in question: this was not an election within the aid of the statute, which never meant to protect elections made by surprise and fraud. II. In what other Cases the Court will grant a Mandamus. HAVING enumerated the most important cases relating to corporations in which the court will interpose by granting a mandamus, I shall proceed briefly to state some other cases in which this remedy may be obtained. The circumstance of the office being subject to the Ecclesiastical Court, affords no objection. Hence, writs of mandamus have been granted to admit prebendaries", an apparitor general", parish clerks, and sextons. So to admit scavengers, &c.; to restore a schoolmaster of a grammar-school founded by the crown'; so to restore a member of an university, who had been improperly suspended from his degrees. In like manner a mandamus will lie to compel a dean and chapter to fill up a vacancy among canons residentiary; so to the Ecclesiastical Court", to swear churchwardens elected by the parish; so to grant the probate of a will to an executor. So a mandamus lies to the judge of the Prerogative Court of Canterbury to grant administration to the husband, of the wife's estate, when the husband has done nothing to depart from his right. In the case of R. v. Windham, the court granted a mandamus to compel the warden of Wadham College to affix the common seal of the college to an answer of the fellows, &c. in Chancery, although the warden disapproved of the answer of the fellows, and had put in a separate answer. A mandamus will lie to J. P. to nominate overseers of the m R. v. Dean of Norwich, Str. 159. n Folkes's case, cited per Cur. in R. v. Ward, Str. 897. o R. v. Ashton, Say. R. 159. R. v. Warren, Cowp. 371. p R. v. Churchwardens of King's Clere, 2 Lev. 19. 1 Ventr. 143. S. C. N. It appeared by the certificate of the minister and several parishioners, that the sexton was an officer for life, and received two-peuce from every house yearly as wages. But in the same term it was granted for poor, although the time mentioned in the stat. 43 Eliz. has expired; because the statutes for the relief of the poor are to be construed liberally. So to appoint a surveyor of the highways, where the J. P. had not appointed at the time mentioned in the stat. 13 Geo. 3. c. 78. s. 1'. So to sign and allow a poor's rate; and in this case they will grant the mandamus in the first instance, and not a rule to shew cause; for otherwise the poor might starve. Although it was formerly doubted whether a mandamus would lie to a lord of a manor to admit a copyholder, yet in R. v. Rennett, where application was made for a mandamus to the steward of a manor, to admit a person who claimed as heir at law to a customary estate within the manor, the court said, they had no doubt but that a mandamus ought to be granted, to compel a lord of a manor to admit a copyholder, if a proper case were laid before them; but as the party making this application claimed by descent, it would not answer any purpose to grant the mandamus, since he had as complete a title without admittance as with it, against all the world but the lord. See also R. v. Lord of the Manor of Hendon, where a mandamus was granted to the lord, who had refused to admit the surrenderee of a copyhold estate on account of a disagreement respecting the fine to be paid; the court observing, that they would not give an opinion respecting the lord's fine on an application by a tenant for a mandamus to be admitted, because the lord had not any right to the fine until admittance. See also R. v. Coggan, where a mandamus was granted to the lord and steward of a manor to admit a person to a copyhold tenement, who had a primâ facie legal title, in order to enable him to try his right, though a court of equity had before refused to compel the lord to admit him for want of his shewing an equitable right to the property; Lord Ellenborough, C. J., observing, that he was aware that the power of the Court of King's Bench to grant a mandamus to admit to a copyhold, had been questioned on the other side of the hall, yet the court having for many years past been in the constant habit of granting such writs, upon a sufficient primâ facie title made out on the part of the person applying, he could not doubt their power in this respect. N. There being a claim of a previous fine due to the lord in respect of the ancestor from whom the party claimed, the rule for a mandamus was granted, upon the party's under a R. v. Sparrow, Str. 1123. b R. v. Justices of Denbighshire, 4 East, 132. e R. v. Fisher, Say. R..160. d 2 T. 3. 