have his name inserted therein, by reason whereof the name of the said J. S. hath not been enrolled in the burgess-roll of the said borough for this year; to the great damage and grievance of the said J. S.: Whereupon he hath humbly besought us, that a fit and speedy remedy may be provided in this respect. Now We, being willing that due and speedy justice be done in this behalf, as it is reasonable, do command you, the mayor of the said borough of A., in our said county of B., firmly enjoining you, that immediately after the receipt of this our writ, you do without delay insert the name of the said J. S. upon the burgess-roll of the said borough for year of our reign. By Rule of Court. By the Court. And To restore.] If a corporate officer be wrongfully removed from his office, the court will grant a mandamus to restore him. It lies to restore to the office of town-clerk, being an office which relates to the administration of justice; Noy. 78; Style, 457; to the offices of recorder, Style, 452, Vent. 145, 155, R. v. Corp. of Wells, 4 Burr. 1999, and clerk of the peace, 4 Mod. 31, Show, 282, 12 Mod. 13, for the same reason; Bac. Abr. Mandamus, C.; to the offices of inayor, alderman, councillor, &c.; to the offices of clerk or surveyor of the city works, in London, R. v. Mayor of London, 2 T. R. 182, n., 2 Barnard. 298, clerk of the Bridge-House estates in London, R. v. Mayor of London, 2 T. R. 177, and yeoman of the Wood Wharf in London, Scriven v. Turner, 2 Str. 332, these being ancient offices, and frecholds. But the court have refused a mandamus to restore to the office of clerk to magistrates at petty sessions, because such a clerk has no permanent interest in his office. Ex p. Sandys, 4 B. & Ad. 863. the court will in no case grant the writ, where it appears that the party was rightly removed, although without notice, R. v. Mayor of Axbridge, Cowp. 523, or otherwise irregularly. R. v. Griffiths, 5 B. & A. 731. R. v. Mayor of London, 2 T. R. 177. Hence the necessity of making out a primâ facie title to the office, and of showing at least that the party has complied with all the forms necessary to constitute his right, to induce the court to grant the writ. Per Ld. Kenyon, C. J., in R. v. Jotham, 3 T. R. 577, 575. Nor will the court grant a mandamus to restore, where the party is not actually ousted, but still remains officer de jure, though not allowed to act; his remedy is by mandamus to allow him to act, as for instance, to allow him to have a voice and seat in the council, or the like. R. v. Mayor of Oxford, 6 Ad. & El. 349. So, if the office be full of another, the court will not interfere by mandamus, but will leave the party to his remedy by quo warranto information. Id. Also, if a burgess, under the Municipal Corporation Act, be wrongfully put out of the burgess-roll, the court will grant a mandamus to restore his name to it, the stat. 7 W. 4 and 1 Vict. c. 78, s. 24 (ante, p. 246), applying as well to the expunging of a name from the roll, as to rejecting a claim to be placed upon it. See R. v. Mayor of Harwich, 8 Ad. & El. 919. R. v. Mayor of Eye, 9 Id. 670. The rule is in all cases a rule nisi only. Bul. N. P. 199. Mandamus to Restore. VICTORIA, &c. To the mayor, aldermen and burgesses of the borough of A. in the county of B., greeting: Whereas J. S., esquire, On was duly elected, chosen, and admitted into the office of councillor of our said borough of A., and made the declaration in that behalf by law required, and in his said office of councillor hath always behaved and governed himself well; and whereas we have been given to understand in our court before us that you the mayor, aldermen and burgesses of the said borough, on- without any reasonable cause whatsoever, unjustly removed the said J. S. from his said office of councillor in our said borough; and that you the said mayor, alderman and burgesses were, on, required, on the part and behalf of the said J. S., to restore him the said J. S. to his said office of councillor of our said borough, yet that you, not regarding your duty in that behalf, did absolutely neglect and refuse, and still do neglect and refuse to restore him to his said office; to the great damage and grievance of the said J. S., and to the manifest injury of his estate; whereupon he By Rule of Court. day year of our By the Court. To serve.] If a person be elected to the office of mayor, alderman, or councillor, or other corporate office, and refuse to make the declaration of his acceptance of the office, required by law, or to serve the office, the court upon application, and upon merely an affidavit of the election and refusal, R. v. Simmons, 3 Doug. 237, will grant a mandamus to compel him. And it will be no excuse to say, that by a