britain called England, or if such writ of man- damus be directed to any person or persons, body politick and corporate, that it shall and may be lawful for the Court in which such action, indict- ment, information, or other proceeding shall be depending, at the prayer and instance of any prosecutor or plaintiff, or of any defendant, to direct the issue or issues joined in such action, indictment, information, or pro- r*4.4.fi1 <>6eding, to be tried by a jury of the *county next adjoining to the county of such city or town corporate, and to award proper writs of venire and distringas accordingly, if the said Court shall, think it fit and proper so to do. IX. And be it further enacted by the authority aforesaid, that for the purposes of this act, the county of York shall be considered the next ad- joining county to the county of the town of Kingston-upon-Hull ; the (a) Only so much of this act is here given as relates to the subject "Man- damus." APPENDIX. 481 county of Northumberland as the next adjoining county to the county of tie town of Newcastle-upon-Tyne. X. Provided always, that nothing contained in this act shall extend, or he construed to extend, to the cities of London and Westminster, or the horough of Southwark, or the city or county of the city of Bristol, or the city or county of the city of Chester, or to the criminal jurisdiction of the city of Exeter and county of the same city, unless in cases of indict- ment removed into his Majesty's Court of King's Bench by writ of certi- orari, from any court of criminal jurisdiction, within the sa,id city or county of the said city of Exeter. XL Provided also, that nothing in this act shall extend, or be construed to extend, to take away any other rights or privileges which have been anciently granted to such corporations, by royal charters or grants, and which have been immemorially held and enjoyed by such corporations; but that they shall continue in the full possession of all their other exclu- sive rights and privileges as much as if this act of Parliament had never passed, and that they shall not be obliged to attend as jurymen upon the trial of any cause or any indictment which may be removed from the limited jurisdiction to the county at large, nor upon the trial of any other cause, or any other indictment, which may be tried before Kis Majesty's justices of assize, oyer and terminer, and general gaol delivery, in the next adjoining county. 1 Wm. 4, c. 21. An Act to improve the Proceedings in Prohibition and on Writs of Man- damus.{a) [30th March, 1831. Sect. 8. And whereas the provisions contained in a certain act of Par- liament passed in the ninth year of the reign of queen Anne, intituled "An Act for rendering the Procedings upon writs of Mandamus and In- formations in the Nature of a Quo warranto more speedy and effectual, and for the more easy trying and determining the Eights of Offices and Franchises in Corporations and Boroughs," relating to tJie writs of man- damus therein mentioned, have heen found useful and convenient, and the same ought to he extended to the proceedings on other such writs ; it is enacted, that the several enactments contained in the said statute relating to the return to writs of mandamus, and the proceedings on such returns, and to the recovery of damages and costs, shall he and the same are hereby extended and made applicaMe to all other writs of mandamus, and the proceedings thereon, except so far only as the same may be varied or altered by this act. . (ffl) Only so much of this act ia here given as relates to " Mandamus." This act IS recited in 6 & T Vict. c. 67, post, p. 451. June, 1852.— 31 482 tapping's mandamus. Sect. 4. And whereas writs of mandamus, {other than such as relate to the offices and franchises mentioned in or provided for hy the said act made in the ninth year of the reign of Queen Anne,') are sometimes issued to officers and other persons, commanding them to admit to offices, or do or perform other matters, in respect whereof the persons to whom such writs are directed claim no right or interest, or whose functions are merely- ministerial in relation to such offices or matters ; and it may be proper P^ . . that such officers and persons should in certain cases be *proteet- ^ ed- against the payment of damages or costs to which they may otherwise become liable ; it is enacted, that it shall be lawful for the Court to'which application may be made for any writ of mandamus, {other than such as relate to the said offices and franchises mentioned in or pro- vided for by the said act made in the reign of Queen Anne,) if such Court shall see fit so to do, to make rules and orders, calling not only upon the person to whom such writ may be required to issue, but also all and every other person having or claiming any right or interest in or to the matter of such writ, to shew cause against the issuing of such writ and payment of costs of the application : and upon the appearance of such other person in compliance with such rules, or in default of appearance after service thereof; to exercise all such powers and authorities, and make all such rules and orders, applicable to the case, as are or may he given or men- tioned hy or in any act passed or to he passed during this present session of Parliament for giving relief against adverse claims made upon persons having no interest in the subject of such claims. -{a) Provided always, that the return to be made to any such writ, and issues joined in fact or in law upon any traverse thereof, or upon any demurrer, shall be made and joined by and in the name of the person to whom such writ shall be direct- ed; but nevertheless the same shall and may, if the Court shall think fit so to direct, be expressed to be made and joined on the behalf of such other person as may be mentioned in such rules ; and in that case such other person shall be permitted to frame the return, and to conduct the subsequent proceedings, at his own expense ; and in such case, if any judgment shall be given for or against the party suing such writ, such judgment shall be given against or for the person or persons on whose behalf the return shall be expressed to be made, and who shall have the like remedy for the recovery of costs and enforcing the judgment as the person to whom the writ shall have been directed inight and would otherwise have had. Sect. 5. That in case the return to any such writ shall, in pursuance of the authority given by this act, be expressed to be made on behalf of any other person as aforesaid, the further proceedings on such writ shall not abate or be discontinued by the death or resignation of, or removal from office of, the person having made such return, but the same shall {a) There was no act to that efifect passed in the " then present session of Par- liament ;" but Bee 1 & 2 Wm. 4, c. 58, post, p. 448, which is by sect. 8, substituted for it. APPENDIX. 483 and may be continued and carried on in the name of sucli person; and if a peremptory writ shall be awarded, the same shall and may be directed to any successor in office or right to such person. Sect. 6. And for making some further provision for the payment of costs on applications for mandamus, be it further enacted, That in all cases of application for any writ of mandamus whatsoever, the costs of such application, (whether the writ shall he granted or refused,) and also the costs of the writ, if the same shall be issued and obeyed, shall he in the discretion of the Court, and the Court is hereby authorized to order and direct by whom and to whom the same shall be paid. *1 & 2 "Wm. 4, c. 58. [*448] An Act to enable Courts of Law to give Relief against adverse Claims made upon Persons having no Interest in the Subject of such Claims.(a) [20th October, 1831. Whekbas it often happens that a person sued at law for the recovery of money or goods wherein he has no interest, and which are also claimed of him by some third party, has no means of relieving himself from such adverse claims but by a suit in equity against the plaintiff and such third party, usually called a bill of interpleader, which is attended with expense and delay; for remedy thereof it is enacted. That upon application made by or on behalf of any defendant sued in any of his Majesty's Courts of Law at Westminster, or in the Court of Common Pleas of the County Palatine of Lancaster, or the Court of Pleas of the County Pala- tine of Durham, in any action of assumpsit, debt, detinue, or trover, such application being made after declaration, and before plea, by affidavit or otherwise, showing that such defendant does not claim any interest in the subject-matter of the suit, but that the right thereto is claimed or sup- posed to belong to some third party who has sued or is expected to sue for the same, and that such defendant does not in any manner collude with such third party, but is ready to bring into Court or to pay or dis- pose of the subject-matter of the action in such manner as the Court (or any Judge thereof ) may order or direct, it shall be lawful for the Court, or any Judge thereof, to make rules and orders calling upon such third party to appear and to state the nature and particulars of his claim, and maintain or relinquish his claim, and upon such rule or order to hear the allegations as well of such third party as of the plaintiff, and in the meantime to stay the proceedings in such action, and finally to order such third party to make himself defendant in the same or some other action, or to proceed to trial on one or more feigned issue or issues, and also to [a) This statute being in effect (see sect. 8, post, p. 449,) referred to by 1 Wm. 4, c. 21, s. 4, ante, p. 446, and its provisions generally being made applicable to the writ of mandamus by such last mentioned act, it is therefore given at length. 