CHAP. X. MANDAMUS. Geo. 4, c. 23, s. 1, when that act applies. (r) But not to enforce a conviction doubtful in validity. (s) Copyhold. This writ lies to the lord and steward of a manor, to compel an admission to copyhold. Thus, if the lord of a manor refuse to admit a purchaser, or a devisee, or even an heir to copyhold, a mandamus may be issued to compel him, (t) though the lord's remedy to compel admittance and payment of the fine would be by proceedings for a forfeiture, quousque the fine paid.(u) A bill in equity also may be filed to compel a lord to hold courts and admit, and that appears to have been originally the only proceeding, but ultimately courts of law assumed jurisdiction, and now almost exclusively exercise it. (x) But no action at law can be supported against the lord for refusing to admit, (y) though probably, when the lord of a manor has perversely refused admittance after proper formal request, the court, under the recent act, would subject him to pay the costs of the application. (z) Corporation. (See Officers, post, 798.)-The writ issues to compel the filling up of vacancies in a corporation consisting of a definite number, and which by deaths of burgesses might otherwise become extinct, and which is a proceeding expedient more frequently to be adopted; (a) so to fill up vacancies or compel serving corporate offices; (b) and this, although the party has paid a fine, the payment of which does not exempt, (c) and it lies to compel the proceeding to a new election, when the former was clearly colourable and void. (d) But the Court of King's Bench will not issue a mandamus to compel a mayor to put a resolution to repeal certain bye-laws, there being no precedent for issuing a writ in such a case. (e) Courts. When it is a duty to hold a court for the benefit of suitors, it may be enforced by mandamus, (ƒ) and this even as to the place of holding; (g) and the writ may be issued (r) In the matter of Rix, 4 Dowl. & R. 352; Rex v. Marsh, Id. 260; and see "Jus tices," and Rex v. Warnford, 5 Id. 489. (s) Rex v. Broderip, 5 B. & Cres. 239; 7 D. & R. 861; Rer v. Robinson, 2 Smith, 274: Rer v. Buckinghamshire, 1 Bar. & Cres. 485; 2 D. & R. 689. (t) Rex v. Rennett, 2 T. R. 197; Rex v. Brewers' Company, 3 B. & Cres. 172; 4 D. & R. 492, S. C.; ante, 351; and see infra, note (h). (u) Ante, 351. (a) 1 Mad. Ch, Pr. 253, 254; Moor v. Huntingdon, Nels. 12; Co. Copyl. sect. 39. (y) King v. Coggan, 6 East, 431; 1 Mad. Ch. Pr. 254. () 1 Wm. 4, c. 21, sect. 8. (a) Rex v Norwich, 1 Bar. & Adolp. 310; and Rex v. Grampound, 6 T. R. 301; Case Town of Nottingham, 2 Selwyn, N. P. 1072. (b) Rex v. Leland, 3 M. & S. 184. (c) Rex v. Bower, 1 B. & Cres. 585; 2 Dowl. & R. 842, S. C. (d) Rer v. Cambridge, 4 Burr. 2008; Rex v. Bedford, 1 East, 79. (e) Rex v. Newcastle, 3 B. & Adolp. 252. (f) Rex v. Hastings, 5 Bar. & Ald. 692; 1 D. & R. 148; Rex v. Havering, 2 D. & R. 176, n; 5 B. & C. 691. (g) Rex v. Ilchester, 2 D. & R. 727; Rer v. Grantham, 1 Wils. 716; and see post, 795, tit. Inferior Courts, &c. to compel the holding of a copyhold court, to aceept a surrender. () Costs (and see Overseers. Rate.)-Unless the power to award costs be clear the court will refuse a writ of mandamus to levy a rate for the costs incurred in defending actions for damages done by riotous assemblies under the 57 Geo. 3, c. 19, s. 38. (i) Court Rolls. (See Inspection, post, 810, 811.) Dissenters.-A mandamus lies to justices to register and certify a dissenting meeting-house, (k) and to admit a party to take the oaths in order to become a teacher of a dissenting congregation. (1) Distress. (See Inferior Courts, &c.)