ticulars may be cured by a return admitting the title, and avoiding it by some other objection.' Where, however, from a mandamus to compel the restoration of documents, it appeared that the person to whom it was issued was merely a stranger in the possession of them, against whom the party should have proceeded by the ordinary remedies, it was held, that this defect in the writ was not aided by the return in which it appeared that he claimed the documents, of right, in an official character. If the right to be enforced is a general right, and no particular person is interested, the general right must be shown in the writ. 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." If the mandamus be to compel one to serve in a corporate office to which he is elected, it is not necessary to aver, that he was able and fit to serve, but only to state his liability, election, and refusal to undertake the office without reasonable cause. It is said by Mr. Willcock, that the command must be to perform some definite and specific act or acts, so that a certain and conclusive return may be made, that the act is done. This must be understood, however, to refer to those cases in which the officer or corporation acts merely in a ministerial capacity; and not where the mode of action, the

1 Rex v. Whiskin, Andr. 3; Rex v. Coopers of Newcastle, 7 T. R. 548; Peat's Case, 3 Mod. 310; Rex v. Bristol, 1 Show. 288. In a writ to admit, however, it is not necessary to aver a tender of the fee payable on admission; though this must be stated in the application. Moore v. Hastings, C. T. H. 363.

* Rex v. Hopkins, 1 Adolph. & Ellis (N. S.) 169; S. C. 41 Eng. C. L. R. 487, 488.

* Rex v. Nottingham, Sayer, 36; S. C. Bul. N. P. 201; Rex v. Devizes, Ib. 204.

897.

Bul. N. P. 204; Rex v. Bettesworth, 2 Stra. 857; Rex v. Ward, 2 Ib.

Rex v. Merchant Tailors, 2 Lev. 200.

Willcock on Mun. Corp. 394; and see Andover Case, 2 Salk. 433; Anon. Ib. 436; Rex v. Kingston, 1 Stra. 578; Rex v. Water Eaton, 2 Smith, 55; Rex v. Liverpool, 1 Barnard, 83.

Thus,

object being specified, is left to his or their discretion. as we have seen, where the directors of the Bristol Dock Company were empowered "to make such alterations and amendments in the sewers of the city, as might or should be necessary in consequence of the floating of the harbor," a mandamus to them, "to make such alterations and amendments in the sewers of said city, as might or should be necessary in consequence of the floating of said harbor," was held sufficient; and that it was neither requisite nor proper to call upon the company to make any specific alterations, the mode of remedying the evil being left to their discretion.' A writ of mandamus, ordering a corporation to command certain persons to do an act, was quashed as absurd; it should have commanded the corporation to do it. If the mandamus be to compel an election, the command should not be to elect a particular person, but to proceed to the election of some one to supply the vacancy. The term "evidentias" has been held sufficient to include corporate documents, in a mandamus to compel their delivery; but it has been made a question whether the command to deliver books in the possession of an ex-officer should be, to deliver them to the corporation, or to the officer who is to have the custody of them. Though they must be received by the new officer, it would seem most proper to command them to be delivered to the corporation." In the case of The King v. Nottingham, however, the writ commanded the delivery to be made to the new officer."

Unless the mandamus be peremptory, the command is to do the act, or show cause to the contrary. The writ will not,

'The King v. The Bristol Dock Company, 6 B. & C. 181; 9 D. & R. 309.

Regina v. Derby, 2 Salk. 436.

Rex v. Bridgewater, 2 Chit. R. 257; Shuttleworth v. Lincoln, 2 Bulstr. 122; 2 Rol. Abr. Restitut. 5; Anon. 2 Barnard, 237.

'Rex v. Nottingham, 1 Sid. 31.

5 Willcock on Mun. Cor. 395; Rex v. Holford, 1 Barnard, 330, 350; Rex v. Wildman, 2 Stra. 879.

"Rex v. Nottingham, 1 Sid. 31.

however, be superseded, though the words "or show cause" are omitted; for, it is the very nature of an alternative mandamus, to compel the defendant to perform the act, or show good cause for his refusal.' In an alternative mandamus, the relator sets forth his title, or the facts upon which he relies for relief, and this he should do clearly and distinctly, and not by reference to affidavits and papers on file; and by it, on the other hand, the defendant is required to do the particular act required, or show cause to the contrary.2

$7. Service of the writ should be made upon him who is to make the return; and, where the writ is directed to the corporation, it should be served upon the head officer. In the case of Rex v. Fowey, however, it was held, that a personal service on the town-clerk of a public corporation was sufficient to found an application for an attachment. If the writ is informal, the party may apply to amend it at any time before the return, even, it seems, in a departure from the rule; though, after a motion to quash the writ for such a departure, or for insufficiency in substance, it must be superseded. however, the objection be to the form of the writ merely, it may be amended by leave of the court." After the return has been made and traversed, the court will not permit an amendment in the mandamus. In Rex v. The Mayor of York,' it

8

If,

1 Rex v. Owen, 5 Mod. 315; S. C. Comb. 399; Rex v. St. John's Coll. 1 Vent. 549. For form of alternative mandamus, see People v. Judges of Westchester, 4 Cowen (N. Y.) R. 73.

2 Commercial Bank of Albany v. Canal Commissioners, 10 Wend. (N. Y.) R. 25.

3
'Rex v. Exeter, 12 Mod. 251.

