CHAP. X. MANDAMUS. inhabitants in defence of indictment for not repairing a bridge; (u) nor to make a church-rate, that being matter of ecclesiastical jurisdiction, (x) unless in certain cases under modern acts; (y) nor a rate to reimburse churchwardens. (z) Register. (See Ship.) Security of Peace.-This writ will be issued to justices to compel them to take security on articles of peace exhibited in the King's Bench, where the party to give them resides at a distance in the country. (a) But the court, it is said, will not interfere with the local original jurisdiction of justices in compelling them to take sureties of the peace. (b) Sessions. (See Inferior Courts.)—A mandamus lies to justices at sessions to receive and determine an appeal at a subsequent sessions, (c) or to receive an appeal during the next sessions, (d) to adjourn an appeal when there has not been reasonable time to hear it at the next sessions, (e) and to enter continuances and hear appeal. (ƒ) But it will not issue when there was sufficient time to appeal, &c., (g) nor where it was in the discretion of the magistrates, (h) nor to regulate the practice of sessions, unless manifestly wrong or unjust, (i) nor to compel the Court of Sessions to hear particular evidence. (k) Sheriff and his deputy will be compelled to perform his duty, as to enter a plaint in replevin in the County Court for damage feasant. (1) Ship Registry.-The granting of, will be enforced when directed by statute, but not so where there has been an irregularity in a transfer, when the commissioners of customs will not be commanded to grant a license or register. (m) Special Case. (See Case, ante, 793.) Surveyor. (See Highways.)—A writ of mandamus may be issued to justices to appoint a surveyor of highways, (n) or swear him in, (o) or to justices to make a rate to reimburse a surveyor. (p) (u) Anon. 1 Stra. 63. (1) Rex v. Thetford, 5 Term R. 364; S. P. in Rex v. Coleridge, 2 Bar. & Ald. 806; 5 Dowl. & Ry. 602; 1 Chit, Rep. 588, S. C.; ante, 723. (y) Rex v. Lambeth, 3 B. & Adolph. (s) Rex v. Bradford, 12 East, 556; ante, (b) Rex v. Bushfield, 2 Sess. Cas. 67. 65; (e) Rex v. Buckinghamshire, 3 East, 342; Rex v. Shropshire, 7 East, 549. (f) Rex v. Wiltshire, 10 East, 404. (g) Rer v. Wiltshire, 2 Bott, 717; Ex parte Becke, 3 B. & Adolph. 704. (h) Ex parte Beck, 3 B. & Adolph, 704. (i) Rex v. Essex, 2 Chit. Rep. 385. (k) Rer v. Cambridgeshire, i Dowl. & Ry. 325. (1) Ex parte Boyle, 2 Dowl. & R. 13; ante, 795, (t). (m) Rex v. Custom, Abbott, Ship. 54; Rer v. Collector Customs, Liverpool, 2 M. & S. 223. (n) Rex v. Denbighshire, 4 East, 142. (o) Rex v. Pettiward, 4 Burr. 2452. (p) Hassel's case, 1 Stra. 211. Warrant. (See Conviction. Distress.)-A writ of mandamus lies to compel the backing a warrant into another county, the duty being ministerial and imperative. (9) Where a reference to Arbitration has proceeded under an act of parliament, the court will grant a mandamus to the arbitrator under it to appoint an umpire; (r) and upon a motion respecting an award of a commissioner under an inclosure act, 66 CHAP. X. MANDAMUS. Other cases where the courts will grant or re fuse the writ. under statutes. the Court of King's Bench said, We may punish upon this Arbitrations if there be any corruption, or enforce its execution by mandamus, though we are not to interpret or set aside these awards upon complaint of their obscurity." (s) But it should seem, that unless in cases of arbitrations founded on some statute, or where the written submission to arbitration has been made a rule of court under the general arbitration act, (t) the proceedings would be considered as a mere private transaction between the parties, in respect of which no writ of mandamus could issue; the Court of King's Bench will not issue that prerogative writ in aid of mere private contracts or transactions. As regards the Person, there are also some other rights that Absolute rights. may be specifically enforced by mandamus; as where the attorney of a party imprisoned upon a capital charge had been refused by the visiting magistrates, in the exercise of their controul over prisons, under the 4 Geo. 4, c. 64, admission to the prison, so as to enable him to prepare his defence, the Court of King's Bench, upon affidavit of the necessity and refusal, issued a mandamus, directing the magistrates to permit the attorney to have access to the prison at proper times to be fixed by them. (u) And we have seen that