336

Under special circumstances, the committee of a lunatic will be allowed a salary. Ex parte Fermor,

1 Jac. 405.

No allowance will be made to the committee of a lunatic for visiting the lunatic, because the committee ought to reside within the jurisdiction of the court. Ex parte Ord, 1 Jac. 94.

A committee of a lunatic who retains a balance and omits to pass his accounts, will be charged with interest. Ex parte Hall, 1 Jac. 160.

If a lunatic and his committee be defendants, and the committee die after the decree, and a new one be appointed, the Court, on motion, will order that the future proceedings in the cause be carried on in the name of the new committee. Lyon v. Mercer, 1 S. & S. 356.

Even the eldest son and heir-at-law of a lunatic will not be appointed one of the committee of his estate, without giving security, unless the Master reports that no person can be found to act as committee, who will give security. In re Frank, 2

Russ. 450.

(D) PROPERTY.

A lunatic's property ought not to be laid out on anything but government securities, except in very peculiar cases. Ex parte Ellice, 1 Jac. 234.

Where part of the purchase-money of timber belonging to a lunatic's estate was promissory notes; it was ordered to be paid to the receiver, in order to be paid into court. Ex parte Clayton, 1 Russ. 476.

The statute 39 & 40 Geo. 3. (Lord Eldon's act,) does not apply to money paid into court in the matter of a lunatic. Ex parte Verney, 1 Jac. 234.

The Court will not sanction the granting of building leases of part of a lunatic's estate for 999 years. In re Starkie, 2 Russ. 197.

A petition praying that the committee of a lunatic may be ordered to transfer property vested in the lunatic as a trustee, ought to be entitled in the lunacy, and need not be entitled in the matter of the act which authorizes the Lord Chancellor to make the order. In re Fowler, 2 Russ. 449.

Order made without a reference to the Master, that the committee of a lunatic should be at liberty to employ a particular person for inspecting the lunatic's property at a fixed salary, to be paid out of the rents. In re Errington, 2 Russ. 567.

MACHINERY.

It is undecided whether the 21 Geo. 3, c. 37, relative to forfeited machinery, is a remedial or a penal statute. Attorney General v. Jefferys, 13 Price, 545, s. c. M'Clel. 270.

MALICIOUS ARREST.

(A) ACTION For. (B) COSTS.

(A) ACTION FOR.

In an action for a malicious arrest, the question of malice or no malice, may properly be left to the jury. Lloyd v. Thomas, 1 Law J. C.P. 51.

An action lies for maliciously holding a party to bail, although he is never arrested, but is told that there is a writ out against him, and he goes to the sheriff's officer and gives bail. Small v. Gray, 2 C. & P. 605. [Tenterden]

Although a person be advised, by a special pleader, that he may arrest another person without subjecting himself to an action for a malicious arrest, yet, if he make the arrest not acting bond fide on that opinion, with the expectation of recovering the amount of his debt, but in order to force the parties to do something out of the course of the cause, he will be liable to be sued for damages, for having made a malicious arrest. Revenga v. Mackintosh, 2 Law J. K.B. 137, s. c. 2 B. & C. 693, s. c. 4 D. & R. 187, s. c. 1 C. & P. 204.

:

The plaintiff, having been arrested as administratrix, brought an action for maliciously holding her to bail, which was founded on the single fact of her having been arrested as administratrix of her husband in the absence of malice being proved, either express or implied, the jury gave a verdict for five shillings damages: and, on motion to set it aside, the Court refused to interfere, on the ground, that, after verdict, malice must be implied. Fletcher v. Webb, 11 Price, 381.

Two tradesmen had been accustomed to have mutual demands on each other. They quarrelled. The one sent in his bill, amounting to upwards of 231. to the other, and arrested him for that amount. The former, both before and after the arrest, admitted that the real balance between them was 5l., which was paid to him under a judge's order, together with the costs.

The Court held, in an action for a malicious arrest, that there was no reasonable or probable cause for the arrest. Austin v. Debnam, 2 Law J. K.B. 207, s. c. 3 B. & C. 139, s. c. 4 D. & R. 653.

