remanded, shall not be again removed, before judgment, into any court whatsoever.

II. The writ of Mandamus. In treating of which we shall refer mainly, and in the first instance, to the common law or prerogative writ of mandamus; though we shall add a few words as to another species recently introduced by the statute 17 & 18 Vict. c. 125, and which may be described as the mandamus incidental to an action (j).

1. Taking the term of mandamus in its first sense,-the power of issuing this writ, belongs exclusively to the Court of Queen's Bench. [It is a high prerogative writ, of a most extensive remedial nature;] and is in its form a command issuing in the Queen's name, from the Court of Queen's Bench, and [directed to any person, corporation, or inferior court of judicature, within the Crown's dominions, requiring them to do some particular thing therein specified which appertains to their office and duty; and which the court has previously determined, or at least supposes, to be consonant to right and justice.] In its application, it may be considered as confined to cases where relief is required in respect of the infringement of some public right or duty (k), and where no effectual relief can be obtained in the ordinary course of an action at law (1). Such is the general principle;

(j) Even prior to this Act, there was a mandamus auxiliary to an action, viz. the mandamus to examine witnesses in India and other British dominions in foreign parts. (See 13 Geo. 3, c. 63, s. 44, and 1 Will. 4, c. 22, s. 1.) The mandamus, in such cases, may be awarded by any of the superior courts at Westminster.

(k) R. v. Bank of England, 2 B. & Ald. 622.

(1) See R. v. Bishop of Chester, 1 T. R. 396; R. v. Archbishop of

Canterbury, East, 219; Ex parte Robins, 1 W. W. & H. 578; R. v. Nottingham Old Water Works Company, 6 A. & El. 355; R. v. Bristol Dock Company, 2 Q. B. 69; The Queen v. Lancashire and Yorkshire Railway Company, 1 Ell. & Bl. 228. It is no objection to granting a mandamus, that the party against whom the complaint is made, may be proceeded against by indictment. R. v. Severn Railway Company, 2 B. & Ald. 646.

but as to the specific instances in which the writ will be granted, they are much too numerous for complete detail (m). We may remark, however, that (among other cases) this writ lies to compel the admission or restoration of the applicant [to any office or franchise of a public nature, (whether spiritual or temporal,) to academical degrees, to the use of a meeting house, or the like.] And that it will be also granted [for the production, inspection, or delivery, of public books and papers; or to compel the surrender of the regalia of a corporation; or to oblige bodies corporate to affix their common seal; or to compel the holding of a court;] or the proceeding to an election in corporate and other public offices (n). In addition to which, we may notice, as another important application of this writ, [that it issues to the judges of any inferior court (0), commanding them to do justice according to the power of their office, whenever the same is delayed. For it is the peculiar business of the Court of Queen's Bench to superintend all inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the Crown or legislature have invested them; and this not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice (p).

(m) A copious enumeration of them will be found in 1 Chit. Gen. Pr. of Law, 789. See also Tapping on Mandamus; and the recent cases of Ex parte Lee, Ell. Bl. & Ell. 863, and the Queen v. Southampton (Commissioners, &c.), 1 Ell. Bl. &

S. 5.

(n) See 11 Geo. 1, c. 4; and 7 Will. 4 & 1 Vict. c. 78, s. 24; R. v. Mayor, &c. of London, 1 T. R. 146; R. v. Leyland, 3 M. & S. 184; R. v. Norwich, 1 B. & Adol. 310.

(0) It is provided, however, by 19 & 20 Vict. c. 108, s. 43 (amended by 21 & 22 Vict. c. 74, s. 4), as to the County Courts, that no mandamus shall henceforth issue to a judge or

officer of any such court, for refusing to do any act relating to the duties of his office; but that application must be made to any of the superior courts of law, for a rule to show cause why such act should not be done. See also as to such refusal, by a stipendiary or other magistrate, 11 & 12 Vict. c. 44, s. 5; R. v. Ingham, 17 Q. B. 884; R. v. Paynter, 28 L. T. (Q. B.) 303; R. v. Dayman, 29 L. T. (Q. B.) 125.

(p) As to the time of application for a writ of mandamus to justices, to enter continuances and hear an appeal, see Reg. v. Richmond, 1 E. Bl. & El. 253, et Reg. Gen. ibid. p. 255.

[This writ is granted on a suggestion, by the oath of the party injured, of his own right, and the denial of justice below (q); whereupon, in order more fully to satisfy the court that there is a probable ground for such interposition,] a rule is made,-except under particular circumstances, where a rule will be granted absolute in the first instance (r),-[directing the party complained of to show cause why a writ of mandamus should not issue. And if he shows no sufficient cause,] and does not submit without contest to the application, [the writ itself is issued at first in the alternative, either to do this, or signify some reason to the contrary; to which a return or answer must be made at a certain day.]

[If the person to whom the writ is directed makes no return, he is punishable for his contempt by attachment.] If, on the other hand, he makes a return, and it be found either insufficient in law, or false in fact, there then issues, in the second place, a peremptory mandamus to do the thing absolutely; [to which no other return will be admitted but a certificate of perfect obedience, and due execution of the writ (s).] The sufficiency of the return, in point of law, was formerly determined, unless a special argument were ordered, in a summary way upon motion; but as to the truth of its allegations in point of fact, it was a rule that this could not be investigated by any further proceeding on the mandamus;-the complaining party having no remedy in case the facts were untruly alleged, but to bring an action on the case for a false return.