4 4 D. & R. 614.

'Rex v. Clitheroe, 6 Mod. 133, per Holt, C. J.

Ibid.; Rex v. Water Eaton, 2 Smith, 55, 56; Rex v. Marg. Pier Comp.

3 B. & A. 224; Rex v. Kingston, 1 Stra. 578; Rex v. Wildman, 2 Stra. 880.

7 Ibid.

Rex v. Mayor of Stafford, 4 T. R. 690.

95 T. R. 74, 75.

was held by Kenyon, C. J. and Buller, J. that the defendant would not be permitted to avail himself of any exception to the writ after the return. But it would seem, that though an objection to the form of the writ may be taken before the time for making the return has expired, and that after that time the court will not supersede the writ until the return is made, unless for gross faults, or because the writ has issued erroneously,' yet that an objection may be taken after the return, although the return is bad, and indeed at any time before the peremptory mandamus has issued. "According to the ancient practice," says Mr. Willcock, "if a return was not made in due time to the original writ, an alias issued, and a pluries returnable immediately, and if no return was made to that, on affidavit of service, an attachment was obtained against the defendant for disobedience to the process of the court." Since the 9th of Anne, ch. 20, $1, to compel a return to mandamus, the court of King's Bench does not drive the prosecutor to an alias and pluries, even in cases not falling within its provisions; but compels a return to the first writ.*

$8. The return must be made by the body or persons to whom the writ is directed; and if the writ is directed to a corporation, though the head officer be merely an officer de facto, yet he must join in the return. Where a mandamus was directed to B. C. and others, as a township committee, a

1 Rex v. Norwich, 1 Stra. 55; Rex v. Tregony, 8 Mod. 112; Rex v. Willingford, 2 Barnard, 132; Rex v. Whitchurch, Ibid. 447; Whitford v. Jocam, Sel. N. P. (Wheat.'s ed.) 829; Rex v. Kingston, 8 Mod. 218; S. C. 11 Mod. 382; Willcock on Mun. Corp. 397.

Rex v. Kingston, 8 Mod. 210; S. C. 11 Mod. 382; Rex v. Ward, 2 Str. 897; Rex v. Smith, 2 M. & S. 598; Rex v. Margate Pier Company, 3 B. & A. 223; Willcock on Mun. Corp. 397.

'Willcock on Mun. Corp. 398; and cites Anon. 2 Salk. 434; Da Costa v. Russia Company, 2 Str. 783; Anon. 11 Mod. 265.

4 Willcock on Mun. Corp. 399, 400.

'Manaton's Case, T. Ray, 365; Stevens's Case, Ibid. 432; Knight v Wells, 1 Lutw. 519; Rex v. Lisle, Andr. 173; Rex v. Clitheroe, 6 Mod.

2

return made by them, as a late township committee, was held good.' The same certainty is required, it has been said, in a return to a writ of mandamus as in indictments or returns to writs of habeas corpus. Whether the same strictness of certainty is necessary in a return to a mandamus, as in an indictment, may well be doubted. In The King v. Lyme Regis,' Lord Mansfield, Buller, Justice, concurring, says, "There is a great difference between a charge as a ground of disfranchisement and an indictment. In criminal prosecutions, technical forms are established, and ought to be followed. If, in an indictment, you say that A. forged, and caused to be forged, the proof of either fact will support the indictment; but to say that he forged, or caused to be forged, would be bad. This, being determined, must be adhered to. But such nicety is not required in accusations against a corporator in a corporate court. There, substantial certainty is all that is necessary." The return must, however, be certain upon a reasonable construction; and where presumption and intendment are permitted, it is said, they will be in favor of the return. It must state facts, and not conclusions of law,' must not be argumentative, nor aver material facts by way of recital, but must positively and expressly assert, deny, or answer, all facts in their full extent, the assertion, denial, or avoidance of which may be

7

The State v. Griscom, 3 Halst. (N. J.) R. 136.

* Per Buller, J. Rex v. Lyme Regis, Doug. 158. 1 Doug. 181.

11 Co. 99 b; Rex v. Abingdon, 12 Mod. 401; S. C. 1 Ld. Ray. 560; S. C. 2 Salk. 432; Rex v. Sterling, Sayer, 175; Rex v. Lyme Regis, Doug. 153, 154; Willcock on Mun. Corp. 403.

5 Rex v. Liverpool, 2 Burr. 731; Rex v. York, 5 T. R. 76.

6 Rex v. Winchelsea, 2 Lev. 86; Rex v. Hereford, 6 Mod. 309; Basse v. Barnstable, T. Ray, 153; S. C. 1 Sid. 286; Rex v. Coventry, 1 Ld. Raymd. 391; S. C. 2 Salk. 430; Rex v. Ilchester, 4 D. & R. 330.

'Rex v. Malden, 1 Ld. Raymd. 481; S. C. 2 Salk. 431; Rex v. Ipswich, 2 Ld. Raymd. 1239; S. C. 2 Salk. 435; Commercial Bank of Albany v. Canal Commissioners, 10 Wend. (N. Y.) R. 25. A denial may, however, be composed of several assertions. Rex v. King's Lynn, Andr. 105. But a denial of the matters of the writ, with a protestando, is ill. Rex v. Bristol Dock Co. 6 B. & C. 181; 9 D. & R. 309.