by-law of the corporation, those who refuse office are subject to a fine, and that he was accordingly fined for his refusal, and paid the fine; R. v. Bower, 1 B. & C. 585; or, that the party is not resident in the borough, and that if he were to serve the office he would be obliged to reside there. R v. Leyland, 3 M. & S. 184. Formerly, to a rule for a mandamus to a party to serve or take upon himself a corporate office, it would be no answer to say that he had not taken the sacrament within the year; R. v. Walker, 6 M. & S. 277; nor would it now be any excuse, that the party had not made the declaration which has been substituted for it, by stat. 9 G. 4, c. 17, as mentioned, ante, p. 247. Mandamus to Serve. VICTORIA, &c. To J. S. esquire, greeting: Whereas heretofore on -, you the said J. S., being then a councillor of our borough of A., in the county of B., were in due manner elected and chosen into the office of [mayor] of our said borough, to serve in the said office for one whole year then next following, of which said election you then had due notice; and it then became and was the duty of you the said J. S., being so elected and chosen to the said office as aforesaid, to make and subscribe the declaration in that behalf by law required, that you took upon yourself the said office, and would fulfil the duties thereof according to the best of your judgment and ability; and it also then became and was your duty to take upon yourself and execute the duties of the said office of mayor of our said borough of A., for one whole year then next following, computed from the said day of aforesaid: And whereas we have been given to understand in our court before us, that after you were so elected and chosen, and had notice thereof, as aforesaid, to wit, on -, you the said J. S. were required to make and subscribe the said declaration, and take upon yourself and execute the said office of mayor of our said borough of A.; yet that you the said J. S., not regarding your duty in that behalf, did absolutely neglect and refuse, and still do neglect and refuse to make and subscribe the said declaration, and to take upon yourself and execute the said office of mayor of our said borough of A.; to the great damage and grievance of the burgesses and inhabitants of the said borough; Whereupon they have humbly besought us that a fit and speedy remedy may be provided in this respect. Now We, being willing that due and speedy justice be done in this behalf, as it is reasonable, do command you the said J. S., firmly enjoining you, that immediately after the receipt of this our writ, you do without delay make and subscribe the declaration aforesaid before some two of the aldermen or councillors of the said borough, and do take upon yourself and execute the said office of mayor of the said borough of A., for the residue of the said year, to be computed as aforesaid, or that you show us cause to the contrary thereof, lest in your default the same complaint should be repeated to us. And how you shall have executed this our writ, make known to us, at Westminster, on, then returning to us this our said writ. Witness, Thomas Lord Denman, at Westminster, the day of, in the year of our reign. By the Court. By Rule of Court. To permit inspection of corporate books, &c.] As to the inspection of corporation books, in which the admission or swearing in of the freemen, burgesses, or other members or officers of such corporation are entered, see stat. 32 G. 3, c. 58, s. 4, ante, p. 145, and Davies v. Humphreys, 3 M. & S. 223; and as to the inspection of the voting-papers, in boroughs within the Municipal Corporation Act, see stat. 5 & 6 W. 4, c. 76, s. 35, ante, p. 145, and R. v. Arnold, 4 Ad. & El. 657. The court will grant a mandamus, generally, for burgesses to inspect the corporation books; R. v. Sheriffs of Chester, 1 Chit. 477; or, even to a stranger, to inspect a by-law, where an action is brought against him upon it. Harrison v. Williams, 3 B. & C. 162, 4 D. & R. 820. Brewers' Company v. Benson, Barnes, 236; but not where the action is brought for tolls, or property of any kind. Mayor of Southampton v. Graves, 8 T. R. 590. And in a dispute between corporators, an inspection of the corporate documents, relating to the matter in dispute, will be granted to either of them, for they have a right to see them. Per Ld. Kenyon, C. J., 8 T. R. 592. On the other hand, the mere accidental circumstance of a party being a member of a corporation, will not give him a right to inspect the corporation books, &c., respecting matters of private concern, having no reference to his rights as a burgess; and therefore where an attorney, having brought an action against a corporation for the amount of his bill for business