CHAP. XXVIII. MANDAMUS. I. Nature of the Writ of Mandamus-Mandamus to restore or admit Persons to corporate Offices. II. In what other Cases the Court will grant a Mandamus. III. Where not. IV. Form of the Writ. V. Of the Return. VI. Of the Remedy, where the Party to whom the Writ of Mandamus is directed, does not make any Return, or where he makes an insufficient, or false Return. I. Nature of the Writ of Mandamus-Mandamus to restore or admit Persons to corporate Offices. THE writ of mandamus is a prerogative writ, containing a command, in the king's name, and issuing from the court of King's Bench, directed to persons, corporations, or inferior courts of judicature within the king's dominions, requiring them to do a certain specific act, as being the duty of their office, character, or situation, agreeably to right and justice. This writ affords a proper remedy, in cases where the party has not any other means of compelling a specific performance. The object of the writ is not to supersede legal remedies, but only to supply the defect of them. The only proper ground of the writ is a defect of justice. It is, however a prerogative writ, and not a writ of rights, and it is the absence or want of a specific legal remedy, which gives a Per Ashhurst, J. in R. v. Commissioners of Excise, 2 T. R. 385. the court jurisdiction. There must be a specific legal right, as well as the want of specific legal remedy, in order to found an application for a mandamus. And there must have been a direct refusal to do that, which it is the object of the mandamus to enforce, either in terms, or by circumstances, which distinctly shew an intention in the party not to do the act required. It is no objection, however, to the granting a mandamus to do a particular act, that an indictment will also liee for the omission to do that act. But the court will not carry the remedy by mandamus so far as to issue the writ, wherever any officerf has neglected his duty. "There is considerable doubte, whether, when an inferior officer refuses to do his duty, he being amenable to other persons, this court will, under any circumstances interfere by mandamus." The power to issue this writ belongs exclusively to the court of King's Bench, and is considered as one of the flowers of that court; but this power ought to be exercised with great caution, as a writ of error does not lie on this proceeding. A mandamus lies either to restore a person wrongfully ousted, or to admit a person wrongfully refused. A mandamus lies to restore a person who has been removed from his office without cause; as a mayor, bailiffi, aldermank, burgess1, juratm, common council-man", recordero, town-clerk P, or serjeant. Formerly, in these cases, the writ was termed "a writ of restitution," and appears to have been confined exclusively to offices of a public nature. The title "mandamus" is not found in the old abridgments. By an extension of the ancient writ of restitution, a remedy has been provided for persons who have been duly elected to offices, although they never had possession. Hence a mandamus lies to admit, as well as to restore, a person to his office, as a mayor, alderman", town-clerks, &c. d R. v. Brecknock and Abergavenny Canal Company, 3 Ad. and Ell. 217. 4 Nev. and M. 871. S. C. R. v. Ford. See also R. v. Wilts and Berks Canal Navigation, 3 Ad. & Ell. 477. 5 Nev. & M. 344. S. C. e R. v. the Severn and Wye Railway Company, 2 B. and A. 646. See also R. v. Commissioners of Dean Inclosure, 2 M. and S. 80. cited and commented on by Denman, C. J. 3 Ad. & Ell. 422. R. v. Jeyes. 1 Clerk's case, Cro. Jac. 506. See also 5 Mod. 257. m Anon. 1 Lev. 148. n 2 Rol. Abr. tit. Restitution, pl. 8. o Ib. pl. 6. p Pasch. 2 Car. said to have been ad- q 2 Rol Abr. tit. Restitution, pl. 7. The admission under the mandamus gives no right, but only a legal possession, to enable the party to assert his right, if he has any. Hence, non fuit electus has been holden not to be a good return to a mandamus, to swear in a churchwarden: R. v. White, M. 11 Geo. 1. (cited by Strange, Arg. Str. 194, 5.) because it is directed only to a ministerial officer, who is to do his duty, and no inconvenience can follow; for if the party has a right, he ought to be admitted; if he has not, the admission will do him no good. Wherever the officer is but ministerial, he is to execute his part, let the consequence be what it will. R. v. Simpson, M. 11 Geo. ib. That was a mandamus to the Archdeacon of Colchester, to swear Rodney Fane into the office of churchwarden. The archdeacon returned, that before the coming of the writ, he received an inhibition from the bishop; but the court held that was no excuse, and that a ministerial officer is to do his duty, whether the act would be of any validity or not. Where there are two sets of parties, who have each a colourable title to the office of churchwarden, both sets must be sworn in, R. v. Archdeacon of Middlesex, 5 Nev. and Man. 497; 3 Ad. and Ell. 615; Exp. Duffield and another, 3 Ad. and Ell. 617. By the common law, upon the death of a mayor, or other chief magistrate of boroughs or corporations within the year, the court of King's Bench was authorized to grant a mandamus immediately to fill up the vacancy thus occasioned by the act of God and an ordinary contingency; but, upon an omission to elect at the charter-day (1), or to do such acts as were by the charter required to be done at certain times, in order to complete the election, or upon the removal of an officer unduly chosen, the court had not any power to compel an election, or the performance of such acts as were necessary to complete an election, before the day came round again; for, to compel the corporation to proceed to an election at another day, would not be enforcing obedience to the king's charter, but to authorize them