In an action for a malicious arrest, malice or the want of probable cause must appear: Hence it was holden, that the defendant having discontinued the action, and paid the costs, was evidence of a want of probable cause; and that, being an act of the party himself, and the grounds for so doing within his knowledge, the burthen of proving a probable cause for the arrest lay on him. Nicholson v. Coghill, 4 B. & C. 21, s. c. 6 D. & R. 12.

A person may, on a declaration properly framed, recover for being maliciously held to bail, if he gave bail to prevent being arrested.

In a declaration for a malicious arrest, an allegation that the defendant maliciously caused the plaintiff to be arrested, and to be detained in prison, until, in order to procure his release, he was forced to procure bail, is not a divisible allegation; and if there was a giving bail proved, but no evidence of any arrest, that is not sufficient. Berry v. Adamson, 2 C. & P. 503. [Abbott]

ca. sa.,

Case lies against a creditor for maliciously refusing to receive from his debtor, in execution under a the debt and costs, when tendered to himself or his attorney on the record, and to sign an authority to the sheriff to discharge the debtor out of custody. The refusal to sign such authority is sufficient prima facie evidence of malice, in absence of evidence to rebut the presumption. Crozer v. Pilling, 3 Law J. K.B. 131, s. c. 4 B. & C. 26, s. c, 6 D. & R. 129.

(B) COSTS.

The defendant had been arrested for a sum of money, as to the greater portion of which it appeared the plaintiff knew, at the time of the arrest, that the defendant had obtained his discharge under the Insolvent Debtors Act: Held, that under 43 Geo. 3, c. 46, the defendant was entitled to have his costs as on an arrest without probable cause. Huntingdon v. Keely, 7 D. & R. 369.

Where the plaintiffs had agreed to accept a composition on the amount of their debts, and induced other creditors to believe that they had done so, and afterwards arrested the defendant for the original demand; the Court gave the defendant his costs under the 43 Geo. 3, c. 46, s. 3. Jurvis v. Merritt, 1 Law J. C.P. 95.

Where a person had been arrested for a sum of money including a demand for board and lodging at two guineas a week, and the evidence at the trial was of an agreement to pay one guinea per week: Held, that the plaintiff should pay defendant his costs. Glenville v. Hutchins, 1 Law J. K.B. 32, s. c. 1 B. & C. 91.

Where the plaintiff, an attorney, arrested the defendant for 1001. for business done, but it appeared that 401. was due before the plaintiff had taken out bis certificate, and which the Prothonotary disallowed on taxation: Held, that the defendant was not entitled to bis costs, under the 43 Geo. 3, c. 46, 8. 3. Hinton v. Warren, 5 Law J. C.P. 1.

The defendant had been held to bail for 100l. on process issuing out of the Palace Court, and the cause was removed into the Court of King's Bench, where the plaintiff recovered only 30. The Court held, that a motion for making the defendant pay the costs of the plaintiff was properly made in the Court of King's Bench, and they ordered him to pay the costs. Thompson's bail, 1 Law J. K.B. 150.

The defendant, having been arrested by virtue of a writ issued out of the Palace Court for 19l., removed the cause to this Court. At the trial the plaintiff had a verdict for 21. The defendant applied for costs under the 43 Geo. 3, c. 46, s. 3: Held, that, as the action was commenced in the Palace Court, this Court had no power to interfere. Costello v. Cawley, 6 Law J. C.P. 83, s. c. 1 M. & P. 315.

The statute 43 Geo. 3, c. 46, s. 3, giving costs to the defendant, does not apply to cases, in which a defendant, having been arrested for a large sum, pays a small one into court, and the plaintiff taking it out, does not proceed with the action. Davey v. Renton, 2 Law J. K.B. 152, s. c. 2 B. & C. 152, s. c. 4 D. & R. 186.