484 tapping's manbamtts. direct which of the parties shall be plaintiff or defendant on such trial, or, with the consent of the plaintiff and such third party, their counsel or attorneys, to dispose of the merits of their claims and determine the same in a summary manner, and to make such other rules and orders therein, as to costs and all other matters, as may appear to be just and reasonable. II. And be it further enacted. That the judgment in any such action or issue as may be directed by the Court or Judge, and the decision of the Court or Judge in a summary manner, shall be final and con- clusive against the parties, and all persons claiming by, from, or under them. III. And be it further enacted. That if such third party shall not appear upon such rule or order to maintain or relinquish his claim, being duly served therewith, or shall neglect or refuse to comply with any rule or order to be made after appearance, it shall be lawful for the Court or Judge to declare such third party, and all persons claiming by, from, or under him, to be for ever barred from prosecuting his claim against the original defendant, his executors or administrators; saving nevertheless the right or claim of such third 'party against the plaintiff ; and there- upon to make such order between such defendant and the plaintiff, aa to costs and other matters, as may appear just and reasonable. IV. Provided always, and be it further enacted. That no order shall be made in pursuance of this act by a single Judge of the Court of Pleas of r*44.Q1 *^^ ^^^"^ County Palatine of Durham who shall not also be *a Judge of one of the said Courts at Westminster, and that every order to be made in pursuance of this act by a single Judge not sitting in open Court, shall be liable to be rescinded or altered by the Court in like manner as other orders made by a single Judge. V. Provided also, and be it further enacted. That if upon application to a Judge, in the first instance or in any latter stage of the proceedings, he shall think the matter more fit for the decision of the Court, it shall be lawful for him to refer the matter to the Court ; and thereupon the Court shall and may hear and dispose of the same in the same manner as if the proceeding had originally commenced by rule of Court, instead of the order of a Judge. VI. And whereas difficulties sometimes arise in the execution of pro- cess against goods and chattels, issued by or under the authority of the said Courts, by reason of claims made to such goods and chattels by assignees of bankrupts and other persons not being the parties against whom such process has issued, whereby sheriffs and other officers are ex- posed to the hazard and expense of actions ; and it is reasonable to afford relief and protection in such cases to such sheriffs and other officers ; be it therefore further enacted. That when any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any such process, or to the proceeds or value thereof, it shall and may be lawful to and for the Court from which the process issued, upon applica- APPENDIX. 485 tion of such sheriff or other officer made before or after the return of such process, and as well before as after any action brought against such sheriff or other officer, to call before them, by rule of Court, as well the party issuing such process as the party making such claim, and thereupon to ex- ercise, for the adjustment of such claims and the relief and protection of the sheriff or other officer, all or any of the powers and authorities herein- before contained, and make such rules and decisions as shall appear to be just according to the circumstances of the case ; and the cost of all such proceedings shall be in the discretion of the Court. VII. And be it further enacted. That all rules, orders, matters, and decisions to be made and done in pursuance of this act, except only the affidavits to be filed, may, together with the declaration in the cause, (if any), be entered of record, with a note in the margin expressing the true date of such entry, to the end that the same may be evidence in future times, if required, and to secure and enforce the payment of costs directed by such rule or order ; and every such rule or order so entered shall have the force and effect of a judgment, except only as to becoming a charge on any lands, tenements, or hereditaments ; and in case any costs shall not be paid within fifteen days after notice of the taxation and amount thereof given to the party ordered to pay the same, his agent or attorney, execu- tion may issue for the same by fieri facias or capias ad satisfaciendum, adapted to the case, together with the costs of such entry, and of the ex- ecution if by fieri facias ; and such writ and writs may bear teste on the day of issuing the same, whether in Term or Vacation ; and the sheriff or other officer executing any such writ shall be entitled to the same fees, and no more as upon any similar writ grounded upon a judgment of the Court. Vni. And whereas by a certain act made and passed in the last ses- sion of Parliament, intituled "An Act to improve the Proceedings in Prohibition and on Writs of Mandamus,"(a) it was among other things enacted, that it should be lawful for the Court to which application may be made for any such writ of mandamus as is therein in that behalf men- tioned to make rules and orders calling, not only upon the person to whom such writ may be required to issue, but also all and every other person having or claiming any right or interest in or to the matter of such writ, to show cause against the issuing of *sueh writ and payment of the costs of ^ . . _. the application ; and upon the appearance of such other person in com- L ^ pliance with such rules, or in default of appearance after service thereof; to exercise all such powers and authorities, and make all such rules and orders applicable to the case, as were or might be given or mentioned by or in any act passed or to be passed during that present session of Parlia- ment for giving relief against adverse claims made upon persons having no interest in the subject of such claims : And whereas no such act was passed during the then present session of Parliament ; be it therefore en- acted, That upon any such application as is in the said act and hereinbe- fore mentioned, it shall be lawful for the Court to exercise all such powers [a) See act I Wm. 4, c. 21, ante, p. 446. 486 tappinq's mandamus. and authorities, and make all such rules and orders applicable to the case, as are given or mentioned by or in this present act. 1 Vict. c. 78. An Act to amend an Act for the Regulation of Municipal Corporations in England and Wales.{a) [17th July, 1837. Whereas an act was passed in the fifth and sixth years of the reign of his present Majesty, intituled " An Act to provide for the Kegulation of municipal Corporations in England and Wales," providing among other things for the election of certain officers in manner and form therein de- clared, but such elections have not in all cases been duly made according to the provisions of the said act : And whereas doubts are entertained by and before whom the meetings for such elections can now be convened and holden for the purpose of supplying such deficiencies : And whereas the elections of corporate officers and others are liable to be questioned by reason of any defect that may be in the title of the presiding officer before whom the election may have been had, notwithstanding that the election may have been otherwise good in all respects : For remedy thereof it is enacted : Sect. 24. That it shall be lawful for any person whose claim shall have been rejected or name expunged at the revision of the burgess roll of any of the said boroughs to apply before the end of the Term then next fol- lowing, to the Court of King's Bench for a mandamus to the mayor for the time being of that borough to insert his name upon the burgess roll, and thereupon for the Court to inquire into the title of the applicant to be so enrolled ; and if the Court shall award such mandamus the mayor shall be bound to insert the name upon the burgess roU, and shall add thereunto the words "By Order of the Court of King's Bench," and shall subscribe his name to such words ; and thereupon the person whose name shall be so added to the burgess roll shall be deemed a burgess, and entitled to vote and act as a burgess in all respects as if his name had been put upon the burgess roll by the mayor and assessors; and upon every such application the Court shall have power to make such order with respect to the costs as to the Court shall seem fit. Sect. 26. And be it enacted, that after the passing of this act all the powers, authorities, and jurisdictions by an act of the eleventh year of the reign of his late Majesty King Greorge the First, intituled " An Act for preventing the Inconveniences arising from want of elections of Mayors or other chief Magistrates of boroughs or corporations being made upon the days appointed by charter or usage for that purpose, and directing in what ^.-.-.manner such elections should be afterwards *made,"(6) given to '- -' his Majesty's Court of King's Bench in cases where no election (a^ Only so much of this act is given as appertains to the subject " Mandamus." (b) See the act, ante, p. 442. APPENDIX. 