SECTION II.

Writ of Error from the Court of Queen's Bench to the Exchequer Chamber.

Upon a fiat being obtained for the writ, as directed ante, p. 201, the writ is sued out, and proceeded upon, in the same manner as in civil actions. See 2 Arch. Pr. 285.

CHAPTER III.

Mandamus.

SECTION I.

1. The Writ, and in what Cases it lies generally.

The writ of mandamus is a high prerogative writ, issuing from the court of Queen's Bench, directed to the judges of inferior courts of judicature, corporations, public bodies, and others, upon whom the law casts a public duty,-alleging that complaint had been made of their refusal to perform that duty upon some particular occasion, and commanding them in the Queen's name to do it "or that you show cause to the contrary thereof, lest in your default the same complaint should be repeated to us." It issues from the court of Queen's Bench, it being the peculiar business of that court to superintend all inferior tribunals, &c., and therein to enforce the true exercise of those judicial or ministerial powers with which the crown or legislature have invested them; 3 Bl. Com. 110; it being their business also to enforce a specific performance by all public bodies, and all public officers, of those duties the law casts upon them, where their refusal to perform them operates to the injury or damage of an individual, and the party damnified has no other efficient remedy. If therefore any such inferior court, corporation, public body or other, from a mistake of the law or otherwise, refuse to do some act, which by law they ought to do, the Court of Queen's Bench, upon application, will in the first instance grant a rule calling upon them to show cause why a writ of mandamus should not issue; and if no sufficient cause be shown, the rule is made absolute, and the writ issues accordingly, in the alternative in the first instance, that they should do the act required, or show cause to the contrary; to which writ they are bound to make a return; and if that return be insufficient, a peremptory mandamus issues, which must be obeyed under pain of attachment,

and the Court of Queen's Bench will allow of no other return to it, except that what was commanded by the writ has been duly executed.

When the writ is applied for in a matter of mere private right, such as the right to be admitted or restored to an office or the like, the court exercise a discrétion in granting it; but where it is sought for the purpose of enforcing obedience to acts of parliament or the Queen's charter, it is demandable as of right. Bul. N. P. 199. Bagg's Ca. 11 Co. 98. But in no case of private right, will the court grant a mandamus, if the applicant have any other efficient remedy. See R. v. Wyndham, Cowp. 738. R. v. Bristol Dock Co. 12 East, 429. And therefore where a party sought to compel by mandamus a person, who had taken down and re-built the partywall between his and the applicant's house, to restore the internal decorations, so that they might be in the same state they were in previously to the wall being taken down: the court refused the writ, because the applicant had a remedy by action. R. v. Ponsford, 3 Dowl. N. C. 116. So, the court have refused a mandamus commanding the Bank of England to transfer stock, as the party had his remedy by action. R. v. Bank of England, 2 Doug. 524. So, where the rector of a parish appointed a sexton, and the parishioners, claiming the right of appointment, applied for a mandamus to the rector and churchwardens to convene a vestry-meeting for the purpose of electing a sexton: the court refused the writ, the right being doubtful, saying that the parishioners had their remedy by withholding the sexton's fees, or by bringing an action against him if he took them. R. v. Stoke Damarel, 5 Ad. & El. 584. So, where a mandamus was applied for, to compel a railway company to carry all goods offered to them for conveyance, it appearing that they had agreed with certain persons to carry their goods, to the exclusion of others: Patteson, J. refused it, as there was no clause in their act of incorporation requiring them to do so; and if they were liable by the common law, the applicant had his remedy by action. Ex p. Robins, 7 Dowl. 566. So, where a corporator, who was entitled to a certain share of the profits of a fishery, which the corporators worked and enjoyed in partnership, was suspended from the perception of his profits until he should pay a certain fine imposed by a by-law, and he applied for a mandamus to restore him: the court refused the writ, saying that he was still an officer, and had his remedy by action against any who disturbed in the lawful perception of his profits, or, considering the corporators as partners in the fishery, he had his remedy in equity for his share of the partnership funds, if he were entitled. R. v. Whitstable, 7 East, 353. So, where a mandamus issued to a party, alleged to have possession of certain books belonging to a court of requests or their clerk, to deliver them up to the person who claimed them as having

been elected clerk of the court: the court held the mandamus to be bad, for not showing that the defendant was other than a mere stranger, in which case the applicant might have his remedy by action; and that this was not remedied by the return, which stated that the defendant had been duly elected clerk, and claimed to hold the books as such, for the writ could not be made good by the return. R. v. Hopkins et al., 1 Ad. & El. N. C. 161. So where, under stat. 11 G. 4, and

1 W. 4, c. 60, s. 8, the court of Chancery made an order, declaring that Wade, who was legal tenant in fee of certain copyhold property as trustee for Baker, had died, and that his heir could not be found, appointed Goodrich trustee to convey or surrender the legal estate; and an application was made for a mandamus to the lord to accept such surrender: the court refused the writ, upon the ground that the court of Chancery could compel the performance of whatever was requisite, and was better able than they were to regulate the rights of the parties. R. v. Pitt, 10 Ad. & El. 272. So, where a deanery became vacant, and the Queen recommended one of the prebendaries, requiring and commanding the chapter to assemble and elect him, but the chapter elected another; an application was then made to this court for a mandamus, to compel the chapter to elect and admit the party named by the crown: but the court refused the writ, saying that if the crown had the right to present absolutely, or to nominate the person to be presented by the chapter to the bishop for institution, the proper remedy was by quare impedit. R. v. The Chapter of St. Peter's in Exeter, 12 Ad. & El. 512. And so in all other cases where there is a remedy by quare impedit. R. v. Marquis of Stafford, 3 T. R. 646. R. v. Bishop of Chester, 1 T. R. 396. So, where the conservators of the Bedford Level moved for a mandamus to certain landowners commanding them to amend and heighten certain banks within the level, which they were liable to repair ratione tenure, and which were alleged to be in a dangerous state; but as it appeared that the applicants had by stat. 15 C. 2, c. 17, s. 5, the same authority as commissioners of sewers, namely, by presentment, and had it therefore in their own power to enforce the doing of the repairs, the court refused the writ. R. v. Gamble et al., 11 Ad. & El. 69. So, where in an action of debt in the Palace court, in which the defendant allowed judgment to go by default, that court refused to allow the plaintiff to sign final judgment, who therefore applied for a mandamus; but the court refused the writ, leaving the plaintiff to his remedy by writ of error. Arden v. Connell, 5 B. & A. 885. So, where a charter of incorporation in 1693 was granted, by which it was contended that the aldermen and common-council of the borough ought to be elected annually, and for two years after the charter they were so elected, but not since; and in order to raise the

