given to him or those against whom the mandamus is prayed, and their interests have been represented before the court, the rule has been dispensed with, and a mandamus granted upon motion; though without due notice of the motion, a mandamus will never be granted. Buller thinks there may be this difference between a mandamus to restore and a mandamus to admit; that where it is to swear or to admit, the court will, in case the right appear plain, grant the writ upon the first motion; but where it is to restore one who has been removed, they would first grant a rule to show cause why the writ should not issue." The reason is, that in the former case, the writ is granted merely to enable the party to try his right; whereas, in the latter, he may try his right without the writ, by bringing an action for money had and received, for the profits. Upon a party's appearing to show cause why the writ should not issue, the relator has the affirmative.' Where a rule is obtained, if upon it the defendant do everything for the performance of which the writ is sought, the rule will be discharged, and the defendant saved the expense of making a return. But though he do all that is required of him, after the rule is made absolute, and before the issuing of the writ, yet if in fact the writ afterwards issue, the court will not supersede it, but leave him to show his obedience to their precept in his return.' The defendant may show for cause why the writ should not be granted, any of the reasons before stated why the writ will not lie, or the applicant has not

1453: Rex v. St. John's Coll. Skin. 549; People v. Everitt, 1 Caines (N. Y.) R. 8; Ex parte Bostwick, 1 Cowen (N. Y.) R. 143.

Ex parte Rogers, 7 Cowen (N. Y.) R. 526, 532, 533, 534; and see Rex v. Justices of Berkshire, Sayer, 160; Rex v. Aldermen of Heydon Sayer, 208, 209.

* Anon. 2 Halst. (N. J.) R. 192.

B. N. P. 199.

Rex v. Jotham, 3 T. R. 577, 578, per Buller, J.

The People v. Throop, 12 Wend. (N. Y.) R. 183, note.

Rex v. Liverpool, 1 Barnard, 83; Anon. Ibid. 362.

7 Ibid.

2

a right to it,' or he may show that the applicant has, by his own neglect, or misconduct, precluded himself from all right to the assistance of the court. If the affidavits upon which cause is shown by the defendant, so positively and expressly deny the facts charged in the affidavits upon which the rule to show cause is made, that if the denial be false, an indictment will lie for the perjury, it is the course of the court to discharge the rule, and leave the party, upon whose application it was obtained, to prosecute for perjury. In England, if the affidavits upon which cause is shown are sworn before a commissioner, they cannot be read unless the name of the place where they are sworn is inserted in the jurat. The object of this rule is, to point out a venue for laying the perjury if the affidavits are false, and to assist the court in ascertaining from their records the fact of the person being a commissioner.* In New York, the general practice, on denying motions for a mandamus, has been, not to give costs; especially where the motion is merely ex parte. But where notice of the motion is given to the adverse party, and the law is plain against the relator, costs will follow the denial."

If after the parties have been heard upon the rule, the applicant still has a reasonable claim to the writ, upon a doubt either in fact or law, the rule will be made absolute; though it is said, that the court will not readily grant applications of a novel kind, which may probably tend to the disturbance of

1 Willcock on Mun. Corp. 384, 385.

* Ibid.; and see The People v. Delaware C. P. 2 Wend. (N. Y.) R. 256; The People v. Seneca C. P. 2 Wend. (N. Y.) R. 264.

'Per Curiam, Rex v. Harrison, Sayer, 111.

Rex v. West Riding, 3 M. & S. 494.

5 Ex parte Root, 4 Cowen (N. Y.) R. 548. In Vermont, costs on a petition for a mandamus, rest in the discretion of the court, as in chancery proceedings. Myers v. Pownal, 16 Vermont R. 426, 427. As to costs on motions for a mandamus in England, see Reg. v. Bingham, 4 Adolph. & Ellis (N. S.) 877; Reg. v. Greene, Ibid. 646, 650; Reg. v. Sheriff of Middlesex, 5 Ibid. 365; West London Railway Co. v. Bernard, 3 Ibid. 873.

corporations in general.' It is not necessary that the rule of court should specify the whole mandamus; but it must give the general outline, to be filled up in the more particular phraseology of the writ. In New York, where a mandamus, whether alternative or peremptory, is granted upon motion, costs are not usually given to the relator; but if he wishes to secure them, he must go to his demurrer, or issue in fact.

6. It is said, that writs of mandamus were originally no more than letters, by which the king enjoined his officers, &c. to do their duty; and that it was not until the twelfth year of the reign of William the Third, that they were ever entered of record; when a rule was made, that they should be entered of the same term they came in. They have now, however, become formed writs, and like other writs must bear teste in term. No precise form is necessary in a mandamus; ' but it is in substance a command, in the name of the sovereign power, to persons, corporations, or inferior courts of judicature within its jurisdiction, requiring them to do a certain specific act, as being the duty of their office, character, or situation, agreeably to right and justice. Though, as we are told by Mr. Willcock, the writ may enlarge in directing those things which are, as it were, incidents to a mandamus; and in drawing it up the practice of the court is to be observed, instead of adhering to the strict letter of the rule, yet, in all material

1 Rex v. Rye, 2 Keny. Cas. 468; Rex v. West Looe, 5 D. & R. 599; Willcock on Mun. Corp. 385.

The King v. Willis, 7 Mod. 262, per Chapple, J.