487 [ be made of the mayor, bailiff and bailiffs, or other chief officer or officers, of cities, boroughs, or towns corporate, upon the day or within the time appointed by charter or usage for that purpose, and that no elec- tion is made pursuant to the directions in that act prescribed, or such election being made shall afterwards become void as in that act mentioned shall and the same are hereby extended to all cases in which no election, shall be made of any mayor, alderman, councillor, or other corporate officer, or other person to any corporate office on the day or within the time appointed for' any such election under the provisions of the said act of the fifth and sixth years of the reign of his present Majesty for regu- lating corporations, or of this act j and the said Court of King's Bench is hereby empowered in all such cases to award a mandamus, and cause such proceedings to be had thereupon, and to make such orders, and to do all other acts, matters and things in respect thereof, as fully and effec- tually as the said Court is now by law authorized in any other cases of mandamus for the election of any officers of corporations; and the election to be held under such mandamus shall be held and the pro- ceedings thereon conducted within the borough in the same manner and under the like regulations and provisions as are in the said act of his Ma- jesty King G-eorge the First enacted and provided. 6 & 7 Vict. c. 67. An Act to enable Parties to sue out and prosecute Writs of Error in cer- tain cases upon the proceedings on Writs of Mandamus. [22nd August, 1843. Whereas writs of mandamus are issued by her Majesty's Court of Queen's Bench and the Courts of the Counties Palatine, and the applica- tion for the same must now be made in those Courts respectively alone : And whereas writs of mandamus are frequently awarded, and often in cases of considerable importance, and the practice of issuing such writs hath of late very much increased : And whereas it is expedient that parties interested in the issuing of or in the proceedings upon such writs respectively shall be enabled in certain cases to have the judgments and decisions of the said Court of Queon's Bench, and Courts of the Counties Palatine respectively, in respect of the said writs and of the proceedings thereon, reviewed hy a Court of Error, if they shall so think fit, and that a certain mode of effecting the same shall be ordained and established : And whereas by a certain act made and passed in the ninth year of the reign of Queen Anne, intituled "An Act for rendering the proceedings upon Writs of Mandamus and Informations in the nature of a Quo 'War- ranto more speedy and effectual, and for the more easy trying and deter- mining the rights of Offices and Franchises in Corporations and 488 tapping's mandamus. Boroughs," (a) it was enacted, amongst other things, that in certain cases therein mentioned, when a writ of mandamus should issue and a return should be made thereunto, it should be lawful for the person suing or pro- geeuting such writ to plead to, or traverse, all or any of the material facts contained within the said return, to which the person making such return should reply, take issue, or demur, and such further proceedings in such manner should be had therein for the determination thereof, as might have been had if the person suing such writ had hro'ught his action *- J ore the case for a false return : And whereas by an *act passed in the first year of the reign of the late King William the Fourth,(5) the said provision hereinbefore mentioned of the said herein first-recited act was extended to writs of mandamus in all other cases, and to the pro- ceedings thereon : And whereas in neither of the said recited acts, nor in any other act, is any power or authority given to the person prosecuting such writ of mandamus to demur to the return made to any such writ, so that the decision of the said Courts respectively as to the validity of such return could he reviewed hy a Court of Error ; for remedy whereof it is enacted, That in all cases in which the person prosecuting any such writ heretofore issued or hereafter to be issued shall wish or intend to object to the validity of any return already made or hereafter to be made to the same, he shall do so by way of demurrer to the same, in such and the like manner as is now practised and used in the Courts hereinbefore mentioned respectively in personal actions ; and thereupon the said writ and return and the said demurrer shall be entered upon record in the said Courts respectively, and such and the like further proceedings shall be thereupon had and taken as upon a demurrer to pleadings in personal actions in the said Courts respectively ; and the said Courts respectively shall thereupon adjudge either that the said return is valid in law, or that it is not valid in law, or that the writ of mandamus is not valid in law; and if they adjudge that the said writ is valid in law, but that the return thereto is not valid in law, then and in every such case they shall also by their said judgment award that a peremptory (c) mandamus shall issue in that behalf, and thereupon such peremptory writ of mandamus may be sued out and issued accordingly, at any time after four days from the signing of the said judgment ; and it shall be lawful for the said Courts respectively, and they are hereby required, in and by their said judgment to award costs to be paid to the party in whose favour they shall thereby decide by the other party or parties. II. And that whenever any such judgment as is hereinbefore mentioned shall be given, or whenever issue in fact or in law shall be joined upon any pleadings in pursuance of the said recited acts or either of them, and judgment shall be given thereon by, any of the Courts aforesaid, it shall be lawful for any party to the record in any of such cases, who shall (a) For this act, see ante, p. 439. (J) For this act, see ante, p. 446. (c) Lord Denman, C. J., in The Queen v. Earl of Dartmouth, 5 Q. B. 881, said that the word " peremptory" is an unfortunate word in the act. APPENDIX. 489 think himself aggrieved by such judgment, to sue out and prosecute a writ of error for the purpose of reversing the same, in such manner and to such Court or Courts as a party to any personal action in the said Court may now sue out and prosecute a writ of error upon the judgment in such action ; and such and the like proceedings shall thereupon be had and taken, and such costs av?arded, as in ordinary cases of writs of error upon judgments of the said Courts respectively in personal actions ; and if the judgment of such Court be reversed by the Court of Error, the said Court of Error shall thereupon by their judgment not only reverse the same, but shall also in addition thereto give the same judgment which the Court Tfhose judgment is so reversed ought to have given in that behalf; and if by their said judgment they shall award that a peremptory writ of man- damus shall issue, the same shall and may accordingly be issued by the proper officer in the office from which such writs issue, as the case may be, upon production to him of an office copy of the said judgment of the Court of Error, which shall be his authority and warrant for so doing : Provided always, that bail in error to the amount of fifty pounds, or such other sum as may by any rule of practice be appointed as hereinafter pro- vided, shall be duly put in within four days after the allowance of the said writ of error, and the same shall afterwards be duly perfected accordingjo the practice of *the Court wherein the said original L J judgment was given, otherwise the plaintiff in error shall be deemed to have abandoned his writ of error, and the same shall not be further pro- secuted. III. That no action, suit, or any other proceeding shall be commenced or prosecuted against any person or persons whatsoever for or by reason of any thing done in obedience to any peremptory writ of mandamus issued by any Court having authority to issue writs of mandamus. IV. That the said Courts of Error who are hereby empowered to take cognizance of the matters aforesaid may make, and they are hereby direct- ed to make, from time to time and as often as they shall see occasion, such rules of practice in reference to the said application and the proceed- ings thereon, and in reference to the writs of error hereinbefore mentioned and the proceedings thereon, and the amount of bail to be taken, as the said Courts respectively may deem necessary to effectuate the intention of this act in relation to the same respectively. 6 & 7 Vict. o. 89. An Act to amend an Act for the Regulation of Municipal Corporations in England and Wales.{a) [24th August, 1843. Sect. 5, after reciting that it is expedient to render certain proceedings (a) Only so much of this act is given aa has relation to the subject "Man- 490 tapping's mandamus. by way of mandamus, so far as they ajffect corporate offices in boroughs, more summary and expeditious,, it is enacted, That from and after the passing of this act, in all cases of . intended application to the Court of Queen's Bench for a mandamus to proceed to an election of any corporate officer or officers in any of the boroughs in that act mentioned, it shall be lawful for the party intending to make such application to give notice in writing thereof to the party to be affected thereby at any time. not less than ten days before the day in the said notice specified for making such application, in which notice shall be set forth the name and description of the party by whom such application will be made, together with a state- ment of the grounds thereof, and at the same time to deliver with such notice a copy of the affidavits whereby the application will be supported ; and thereupon it shall be lawful for the said last mentioned party to shew cause in the first instance against such application, and if no sufficient cause be shewn, it shall be lawful for the said Court of Queen's Bench, on proof of the due service of such notice and statement and of the' delivery of a copy of such affidavits as may be used for the purpose of supporting such application, to make the rule for such mandamus absolute, if the said Court shall think fit, in the first instance, and also, if they shall think • fit, to direct that any writ of mandamus thereby ordered to be used shall be peremptory in the first instance. (6) [*454] ^APPENDIX OF THE IRISH STATUTES EElATINa TO THE HIGH PREROGATIVE WRIT OF MANDAMUS. The writ of mandamus as it obtains in Ireland, is as to its formulae, made by statute identical with that writ, as dispensed in England, the words of the statutes being oftentimes verbatim the same. ' Thus the provisions of the Irish statute 19 Geo. 2, c. 12, will be found to be the same as those of the stats. 