where a bankrupt, even after repeated examinations, had been finally committed by the commissioners for not satisfactorily answering, yet a mandamus was granted conditionally to the commissioners to issue their warrant for a further examination, on a suggestion that the bankrupt was desirous of disclosing his estate and effects; for otherwise the commitment (q) Rex v. Kynaston, 1 East, 117. (r) Rer v. Goodrich, S Smith's R. 588. (s) Case on the Over Kellet Inclosure Act, Hil. 38 Geo. 3, K. B.; and see Rex. v. Inhabitants of Washbrooke, 7 D. & R. 221; Tidd, 9 ed. 844. (t) 9 & 10 Wm. 3, c. 15. (u) In Thurtell's case, Mich. T. 1823, MS., on motion for mandamus to jus tices of Hertfordshire, who had regulation CHAP. X. MANDAMUS. Relative duties how specifically enforced. would occasion perpetual imprisonment, although the party was at length anxious to submit. (x) At law we have seen that maintenance of a child or wife, and some other relatives, may be specifically enforced under the provisions of the 43 Eliz. c. 2, s. 7, by order of a magistrate against the superior relative, when of sufficient ability; (y) and if a parent absent himself in order to avoid the fulfilment of that duty, he is liable also to punishment under the Vagrant Act. (2) But when proper maintenance and education are withheld by a parent from a child in the higher ranks of society, the usual course is to seek relief in the Court of Chancery. (a) After death a mandamus may be obtained to compel the burial of a parishioner, though not to direct the precise place or mode of burial. (b) So a mandamus lies to compel the ecclesiastical judge to grant probate to the executor named in a will, (c) or letters of administration to the husband of his wife's estate, unless the husband has done something to part with his right; (d) and a mandamus for administration to the next of kin may be granted, notwithstanding a suit depending, if his consanguinity be not denied. (e) But when the validity of a will has been contested in the Spiritual Court, and a suit is still depending there concerning it, the court will not then grant a mandamus to the judge of such court to grant a probate to any particular person. (f) Nor will the court compel the grant of administration durante minore ætate, for the law has not decided who is entitled to such administration, and we have seen that a mandamus only issues to enforce a legal right.(g) The full practice relating to writs of mandamus will be considered in the next volume, but it is expedient here to give an outline, especially of the steps to be taken before the court has 'granted a rule nisi for issuing. The preliminary conduct of the party is here particularly important, especially as under the (In re Bromley, 3 Dowl. & R. 310. (y) Ante, 65; Burn's J., Poor; Rex v. Friend, Russ. & Ry. 22. (2) 5 Geo. 4, c. 83, s. 1; ante, 621, in notes. (a) Wellesley v. Duke of Beaufort, 2 (b) Ante, 50, 51; Andrews v. Cawthorne, (c) Anon. 1 Vent. 335; Anon. 1 Stra. Offey v. Best, 1 Lev. 186; Rer v, Luhabitants of Horsley, 8 East, 408. (d) Rex v. Bettesworth, Stra. 891, 1118. (e) Rex v. Hay, 4 Burr. 2295; Rex v. Dr. Hay, 1 Bla. R. 640. (f) Rex v. Hay, 4 Burr. 2995; Lovegrove v. Bethell, 1 Bla. Rep. 68. (g) Smyth's Case, 2 Stra. 892. (h) See post, 2d vol.; and Selwyn's N. P. 6th ed. 1662; Impey's Mandamus, Com. Dig. Mandamus; and Burn's J. tit. Maudamus, as to practice in general. recent statute the costs of the application for a mandamus are in general in the discretion of the court; and if the party applying has acted courteously and properly, he may thereby frequently avoid the payment of costs, though in other respects he fail. (i) In the first place, the party claiming admission to an office, or other right, and intending afterwards to endeavour to enforce his claim by motion for a mandamus, should frame a written and explicit notice of his claim, succinctly stating the grounds and reasons, and which may be somewhat in the form of a notice of appeal against a poor rate, or other objectionable proceeding; (k) he should then in the same notice, in a courteous manner, request admission to the office or performance of the other act within a reasonable time, naming a proper day and place, and that if inconvenient to the party required, then that he appoint another time and place. In the same notice it may be intimated, that in case of refusal to comply with the request, the party will be under the necessity to apply