Willcock on Mun. Corp. 386. For form of a rule for a peremptory mandamus, see Ex parte Jennings, 6 Cowen (N. Y.) R. 529.

People v. Supervisors of Columbia, 5 Cowen (N. Y.) R. 291.

5 Rex v. Dublin, 1 Stra. 540, per Fortescue, J.

Ibid.; and 2 Keble, 91.

7 Rex v. Nottingham, Sayer, 37, per Lee, C. J. For form of Mandamus

see Blunt v. Greenwood, 1 Cowen (N. Y.) R. 15, 22, note, e.

circumstances, it must follow the rule upon which it is founded.' Accordingly, where a motion was made for a mandamus to the mayor of a corporation, to assemble the body and do the corporate business, and in drawing up the writ, they made it out for an assembly, and to admit all persons having a right to the freedom, who should appear before them and demand it, the writ was superseded. And where the rule for a mandamus to the clerk of a company was, to deliver all the books, papers, &c. to the new clerk, and the writ commanded him to deliver them to the company, the variance was held fatal to the writ.3

The party who applies for a writ of mandamus must see that it is rightly directed; for if it be directed to the wrong persons, it may be superseded on motion or argument; and if it be directed to a corporation by an erroneous name, this must be relied upon in the return, and thereupon the writ is superseded as upon a plea in abatement. If the act commanded must be done by the whole corporation, or if a portion of the act by the whole corporation, and another portion by the head officer, in the first case, the writ ought to be directed, and, in the latter,' it is most proper to direct it to the whole corporation; and not to the different enumerated classes, or individual members, who compose it. And though the head officer, who is an integral part of the corporation, and included in the corporate name, be dead, and the writ be to compel an election to the vacant place, this does not alter the case.

1 Willcock on Mun. Corp. 387.

6

Rex v. Kingston, 1 Stra. 578; S. C. 8 Mod. 210; S. C. 11 Mod. 382.

55.

Rex v. Wildman, 2 Stra. 879, 880; Rex v. Water Eaton, 2 Smith,

Rex v. Norwich, 1 Stra. 55; Rex v. Hereford, 2 Salk. 701; Rex v. Abingdon, 1 Ld. Raymd. 560; Rex v. Smith, 2 M. & S. 598.

5 Regina v. Ipswich, 2 Ld. Raymd. 1239; S. C. 2 Salk. 435.

Rex v. Smith, 2 M. & S. 598; Rex v. Abingdon, 1 Ld. Raymd. 560.

7 Rex v. Tregony, 8 Mod. 112, 128.

Rex v. Borough of Plymouth, 1 Barnard, 81; Rex v. Cambridge, 4 Burr. 2011; Rex v. Smith, 2 M. & S. 598.

2

If the act commanded is to be done by a select body, the writ may be directed to the select body,' or to the whole corporation, since the act of the select body is the act of the corporation. But if, being directed to a select body, it include in its direction any others than those whose duty is to obey the command, it will be superseded for misdirection. The writ must be directed to the corporation or select body, not only in their proper names, but in their proper capacity, and the application must state that capacity. Though several persons may be included as prosecutors in the same writ, at the discretion of the court, and will be where they constitute but one officer, and claim in the same right; they being entitled in such case only to one writ; yet several distinct rights cannot be included in the same writ; as, to restore or admit several persons to their offices in the same corporation. Neither can one and the same writ of mandamus be directed to the officers of several corporations, to enforce them to perform distinct duties, growing out of distinct liabilities."

6

The right of the appplicant, and the default of the defendant, must be shown in the writ; though a defect in these par

Taylor v. Gloucester, 1 Rol. 409; Rex v. Gloucester, Holt's R. 451; Pees v. Leeds, 1 Stra. 640, n.; Rex v. Smith, 2 M. & S. 298.

Holt's Case, Freem. 442, and n.; S. C. S. Jones, 52; Rex v. Abingdon, 1 Ld. Raymd. 560; Rex v. Gloucester, Holt's R. 451; Rex v. Newsham, Sayer, 212; Rex v. Smith, 2 M. & S. 598.

* Rex v. Smith, 2 M. & S. 598; Rex v. Abingdon, 2 Salk. 700; S. C. 1 Ld. Raymd. 560; Rex v. Hereford, 2 Salk, 791; Pees v. Leeds, 1 Stra. 640; Rex v. Norwich, 1 Stra. 55; Rex v. Wigan, 2 Burr. 782.

• Papilion and Dubois's Case, Skin. 64; Rex v. West Looe, 3 B. & C. 685; S. C. 5 D. & C. 599.

Rex v. Montacute, 1 Wm. Black. 60; Rex v. Kingston, 1 Stra. 578, n. ; Rex v. Ipswich, 1 Barnard, 407.

Scott v. Morgan ex parte, 8 Dowl. (P. C.) 328.

7 Rex v. Kingston, 1 Stra. 578; Andover Case, 2 Salk. 433; Anon. 2 Salk. 436; Rex v. Chester, 5 Mod. 11; Rex v. Liverpool, 1 Barnard, 83 ; Rex v. Water Eaton, 2 Smith, 55.

State v. Township Committees of Chester & Evesham, 5 Halst. (N. J.)

R. 292.