9 Ann. c. 20, and 11 Geo. 1, c. 4. Again, the Irish statute 9 & 10 Vict. c. 113, contains the aggregate provisions (J) 3 Steph. Con. 685, n. (q). APPENDIX. 491 of the English statutes, 1 Wm. 4, c. 21, 1 & 2 Wm. 4, c. 58, and 6 & 7 Tiot. 0. 67, so that it may with accuracy be said, that the formulae of the mi in both portions of the United Kingdom are gOTerned by the same statutory enactments. 19 Geo. 2, c. 12.(a) An Act/or the better Regulating Corporations. [A. D. 1745. Whereas divers persons have of late illegally intruded themselves into, and have taken upon themselves to execute the oflSces of mayors, bailiffs, portreeves and other offices within cities, towns corporate, boroughs and places within this kingdom, and where such offices were annual offices, it has been found very difficult, if not impracticable by the laws now in being, to bring to a trial and determination the right of such persons to the said offices within the compass of the year, and where such offices were not annual offices, it has been found difficult to try and determine the right of such persons to such offices, before they have done divers acts in their said offices prejudicial to the peace, order, and good government within such cities, towns corporate, boroughs, and places wherein they have respectively acted, and whereas divers persons who had a right to such offices, or to be burgesses, or freemen of such cities, towns corporate, boroughs or places, have either been illegally turned out of the same, or have been refused to be admitted thereto, having in many of the said cases no other remedy to procure themselves to be respectively admitted or res- tored to their said offices or franchises of being burgesses or freemen, than by writs of mandamus, the proceedings on which are dilatory and r^^cc-i expensive, whereby great ^mischiefs have already ensued, and more are likely to ensue, if not timely prevented. And whereas in many cities, boroughs, and towns corporate within this kingdom, the election of the mayor, bailiff or bailiffs, or other chief officer or officers, is by charter or ancient usage confined to a particular day or time without any provision how to act or proceed in case no election be then made, and it frequently happens, that by such charter or usage, par- ticular acts are required to be done at certain times in order to and for the completing of such elections, and by the contrivance or default of the person or persons who ought to hold the Court or preside in the assembly where such elections are to be made or such acts to be done, or by acci- dent, it has sometimes happened, and may frequently do so if not timely prevented, that no Courts or assemblies have been held, or elections made, or such acts done within the time fixed for that purpose ; in which cases if elections of such offices could not afterwards be made or completed, or if in consequence of such omission the corporation should be dissolved, (s) Only so much of this act is given as relates to the subject, " Mandamus." 492 tapping's mandamus. great mischiefs might ensue; for remedy and prevention, whereof it is enacted, that from and after the first day of Trinity Term in the year of our Lord one thousand seven hundred and forty-six, where any writ of mandamus shall issue out of the Court of King's Bench in this kingdom in any of the cases aforesaid, such person or persons, who by the laws of this realm are required to make a return to such writ of mandamus, shall make his or their return to the first writ of mandamus. Sect. 2. And that from and after the said first day of Trinity Term, as often as in any of the cases aforesaid any writ of mandamus shall issue out of the Court of King's Bench, and a return shall be made thereunto, it shall and may be lawful to and for the person or persons suing or pro- secuting such writ of mandamus to plead to or traverse all or any of the material facts contained within the said return, to which the person or persons making such return shall reply, take issue or demur, and such further proceedings, and in such manner shaU be had therein for the deter- mination thereof as might have been had if the person or persons suing such writ had brought his or their action on the case for a false return, and if any issue shall be joined in such proceeding, the person or persons suing such writ shall and may try the same in such place, as an issue joined in such action on the case should or might have been tried, and in case a verdict shall be found for the person or persons suing such writ, or judgment given for him or them upon a demurrer, or by nil dicit, or for want of a replication or other pleading he or they shall recover his or their damages and costs in such manner, as he or they might have done in such action on the case as aforesaid, such costs and damages to be levied by capias ad satisfaciendum, fieri facias or elegit; and a peremptory writ of mandamus shall be granted without delay for him or them for whom judgment shall be given, as might have been if such return had been adjudged insufficient, and in case judgment shall be given for the person or persons making such return to such writ, he or they shall recover his or their costs of suit, to be levied in manner aforesaid. Sect. 3. Provided always, that if any damages shall be recovered by virtue of this act against such person or persons making such return to such writ as aforesaid, he or they shall not be liable to be sued in any other action or suit for the making such return, any law, usage or custom to the contrary thereof in anywise notwithstanding. Sect. 6. And that it shall and may be lawful to and for the said Court of King's Bench to allow to such person or persons respectively to whom any writ of mandamus shall be directed, or to the person or persons who shall sue or prosecute the same, such convenient time respectively to make a return, plead, reply, rejoin, or demur as to the said Court shall seem just and reasonable, anything herein contained to the contrary thereof in anywise notwithstanding. Sect. 7. And that if in any city, borough, or town corporate, within r*4'ifi1 *^^^ kingdom, no election shall be made of the mayor, bailifi' or -■ bailifis, *or other chief officer or officers of such city, borough, or APPENDIX. 493 town corporate, upon the day or within the time appointed by charter or aDcient usage, or by the rules, orders, and directions made and established by the lord lieutenant and council of this kingdom, for the better regu- lating of corporations pursuant to the act of the seventeenth year of his late Majesty King Charles the Second for such elections, or such elec- tions being made shall afterwards become void, whether such omission or avoidance shall happen through the default of the officer or officers, who ought to hold the Court, or preside where such election is to be made, or by any accident or other means whatsoever, the corporation shall not thereby be deemed or taken to be dissolved, or disabled from electing such officer or officers for the future, but in any case where no election shall be made as aforesaid, it shall and may be lawful for the members or persons of such city, borough, or corporation who have a right to vote or be present at or to do any other act necessary to be done in order to or for the com- pleting of such election, and they or such of them as shall not be hindered by any reasonable impediment or excuse are' hereby required respectively to meet and assemble together in the Town Hall, or other usual place of meeting for making such election within such city, borough, or town cor- porate, upon the day next after the expiration of the time within which such election ought to have been made unless such day shall happen to be a Sunday, and then upon the Monday following between the hours of ten in the morning, and two in the afternoon of the same day, and that the members or persons having a right to vote at, or to do any other act necessary to be done in order to such election, or such of them as shall be so assembled or met together, shall forthwith proceed to the election of a inayor, bailiff or bailiffs or other chief officer or officers for such city, borough, or corporation, and to do every act necessary to be done in order to or for the completing of such election, in such manner as was usual in, or in order to, the election of such officer or officers upon the day or within the time appointed by charter or usage, or by the rules, orders, and direc- tions aforesaid for such election, and in case upon such day of meeting hereby appointed for such election, the mayor, bailiff or bailiffs, or other pro- per officer or officers, who ought to have held the Court, or presided at the assembly for such election, or doing any other act necessary to be done in order to such election, if the same had been made or done on the day fixed, or within the time limited by charter or usage, or by the rules, orders, and directions of the lord lieutenant and council aforesaid for that pur- pose, shall be absent then such other person having a right to vote being the nearest then present in place or office to the person or persons so absenting himself or themselves, shall hold the Court, or preside in the meeting or assembly hereby appointed, and shall have the same power and authority in all respects therein, as belongs to the mayor, bailiff or bailiffs, or other chief officer or officers of the same city, borough, or town corporate at any Court or assembly for the election of officers for such place, or for doing any other act necessary to be done in order to such election. 