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 1, 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 R. v. Midhurst, 1 Wils. 283. 1 Bl. R. 60. Bul. N. P. 200. S. C. by the name of R. v. Ld. Mountague. h Borough of Christ Church, 12 G. 2. Bull. N. P. 200. S. C. cited in 1 Bl. R. 62. i Case of the town of Nottingham, 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 barrister (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 establishments. 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. o R v. Weobly, Str. 1259. p Giles's case, Str. 881. per Ryder, C. J. R. v. Nottingham, Say. R. 217. q R. v. Gray's Inn, Doug. 353. r 1 Bl. R. 668. t1 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. y R. v. Rennett, 2 T. R. 198. z 3 T. R. 575. b R. v. Mayor of Hereford, Salk. 701. c R. v. Mayor of Rippon, Salk. 433. 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. 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 misnomer". 2. The writ must contain convenient certainty, in setting forth the duty to be performed; but it need not particularly 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 recusarit 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. So a mandamus, reciting whereas there is or ought to be one bailiff and twelve capital burgesses. So a mandamus reciting that there ought to be a common council, consisting of the mayor, and twenty-four persons chosen by the mayor and burgesses, without stating whether by charter or prescription'. 3. If several persons have been removed, there must be at distinct writ for each person; for they cannot join*; 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 e R. v. Bailiffs of Ipswich, Salk. 434,5. i R. v. Mayor and Burgesses of Notf R. v. Ward, Str. 897. tingham, H. 25 G. 2. Bull. N. P. 204. Say. 36. S. C. g R. v. Bettesworth, Str. 857. R. v. the Devises, M. 7 Ann, Bull. k 5 Mod. 11. R. v. city of Chester, N. P. 204. Salk. 433. 436. writ'; therefore, where in a maudamus 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 writ". But although it is essential such facts should be alleged as are necessary to shew that the party applying for the writ is entitled to the relief prayed, no precise form is required". 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 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 return; but after the return has been made and traversed, the court will not permit an amendment in the mandamus'. A motion cannot be made to supersede the writ after the return is out', neither will the defendant be permitted to avail himself of any objection to the writ after the return'. Where there is a corporation by prescription, the constitution of it (as well as the parties' right) must be verified by affidavit". Where it is by charter, a copy of it must be produced at the time of making the motion. 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 16 Mod. 310. per Holt, C. J. m R. v. Bp. of Oxford, 7 East, 345. n Per Lee, C. J. in R. v. M. & B. of 0 2 Bulst. 122. 2 Rol. 456. 1. 25. R. v. Mayor of Stafford, 4 T. R. 690. Jocam, B. R. M. 7 G. 2. MS. to have been so determined in Ld. Raymond's time. t Per Kenyon, C. J. and Buller, J. in R. v. Mayor of York, 5 T. R. 74, 5. u Bull. N. P. 200. x R. v. Dr. Bland, ib. y R. v. Bp. of Ely, 1 Wils. 266 |