done, applied for an inspection of the corporation books, to enable him to prove his retainer, Littledale, J., refused it, saying that if the plaintiff wished the books at the trial, he might give the defendants notice to produce them. Stevens v. Mayor of Berwick, 4 Dowl. 277. Nor will the court, upon the application of members of a corporate body, grant a mandamus to inspect the documents of the corporation, unless it be shown that such inspection is necessary with reference to some specific dispute or question depending, in which the parties applying are interested; and the inspection will be granted only to such extent as may be necessary for the particular occasion; R. v. Merchant Tailors' Company, 2 B. & Ad. 115; and therefore where certain members of a corporation applied for a mandamus to compel the masters and wardens of the Merchant Tailors' Company, to allow them to inspect and take copies of all records, books, and muniments in their possession belonging to the company or relating to their affairs, merely alleging grounds on which they believed that its affairs were improperly conducted and the officers unduly chosen, and complaining of misgovernment in some particular instances not affecting the parties themselves or any matter then in dispute, the court refused the application. Id. To perform other duty.] Where a corporation come to a resolution to do a certain act, which they may lawfully do, and which requires their common seal to be affixed to some instrument for that purpose, if the officer having the custody of the common seal refuse to affix it, this court upon application will grant a mandamus to compel him to do so. See R. v. Kendall, 1 Ad. & El. N. C. 366. By the Municipal Corporation Act (5 & 6 IV. 4, c. 76), s. 66, every officer of the corporation to which that act relates, who shall be in an office of profit at the time of the passing of that act, whose office was abolished, or who was removed from his office under the provisions of that act, and not re-appointed, [or if re-appointed, who should be subsequently removed for any cause other than such misconduct as would warrant his removal from an office holden during good behaviour, Id.] was entitled to an adequate compensation, to be assessed by the council of the borough, and paid out of the borough fund, for the salary, fees and emoluments of the office which he shall cease to hold, regard being had to the manner of his appointment, his term or interest in the office, and all other circumstances of the case; and if, upon laying a statement of his claim before the council of the borough, they should determine against his claim, in the whole or in part, he may appeal to the lords commissioners of the Treasury. And such compensation shall be secured to him by a bond of the corporation under their common seal, as soon as conveniently may be after the amount shall be admitted or determined. Id. s. 67; see R. v. Mayor of Norwich, 8 Ad. & El. 633. Ex p. Lee, 7 Id. 139. R. v. Mayor of Cambridge, 12 Id. 702. R. v. Mayor of Sandwich, 2 Ad. & El., N. C. 895. R. v. Mayor of York, 3 Id. 550. R. v. Swansea, 9 Law J. 17 qb. R. v. Mayor of Newbury, 1 Ad. & El., N. C. 754, 10 Law J. 250 qb. If the corporation in such a case refuse to grant compensation, in a case where they ought to grant it, the court will award a mandamus to compel them to do so, except in cases where, under circumstances, the compensation if granted would be merely nominal. Ex p. Lee, 7 Ad. & El. 139. Or, if the party have appealed to the lords of the Treasury, who have made an order for compensation, the court will enforce obedience to that order, by mandamus to compel the corporation to execute a bond for securing it, in all cases where the lords of the Treasury appear to have acted within the limits of the jurisdiction given to them by the statute, and to have exercised that jurisdiction correctly. R. v. Mayor of Bridgwater, 6 Ad. & El. 339. R. v. Mayor of Norwich, 3 Ad. & El., N. C. 285. But if the Treasury appear to have acted, where they had no jurisdiction, R. v. Mayor of Newbury, 1 Ad. & El., N. C. 751, 10 Law J. 250 qb., the court will not interfere to enforce obedience to their order; or, if in such a case they decide against the appellant, the court will grant a mandamus to the town-council to assess compensation. R. v. Mayor of Harwich, 2 Ad. & El., N. C. 909. R. v. Mayor of Sandwich, Id. 895. So, if the bond be payable by instalments, or conditioned to pay an annuity, and the instalments or annual payments be in arrear, the court will grant a mandamus to compel the corporation to raise the amount by a borough rate, if it appear that they have no other funds applicable to the payment of them. R. v. Mayor of Poole, 1 Ad. & El., N. C. 616. |