494 tapping's mandamus. Sect. 8. And that if it shall happen, that in any city, borough, or totra corporate within this kingdom no election shall be made of the mayor, baiUflf or bailifis, or other chief officer or officers of such city, borough, or town corporate, upon the day or within the time appointed by charter or usage, or by the rules, orders, and directions of the lord lieutenant and council aforesaid, for that purpose, and that no election of such officer or officers shall be made pursuant to the directions hereinbefore prescribed, or such election being made, shall afterwards become void as aforesaid, in every such case it shall and may be lawful for his Majesty's Court of Bang's Bench upon motion to be made in the said Court to award a writ or writs of mandamus, requiring the members or persons of such city, borough, or town corporate, having a right to vote at or to do any other act necessary to be done in order to such election, respectively to L J assemble themselves upon a day *and at a time to be prefixed in such writ or writs, and to proceed to the election of a mayor, bailiff, or bailiffs, or other chief officer or officers as the case shall require, and to do every act necessary to be done in order to such election or to signify to the said Court good cause to the contrary, and thereupon to cause such proceedings to be had and made, as in other cases of mandamus granted by the said Court, of election of officers of corporations, and of the day and time appointed in and by any such writ or writs of mandamus for holding such assembly, public notice in writing shall by such person as the said Court shall appoint, be fixed in the market place, or some other public place within such city, borough, or town corporate, by the space of six days before the day so appointed, and such officer or other person respectively shall preside in such assembly, as ought to have presided at the election of such mayor, baUiff or bailifis, or other chief officer or officers, or at the doing of any other act necessary to be done in order to such election, in case the same had been made or done upon the day herein before prescribed for that purpose. Sect. 15. And that where any writ of mandamus shall issue out of the Court of King's Bench in any of the cases aforesaid, the person or persons to whom such writ shall be directed, shall make his or their return to the first writ of mandamus. Sect. 16. And that after the said first day of Trinity Term an act made in the sixth year of the reign of her late Majesty queen Anne, intituled " An Act for the Amendment of the Law and better Advance- ment of Justice," and all the statutes of jeofails shall be extended to all writs of mandamus and proceedings thereon, for any of the matters in this Act mentioned. APPENDIX. 495 1 Wm. 4, c. 21. An Act to Improve the Proceedings in Prohibition, and on Writs of Mandamus.{a) [30th March, 1831. 1 Wm. 4, c. 58. An Act to enable Courts of Law to give Relief against Adverse Claims made upon persons having no Interest in the subject of such Claims.(b) [20th October, 1831. *9 & 10 Vict. c. 113. [*458] An Act to improve the Proceedings in Prohibition and on Writs of Man- damus in Ireland. (c) [28th August, 1846. Whereas by an act passed in the first year of the reign of his late Majesty King William the Fourth, intituled " An Act to improve the Proceedings in Prohibition and on Writs of Mandamus," certain provi- sions were made relating to applications for writs of prohibition, and to the proceedings thereon, and to damages and costs of such applications and proceedings ; and it is expedient that the said provisions should be extended to and be in force in Ireland: It is enacted, that the several enactments contained in the said statute relating to applications for writs of prohibition, and to declarations and other pleadings and proceedings thereon, and to the recovery of costs and damages therein, shall be and the same are hereby extended to and shall be in force in Ireland. II. And whereas the provisions contained in an act passed in the Par- liament of Ireland in the nineteenth year of the reign of his late Majesty King G-eorge the Second, intituled " An Act for the better Eegulation of Corporations," relating to the writs of mandamus, therein mentioned, have been found useful and convenient, and the same ought to be ex- tended to the proceedings on other such writs ; it is enacted, That the (a) This act (set forth, ante, p. 446,) although in terms applicable to England only, has been by stat. 9 & 10 Vict. c. 113, s. 1 (I.), (set forth, post, p. 458), ex- pressly extended to Ireland. (6) This act (set forth, ante, p. 448, and n. (o)), although in terms applicable to England only, has been by stat. 9& 10 Vict. c. 113, s. 1 (I.), (set forth, post, p. 458,) expressly extended to Ireland. The provisions of the above act, 1 & 2 Wm. 4, c. 58, are made applicable to cases of mandamus by the previous stat. I Wm. 4, c. 21, s. 4 (ante, p. 446.) (c) This act, although it makes certain acts of Parliament relative to England applicable also to Ireland, yet it is silent as to the act 6 & 7 Vict. c. 89, ante, p. 453. 496 tapping's mandamus. several enactments contained in the said last-mentioned statute relating to the returns to writs of mandamus, and the proceedings on such returns, and to the recovery of damages and costs, shall be and the same are hereby extended and made applicable to all other writs of mandamus, and the proceedings thereon, except so far only as the same may be varied or altered by this act. III. And whereas writs of mandamus, other than such as relate to the offices and franchises mentioned in or provided for by the said act made in the nineteenth year of the reign of King George the Second, are sometimes issued to officers and other persons, commanding them to admit to offices or do or pearform other matters in respect whereof the persons to whom such writs are directed claim no right or interest, or whose func- tions are merely ministerial in relation to such offices or matters ; and it may be proper that such officers and persons should in certain cases be protected against the payment of damages or costs to which they may otherwise become liable ; be it therefore enacted. That it shall be lawful for the Court in Ireland to which application may be made for any writ of mandamus (other than such as relate to the said offices and franchises mentioned in or provided for by the said act made in the reign of King George the Second,) if such Court shall see fit so to do, to make rules and orders calling not only upon the person to whom such writ may be required to issue, but also all and every other person having or claiming any right or interest in or to the matter of such writ, to show cause against the issuing of such writ, and payment of costs of the application ; and upon the appearance of such other person in compliance with such rules, or in default of appearance after service thereof, to exercise all such powers and authorities, and make all such rules and orders applicable to the case, as are or may be given or mentioned by or in any act passed or to be passed during this present session of Parliament for giving relief against adverse claims made upon persons having no interest in the sub- ject of such claims : Provided always, that the return to be made to any such writ, and issues joined in fact or in law upon any traverse thereof, C^, rq-i or upon any demurrer, shall be *made and joined by and in the name of the person to whom such writ shall be directed ; but nevertheless the same shall and may, if the Court shall think fit so to direct, be expressed to be made and joined on the behalf of such other person as may be mentioned in such rules, and in that case such other person shall be permitted to frame the return, and to conduct the subse- quent proceedings at his own expense j and in such case, if any judgment shall be given for or against the party suing such writ, such judgment shall be given against or for the person or persons on whose behalf the return shall be expressed to be made, and who shall have the like remedy for the recovery of costs and enforcing the judgment as the person to whom the writ shall have been directed might and would otherwise have had. APPENDIX. 