A defendant having been arrested for a large sum of money, paid a small one into court, which was taken out by the plaintiff : Held, that the defendant was not entitled to his costs for having been vexatiously holden to bail, under stat. 43 Geo. 3, c. 36. Potter v. Pittman, 1 Law J. K.B. 86, s. c. 2 D. & R. 266.

Where the defendant has been arrested for a larger sum of money than was actually due, the Court will not order the plaintiff to pay the costs of the defendant if the sum is not reduced below 15l., and there is the least reason for arresting for the larger sum. Symonds v. Gunston, 1 Law J. K.B.

189.

DIGEST, 1822-1828.

337

The defendant was arrested for 301.; at the trial, it appearing that the plaintiff was indebted to the defendant in a small sum, a verdict was taken for the former, for nominal damages, subject to a reference to an arbitrator for ascertaining the amount, and he found that 127. only were due from the defendant to the plaintiff: Held, that the defendant was not entitled to costs under the stat. 43 Geo. 3, c. 46, s. 3, although he had tendered the sum awarded before the commencement of the action, as he ought to have pleaded the tender. Bryson v. Simcox, 6 Law J. C.P. 90, s. c. 1 M. & P. 355.

The affidavits in support of an application under 43 Geo. 3, c. 46, must clearly and directly shew the want of probable cause for the arrest, to the amount complained of; -a general assertion of a belief of such arrest having been frivolous and vexatious, unless strong facts be stated to sustain it, will not be sufficient. Turner v. Gunn, 5 Law J. K.B. 102.

When the Court have made an order that the plaintiff shall pay the costs of the defendant, under 43 Geo. 3, c. 46, s. 3, for having, without any reasonable cause, arrested the defendant for too large a sum, there is not any occasion to enter a suggestion on the roll. Stark v. Thorn, 2 Law J. K.B. 76.

Damages cannot be recovered for the extra costs in an action for a malicious arrest. Webber v. Nicholas, 1 R. & M. 419. [Best]

MALICIOUS INJURY.

[See CUTTING AND MAIMING and STAT. 7 & 8 GEO. 4, c. 30.]

The prisoners were indicted on the 6 Geo. 3, c, 36, for lopping and topping an ash timber tree at eleven o'clock at night; it appeared that the owner died immediately after giving orders for their apprehension, and that the prisoners had run away when detected-it was holden that the jury might infer, the owner had not given them any permission so to do. Rex v. Hazy, 2 C. & P. 458. [Bayley]

A man by shooting another who is endeavouring to apprehend him, may be convicted on an indictment for shooting with intent to murder, disable, or do him some bodily harm, though shooting with intent to prevent apprehending is also a distinct capital offence under 43 Geo. 3, c. 58. Rex v. Davis, 1 C. & P. 306. [Garrow]

Upon an indictment for maliciously shooting, if it be questionable, whether the shooting was by accident or design, proof may be given that the prisoner at another time intentionally shot at the same person. Rex v. Voke, 1 R. & R. C.C.R. 531.

MALICIOUS PROSECUTION.

To support an action on the case for a malicious prosecution, the plaintiff must shew, 1st. Malice2nd. The want of probable cause.

The first is to be decided by the jury: the second by the Court.

Semble-That a judge may decide upon the second question, at any time during the progress of the cause; and, though the facts should be proved by the defendant's witnesses, he may yet direct a non

2 U

338

suit, if, in his judgment, they amount to probable cause. The plaintiff in such a case has not a right to insist upon going to the jury on the facts, unless they are contradictory to those proved by his own witnesses. Davis v. Hardy, 5 Law J. K.B. 91, s. c.

6 B. & C. 225.

In an action for a malicious prosecution, a rule or order of court is admissible in evidence, to shew the termination of a former suit, although such order was obtained on the oath of the party. Brooke v. Carpenter, 4 Law J. C.P. 70, s. c. 3 Bing. 297.