to act in opposition to it. t See 8 Mod. 129. (1) By stat. 5 & 6 W. 4. c. 76, for the regulation of municipal corporations in England and Wales, s. 1, all charters, grants, and letters patent, relating to the several boroughs named in the schedule (A) and (B.) inconsistent with that act, are repealed. By s. 49, the council in every year are to elect the mayor on the 9th of November, and in case of vacancy within the year, then another election is to be made within ten days after the vacancy. By stat. 6 & 7 W. 4. The omission to elect might be owing to the contrivance of the person who ought to hold the court, or to preside in the assembly where the election was to be made; or it might be the effect of pure accident: in either case, the inconvenience was the same: a forfeiture of the charter might be incurred, and the corporation dissolved, in consequence of such omission". To remedy the mischiefs which might thus arise, it was enacted, by stat. 11 Geo. 1. c. 4. s. 1. (2) that if in any city, borough, or town corporate, in England, Wales, and Berwick upon Tweed, no election shall be made of the mayor, bailiff, or other chief officer, upon the day or within the time appointed by the charter or usage, or, such election being made, shall afterwards become void, whether such omission or avoidance shall happen through the default of the officer who ought to hold the court or preside, or by any accident, or other means, the corporation shall not thereby be dissolved or disabled from electing such officers; but in any case, where no election shall be made as aforesaid, the members of the corporation may meet at the town-hall or other usual place of meeting for making such election, upon the next day after the expiration of the time within which such election ought to have been made, unless such day shall be Sunday, and then on the Monday following, between the hours of ten in the morning and two in the afternoon (3), and u See the case of the corporation of Banbury, 10 Mod. 346. cited from a MS. note by Lord Hardwicke, C. J. in R. v. Pasmore, 3 T R. 221. R. v. Tregony. 8 Mod. 127. See also the report of the Attorney and Solicitor General in 1724, in the Tiverton case, 2 Doug.Controverted Elections, p.63. Edn. 1775. N. The cases of Banbury and Tiverton gave rise to the stat 11 Geo. 1. c. 4. founded on a constitutional jealousy, lest the crown should have it in their power to model all corporations upon the death of mayors, &c. c. 105. s. 4. the mayor shall continue in office one whole year, and until his successor shall have accepted the office of mayor, and shall have made and subscribed the declaration required in that behalf. (2) By stat. 7 W. 4. and 1 Vict. c. 78. s. 26, all the powers of this act of 11 Geo. 4. given to the court of King's Bench, are extended to elections under the 5 & 6 W. 4. c. 76, and this act of 7 W. 4. and 1 Vict. c. 78. (3) "I think the time is not essential; but only directory. It was appointed to prevent surprise; and if the election be fairly carried on, though at a different hour, yet such election is good." Per Lord Hardwicke, Ch. J. in R. v. Pole, B. R. Trin. 7 & 8 G. 2. MS. The language of Lord Hardwicke, in another note, is thus: "as to the hours, they are merely directory to prevent surprise; and proceed to an election; and in case the mayor, or other person who ought to hold the court or preside, shall be absent, the nearest in place or office having a right to vote shall hold the court or preside. And by s. 2. If in any city, borough, or town corporate, in England, Wales, and Berwick-upon Tweed, no election shall be made of the mayor, bailiff, or other chief officer, upon the day or within the time appointed by charter or usage for that purpose, and no election of such officer shall be made, pursuant to the directions herein before prescribed, or such election being made shall afterwards become void as aforesaid, in every such case his Majesty's Court of King's Bench may, upon motion, award a writ of mandamus requiring the members or persons having a right to vote at, or to do any act necessary to be done in order to, such election, respectively to assemble themselves at a time prefixed in the writ, and to proceed to the election of a mayor, bailiff, or other chief officer, as the case shall require, and to do every act necessary to be done in order to such election: or to signify to the court good cause to the contrary, and thereupon to cause such proceedings to be had as in any other cases of mandamus for election of officers of corporations; and of the time appointed by such writ of mandamus, for holding such assembly, public notice in writing shall, by such person as the court shall appoint, be affixed in the market-place, or some other public place within such city, &c. six days before the day so appointed: and such officer, or other person respectively, shall preside in such assembly as ought to have presided in case the same had been made upon the day herein before prescribed for that purpose. a Lastly, the persons to whom the mandamus is directed, are to make their return to the first writ. Such are the enactments and provisions of the stat. 11 Geo. 1. c. 4., which, as it is a remedial law, is to be expounded in the most liberal sense that the words are capable of (4). Hence the court a S. 9. so resolved in the case of the Corporation of Launceston, 1 R. A. 513, 4. pl. 5." The distinction between matters directory and obligatory, is well known and established. Per Lord Tenterden, C. J. deliver. ing judgment of court, in R. v. Mayor of London, 9 B. and C. 31. R. v. Mayor of Norwich, 1 B. and Ad. 310. S. P. (4) "This being a remedial law to prevent the inconveniences that may arise, by any accident, from non-elections, if the parliament uses such words in an act that will take in other cases within |