197. f 6 East, 431. taking to pay such fine or fines as should be due to the lord. The court will not grant a mandamus to admit cestui que trust, although he has a clear equity, the legal estate appearing on the Court Rolls to be in the trustees. It makes no difference by what mode the party becomes entitled to the franchise, whether by charter, prescription, or tenure; therefore, where by the custom of the borough of Midhurst, the jury at a court baron is to present the alienation of every burgage tenement, and upon such presentment the steward is to admit the tenant, who then becomes entitled to the franchises of the borough, the jury, at a court baron in 1749, having refused to present several conveyances of burgage tenements, the court granted a mandamus to the lord to hold a court, and to the burgesses to attend at such court, and to present the conveyances. And though one mandamus will not lie to restore several persons, yet the court held it would lie in this case to the jury to do an act to perfect the rights of several. So where, by the custom, the court leet was to present to the steward the person whom the commonalty of the borough had chosen to be mayor, the court granted a mandamus to the steward to hold a court leet, and to the in-burgesses to attend at such court, and to present J. D. who had been chosen by the commonalty. And it is the same where no particular person is interested; as where by charter or prescription the corporate body ought to consist of a definite number, and they neglect to fill up the vacancies as they happen, the court will grant a mandamus. III. Where not. Ir 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 licence 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 g R. v. Midhurst, 1 Wils. 283. 1 Bl. i Case of the town of Nottingham, 23 G. 2. Bull. N. P. 201. k Per Buller, J. in R. v. Bp. of Chester, 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. See also Doug. 326. parties, and there had been cross nominations; because the party had another specific remedy by quare impedit'. 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. But an indictment, it seems, is not such a remedy" as will prevent a court granting a mandamus. Although the court will grant a mandamus in order to enforce the making a poor's rate, they will not grant it with a direction, that certain persons shall be inserted in the rate; although an affidavit be made of the sufficiency of such persons, and that the omission had for its object, the preventing their having votes for members of parliament. The power of licensing public houses being absolutely in the discretion of the justices of the peace, the court will not award a mandamus for the licensing a public house. A mandamus will not lie to compel admission to the degree of barristers (5). Nor for a fellow of a college, when there is a visitor (6). Nor to the judge of the ecclesiastical court to grant a probate of a will, lite pendente'. Nor to the master and wardens of the company of gun-makers, to cause them to give a proof-mark to a freeman of their company. Because they are no legal establishment'. Nor to the mayor and aldermen of London to admit a person to the office of auditor of the chamberlain's and bridge-master's accounts, who had served it three years successively, because contrary to the custom of the city. Nor to the college of physicians, commanding them to examine a doctor of physic, who has been licensed in order to his being admitted a fellow of the college". Nor to a visitor where he is clearly acting under a 1 R. v. Bp. of Chester, 1 T. R 396. p Giles's case, Str. 881. per Ryder, C. J. q R. v. Gray's Inn, Doug. 353. s Ray. 989. t 1 T. R. 423. u R. v. College of Physicians, 7 T. R. 282. (5) The only mode of relief is by appeal to the twelve judges. (6) Wherever there appears to be a general visitor, the common law courts will not interpose; yet as this is in the nature of a plea to the jurisdiction, it must appear on the return. The court will 'not supersede the writ of mandamus on an affidavit of the fact: it must appear by matter of record, which the party may contest. R. v. Dr. Whaley, master of Peterhouse College, Cambridge, E. 13 Geo. 2. 34 MS. Serj. Hill, p. 325. visitorial authority. Nor to a steward of a manor court to admit a person who claimed as heir at law to a customary estate within the manor. In R. v. Jotham, the court refused a mandamus to restore a minister of an endowed dissenting meeting-house; because it did not appear, that he had complied with the requisites necessary to give him a primâ facie title; adding, that a mandamus to admit was granted merely to enable the party to try his right; but the court had always looked much more strictly to the right of the party applying for a mandamus to be restored; for if he has been before regularly admitted, he may try his right by action for money had and received. A mandamus will not lie to the archbishop of Canterbury to issue his fiat to the proper officer for the admission of a doctor of civil law, a graduate of Cambridge, as an advocate of the court of Arches. 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 directed. 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 emanavit. If a writ be directed to a x Adm. K. v. Bp. of Ely, 2 T. R. 345. b R. v. Mayor of Hereford, Salk. 701. y R. v. Rennett, 2 T. R. 198. R. v. Mayor of Rippon, Salk. 433. c R. v. Wigan, 2 Burr. 782. z 3 T. R. 575. a R. v. Archb. of Canterbury, 8 East, d R. v. Mayor of Norwich, Str. 55. 213. (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. |