497 rV. That in case the return to any such writ shall in pursuance of the authority given by this act, be expressed to be made on behalf of any other person as aforesaid, the further proceedings on such writ shall not abate or be discontinued by the death or resignation of or removal from office of the person having made such return, but the same shall and may be continued and carried on in the name of such person j and if a peremp- tory writ shall be awarded the same shall and may be directed to any suc- cessor in office or right to such person. V. And for making some further provisions for the payment of costs on application for mandamus, be it enacted, That in all cases of applica- tions for any writ of mandamus whatsoever in Ireland the costs of such application whether the writ shall be granted or refused, and also the costs of the writ, if the same shall be issued and obeyed, shall be in the discre- tion of the Court, and the Court is hereby authorized to order and direct by whom and to whom the same shall be paid. VI. And whereas it is expedient that parties interested in the issuing of or in the proceedings upon writs of mandamus shall be enabled in certain cases to have the judgments and decisions of the Court of Queen's Bench in Ireland in respect of the said writs, and of the proceedings thereon, reviewed by a Court of Error, if they shall so think fit, and that a certain mode of effecting the same shall be ordained and established ; and where- as there is not any power or authority given by the said recited act of the reign of his Majesty King George the Second to the person prosecuting a writ of mandamus to demur to the return made to any such writ, so that the decision of the said Court of Queen's Bench as to the validity of such return could be reviewed by a Court of Error ; for remedy whereof, there- fore, be it enacted, That in all cases in which the person prosecuting any writ of mandamus heretofore issued or hereafter to be issued shall wish or intend to object to the validity of any return heretofore made or hereafter to be made to the same, he shall do so by way of demurrer to the same, in such and the like manner as is now practised and used in the said Court in personal actions, and thereupon the said writ and return and the said demurrer shall be entered on record in the said Court, and such and the like further proceedings shall be thereupon had and taken as upon a demurrer to pleadings in personal actions in the said Court ; and the said Court shall thereupon adjudge either that the said return is valid in law, or that it is not valid in law, or that the writ of mandamus is not valid in law ; and if the Court adjudge that the said writ is valid in law, but that the return thereto is not valid in law, then and in every such case the Court shall also by the said judgment award that a peremptory, mandamus shall issue in that behalf; and thereupon such peremptory writ of mandamus may be sued out and issued accordingly at any time after four days from the signing of the said judgment ; and it shall be lawful for the said Court and they are hereby required,, in, and by their said judgment, to award costs to be paid to the party in whose favour they shall thereby decide, by the other party or parties. June, 1852.— 32 498 tTAPPING'S MANDAMtJS. VII. And be it enacted, That whenever any such judgment as is liere- inbefore *nientioned shall be given, or whenever issue in fact or in L J law, shall be joined upon any pleadings, in pursuance of the said recited act of the reign of his Majesty King George the Second and of this act, or of either of them, and judgment shall be given thereon by the said Court, it shall be lawful for any party to the record in any of such cases who shall think himself aggrieved by such judgment to sue out and prosecute a writ of error for the purpose of reversing the same, in such manner and to such Court or Courts as a party to any personal action in the said Court of Queen's Bench in Ireland may now sue out and prosecute a writ of error, upon the judgment in such action, and such and the like pro- ceeding shall thereupon be had and taken, and such costs awarded, as in or- dinary cases of writs of error upon judgments of the said Court in personal actions j and if the judgment of the said Court be reversed by the Court of Error the said Court of Error shall thereupon, by their judgment, not only reverse the same, but shall also, in addition thereto, give the same judgment which the Court whose judgment is so reversed ought to have given in that behalf; and if by their said judgment they shall award that a peremptory writ of mandamus shall issue, the same shall and may accordingly be issaed by the proper officer in the oflGice from which such writs issue, upon producticm to him of an office copy of the said judgment of the Court of Error which shall be his authority and warrant for so doing ; Provided always that bail in error to the amount of fifty pounds, or such other sum as may by any rule of practice be appointed as hereinafter provided, shall be duly put in within four days after the allowance of the said writ of error, and the same shall afterwards be duly perfected according to the practice of the Court whereio the said original judgment was given, other- wise the plaintiff in error shall be deemed to have abandoned his writ of error and the same shall not be further prosecuted. Vni. And that no action, suit, or any other proceeding shall be com- menced or prosecuted in Ireland against any person or persons whatsoever for or by reason of anything done in obedience to any peremptory writ of mandamus issued by any Court having authority to issue writs of man- dam,us. IX, And that the said Court or Courts of Error which are hereby em- powered to take cognizance of the matters aforesaid may make and they are hereby directed to make, from time to time and as often as they shall see occasion, such rules of practice in reference to the said application and the proceedings thereon, and in reference to the writs of error hereinbefore mentioned, and the proceedings thereon, and the amount of bail to be taken, as the said Courts respectively may deem necessary to effectuate the in- tention of this act in relation to the same respectively. X. And be it enacted. That this act may be amended or repealed by any act to be passed in this present session of Parliament. APPENDIX. 499 *RULES, ORDERS, AND REGULATIONS, [*461] Made hy the Court of B. R. in pursuance of Stat. 6 Vict. c. 20, for the government of the Practice of the Crown side of such Court in Engf- land.(a) 1. Masters to have Custody of Records. — The Queen's coroner and attorney, and Master on the Crown side, shall have the care and custody of the records and other proceedings on the Crown side of the said Court. 2. Issuing Writs. — Every writ issued on the Crown side of the Court shall be prepared and engrossed by the attorney or party suing out the same, and the name and address of such attorney or party suing out the same shall be indorsed thereon; and every such writ shall, before the issuing thereof, be sealed with a stamp to be provided for that purpose, and kept at the Crown Office, and an entry of every such writ, together with the name and address of the attorney or party issuing the same, shall be made in a book to be kept at the Crown Office for that purpose. 3. Teste and Return of Writs. — Every writ of subpoena shall be tested as of the day on which it is actually issued. 4. Attachment. — Every writ of attachment of contempt shall be tested and made returnable on a day certain in Term before the Queen at West- minster. 6. Venire Fcudas Juratores. — Every writ of venire facias juratores shall be tested as of the day on which issue is joined, or if there be a con- tinuance, on the day of the last continuance, previous to the award of the distringas juratores, and shall be made returnable on a day certain, or immediately, before the Queen at Westminster, either in the same, or next Term, as occasion may require. 7. Distringas. — ^Every writ of distringas juratores shall be tested as of the day of the return of the venire facias juratores, and shall be made returnable on a day certain in the next ensuing Term before the Queen at Westminster. 8. Mandaravs, — ^Every writ of mandamus shall be tested and made returnable on a day certain before the Queen at Westminster, and there shall be eight days at least between the teste and return of every such writ of mandamus, where the act required to be done is in London, or within forty miles thereof, and fourteen days in all other cases. 10. Writs of Uxecution.—Exeij writ of execution may be tested as of the day on which it actually iisues, and may be made returnable either on a day certain in Term, or immediately after the execution thereof; and the party suing forth the same shall indorse thereon the place of abode, and addition of the party against whom the same is issued, or such other (ffi) Only such of the rules, &c., are here given as have relation to the subject of Mandamus. 500 tappincf's mandamus. other description of him as such party suing out such writ may te able to give. 11. FiHng Writs when returned. — Every writ issued on the Crown side of the CoBrt, and returnable in the said Coutr, or before a Judge thereof, shall, together with the return made thereto, be filed according to the exigency of SBch writs respectively, on or before the return thereof; and such writs as are made returnable before a Judge, together with the return r*Afi9l ™^de thereto, and the Judge's order (if any) *made thereon, or a '■ copy thereof^ shall be transmitted to the Crown Office by the clerk of such Judge, and filed there as soon as the Judge shall have made such order, or exercised his discretion thereon. ' 13. ^ide Bar Mule to return Writs. — A side bar rale to return a writ on the Crown side, may be obtained according to former practice without any actual motion for the same, which shall require such return to be made within four days next after service of such rule, if served in London or Middlesex, and within eight days in all other cases, 14. No Median to file a Writ. — It shall not henceforth be necessary to make any motion to file any writ or other proceeding returned into the said Court, biit the same shall be filed at the Crown Office without any rule first granted for that purpose. 15. Copies of Proceedings, &c., how obtained. — Copies of mandamus, and return and traverse, or other pleadings thereupon, and every other proceeding filed on the Crown side of the said Court, shall, when required, be made at the Crown Office, and delivered to the respective parties, or other persons requiring the same. 17. Ride to plead — one onl^ to he given. — One side bar rule to plead ' only shall henceforth be given in all cases on the Crown side, (and it shall not be necessary to give any peremptory rule) j. such rule shall be drawn up and served as well in Term as in Vacation, and shall expire in ten days next after service thereof. 