(q) Unless there has been a distinct refusal to do that which it is the object of the mandamus to enforce, the writ will not be granted. (R. v. Brecknock, &c. Company, 3 A. & E. 217.)

(r) See R. v. Archdeacon of Lichfield, 5 Nev. & M. 42; Ex parte Penruddock, 1 Har. & W. 347; R. v. Fox, 2 Q. B. 246; R. v. Churchwardens of Manchester, 7 Dowl.

In

707. And see 6 & 7 Vict. c. 89, s. 5; 17 & 18 Vict. c. 125, s. 76, as to the notice to be given, in cases affecting corporate offices, to the opposite party of the application, and as to making the rule absolute in the first instance, if the court think fit; and as to the time at which the writ may be made returnable.

(s) R. v. Ledgard, 1 Q. B. 616.

which action, if he obtained a verdict, he recovered [damages equivalent to the injury sustained, together with a peremptory mandamus to the defendant.] But by 9 Ann. c. 20, in a mandamus for determining the right to a corporate office, and now by 1 Will. IV. c. 21, in all cases of mandamus, [the return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue or demur, and the same proceedings may be had as if an action on the case had been brought for making a false return. And after the prosecutor has obtained judgment, he shall have a peremptory writ of mandamus to compel his admission or restitution (t).] So that now the writ of mandamus is, (from the period at least of its return,) assimilated to an action; and the more closely, because by the same Acts it is also provided, that the prosecutor, if successful, shall recover damages, and that the successful party shall in all cases, upon judgment after issue joined, or by default, be entitled to his costs (u). In addition to which, it has been enacted by 6 & 7 Vict. c. 67, that the prosecutor objecting to the validity of the return, shall do so by way of demurrer to the same, in like manner as in an action; and thereupon the writ, return and demurrer shall be entered on record, and the court shall adjudge either that the return is valid in law, or that it is not valid in law, or that the writ of mandamus itself is not valid in law. And if the court adjudge that the writ is valid, but the return invalid, it shall proceed to award a peremptory mandamus; and

(t) See 11 Rep. 79.

(u) As to the course of proceeding on mandamus, see R. v. Oundle, 1 A. & E. 283; R. v. Governors of Darlington School, 6 Q. B. 682; Ex parte Thompson, ibid. 721; Clarke v. Leicestershire and Northamptonshire Canal Company, ibid. 898; The Queen v. Ambergate Railway Company, 17 Q. B. 957.

By 1 Will. 4, c. 21, s. 8, the costs of the application for a mandamus, whether granted or refused, and the costs of the writ, where issued and obeyed, are in the discretion of the court. (See R. v. Oundle, ubi sup. ; R. v. Eastern Counties Railway Company, 2 Q. B. 578; R. v. St. Pancras, 2 Dowl. N. S 955; The Queen v. Ingham, 17 Q. B. 884.)

shall also, in any event, award costs to be paid to the successful party. The 1 Will. IV. c. 25, also provides, that either party shall be at liberty in every case where judgment is given against him upon a mandamus, (whether after demurrer or otherwise,) to take proceedings in error thereon, according to the ordinary course of error in actions (v).

Besides these provisions with respect to mandamus, we may notice the enactment of 1 & 2 Will. IV. c. 58, s. 8, intended to afford relief to officers and other persons to whom such writ is directed to issue, commanding them to admit to offices, or to do or perform other matters in respect of which they claim no right or interest. It is provided in favour of such persons, that it shall be lawful for the court to which application is made for the writ of mandamus, to relieve them from the liabilities incident to the execution thereof, by calling upon any other person, having or claiming any interest in the matter of such writ, to appear and show cause against the issuing of the same; and thereupon to make such rules and orders between all parties as the circumstances of the case may require.

2. As to the mandamus which we have described, as incidental to an action, it is provided by 17 & 18 Vict. c. 125, ss. 68-76 (x), that the plaintiff in any action, (except replevin and ejectment,) in any of the superior courts, may indorse upon the writ of summons and the copy to be served, a notice that the plaintiff intends to claim a writ of mandamus commanding the defendant to perform some duty in which the plaintiff is interested (y). And the plaintiff may accordingly make such claim afterwards in his decla

(v) It is also provided by 17 & 18 Vict. c. 125, s. 77, that the provisions both of that Act, and of the 15 & 16 Vict. c. 76, so far as they are applicable, shall apply to the proceedings and pleadings upon a prerogative writ of mandamus issued by the Court of Queen's Bench.

(a) As to the costs of such writ of

mandamus, see 23 & 24 Vict. c. 126,

s. 32.

(y) As to the cases in which this species of mandamus will lie, see Benson v. Paull, 6 Ell. & Bl. 373; Norris v. Irish Land Company, 8 Ell. & Bl. 512; Ward v. Lowndes, 28 L. J. (Q. B.) 265.