-A mandamus lies to compel the backing of a distress warrant into another county under 35 Geo. 3, c. 101, s. 2, (m) but not to issue a distress warrant if the legality of the conviction be doubtful.(n) Evidence.-A mandamus may be issued at the instance of the plaintiff or defendant to examine witnesses in India under 13 Geo. 3, c. 63, s. 44. (0) But not to compel a magistrate to produce depositions to an intended prosecutor for perjury, but the magistrate must be subpoenaed. (p) Highways. (See Surveyor, post, 804.) Inferior Courts and Judges thereof, and Justices of Peace, and other Ministerial Officers, to proceed according to their respective duties. Thus this writ issues to compel justices to give judgment on an information of seizure; (q) to hear an application of journeymen millers to make a rate, or the hearing of any other matter which they are required by statute to hear, although upon the hearing they might decide as they think fit. (r) So to hear a complaint respecting non-payment of a church-rate, though they might determine as they think proper. (s) So if the sheriff or his deputy neglect to enter a plaint in replevin, in the county court, for damage feasant, the Court of King's Bench would compel him by mandamus, though not by a summary motion. (t) So where a statute directs, that justices of the peace shall make compensation to (h) Rex v. Boughey, 1 Bar. & Cres. 565. (i) Rex v. Lynn, 3 B. & Cres. 147; 4 D. & R. 778, S. C. See the present act 7 & 8 Geo. 4, c. 31, which now provides modes of reimbursement. (k) Rex v. Derby, 4 Burr. 1991. (1) Peake's case, 6 Mod. 310; 2 Salk. 572, S. C. (m) Rer v. Kynaston, 1 East, 117. (n) Rex v. Robinson, 2 Smith's R. 274; ante, 794, note (s). (0) Grillard v. Hague, 1 Brod. & B. $19; 4 Moore, 313, S. C. (p) Ex parte Bedford, 1 Chit. R. 227; but see Rex v. Smith, 1 Stra. 126; Welsh v. Richards, Barnes, 468. (q) Rex v. Tod, 1 Stra. 530. (r) Rer v. Kent, 14 East, 395; Rex v. Cumberland, 1 M. & S. 190. (s) Rex v. Wrottesley, 1 B. & Adolp. 648. (t) Ex parte Boyle, 2 Dowl. & Ryl. 15. CHAP. X. MANDAMUS. CHAP. X. MANDAMUS. the sheriff in lieu of abolished gaol fees, the making such compensation will be enforced by mandamus. (u) So to commissioners of bankrupts, to issue their warrant for further examination.(.) So to arbitrators under a canal act to appoint an umpire as therein enjoined. (y) To a visitor to hear an appeal and give some judgment.(x) So to compel an inferior court to give judgment, (a) but not to grant a new trial unless the former were a nullity.(b) To a canal company in a local act to assess the value of land taken by them, pursuant to provisions, and make recompense, provided the application be made within a reasonable time, but otherwise not. (c) So a mandamus to justices may be issued to compel them to allow the expenses sustained by an appellant parish in keeping a poor person from the time of his removal till the order of removal was discharged, (d) and the writ also lies to compel the warden of a college to affix the corporate seal to an answer in chancery. (e) Negative. But the writ will not be granted unless the act required to be done be clearly within the act or duty to be performed, (f) nor to perform an act which might render the justices liable to an action, the issue of which would be doubtful, though it would be otherwise if there were no probability of such liability, (g) Nor will it lie to dismiss an appeal, (4) nor to re-hear an appeal against an order of removal after judg ment given at sessions, though it might be otherwise if no judgment had been given. (i) Nor will it issue to compel justices to come to any particular prescribed decision. (k) But if the sessions should erroneously decide that they have no jurisdiction when they had, and on that account dismissed the appeal, then a mandamus lies. (4) Nor will the writ issue to compel the re-hearing of an appeal unless where the evidence on hearing one side had been totally rejected, for that would be in effect the same as if the appeal had not been heard at all; (7) nor will (u) Rex v. Middlesex, 3 B. & Adolp. 