to the court as the only means of obtaining the right. At the same time, if a clear and positive opinion of counsel has been obtained in favour of the claimant, it will be a proper and candid measure to accompany the notice with a copy of such case and opinion, and request the party himself to take advice. If after such a precautionary measure the party should persist in his refusal, and the court should afterwards think that he did so improperly, then, under the above discretionary power, they would probably make him pay, or not allow him costs, according to the other circumstances of the case. The 12 Geo. 3, c. 21, as to citizens, burgesses, and freemen of any city, borough, &c., recites, that although a writ of mandamus to admit to the franchise at their instance be obeyed, the party applying for the same is nevertheless put to great trouble, delay, and expense, and that by the existing law he cannot recover his costs when the writ has been obeyed, enacts, that when any such party entitled to be admitted shall apply to the mayor or other person, officer or officers, who hath authority to admit, to be admitted a citizen, burgess, or freeman, and shall give notice specifying the nature of his claim to such mayor, &c. that if he shall not admit such person a citizen, burgess, or freeman, within one (i) 1 Wm. 4, c. 22, s. 6; see post, 809, as to the costs; and see ante, 439, notes (f) and (g), as to small circumstances frequently influencing a court in their giving or refusing costs. (k) See several forms of notice of appeal against poor rate, Burn, J., tit. Poor, Index, tit. Precedents; and see the numerous forms of various notices in the notes to the antecedent pages. CHAP. X. MANDAMUS. First step to be taken by claim ant. СНАР. Х. month from the time of such notice, the Court of K. B. will MANDAMUS. be applied to; and if such mayor, &c. shall refuse or neglect to admit such person, and a writ of mandamus shall afterwards issue, then the party applying for the same, (unless the court shall see just cause to the contrary,) shall obtain and receive from such mayor, &c. all the costs, &c. (1) In cases not within this act, it might be as well to observe the same provision in any notice which it is always expedient to serve. Second applica tion Affidavit to support motion to the court. At the appointed time there should be a second application in person to the proper officer, requesting admission, &c., and this should be in the presence of one or more proper persons to join in an affidavit. And at all events in case a personal interview or peremptory refusal to admit has not been obtained, it may be expedient to serve another notice, referring to the former, and the refusal or silence, and again requiring admission, and pointing out the loss or inconvenience that will résult from continued refusal, and the necessity that will ensue for the expense of proceedings in the Court of King's Bench, and the power of that court over the costs. In the event of continued refusal, then an affidavit or affidavits should be sworn on the part of the claimant, fully and explicitly stating the nature of the office, and showing its duties and other facts essential to establish that it is of a public nature. (m) And where it is a corporation by prescription, the constitution of it, as well as the party's particular right under it, must be verified by affidavit. (n) And where it is by charter, the substance as applicable should be stated, and an authenticated copy must be produced at the time of making the motion. (n) The election and other circumstances under which he claims, and still claims to be admitted, must be very distinctly and positively stated, and shown to have been according to the charter or prescription, and this not according to hearsay or mere belief. (o) The affidavit should also anticipate and answer every possible objection or argument in fact which it may be expected will be urged against the claim. A copy of the notice or notices previously served on the mayor, &c., (1) 12 Geo. 3, c. 21. (m) So an affidavit to support a mandamus to a clergyman to replace a parish clerk, at least had better show that it is an office for life, Anon. 2 Chit. R. 254. So in an affidavit in support of a motion for mandamus to justices to appoint overseers, it must be sworn that the district is, or at least that it is reputed to be, a village or parish, Rer v. Bedfordshire, Caldecot, 157; Anon. Lofft, 618; Rex v. |