18. Rules to reply, &c. — One side bar rule only to reply, rejoin, join in demurrer or in error, shall henceforth be given, which shall be drawn up and served, (and no peremptory rule give» thereon.) ; and such last- mentioned rules shall in all cases expire in four days next after service thereof. 19. Judgment hy Default. — ^In case bo plea, replication, rejoinder, joinder in demurrer, joinder in error, or other pleading, shall be entered on the expiration of the time limited by such rule, judgment as for want of such pleading may be signed at the opening of the office on the next following morning, unless any order of the Court or Judge extending such time shall have been obtained and served, and in such case judgment shall not be signed, until the day after the expiration of the time granted by such order. 20. Judgment on Verdict. — In all cases of judgment required to be signed on verdicts given at Nisi Prius, the postea shall be produced at the Crown Office, and judgment shall in four days next after the return APPENDIX. 501 of the distringas, or at any subsequent time, be marTced thereon by one of the Masters, or the assistant Master, unless a rule shall have been obtain- ed for a mew trial, or to enter judgment non obstante veredicto, or to arrest judgment in cases where such rules may by the practice of the Court be obtained. 21. No Buh/or Judgment. — It shall not henceforth be necessary to give any rule for judgment. 22. Proceedings on Orders of Sessions removed. — In all cases of orders removed into this Court for any inferior jurisdiction, the same shall be put into the Crown paper for argument, upon a rale to shew cause why such order should not be quashed. In all other cases, the conviction or other proceedings intended to be argued, shall be put into the Court paper on a rule for a concilium; which rule shall specify the day on which the case will be put into the paper for argument, and shall be drawn up and served six days at least before such day within forty miles from London, and eight days in all other cases. 23. Paper Books. — ^In all cases entered for argument in the Crown paper, the prosecutor, or his attorney, shall deliver a paper book of the proceedings to each of the two senior Judges of the Court, and the defen- dant, or his attorney, shall in like manner make a,nd deliver a paper book to the third and fourth Judges of the said Court respectively, two days before the day on which the case will be put in the paper for argument ; and such several paper books shall in all cases *(except where a r:):4f;q-i special case is reserved for the opinion of the Court) contain in the margin thereof, or appended thereto, and to be delivered therewith, the points intended to be argued, but shall not contain any other observation or matter than such points for argument, together with copies of the pro- ceedings, and a copy of the rule nisi to quash, or for a concilium ; and judgment shall be given by the Court against the party neglecting to deliver paper books to the Judges, or delivering the same without the points for argument, if the Court shall so please. £. ». d. 5 6 5 e G 2 6 & 5 502 TAPPINO'S MANDAMUS. TABLE OF FEES. Estaiblished and ordained hy the Lord Chief Justice and Judges of Her Majesty's Court of B. R., to he taken hereafter by the Queen's Coroner and Attorney and Master, on the Crown side of the said Court pursu- ant to Stat. 6 Vict. c. 20. {a) Copy of any proceeding, when required, not more than ten 1 sheets j If more, per sheet ....... Writ Fees. For every attachment subpeena to testify .... attachment of contempt . . . .. venire facias juraiores distringas juratores . . . . . 5' capias and distringas ad satisfaciendum,^ elegit, fi. fa., lev. fee., or other writ after >■ 5 judgment ) mandamus ...... Filing every affidavit, or other proceeding Certificate of the finding or filing of any proceeding Attendance on subpcena for expenses .... at assizes, expenses only .... before Houses of Lords and Commons, and other ) committees for expenses . . . j Search (each time) ....... Special Jury (nominating) ...... Administering oaths in Court Taxing every bill of costs less than three folios If more, per sheet ...... ' r' Affidavits and rules, search for (per Term) . i . I Delivering out under Judge's order for production at as- 1 (. sizes, &c I Putting case in the Crown paper for argument Kules. For every rule to plead, reply, &c., or return a writ For every other rule ...... If exceeding seventy-two words, for each eighteen words Copies of rules half the charge for the original. (a) Only so many of the fees are here inserted as related to the subject, "Man- damus." 5 1 5 1 1 1 1 1 1 1 2 1 4 4 1 1 1 1 2 3 INDEX. The pages referred to are those between brackets [ ABATEMENT OF WRIT, generally, 410, 411. under stat. 1 Wm. 4, c. 21, s. 5, 411. ABBOTT, lies not for, 29, 30. ABSENTEEISM, return of, 40, 196. form of return, 40 — see tits. Desertion. Non-Residence. ABSOLUTION, lies for, 30, 49— see tit. Bishop. ACCOUNTS, 30, 135. ACT OP PARLIAMENT, lies to execute provisions of, 11, 28, 30, 32, 265. the Court will clearly see its jurisdiction, 11, 30. application, 82. who should apply, 289. lies, although no specific person named to enforce the provision, 32 — see tit. Jurisdiction. ACTION, a remedy by is a bar, 20, 23, 53. as action on the case, 20. special assumpsit, 20. debt, 20. trover, 21. detinue, 21. ejectment, 21. fees, action for, 21. withholding, 21 — see tit. Rule. ADMINISTRATION, LETTERS OF, when, or not, granted for, 32, 33, 34. lies to seal to letters, &c. 34. against whom granted, 33. writ — form of mandatory clause, 33, 34. application, who entitled ex debito juslitiae, 33. when denied, 34, 35. durante minori setate, when granted for letters, 35. cum testamento annexe, when granted for letters, 35. Returns. lis pendens, 35. administration committed, 35. various returns, 35, 36. Bond. lies for production, 36. application, 36. ADMIRALTY (fioUrt of), 36, 106. {Lords), 36. ADMISSUS NON FUIT, return of, 194. 504 tapping's mandamus. ADVOCATE OF DOCTORS' COMMONS, lies not to admit, 36— see tit. Inn of Court. AFFIDAVITS, of demand, 285. of refusal, 2S6. in support of application — see tit. Application. for renewing, what necessary, 295. of service and notice of rule, when to be made, 300. as to enlarging rule, 301. as to shewing cause, 301, et seq. as to rule absolute, 303, 306. for cross writs, 332 n. for supersedeas, 335. -when required in mandamus cases, 292, 413. how entitled, 413. body of affidavit, what sufficient, 413. as to misrepesentation, 414. supplemental affidavits, 295, 414. jurat — form of, 414. filing, when necessary, 306, 415. amendment of, 415. costs of, 415. in support of motion for costs, 420. of attachment, 423. of information, for false return, 433. AFFILIATION, 37. ALDERMAN, when granted for, 37. lies to elect, 37. lies to return election, 37. application, 37. rule, 37. service, 37. lies to return and admit, 38. lies to admit, 38. lies to swear, 38. lies to present, 38. lies to enforce duty, 38. lies to remove, when, 38. lies to restore, 38, 39. returns, 39, 40. form of direction of writ to, 310 n. ALEHOUSE, lies not to license, 40, 41 — see tit. License. ALET ASTER, swearing in, when granted for, 41. ALIMONY, when granted for, 41 — see tit. Baron and Feme. ALIAS WRIT— see tit. Writ of Mandamus. ALLEGIANCE OATH, when granted for, 41, 151— see tit. Oath. ALMS, writ for, 41 — see tits. Blue Coat School. Charity. Charter House School. ALPHABETICAL SERIES of the subjects as to which the writ has been either granted or denied, 9, 29 — 281. AMENDMENT OF WRIT, when allowed, 334. at trial, 390 — see tit. Trial. of affidavits — see tit. Affidavits. of return, 368. AMERCEMENT, remedy by bar to writ, 21, 120. AMICABLE ASSURANCE COMPANY, when granted to swear in direc- tor, 41. AMOTION BY CORPORATION COMMISSIONERS, return of, 39. A MOT US NON FUIT, return of, 194. ANSWER IN CHANCERY, when granted to seal, 42. INDEX. 605 ANTIQUITY OP WRIT, 1, 2, n. (/), 251 n. 263 n. 438 n. APPARITOR GENERAL, when granted for office of, 42. when to enforce duty, 42. APPEAL, lies to hear appeal, 14, 41, 42, 78, 122, 137, 231, 232, 233, 234. but not if there be another remedy, 21, 235. APPLICATION FOR RULE FOR WRIT, proceedings previously to, 282. demand and refusal, 162, 163, 282— as to demand and refusal, see those titles. notice of application, where necessary, 183, 287, 298, 407. where not, 287. nature of, 5, 287. under stat. 1 Wm. 4, c. 21, 6. when applicant entitled, or not, ex debito justitis, 287, 288. right to writ must be both legal and equitable, 9, 27, 2?, 29. must be clearly substantiated, 28, 29, 250, 251. all legal requirements must be fulfilled, 28, 294. by whom made, 288, 289. against whom to be made, 29, 390. as against corporate bodies, 290. as against the Crown — see tits. Crown. Customs. Manor Royal. when to be made, 184, 290, 291. must not be premature, 290. must be within reasonable time, 290, 291. when granted immediately on default, &c. 290. when dismissed, 291, 292. costs, 291. affidavits in support, when necessary, 292. what they should contain, 292, 293, 294, 413, 415. grounds of application, 293, 294. renewing application, 294, 295. APPOINTMENT TO OFFICE, lies for, 63, 70, 89, 205. APPORTIONMENT OP MONEY, lies for, when, 121, 222, 223. lies to pay, 210 — see tit. Money. APPRAISEMENT, return of, 34, 279. APPRENTICE, when it lies for, 42. to receive an apprentice, when, 42. lies to admit to freedom of company, 42, 125. lies to enrol and enter apprenticeship deeds, 125. as to pauper apprentices, 42, 219, 220. APPROVAL FOR OFFICES, lies not for, 14, 15, 144, 145. APPROVED MEN OP GUILDFORD, when granted for, 42. APPROVER OF GUNS, 42. APPUNCTUATUS NON FUIT, return of, 194. ARBITRATION, may be had in mandamus cases, 412. ARBITRATOR, when granted for, 42— see tit. Umpire. ARCHDEACON, lies to admit, 42. return of, not having taken oath of canonical obedience, 42. non fuit electus, 42. lies to restore, 42. as to office of archdeacon's registrar — see tit. Registrar. ARMOURERS AND BRAZIERS, 43, 126. lies to swear in to office of freeman of, 126. ARTICLES OF PEACE, 43, 214. ASHBURTON, EIGHT MEN OP, writ to restore, 43. to swear in, 43. formofwrit, 43, 319, 320. ASSESSORS, 43. ASSIZE, remedy by, formerly a bar to writ, 19, 20, 60, 172. ASSIZES {Nisi Prius), form of direction of writ to, 310. ICrown Courts, 310, 311. 