A person laid before a magistrate information of an assault. He afterwards presented an indictment for that assault to the grand jury at the sessions, which was returned not true. The accused afterwards brought an action for a malicious prosecution, and the magistrate deposed that he returned the information to the clerk of the peace or his agent at the sessions. The clerk said, that he had searched, and could not find it, and that it was probable, if such an information was returned to the sessions, that after the bill was thrown out, it would be ripped to pieces.-The Court held, that sufficient proof of the loss of the information had been given to let in secondary evidence of its contents. Freeman v. Arkell, 2 Law J. K.B. 64, s. c. 2 B. & C. 494, s. c. 3 D. & R. 669, s. c. 1 C. & P. 137.

In an action for a malicious prosecution the declaration stated, that defendant charged the plaintiff with having feloniously stolen, &c. The evidence proved, that defendant suspected and believed, and had good reason to suspect and believe, that plaintiff had stolen &c.: It was holden, (Bayley J. dissent.) that there was no variance. Davis v. Noake, 6 M. & S. 29.

In an action for a malicious prosecution by one of two persons who have been the objects of the prosecution, evidence of the defendant's conduct towards the other, with relation to that proceeding, is admissible, with a view of shewing his malicious motives and intention.

Also, the copy of the indictment obtained by one may be used by the other as evidence in the action; nor will the Court, upon motion for a new trial, enter upon the question of its having been fraudulently obtained.

A rule for a criminal information obtained by A, and made absolute, is no bar to such action; nor will a new trial be granted on the ground of excessive damages. Taddy v. Barlow, 6 Law J. M.C. 19, s. c. 1 M. & R. 275.

(A) WHEN AND How granted.

[See BANKRUPT-SESSIONS.]

The writ of mandamus is a writ issuable only in defect of any other specific legal remedy.

Where, therefore, a power of appeal is given to the sessions, and, previous to such appeal being made, application is made for a mandamus, it will be rejected, and the party so applying be referred to that court. Rex v. the Commissioners of Pavements, 5 Law J. M.C. 65.

Where the right of the party applying for a mandamus is doubtful, the Court will consider the circumstance of a long period of time having been allowed to elapse before making the application, as good ground for refusing that writ. Rex v. the Mayor of Evesham, 5 Law J. M.C. 91.

A mandamus lies where a mayor holds over, or where actual vacancy is occasioned by death. Rer v. the Mayor of Truro, 2 Chit. 257.

The Court will grant a mandamus to swear in a new jurat, who has been duly elected as a corporate officer. Rer v. the Mayor of Rye, 2 Ken. 468.

Several sets of mandamuses will not be issued at the same period, without shewing some laches in the persons applying for the first, or some good ground of suspicion that they would not proceed properly, and without having first a rule to shew cause. Rer v. the Corporation of Wigan, 2 Ken. 504.

The Court of King's Bench have never granted a mandamus to a corporation to elect members of an indefinite body.

It seems, if a case were made out so strong as that the Court were satisfied, that if they did not grant it, the corporation would be dissolved, that then they might be induced to grant a mandamus for that purpose. Rex v. the Mayor of Fowey, 2 Law J. K.B.86, s. c. 2 B. & C. 584, s. c. 4 D. & R. 132.

The Court will not grant a mandamus to fix the day for an election, but they will leave it to the proper officer. Rex v. the Mayor of Bridgwater, 2 Chit. 256.

The Court will not grant a mandamus to compel the mayor of a corporation to replace books in the town hall, if sufficient cause for their removal be shewn. Rex v. the Mayor of Rye, 2 Ken. 485, s. c. 2 Burr. 728.

A mayor cannot be compelled to administer the oath of allegiance to inhabitants by a mandamus. Rex v. the Mayor of Maidstone, 6 D. & R. 334.

The Court will not grant a mandamus to compel a corporate meeting, for the purpose of removing non-resident members. Rex v. the Mayor of Totness, 5 D. & R. 481.

The words" it shall be lawful" for the bailiffs to admit persons into the corporation of a borough, found in a bye-law, are not compulsory on them, that they shall admit whosoever is thus qualified, but leave them with a discretion to refuse any person whom they decline to admit, and consequently, the Court refused a mandamus against the bailiffs. Rex v. the Bailiffs and Corporation of Eye, 1 Law J. K.B. 41, s. c. 1 B. & C. 85, s. c. 2 D. & R. 172.