question, against the usage, whether the offices were not annual, an application was made for a mandamus; but the court refused it, as the parties had another remedy, namely, by information in the nature of quo warranto. R. v. Mayor of Chester, 1 M. & S. 101. But where the election to an office is clearly void, the court will in many cases grant a mandamus to proceed to a new election, although the party be in under the void election, and actually exercising the office. See post, Mandamus to elect. And a mere remedy by indictment is not such a remedy as will prevent the court from granting a mandamus; for the indictment merely punishes the party for not performing the duty imposed upon him, but is no remedy whatever to the party injured by the non-performance of it. R. v. Severn and Wye Railway, 2 B. & A. 646. R. v. Bristol Dock Co. 2 Ad. & El. N. C. 64. So, it is no answer to an application for a mandamus, that a statute inflicts a penalty upon a party for refusing to do that which is sought for by the writ. R. v. Clear, 4 B. & C. 899.

And to warrant the court in awarding the writ, there must appear to have been a default in the duty sought to be enforced. And therefore where a mandamus was granted commanding overseers to make a poor-rate, the court would not grant a mandamus to the justices at the same time to allow it, for they would not presume that the justices would refuse to do their duty; and this, although the same justices had before refused to allow a rate, a mandamus had issued commanding them to do so, and they had been taken upon an attachment for not obeying it. R. v. St. Ives, Bul. N. P. 199.

So, there must appear to have been a demand that the duty should be performed, and a refusal, to warrant the court in granting the writ; and such demand must be made on the person or body to whom it is intended that the writ shall be directed. And therefore, where, upon an application for a mandamus commanding the justices at sessions and the clerk of the peace to allow the attorney of certain rate-payers to inspect the county-rate and all orders of sessions relating thereto, but it appeared that the demand was made upon the justices out of sessions and the clerk of the peace, and no demand was made of them whilst assembled at quarter sessions, the court refused the writ. R. v. JJ. of Leicester, 4 B. & C. 891. What amounts to a refusal, is sometimes a matter of doubt. Where, upon being required to do a certain act, the party said that he was ready to do it, upon being indemnified; the applicant however refused to give him the indemnity required, and afterwards took no further steps, by a direct application or otherwise, to obtain an unconditional refusal the court held this refusal insufficient to warrant them in granting a mandamus. R. v. Brecknock and Abergavenny So, where by the statute incor

Canal Co. 3 Al. & El. 217.

porating a canal company, the managing committee were required to enter in books an account of their disbursements, receipts and transactions, to be open at all times to the inspection of the proprietors, and they were authorized to appoint a clerk; a proprietor applied for an inspection of the books to the clerk, who had the custody of them at the time, but the clerk said that he would refer the demand to the committee; the proprietor then made the request to the committee, and the chairman told him they would take time to consider of it; and ten days afterwards the proprietor again applied to the clerk for the inspection, who refused to give it: the court held that there had been no sufficient refusal by the committee, to warrant the application for a mandamus. R. v. Wilts and Berks Canal Co. 3 Ad. & El. 477. Where in such a case the inspection was offered as a matter of favour, not of right, but the applicant refused it except as a matter of right, Lord Denman, C. J. doubted whether this would warrant the granting of a mandamus; it might be important to assert the right, but then the applicant should have said that he accepted the inspection as a right, not as a favour, and if upon that the books had been withheld, an application might be made for a mandamus, supposing the party in other respects entitled to it. R. v. Trustees of Northleach and Witney Roads, 5 Ad. & El. 982, 978, per Lord Denman, C. J. So, where an application for compensation was made to a canal company on the 29th November, and the applicant was informed that there would be a meeting of the committee in March, when his claim would be submitted to them; but instead of waiting, he on the 23d January applied for a mandamus: Coleridge, J. would not grant it, as there was no refusal. R. v. Wilts and Berks Canal Co. 8 Dowl. 623. But where by a local act the select vestry of a parish were to levy church-rates, and the churchwardens by a written notice required them to do so, or to pay a certain sum to them for the same purpose out of the poorrate; the vestry thereupon met, but adjourned from time to time, on pretexts which the churchwardens in their affidavits alleged to be, as they believed, colourable, and merely intended to evade laying the rate, requiring details which could not be furnished for want of funds to pay a surveyor, and fixing an adjournment-day for such time that a mandamus could not afterwards be had for many months; it appeared also the select vestry for the previous year had pursued the same course, and had thereby avoided making a church-rate during the whole year of their office: the court, upon cause being shown against a rule for a mandamus, and the select vestry not satisfactorily denying the imputed motive, held the adjournment to be colourable, and equivalent to a refusal; they held also that the demand was sufficient, as far as respected the church-rate, although bad as to the other alternative