506 tapping's mandamus. ATTACHMENT, nature of, 421. when granted, 6, 8, 344, 352, 366, 422, 423. how obtained, 423. motion for, 423. . rule nisi, 423. shewing cause, 423, 424. affidavits, 423. form of writ, 424. how tested, 424. as to execution, 424. defendants, 423. ATTORNEY, lies for, 43. lies to practise, 43. when granted, 44. lies to admit, 44. lies to restore, 44. return of, speaking contemptuous words of Judge, 45, 263. Rolls, 45, 161-164 — see tit. Barnard's Inn. AUDITOR OF CHAMBERLAIN'S AND BRIDGEMASTER'S AC- COUNTS, admission to office of, 45. AUDITOR OP CHURCHWARDENS' ACCOUNTS, 45. AUDITOR OP OVERSEERS' ACCOUNTS, 45. AUDITOR OP PARISH ACCOUNTS, 45, 208. lies for election of, 74, 208. AUGMENTED CURACY, 45— see tit. Curacj/. AUTHORITY, lies for loss of, 227. AUTRE FOIS ACQUIT, 45, see tit. Courts Inferior. AVERMENTS, in writ, when necessary, 309, 319. consequence of failure of, 309. of jurisdiction of Court, 319. of prosecutor's title, 320. rules as to, 321. of defendant's duty, 322. of demand and refusal, 323. of absence of specific legal remedy, 333. omission in- consequence of, 328. of return, must be certain, 353 — see tit. Return. AWARD, enforcing by company, 45. B. BAILIFF OF BOROUGH, lies for, 45. lies to elect, 45. lies to hold Court for that purpose, 46. application under stat. 6 & 7 Vict. c. 89, 46. lie's to admit and swear, 46. Ii6s to r6st.orG 46. BAILIFF OF MANOR, 46— see tit. Manor. BANK OF ENGLAND, lies not for transfer of stock, 20, 46. lies not for production of accounts, 46. BANKRUPT, lies for further examination, 46. lies not to grant certificate, 47. BANNITUS, lies not to restore, 2,269. BAR]>JARD'S INN, attorney of, 47. lies not to admit to, 44. BARON, Court, 47. BARON AND FEME, 47. INDEX. 507 BARRISTER-AT-LAW, 47. BASTARDS, lies to justices as to, 47. lies to hear appeal as to, 47, 48. lies for costs of maintenance of, 48. lies to enforce order of affiliation, 48. lies not to convict for deserting, 48. BEDFORD LEVEL, lies to restore receiver of, 48. collector, 48. lies to admit and swear registrar of, 48. BELLS, lies not to set up church hells, 22. BERMUDAS COMPANY, lies to restore to, 49. BERWICK-UPON-TWEED, form of direction of writ to, 311. BILL OP EXCEPTIONS, applicable to trial of, 412. BIRTHS, registrar of, 49. BISHOP, 49. application against, 49. costs 49 BLACKSMITHS' COMPANY, lies for delivery of books of, 49. BLUE COAT SCHOOL, lies not to restore scholar of, 49. BOND, 49. payment of money due on bond, writ lies not for, 11 — see tits. Adminis- tration. Constables, High {Bond). BOOKS, &c., lies for delivery of, 49, 50. rule, form of, 49, n. (rr). writ, form of, 50. lies for deposit of, 50 — see tits. Blacksmiths' Company. Borough {Books). Company {Books). County {Accounts, Books, Sgc.) BOROUGH, 50. as to ofScers of, see tit. Office. lies for payment out of borough fund, 50, 51. lies to make borough rate, 51. lies to hear appeal against borough rate, 51. lies to compel payment of borough rate, 51, 52. lies for inspection or delivery of borough rate-books, 52. BOROUGH COMPTER, form of direction of writ to, 311. BOROUGH CORPORATION, form of direction of writ to, 311. BOROUGH COURT, 52. BOROUGH GAOL, form of direction of writ to, 311. BOWLING GREEN, 52. BRIBERY, return of, 196. BRIDEWELL, lies to restore governor of, 52. BRIDGE, 52. BRIDGE HOUSE ESTATES, lies to restore clerk of, 52, 53. BRIDGEMASTER'S ACCOUNTS, lies to admit auditor of, 45, 53— see tit. Auditor of Chamberlain's, Sfc. Accounts. BRISTOL, lies for steward of Sheriffs' Court of, 53. lies to restore steward of Tolzey Court of, 53— see tits. Courts Inferior {Sheriffs Court,) {Tolzey Court.) BUILDING ACT, lies not to reinstate decorations of a party wall pulled down under Building Act, 20, 53— see tits. Act of Parliament. Con- ViCtZOft BURGESS, lies for, 53, 54. lies to elect, 54. application, 54. lies to admit, 54. lies to swear in, 55. lies to enrol, 55. * lies to restore, 55. returns, 55. 508 tapping's mandamus. BURGESS (CAPITAL,) election, 55, 61. lies to admit, 11. lies to swear in, 56. application, 56. rule, 56, 303. lies to restore, 56. lies to remove, when, 11, 56. (CHIEF,) lies to elect, 56, 64. (COMMON,) lies to restore, 57. (FREE,) lies to elect, 57. lies to admit, 57. lies to swear in, 57. (INN BURGESS OF WIGAN,) lies to restore, 57. (PRINCIPAL,) lies to elect, 57. ROLL, insertion of name, 57, 450. inspection, &c. 58. restoration of name, 58, 450. application, 58, 450. writ, 59. return, 59, 450. costs, 59, 450. assessors' election, 59 — see tits. Assessors. BURIAL, lies to compel, when, 22, 59, 60, 65 — see tit. Corpse. BUTCHERS' COMPANY, lies to restore clerk, 60. BYE-LAWS, 60, 96. CALLS, 60. CANAL COMPANY, lies to command it to enrol contracts, &c. 60. to maintain their canal, 60 — see tit. Railway. to establish uniform tolls, 60 — see tit. Compensation {Company.) CANON, to admit to a canonry, 61 — see tit. Railway. to institute indirect and invest therein, 61. lies not 1o choose- a supernumerary canon, 61. lies not to restore, 61. CANONS RESIDENTIARY, lies to elect, 61. lies to elect a canon to be dean, 61. CANTERBURY, COURT OF, 61, 106. lies to restore attorney of, 44. CAPITAL BURGESS, 61. CITIZEN, 61, 74. CARRIERS, lies to hear appeal against conviction of, 61 — see tit. Railway {Goods.) CASE, 62. the granting' of a case at sessions is a bar to writ, 21, 219, 235. CASUS OMISSUS, lies not to supply, 31, 64. CATHEDRAL STALL, lies to admit to, 61. lies not for profits of, 20. CENTRAL CRIMINAL COURT, form of direction of writ to, 311. CERTIFICATE, lies for grant of, 62. of obedience to peremptory writ, 7, 408. CERTIORARI, lies not to review, &c. where certiorari taken away, 62, 231. lies to amend return of, 62. CHAMBERLAIN, lies for, 62. lies to elect, 62. lies to admit, 62 — see tit. Auditor. CHAMBERLAIN'S ACCOUNTS, AUDITOR OF, lies to admit, 45. INDEX. 509 CHANCERY, INN OF, 62. CHAPEL, lies to enrol a chapel, 62. CHAPELWARDENS, lies to swear in, 62. rule, 298. CHAPLAIN, when it lies to appoint, 63 — see tit. Churchwardens. when it lies to admit, 63. lies to allow him to perform his official duty, 63. when it lies to license, 63. CHARITY, when it lies in respect of, 63, 140. lies for keys, Sic. of charity chest, 64 — see tits. Blue Coat School. Charter House School. CHARTERS, lies to compel obedience to, 11, 29, 64 — see tit. Jurisdiction. CHARTER HOUSE SCHOOL, lies not to restore a scholar of, 64. CHATTELS, lies not for restitution of, 11. CHESHIRE, SHERIFF OF, form of direction of writ to, 311. CHESTER, COURT OF, 64, 106. lies for restoration of attorney of, 45. CHIEF BURGESS, 64. CHRISM, has been granted for, 49, 64. CINQUE PORTS, form of direction of writ to, 311. CHURCH, 65. lies for keys of, 65. lies for burial 65, lies to compel church trustees to act, 65. lies not to make church rate, 12, 23, 65, 68. lies to make rate in nature of, 12, 66. returns thereto, 67. lies to compel payment of rate, 67. lies to command making of rate for payment of loans, 67. returns thereto, 68. CHURCH BOOKS, lies not for, 22. CHURCH VESTMENTS, lies not for, 22. CHURCHWARDEN, 68. when it lies for office of, 68, 69. lies to elect, 69. lies to produce rate books at a scrutiny of the poll, 70 lies to appoint, 70. affidavits, 70. lies to admit, 70. cross mandamuses will be granted, 70. ' lies to swear in, 70. rule for writ, 73, 298. writ, 73, 325. returns thereto, 69. lies to restore, 73. lies to allow accounts, 74. lies to reimburse, 74. lies not to make rate to reimburse, 74. lies to allow inspection of accounts, 16, 74. j j ,. lies to hear a complaint against for not signmg, passmg and deliver- ing accounts, 70. • ■ j < i ^ lies to command them to assemble parishioners in order to elect churchwardens, 74. CITIZEN, lies to admit, 74. lies to restore, 74. lies to restore a capital citizen, 74. CITY— seep, 7L „ ^ ^„ CITY WORKS, CLERK OF, lies for office of, 75. lies to restore, 75. 510 tapping's mandamus. CLERK OF BUTCHERS' COMPANY, 75. CLERK OP CITY WORKS, 75. THE CROWN, 75. CUSTUS BREVIUM, 75. DEAN AND CHAPTER, 75. THE FINES IN MARSHES OF WALES, 75. GUARDIANS OF POOR, 75, 129. JUSTICES, 75. LAND TAX COMMISSIONERS, 75. MASONS' COMPANY, 75. PARISH, 75. PEACE, 76. PRIVATE COMPANIES, 76. as to restoration of, 84. lies for performance of official duties, S'l. TURNPIKE TRUSTEES, 76. VESTRY, 76. VILL, 76. - WATERS, LONDON, 76. lies not for, 169. CLOTHMAKERS' COMPANY, 76. COALMETER, lies not for, 169. COLCHKSTER, Corporation Court of, 7, 106. lies to swear in high steward of, 76. lies to restore attorney of, 44. COLLATERAL SECURITY, no answer to writ, 68. COLLEGE, 76. lies not for a college chaplain, 76 — see tit. Chaplain. as to election of fellows, 77, 441. when it lies to admit a fellow, 77, 441. lies not to expel a fellow, 77. lies to hear an appeal on the expulsion of a fellow, 78. lies not to restore a fellow, 78. where it lies not for the profits,