In a prescriptive borough, there is a prescriptive court-leet, at which all persons must be presented by the jury before they can be admitted freemen; and it was for a long time the custom, to present all persons who had resided a year and a day within

the borough, but there was no prescriptive right to demand of the jury to be presented. The Court, on that account refused a mandamus to present and admit a particular individual, who had so resided within the borough. Rex v. the Mayor and Steward of West Looe, 1 Law J. K.B. 44, s. c. 2 D. & R. 178. The corporation of Ilchester had, from time immemorial, been the lords of the manor and owners of the Guildhall within that borough, and had, by a charter of Queen Mary, granted to them a right to hold a court-leet and view of frankpledge for the manor, every year in the Guildhall. By an inclosure act, the manor, with its rights, was awarded to Lord H with an exception to the corporation of the Guildhall; and Lord H, for several years afterwards, held the courts in the Guildhall. Being obstructed from entering that place: The Court held, that although some doubts existed as to the right of Lord H to hold the courts in the Guildhall, yet that they would grant a mandamus to bring the question fully before them. Rex v. the Bailiffs and Burgesses of Ilchester, 1 Law J. K.B. 173, s. c. 2 D. & R. 724. Where a corporator is in office, and in a situation to exercise his rights, the Court will not interfere by mandamus.to try the effect of them.

Accordingly, the Court refused a mandamus to alter the situation of a corporator's name in the books, so as to entitle him to two votes instead of one. Rex v. Corporation of Yarmouth, 5 Law J. K.B. 69.

A mandamus lies to compel the lord of a manor to hold a court-leet. Rex v. Colebrooke, 2 Ken. 163.

The Court will, as a matter of course, grant a mandamus for the admission of a person to copy hold premises, that he may try his right to them. Anon. 2 Law J. K.B. 93.

A mandamus lies to compel the admission of a person claiming as heir-at-law to a copyhold. Rer v. the Brewers' Company, 3 B. & C. 172, s. c. 4 D. & R. 492.

It seems, the Court will grant a mandamus to compel the admission of coparceners to copyhold tenements, as one heir, on the payment of one set of fees. Rex v. the Mayor of Bonsall, 3 B. & C. 173, 8. c. 4 D. & R. 825.

By the custom of a manor, the tenants and inhabitants of the manor, pay a much smaller fine upon an admittance to a copyhold tenement, than a stranger. A person who was not a tenant or inhabitant, contracted to buy a large estate within the manor, and finding that he being a stranger, should, by the custom, have to pay a very large sum of money as a fine, purchased a small piece of land to make himself a tenant, and thus reduce the fine on the large estate; the lord refused to admit him to the small tenement, until he had been admitted to the large estate; and in his return to a mandamus to compel him so to do, he insinuated that the second purchase was made to defraud him of the larger fine; but he did not allege any fact of a fraudulent nature. The Court said, that no fraud had been committed, and directed a peremptory mandamus to issue. Rex Boughey, 1 Law J. K.B. 184, s. c. 1 B. & C. 565, s. c. 2 D. & R. 824.

A royal charter containing words of permission to do an act which is clearly for public benefit, is obligatory; therefore, where a charter of Jac. 1, granted to the steward and suitors of a manor, power and authority to hold a court, for the purpose

339

(amongst other objects) of hearing and determining pleas of debt, &c.; but the court had been disused for that purpose during fifty years: This Court granted a mandamus to compel the court to be held again. Rex v. the Steward of Havering atte Bower, 2 D. & R. 176, (n).

A mandamus will not be granted to compel justices of the peace to do that which might render them liable to an action. Rex v. the Justices of Buckinghamshire, 2 D. & R. 689, s. c. 1 B. & C. 485 s. P. Rex v. Broderip, 5 B. & C. 239, s. c. 7 D. & R. 661.

