and the like manner as is now practised and used in the said courts respectively in personal actions; and thereupon the said writ and return, and the said demurrer, shall be entered upon record in the said courts repectively, 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 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."

Having demurred, rule the defendant to join in demurrer; and as soon as he shall have filed his joinder, obtain a rule for a concilium, let the case be set down in the crown paper for argument, and paper books delivered to the judges, as directed, ante, p. 64.

The demurrer and joinder must I conceive be in the form adopted in personal actions, according to the New Rules of Pleading. The following may be the forms:

This must be signed by counsel; and it should seem that some matter of law, intended to be argued, must be stated, in the margin, as in civil actions. R. G. H. 4 W. 4, r. 2, s. 14. Engross two copies on plain paper, and file one of them at the crown-office, and deliver the other to the opposite attorney.

This joinder is not signed by counsel. It is filed and a copy delivered to the opposite attorney, in the same manner as the demurrer.

As to argument, judgment, and costs, vide ante, p. 299, 64.

Form of the Entry on the Record, and Paper Books.

In the Queen's Bench. Pleas before our Lady the Queen at Westminster, of term [the term in or of which the return is filed], 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.

Yorkshire to wit: Our Lady the Queen sent to [the mayor, aldermen and burgesses of the borough of S., in the county of York] her writ close in these words, that is to say: Victoria [&c. as in the mandamus, to the teste inclusive.]

[&c.

At which day, to wit on stating the return day of the writ] before our said Lady the Queen at Westminster, the said [mayor, aldermen, and burgesses of the said borough of S., in the county aforesaid, returned to our said Lady the Queen, as follows, that is to say: ["We the mayor, aldermen and burgesses of the borough of S., in the county of York], do most humbly certify and return to our sovereign Lady the Queen, at the time and place within mentioned," &c. as in the return, to the end.

And on the same

day

of
before our said Lady
the Queen at Westminster, come
as well the said. J. S., in the
said writ and return named, by
C. D., his attorney, as the said
[mayor, aldermen and burgesses
of the borough of S.,] by A. B.
their attorney. And the said J. S.,
having heard the said writ and
return read, says that the said re-
turn is not sufficient in law, [ad-
ding the special causes of demurrer,
if any.]

And hereupon, the said [mayor, aldermen and burgesses of the borough of S.,] by their attorney aforesaid, say, that the said return is sufficient in law. But because the court of our Lady the Queen now here, are not yet advised what judgment to give of and upon the premises, a day is given to the parties aforesaid before our said Lady the Queen, at Westminster, on, to hearjudgment thereupon: for that the said court of our Lady the Queen now here are not yet advised thereof, &c.

Having obtained a rule for a concilium, and set down the demurrer in the crown paper for argument, the parties must deliver the paper books to the judges, with the points intended to be argued in the margin, as directed ante p. 64; and they then deliver their briefs (containing a copy of the paper book, and any observations they choose to add) to their counsel, to argue the demurrer.

The counsel for the prosecutor is first heard; R. v. Church Trustees of St. Pancras, 3 Ad. & El. 535. Id. 6 Ad. & El. 314; then the counsel for the defendants; and lastly the counsel for the prosecutor in reply. One counsel only on cach side is allowed to argue. The counsel for the prosecutor is confined entirely to objections for defects appearing upon the face of the return; he cannot refer to any affidavits made in a previous stage of the proceedings; 10 Ad. & El. 732, n.; the counsel for the defendants may not only argue in support of the return, but may object to the writ itself for any defects in substance appearing on the face of it; and a misdirection of the writ, for instance, a writ of mandamus directed to the steward of a manor, instead of the lord and steward, has been holden to be a defect in substance in this respect. R. v. Powell, 1 Ad. & El. N. C. 352.

If the court hold the writ to be bad, they give judgment that it be quashed, and that the defendants recover their costs. On the other hand, if the writ be good, but the court hold the return to be bad, in that case they give judgment for the prosecutor, that he recover his costs, and they award a peremptory mandamus. See 6 & 7 Vict. c. 67, s. 1, ante,

p. 299; and R. v. Kendall, 1 Ad. & El. N. C.366.

2. Traverse of the Return, Replication, &c..

In what cases.] Formerly, if the return were good upon the face of it, but false in fact, the prosecutor had no means of traversing it, and no remedy at all, except by bringing an action on the case against the defendants for their false return; Rich v. Pilkington, Carth. 171. R. v. Mayor of Rippon, 1 Ld. Raym. 564. Green v. Pope, Id. 125. Bul. N. P. 202; but if he succeeded in obtaining a verdict and judgment in that action, the court then awarded a peremptory mandamus. Buckley v. Palmer, 2 Salk. 430.

