In cases of actions or suits commenced here, for which cause hath arisen in India, the king's courts at Westminster may award writs of mandamus to the C. J. and judges of the supreme court of judicature, or judges of the mayor's court at Madras, Bombay, or Bencoolen, for the examination of witnesses. The plaintiff obtaining the verdict is entitled" to the costs of cross-examining witnesses under a mandamus obtained by the defendant. In R. v. the Lords Commissioners of the Treasury, 4 Ad. & Ell. 286. 5 Nev. & M. 589, the court granted a mandamus on the application of W. C. Smyth, to the lords commissioners to make and issue a Treasury minute or authority for the payment to S. of the arrears of a pension admitted to be held by them for his benefit; inasmuch as the claimant had a legal right and no other remedy, and as the writ was demanded not against the king, but against officers to whom the money had been paid for the claimant's use. A party found guilty by a jury at a session irregularly holden is entitled to have the record of the proceedings correctly made up according to the fact, and the court will grant a mandamus to the justices to make up such record. R. v. the Justices of Middlesex, 5 B. & Ad. 1113. III. Where not. It is a general rule that a mandamus does not lie unless the party making the application has not any other specific legal remedy. On this ground the court refused to grant a mandamus to a bishop, to license a curate of a curacy, which had been twice augmented by Queen Anne's bounty, where the right of appointing was claimed by two several parties, and there had been cross nominations; because the party had another specific remedy by quare impedity. So a mandamus does not lie to the governor and company of the Bank of England to transfer stock, because the party has his remedy by assumpsit". The court will not interpose where the subject is purely of ecclesiastical jurisdiction. Hence, it will not grant a mandamus to churchwardens to make a u Whytt v. M'Intosh and others, 8 B. and C. 317. x Per Buller, J. in R.. Bp. of Cheser, 1 T. R. 404. in R. v. M. of Stafford, 3 T. R. 652. R. v. the Bristol Dock Company, M 52 G. 3. S. P. y R. v. Bishop of Chester, 1 T. R. 396. them to come to a particular decision, as, to make an order of maintenance on a particular parish. Where the certiorari is taken away, the court will not" indirectly bring proceedings under review by a mandamus. IV. Form of the Writ. HAVING endeavoured in the foregoing sections to explain the nature of a mandamus, and having briefly stated those cases in which this remedy may be adopted, I shall proceed to consider the form of the writ, as to which the following rules may be useful: 1. Care must be taken that the mandamus is properly directed, that is, to the persons who are to obey the writ (7). And this duty is cast upon the person who applies for the writ; for the court, when they grant the writ, will not specify the person to whom it is to be directedy. If the writ be improperly directed, e. g. if the right of election be in the mayor and aldermen, and the mandamus is directed to the mayor, aldermen, and common council, the court will grant a supersedeas, quia improvide emanavitz. If a writ be directed to a corporation by a wrong name, they may return this special matter, and rely upon it; but if they answer the exigency of the writ, they admit themselves to be the corporation to whom the writ is directed; and cannot take advantage of the misnomera. 2. The writ must contain convenient certainty, in setting forth the duty to be performed; but it need not particularly u R. v. Justices of the West Riding of Yorkshire, 1 Ad. and Ell. 563. 3 Nev. and M. 802. x R. v. Mayor of Hereford, Salk. 701. R. v. Mayor of Rippon, Salk. 433. y R. v. Wigan, 2 Burr. 782. z R. v. Mayor of Norwich, Str. 55. (7) If the writ is directed to the corporation, it has been held good. But if it be directed to those, who by the constitution of the corporation ought to do the act, without doubt it is good also. Per Holt, C. J. R. v. Mayor of Abingdon, Ld. Raym. 560. set forth by what authority the duty exists. Therefore where a mandamus to the commissary of the Archbishop of York; to admit a deputy register, stated quod minus rite recusavit to admit, it was holden sufficient, though it was objected it was the constant form to allege, that the party to whom the writ is directed, is the person to whom it appertains to swear and admit; for if the defendant was not the person to whom the executing this writ belonged, he should have returned so, but instead of that the return consisted merely of matter of excuse; besides, it was laid that minus rite he refused, which was an averment that in justice he ought to do it. So a mandamus to the Dean of the Arches to grant probate to Lord Londonderry's executors, setting out that the dean juxta juris exigentiam recusavit, was holden sufficient, though it was objected that it did not shew the dean's title to grant probate; not having set out that there were bona notabilia; for the court will not presume an inferior jurisdiction, and it appeared that he had already done some acts of office as the prerogative judge, and he shall not be received now to say it does not appear he has any jurisdiction. The ground of the application for a mandamus is, that there is no other remedy. Where, therefore, a mandamus directed to a corporation, and commanding them to pay a poor's rate, omitted to state that the defendants had no effects upon which a distress could be levied, it was holden bad. 3. If several persons have been removed, there must be a distinct writ for each person: for they cannot joine; for the interest is several, and the amotion of one is not the amotion of the others. 