The Court granted a mandamus to compel justices to sign a warrant of distress. Rer v. Justices of Middlesex, 2 Ken. 163.

The Court granted a rule to shew cause why a mandamus should not issue to compel justices to proceed against a quaker for not paying his quota of a church rate. Rex v. Freeman, 2 Ken. 19.

A mandamus lies to compel justices to set out, in the record of a conviction under the Building Act, the evidence adduced on the hearing of the information as nearly as possible in the words of the witnesses, as directed by the 3 Geo. 4, c. 23. Re Rex, 4 D. & R. 352.

The Court will grant a mandamus to justices, to compel the amendment of the record of a game conviction, by setting out the evidence. Rex v. Warnford, 5 D. & R. 489.

The Court will grant a mandamus to magistrates, to summon a person for not paying poor-rates. Anon. 2 Chit. 257.

The Court will grant a mandamus to the commissioners of the inclosure act, to inquire if there is any modus. Anon. 2 Chit. 251.

The Court will grant a mandamus to the commissioner appointed by the inclosure act, to make his award. Anon. 2 Law J. K.B. 36.

A mandamus cannot be obtained where a discretionary power has been given to commissioners, and they have exercised it, and no ground is shewn that they have acted wrongfully. The words "shall and may are only imperative, when the cause is for the public good. Exchange" imports equality of interest. Rex v. Commissioners of Flockwold Inclosure, 2 Chit. 251.

66

The Court will grant a mandamus to compel churchwardens to make a rate. Rex v. Wilson, 5 D. & R. 602.

A mandamus lies to compel a restoration to the office of parish clerk. Rex v. Davies, 5 Law J. M.C. 46 S. P. Anon. 2 Chit. 254.

So to the archdeacon, to swear in churchwardens duly elected. Anon. 2 Chit. 254.

The Court will not grant a mandamus to compel a visitor to exercise his power during a vacancy. Rex v. Bishop of Durham, 2 Ken. 296, s. c. 1 Burr. 567. A mandamus cannot be obtained to compel a dean to license a second curate. Anon. 2 Chit. 253. Or to compel the churchwardens to deliver a vestry book to the vestry clerk.

Or to deliver up the keys of a church. Anon. 2 Chit. 255.

A mandamus will not be granted to compel a court of inferior jurisdiction to grant a new trial in a cause before it, in which alleged injustice has been done to one of the parties. Ex parte Morgan, 2 Chit.

250.

340

The 23 Geo. 3, regulating the affairs of the poor of B, directs the guardians and overseers to adjust their accounts at quarterly meetings of their own body, and an appeal is given to the sessions, in respect of all matters done by virtue thereof; but the statute does not mention as to any submission of the overseers' and guardians' accounts to justices of the peace, as required by 50 Geo. 3, c. 49: Held, that a mandamus would lie from this court to the overseers and guardians to pass their accounts in the manner prescribed by the former statute. Rex v. the Justices of Warwickshire, 2 D. & R. 299.

If one parish officer applies for a mandamus against another, to compel him to concur in a rate, the writ must be against the former as well as the latter. Anon. 2 Chit. 254.

The Court will not, at the instance of one overseer, grant a mandamus to compel another overseer to concur in making a rate. The mandamus must be directed to all the parties whose duty it is to make the rate, and consequently the motion must include the person moving for the writ. Overton's case, 2 Law J. K.B. 40.

The Court granted a rule nisi for a mandamus to the proprietors of Margate Harbour, to pay a poor rate, though defendants had distrainable goods, it being sworn that the goods were fraudulently seized, and that the parish would be driven to try an action on the ground of the fraud. Rex v. the Company of the Proprietors of Margate Harbour, 2 Chit. 256.

This Court will grant a mandamus to a canal company, to enter upon their books the probate of the will of a deceased shareholder; leaving any question as to the validity and effect of the probate to be raised by a return to the writ. Rex v. the Worcester and Birmingham Canal Company, 6 Law J. K.B. 173, s. c. 1 M. & R. 529.