But by stat. 9 Ann. c. 20, s. 2 (which related only to the offices of "mayors, bailiffs, portreeves and other officers within cities, towns corporate, boroughs and places" within England and Wales, see ante p. 118, but has since been extended to writs of mandamus in all cases by stat. 1 W. 4, c. 21, s. 3), it is enacted, that where a return shall be made to a writ of mandamus, "it shall and may be lawful to and for the person or persons 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 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." The words of the statute being "plead to or traverse," the

prosecutor may either traverse the return, or confess and avoid it by a special plea; or he may traverse a part, and plead specially to the residue. He may traverse any one or more of the material allegations in the return; and if he traverse a part only, yet if the residue of the allegations, which are unanswered, constitute of themselves no valid return, the prosecutor, if he succeed in his traverse, will be entitled to judgment, and to an award of a peremptory mandamus. R. v. Trustees of Luton Turnpike Road, 1 Ad. & El. N. C. 860. On the other hand, if the allegations which he traverses be immaterial, the defendants may demur to his pleas; or, even if he succeed in obtaining a verdict upon them, the defendants will be entitled to judgment non obstante veredicto. R. v. Governor of Darlington Grammar School, 12 Law J. 124, qb. Or, the prosecutor, instead of traversing the return, may confess and avoid it by a special plea; see R. v. Overseers of Todmorden & Walsden, 1 Ad, & El. N. C. 185. R. v. Churchwardens of Brancaster, 7 Ad. & El. 458; for although the above statute of Ann. extended only to cases where an action would lie for a false return, yet the stat. 1 W. 4, c. 21, s. 3, by extending it to all cases of mandamus, has had the effect of making it applicable as well to cases where an action for a false return would not lie at common law. R. v. Fall et al., 1 Ad. & El. N. C. 647. 636. Or, the prosecutor may traverse a part of the return and also plead specially to the residue; see R. v. Churchwardens of Brancaster, supra; or, he may traverse a part or the whole, and also plead specially to it. See R. v. Governors of Darlington Grammar School, supra.

But if the prosecutor have demurred to the return, and the return be adjudged good, he will not be allowed afterwards to plead to or traverse it. R. v. Mayor of London, 3 B. & Ad. 255. See R. v. Payn, 11 Ad. & El, 955. But where a return contains several distinct heads of answer, the prosecutor by leave of the court, may traverse one or more of these, after having argued the validity of the others in point of law. R. v. North Midland Railway Co., 11 Ad. & El. 955, n.

How.] The plea, if special, must be signed by counsel. It is engrossed on paper, and one copy filed at the crown-office, the other delivered to the defendant's attorney. If the prosecutor traverse, and also plead specially to the same part of the return, he must obtain a rule to plead several matters, as in civil actions.

If the defendant neglect to reply to a special plea, or to add the similiter to the general issue, the prosecutor can compel him to do so, by obtaining a side-bar rule to reply from the crown-office (pay 1s.) and serving a copy of it upon the defendant's attorney. This rule expires in four days; Reg. 17; and if the defendant do not reply or demur, or add the similiter, within that time, the prosecutor may sign judgment as for want

of a replication at the opening of the office on the morning of the fifth day, unless an order of the court or of a 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. Reg. 18.

The court, however, may allow such convenient time as they may think reasonable, to the parties respectively, to plead, reply, rejoin, or demur. 9 Ann. c. 20, s. 6.

The replication is pleaded in the same manner as the plea. Vide supra.

The defendants may demur to the pleas, or the prosecutor to the replications, as in ordinary civil actions; and in such cases the forms of the demurrer and joinder may be the same, mutatis mutandis, as those, ante, p. 65.

And in general the pleadings under this stat. 9 Anne, c. 20, s. 2, should be in the ancient form observed on the crown side of the court, and not in the forms required by the new rules of pleading, which, however applicable to the proceeding by demurrer under stat. 6 & 7 Vict. c. 67, ante. p. 298, do not seem to apply to the pleadings under the statute of Anne: the new rules of pleading apply to personal actions; and by the statute of Anne, it is only the proceedings after the traverse and replication, which are to be the same as in an action on the case for a false return.

In the Queen's Bench.

Form of a Traverse.

Term, 8 Vict.

R. on prosecution of J. S.

v.

Mayor, &c. of S.

And on the same- day of (i. e., the return day of the writ} before our Lady the Queen at Westminster, come as well the said J. S. in the said writ and return named, by C. D., his attorney, as the said [mayor, aldermen, and burgesses of the borough of S.] aforesaid, by A. B. their attorney; and having heard the said writ and return read, protesting that the said return and the matters therein contained are not sufficient in law to bar or preclude him the said J. S. from having a peremptory writ of mandamus, for plea, nevertheless the said J. S.,

by force of the statute in such case made and provided, saith that [&c. here state, the affirmative of one of the negative allegations in the return, or the negative of one of the affirmative allegations], as in the said writ is alleged; and this he the said J. S. prays may be inquired of by the country, &c.

And for a further plea in this behalf, the said J. S., by force of the statute in such case made and provided, saith that [&c. stating the affirmative of another allegation in the return; and so on, traversing all the allegations which it may be necessary to deny], as in the said writ is alleged; and this he the said J. S. prays may be inquired of by the country, &c.

Form of a Special Plea.

Same as the last form, to the asterisk, saith that, &c. stating

the matter of the plea, and concluding with a verification thus: