Eldridge v. Fletcher, 1 Har. & W. 199; or, requiring the lords of the admiralty to restore certain deductions which they had made from the half-pay of a naval officer, Ex p. Ricketts, 4 Ad. & El. 999, or to fix a price for the use of a patent; Ex p. Pering, 4 Ad. & El. 949; or, requiring the commissioners of woods and forests to pay a poor-rate; Exp. Reeve, 5 Dowl. 668; or, requiring servants of the crown to pay over a portion of a sum of money in their hands to a party claiming it, Re Baron de Bode, 6 Dowl. 776, or to deliver up goods on payment of a certain rate of duty; R. v. Comm. of Customs et al., 5 Ad. & El. 380; or, requiring the treasurer of a county to reimburse constables for money expended by them, R. v. Erle, 2 Burr. 1197, or to pay the costs of witnesses, R. v. Jeyes, 3 Ad. & El. 416, or to obey an order of quarter sessions. R. v. Bristow, 6 T. R. 168. R. v. Treasurer of Surrey, 1 Chit. 650; or, requiring a registrar of births to erase an entry; Ex p. Stanford, 1 Ad. & El. N. C. 886; or, requiring an insurance company to transfer shares standing in the name of a bankrupt into the names of his assignees; R. v. London Assurance Co., 5 B. & A. 899; or, requiring a private individual, not acting in any official character, to do an act, for in such a case an action will lie. R. v. Hopkins et al., 1 Ad. & El. N. C. 161. So, where a statute does not allow of proceedings being removed by certiorari, the court have refused to allow them to be brought indirectly under their review by mandamus. R. v. JJ. of W. R. Yorkshire,

1 Ad. & El. 563.

Having thus noticed the different cases in which a writ of mandamus will lie, we shall now treat of the manner in which the writ is obtained and sued out, and of the proceedings upon it.

SECTION III.

The Writ, how obtained, and Proceedings thereon.

1. Statutes upon the Subject.

By stat. 9 Ann, c. 20,-after reciting that divers persons had then of late illegally intruded themselves into, and had taken upon themselves to execute the offices of mayors, bailiffs, portreeves and other offices, within cities, towns corporate, boroughs and places, within that part of Great Britain called England and Wales, and where such offices were annual offices, it had been found very difficult, if not impracticable, by the laws then 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 had been found difficult to try and determine the right of such persons to such offices before they had 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 had respectively acted; and that divers persons who had a right to such offices, or to be burgesses or freemen of such cities, towns corporate, boroughs or places, had either been illegally turned out of the same, or had 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 mandamus, the proceedings on which were very dilatory and expensive, whereby great mischiefs had already ensued and more were likely to ensue, if not timely prevented :-it was enacted that "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 of 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."

By sect. 2," 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 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 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, fi. fa., 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."

Provided (by sect. 3), 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.

And by sect. 6, "it shall and may be lawful to and for the said courts respectively, 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 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 courts respectively shall seem just and reasonable."

And by sect. 7, the stat. 4 Ann. c. 16, intituled "An Act for the amendment of the law and the better advancement of justice," and all the statutes of jeofails, shall be extended to all writs of mandamus and proceedings thereon, for any the matters in this act mentioned.

By stat. 1 W. 4, c. 21, s. 3, reciting that the provisions contained in the above stat. 9 Ann. c. 20, had been found useful and convenient, and the same ought to be extended to the proceeding on other such writs: it is enacted that the several enactments relating to the return 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.

And by sect. 4, reciting that 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 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 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,—it is enacted, "That it shall and may 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 provided 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 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 (see 1 & 2 W. 4, c. 58; and 1 Arch. Pr. 266,) 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 subject of such claims. Provided 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 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 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 might and would otherwise have had."

And by sect 5, "in case the return to any such writ shall in pursuance of the authority given by that 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; 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."

And by sect. 6, for making some further provision for the payment of costs on applications for mandamus, it is further enacted, "That in all cases of application 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 discretion of the court, and the court is hereby authorized to order and direct by whom and to whom the same shall be paid."

By stat. 6 & 7 Vict. c. 67, s. 1, reciting that writs of mandamus are issued by Her Majesty's court of Queen's Bench and the courts of the counties palatine, and the application for the same must now be made in those courts respectively alone;

and that 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 that 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 Queen's Bench, and courts of the counties palatine respectively 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 reciting that by the above stat. 9 Anne, c. 20, 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 prosecuting 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 brought his action on the case for a false return; And reciting that by the above stat. 1 W. 4, c. 21, the said provision hereinhefore mentioned of the said herein first recited act was extended to writs of mandamus in all other cases and to the proceedings thereon; And that 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 be reviewed by a court of error: for remedy whereof, therefore 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 herein before 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 mandamus shall issue in that behalf, and thereupon such peremptory writ of mandamus may be sued