Where a debt is clearly due from a public body, and for the recovery of which the creditor has no remedy, but by a writ of mandatus: Semble, that the Court will grant the writ, although if there were a remedy by action, the Statute of Limitations might present a difficulty, if pleaded in bar. Rex v. the Commissioners of the Shadwell Paving Act, 6 Law J. M.C. 57, s. c. 1 M. & R. 591.

(B) FORM.

When a mandamus commands the removal of a public nuisance, it need not prescribe any particular mode of removal. And semble, that it is better not to prescribe any such mode. Rex v. the Bristol Dock Company, 5 Law J. M.C. 51, s. c. 6 B. & C.

181.

(C) RETURN.

If a return to a mandamus does not state the particular facts with great precision, it will be insufficient. Rex v. the Corporation of Liverpool, 2 Ken. 425, s. c. 2 Burr. 723.

The return to a mandamus must not allege inconsistent causes; must not be argumentative; and must state, clearly and positively, that the parties against whom it was issued have performed all that it directs; that it is impossible to do so; or shew some sufficient and legal reason why they ought not to be compelled to comply with its injunctions.

Thus, where certain commissioners returned as a reason for not considering the claims of a complainant,

that it was impossible to settle and agree upon the amount of the compensation to which he was entitled until he had furnished further evidence, but did not state that they had met for the purpose of considering those claims aud receiving that evidence; and, as further excuse, objected to the legality of the complainant's notice, and denied his right to any compensation whatever,-the return was quashed as insufficient, inconsistent, and argumentative, and a peremptory mandamus awarded. Terrott v. the Commissioners of Berwick Harbour, 5 Law J. M.C. 135. A return to a mandamus, stating that the corpo. ration duly assembled to amove, &c., was holden sufficient. Rex v. the Mayor of Doncaster, 2 Ken. 391, s. c. 2 Burr. 738.

Where a member of the common council had been commanded by a mandamus to take upon himself that office, he returned, that by a bye-law, persons refusing to fill it were subject to a certain fine, which defendant had duly paid. The Court determined, that the return was insuflicient, as it did not state the fine was to be in lieu of service. Rex v. Bower, 1 B. & C. 585, s. c. 2 D. & R. 842.

On a mandamus against the lord of the manor of W, commanding him to admit the claimant as heirat-law to certain copybolds, the lord in his return did not negative the heirship in certain and explicit language, but argumentatively: Held, that the return was bad, for being argumentative and uncertain; and the Court quashed the return, and directed a peremptory mandamus. Rex v. the Brewers' Company, 4 D. & R. 492, s. c. 3 B. & C. 172.

The making a return to a mandamus does not preclude the defendant from taking objections to the writ, on a motion for a peremptory mandamus. Rex v. the Bristol Dock Company, 5 Law J. M.C. 51, s. c. 5 B. & C. 181.

The decision of the Court upon a rule nisi for a mandamus cannot be controverted in a special case, until a return to the mandamus has been made. Rex v. the Justices of Leicester, 7 D. & R. 708.

When the Court of King's Bench directs an issue to be tried on the return to a mandamus, it must be done within a year, or the Court will proceed as if the applicant for the mandamus had lost the trial. Where it was doubtful whether an attorney had been legally elected to the office of vestry clerk, in which capacity, he claimed to have a lien on the parish papers for his salary, the Court ordered him to give over the papers, upon the amount of the salary being paid into court, and directed an issue to try whether he was legally elected vestry clerk. Nothing being done for upwards of twelve months, the Court ordered the money to be paid over to the attorney. James May's case, 2 Law J. K.B. 152.

(B) Cosrs.

A motion was made for a mandamus to certain commissioners, to compel them to summon a jury to ascertain the amount of certain damages caused by them. The Court refused it; but directed an issue to try the point. The verdict was given in favour of the complainant. The Court refused to allow him the costs of the proceedings. Rex v. the Commissioners of the Ancholme Drainage, 1 Law J. K.B. 159.