4. Every circumstance that is requisite to shew that the party is entitled to be admitted, must be suggested in the writ; therefore, where in a mandamus to the ordinary to license a curate, it was stated that he had been duly nominated and appointed by the inhabitants of a township to be curate of the church of P., but neither the consent of the rector or any endowment or custom for the inhabitants to make such nomination and appointment was stated, the court quashed the writs. But although it is essential such facts should be alleged as are necessary to shew that the party ap b R. v. Ward, Str. 897. c R. v. Bettesworth, Str. 857. d R. v. Margate Pier Company, 3 B. and A. 220. Q. Whether in such a case a mandamus will lie. e 5 Mod. 11. R. v. City of Chester, Salk. 433, 436. f 6 Mod. 310. per Holt, C. J. g R. v. Bishop of Oxford, 7 East, 345. plying for the writ is entitled to the relief prayed, no precise form is requiredd. 5. The writ must be granted to proceed to an election to the office, and not to elect a particular person. Lastly the writ must be tested; and there must be fourteen days between the teste and the return, if it goes above forty miles; otherwise only eight days, and one day is to be taken inclusive, the other exclusive. Upon discovering any informality in the writ, the party may apply to amend at any time before the returns: but after the return has been made and traversed, the court will not permit an amendment in the mandamush. A motion cannot be made to supersede the writ after the return is out. Although it has been said that the defendant will not be permitted to avail himself of any objection to the writ after the return: yet it has since been adjudged that an exception may be taken to the writ even after the return', and at any time before a peremptory mandamus issues. Where the court grants a rule to shew cause, though upon shewing cause it appear doubtful, whether the party have a right or not, yet the court will issue a mandamus, in order that the right may be tried upon the return". But the court will not grant a mandamus to a person to exercise a jurisdiction, when it is doubtful whether he has the power to exercise it or not". Upon a motion for a mandamus to the warden of the Vintners' Company to swear J. S. one of the court of assistants, the affidavit being only that he was informed by some of the court of assistants that he was elected, and no positive affidavit of an election, the court would only grant a rule to shew cause, but said if there had been a positive affidavit of his election, they would have granted the writ in the first instance. d Per Lee, C. J. in R. v. M. and B. of k Per Kenyon, C. J. and Buller, J. in Nottingham, Say. R. 37. e 2 Bulst. 122. 2 Rol. 456. 1. 25. R. v. Mayor of York, 5 T. R. 74, 5. 1 R. v. Margate Pier Company, 3 B. and A. 220. m R. v. Dr. Bland, Bull. N. P. 200. n R. v. Bishop of Ely, 1 Wils. 266. o Bull. N. P. 200. V. Of the Return. The next object of consideration is the return. 1. The return must be made by the person to whom the writ is directed. 2. It must be positive and certain". The same certainty is required in a return to a mandamus as in indictments or returns to writs of habeas corpus. But if the return be certain on the face of it, that is sufficient, and the court cannot intend facts inconsistent with it, for the purpose of making it bad'. The return must not be argumentative". To a mandamus to elect, it is a good return, that a person has been duly elected, and sworn into the officet. To a mandamus to a commissary to admit A. B. into the office of churchwarden, reciting that he had been duly elected, a return" that A. B. was not duly elected is good. 3. Where the mandamus is to restore a person who has been removed from an office, the return must be very accurate in stating, first, the power of the corporation to remove. Secondly, the return must set forth a sufficient and reasonable cause of removal. There are three kinds of offences for which a corporator may be removed: First, For any offence committed against his duty as a corporator (8). Secondly, For any offence which is in itself of so infamous a nature as to render the offender unfit to execute any public franchise, e. g. forgery, perjury, &c. although such offence has not any immediate relation to his office (9). p 11 Rep. 99. b. See also R. v. M. of x R. v. Mayor, &c. of Doncaster, Trin. Abingdon, Salk. 482. q Per Buller, J. Doug. 158. r Doug. 159 s R. v. Lyme Regis, Doug. 158. t R. v. Williams, Say. R. 140. 25 and 26 G. 2. 34 MS. Serjt. Hill, p. 210. y R. v Mayor of Derby, 9 G. 2. Bull. N. P. 206. R. v. Richardson, 1 Burr. 538. R. v. Liverpool, 2 Burr. 732. (8) In this case the corporator is removable without any previous conviction by a jury. Bull. N. P. 206. cites R. v. Derby, 9 G. 2. which case was first brought before the court in E. T. 8. Geo. 2. See Session cases, vol. 2. p. 343. The power of trial as well as amotion, for an offence of this kind, is incident to every corporation. See Lord Mansfield's opinion, 1 Burr. 538. (9) An offence of this kind ought to be established by a previous conviction by a jury, according to the law of the land. Per Lord |