That I prisoner might perform that work according to his en- Rule accordingly. 1839. Ex parte JOHNSON. REGINA V. CHURCHWARDENS of MANCHESTER. (Before the Four Judges.) mandamus to to swear in overseers of the poor granted absolute in the first instance. THE Attorney General applied for a mandamus to the A rule for a churchwardens of Manchester, to do the ministerial act churchwardens of swearing in the overseers of the poor. This application was made under a local act of the 30 Geo. 3, c. 81. These overseers cannot act till they have been sworn in by the churchwardens, and it is very important that they should be in a situation at once to discharge their duties. This rule does not call on the churchwardens to give the overseers any thing they have not; it is not to give them a title: it merely calls upon them to do that which is necessary to complete their title. It is submitted, therefore, that 1839. REGINA v. CHURCH WARDENS of MANCHESTER. under these circumstances the rule ought to be granted, and it should be absolute in the first instance. PER CURIAM.-Take a rule absolute in the first instance. Rule granted accordingly. Where a defendant has gone abroad, after depositing money in lieu of bail, pursuant to 43 Geo 3, c. 46, 8. 2, without putting in and appear that the the action, the out of Court, HUNT. MCLACHLAN. LUMLEY applied, on behalf of the plaintiff, for a rule to shew cause why the money deposited in lieu of bail, under the 43 Geo. 3, c. 46, s. 2, in the hands of the sheriff, and by him paid into Court, should not be paid out to the plaintiff. It appeared from the affidavit on which the application was founded, that the defendant was on the point of sailing to Australia when he was arrested. Instead of giving bail, he deposited, pursuant to the statute, the amount indorsed on the writ, together with ten pounds for costs, in the hands of the sheriff. These two sums had since been paid into Court. The defendant sailed to Australia, and bail was not put in and perfected take the money in due time. The present application was, therefore, made under the statute to take the money out of Court, and pay it over to the plaintiff. The residence of the defendant could not be discovered in this country, and it Queen's Bench did not appear that any attorney had been employed by after serving his rule on the sheriff, and putting it up in the Office. him in the cause. COLERIDGE, J.-You may take a rule nisi. It must be served on the sheriff, and a copy of it must be put up in the Queen's Bench Office. Rule nisi accordingly. The rule was afterwards made absolute, no cause being shewn. REGINA v. The Lord of the Manor of WHITFORD. (Before the Four Judges.) A rule had been obtained in this case, calling on the steward of the Manor of Whitford to shew cause why a mandamus should not issue, commanding him to accept a surrender of certain copyhold tenements and premises to the uses therein mentioned. The Attorney General now shewed cause.-This rule requires only the steward of the manor of Whitford to shew cause. It ought to have called upon the lord of the manor, as well as the steward; for the lord of the manor is a person whose interests are very greatly concerned in cases of this kind, and ought not to be interfered with, unless he is in a proper manner brought before the Court, and is informed, by being made a party to the rule, that his interests may be thus affected. The immediate object in the present case is to call upon the lord of the manor, and compel him to accept of a surrender of the copyholds in question, which have been made the subject of a settlement, and which, in the present instance, would deprive him of the fines customarily paid on surrenders. But, there are further evils from which the lord of the manor might suffer, should this rule be made absolute; parties would thus acquire a right in the copyholds without paying the fines due on their admission; and this would serve as a precedent for establishing a custom, which might soon oust the lord of all his emoluments in respect of such fines, by its affording evidence of a custom to allow such surrenders as the present. In a case not long since decided, of Rex v. Oundle (a), which was a mandamus directed to the lord of a manor, and calling upon him to admit C., an appointee, (a) 1 Ad. & El. 283; 3 Nev. & M. 484; 1 Nev. & M. 586. VOL. VII. AAA D. P. C. 1839 REGINA v. The Lord of WHITFORD. to certain premises which formed a part of the manor, the writ called upon both the lord and the steward; and this, too, has been the invariable practice; the contrary would the Manor of be a very unsafe and unsatisfactory mode, for the steward holds office only during pleasure, and may be dismissed from being steward of the manor of Whitford. The custom of making such surrenders is unknown to us in this manor, and the rule is, in point of form, irregular, and, therefore, ought to be discharged. Kelly, in support of the rule.-This objection is not fatal. The practice on this point is not uniform. There are cases certainly, where the writ has issued to the lord at the same time as to the steward, but it has not always been so; sometimes the steward has been the only individual to whom the writ has been directed. In the present case, we have served our rule on a person who is an officer, and we call on him to shew cause why a mandamus should not be directed to him. He comes forward in one sense as the steward, but he is a person who is also an officer. He makes an affidavit as to the custom of the manor; and it seems quite idle to contend that the lord of the manor can be prejudiced, while his steward has notice of everything that is done, and is called on to protect his interests. Lord DENMAN, C. J.—But there may be cases in which the interests of the lord and the steward may not be quite the same. Kelly. The rule in this case calls upon the steward of the manor to shew cause why a mandamus should not issue to him to take from us a particular surrender of certain lands into the hands of the lord of the manor. The Attorney General.-The object of this surrender is to deprive the lord of his fines. Kelly. It is to effect a surrender of these lands to such uses as a certain appointer shall appoint, and so far from injury, it will benefit the lord, by giving him a two years fine, to be paid on the person being admitted. In the case of Rogers v. Jones (a), the mandamus was to the steward alone, and no mention whatever was made of the lord in it. Lord DENMAN, C. J.-No, there the mandamus was to the steward to allow inspection of the Court Rolls by two tenants of the manor. The lord had no interest there. Kelly. But, as between the lord and tenants the steward is a public officer; he is supposed to be more acquainted with the customs of the manor, and for many purposes the lord and steward are but one person; except where the interests of the lord are adverse to those of the steward. If any case arises in which the lord and the steward have separate interests, it might be a good ground for contending that each of them should be served. But here the interests of both are one. PATTESON, J.-It will certainly be allowed that a mandamus was never yet granted to such a ministerial officer alone, though many cases are to be found in which a writ has issued against the lord and the steward. Kelly. This objection is quite preliminary, it has nothing whatever to do with the merits of the case. Lord DENMAN, C. J.-The objection has been taken, and we think it a good one, and that this rule should, therefore, be discharged. (a) 5 D. & R. 484. A A A 2 Rule discharged. 1839. REGINA v. The Lord of the Manor of WHITFORD. |