100. (x) In re Bromley, 3 Dowl, & R. 310, and post, 805, 806. (y) Rex v. Goodrich, 3 Smith's R. 388. (3) Rex v. Ely, 5 T. R. 475; Rex v. Lincoln, 2 Id. 338; Rex v. Bury. Id. 346; Rex v. Worcester, 4 Maule & S. 415; when not, Rex v. Conynham, 5 B. & Ald. 885; 1 Dowl. & R 529. (a) Brook v. Ewers, 1 Stra. 113; Ex (b) Ex parte Morgan, 2 Chit. R. 250. (e) Rex v. Windham, Cowp. 377; Res v. Cambridge, 3 Burr 1647. (f) Rex v. Hayward, 1 M. & S. 624. (g) Rer v. Buckinghamshire, 1 Bar. & Cres. 485; 2 Dowl. & R. 809, S. C.; Rex v. Robinson, 2 Smith, 274; Rer v. Broderip, 5 B. & C. 259; 7 D. & R. 861, S. C. (h) Rea v. Wilts, 2 Chit. R. 257. (i) Rex v. Leicestershire, 1 M. & S. 444; Rex v. Carnarvon, 4 B. & Ald. 86. (k) Rex v. Middlesex, 4 B. & Ald. 298; Rex v. Worcestershire, 1 Chit. R. 649. (1) Rex v. Carnarvon, 4 B. & Ald. 86, 88; Rex v. Middlesex, Id. 298; Rex v. Gloucestershire, 1 B. & Adolp. 1, 5. it lie to review a decison on the ground that they had come to a wrong decision; (m) nor if a party have omitted to give any notice of appeal against a conviction, and on that account his appeal has been dismissed ; (n) nor if a petition has been heard and considered although witnesses tendered were not examined ; (0) nor to compel justices to proceed upon an order of removal which they had previously by order superseded; (p) nor to compel justices to proceed where they could not legally do so on account of a defect in their proceedings; (q) nor to regulate the practice of the quarter sessions unless it appear to be manifestly wrong or unjust; (r) nor to compel a bishop to state his reasons for refusing to admit a party as deputy register of a diocese; (s) nor to compel the mayor of a town corporate to propose a resolution for repealing certain by-laws, and which he had refused to put.(t) Not when the Power was Discretionary.-When justices have discretionary power the Court of King's Bench will not interfere, as in granting Alehouse Licenses,(u) and the same rule applies to other persons; (x) nor to compel justices to allow an item in a coroner's account; (y) nor even to compel a justice or judge to come to a particular decision ;(2) nor to make an order of maintenance on a particular parish; (2) nor to compel sessions to hear an appeal when out of time and where they in their discretion refused a postponement; (a) nor to compel sessions to give reasons for their judgments or make any special entries upon their records; (b) nor in general to justices to assign their reasons for their decision. (c) And though when the sessions upon delivering an appeal on a settlement case have granted a case and none has been stated, the court will under some circumstances direct a mandamus to the justices who heard the appeal to state a case, (d) they will not do so where it is clear that such a proceeding could lead to no result; as where the chairman, in consequence of his own opinion and that of the court upon the facts differing, refused to sign any (m) Rex v. Worcestershire, 1 Chit. R. 649; Rex v. Justice, 1 Chit. R. 164. (n) Rex v. Oxfordshire, 1 M. & S. 446. (0) Rex v. Cumberland, 1 M. & S. 190; Rex v. Kent, 14 East, 395. (p) Rex v. Norfolk, 1 Dowl. & R. 69. (1) Rex v. Lincolnshire, 3 Bar. & Cres. 549. Rer v. Essex, 2 Chit. R. 385. Rex v. Gloucester, 2 B. & Adolp. 158; Rex v. London, 13 East, 419; Rex v. Deven, 1 Chit. R. 34; Rex v. London, 3 B. & Adolp. 255. (1) Rex v. Newcastle, 3 B. & Adolp. 252. (u) Giles's case, 2 Stra. 881. (1) Rex v. Chester, 1 M. & S. 101; (y) Rex v. Kent, 11 East, 229. (b) Rex v. Devon, 1 Chit. R. 34; Rex (c) South Cadbury v. Braddow, 2 Salk. 607; Rex v. Devon, 1 Chit. R. 34. (d) Rex v. Pembrokeshire, 2 B. & Adolp. 391; Rex v. Effingham, Id. 393, in notes, where see a suggestion how the justices are to proceed in stating the case. CHAP. X. MANDAMUS. CHAP. X. statement but one which would have excluded the point of law MANDAMUS. relied upon by the party demanding the case. (e) Inspection of Court Rolls, &c. (See post, 810, 811; and see Books, ante, 792.) License.-No mandamus will be issued relating to the granting a license, as to re-hear an application for an alehouse license which justices had refused, although it was suggested that their refusal proceeded from a mistaken view of their jurisdiction. (f) Manor. (See Copyhold (g) and Inspection, post, 810, 811.) Oaths. (And see Officers and Overseers.)—A mandamus lies to justices to admit a person to take the oath, &c. in order to be teacher of a dissenting congregation. (h) Officers and Situations of a Public Nature.-Whenever the office, whether temporal or ecclesiastical or otherwise, is legal and public, or fixed and permanent by statute, charter or usage, then this writ lies to swear in, admit or restore a party entitled to the same; but if the office or station be merely of a private nature or determinable at will, then no mandamus will be granted, (i) unless there be another remedy, as in the case of ecclesiastical persons by quare impedit, (k) or by quo warranto, when there is a recorder de facto though not de jure.(l) Nor will a mandamus be issued to swear in or admit, unless the party can show that he in all respects is entitled to practise or hold the office; (m) and a mandamus to the judges of an inferior court to admit an attorney, ought not to be directly to admit, but only to examine whether he be capable and qualified to be admitted. (n) Corporate Officers.-A writ of mandamus lies to admit or restore one of these from the highest to the lowest, whenever legally elected or appointed, and not legally removed, (o) as a mayor, alderman, jurat of a corporation, common councilman, recorder, (p) town-clerk, (q) liveryman, burgess, bailiff, serjeant or high steward, (r) and any peace officer thereof;(s) (e) Rex v. Pembrokeshire, 2 B. & Adolp. 391. (f) Rex v. Farringdon, 4 Dowl. & R. 735; Giles's case, Stra. 881; Rex v. Nottingham, Say. Rep. 217; Rex v. Storrey, 5 Dowl. & R. 308. (g) Ante, 794. (h) Peake's case, 6 Mod. 310; Rex v. Peach, 2 Salk. 572. (i) Rex v. London, 2 T. R. 182, what offices are deemed public, see Burn's J. tit. "Poor;" Rex v. Croydon, 5 T. R. 713; Rea v. Bishop of London, in the case of lecturer of St. Ann's, Westminster, 2 Stra. 1192; 1 Wils. 11, S. C. (k) Rex v. Chester, 1 T. R. $96. (1) Rex v. Colchester, 2 T. R. 259. (m) Rex v. Scriveners' Company, 10 Bar. & Cres. 511. (n) Rex v. York, 3 B. & Adolp. 770. (0) Rex v. Axbridge, Cowp. 523. As to writs of mandamus relative to corporations, see Selwyn's Ni. Pri. tit. "Mandamus." (p) Rex v. Wells, 4 Burr, 1999; when not, Rex v. Colchester, 2 T. R. 259. (q) Awdeley v. Joye, Poph, 176. (r) See cases and instances, Impey's Mandamus, 42, 43. (s) Semble, Awdeley v. Joye, Poph. 176. |