TO ELECT. Although the writ has been granted to compel the election of annual MANDAMUS ministerial officers (1), if the offices be necessary to the constitution of the corporation, the writ will not be granted to mere private officers or rather Private officers servants. In Regina v. Exeter (Chapter of) (2), it appeared that the deanery of Exeter was founded in the reign of Henry III. by the chapter, with the consent of the Bishop of Exeter, who endowed it. By the charter of foundation, the dean was to be elected by the chapter from among the prebendaries, subject to confirmation by the bishop. There were then twentyfour prebends in the bishop's gift. Afterwards the chapter was divided into nine canons residentiary, being upon vacancies, elected from the prebendaries. After this the practice was, that the bishop issued a licence to the chapter to elect a canon (who, in practice, was always a canon residentiary) for dean, and the chapter elected accordingly; and the party elected was then presented to the bishop, who confirmed the election, and the party then took the oath of canonical obedience to the bishop, who sent his mandate to the chapter to install him, which they did. About the middle of the sixteenth century, the Crown began to recommend the party to be elected. The practice prevailed from 1681 to the present time, which comprehended fifteen elections; and the appointments, during that period, were by royal patent, describing the deanery as a donative in the Crown, granting it to the party, and commanding the chapter to admit him. Whenever the party named by the Crown was not one of the chapter, the bishop collated him to the prebend of the late dean, and the chapter elected him a canon residentiary; and the other forms of the election, commencing with the bishop's licence, were pursued. In 1839, the deanery being vacant, the Queen recommended one of the prebendaries, requiring and commanding the chapter to assemble and elect him. The chapter having elected another (a canon residentiary), with all the usual forms in other respects, who was installed and acted, a mandamus was applied for, commanding the chapter to elect and admit the party named by the Crown, and, if necessary for that purpose, to elect, collate, and admit him to be a canon residentiary, and to do all things requisite and competent to them, to his being elected and admitted dean. But the mandamus was refused; because, 1. The Crown had not the right to enforce the recommendation, either by the general law or by the particular foundation. 2. If the Crown had the right to present absolutely, or to nominate a person to be presented by the chapter to the bishop for institution (which, however, did not appear to be the fact), the proper remedy was by quare impedit. The Court refused to presume, on the mere evidence of the usage as above stated, either an act of parliament or a composition, conferring the right upon the Crown. or servants. Where the Crown has no right to enforce its nomination to an ecclesias tical benefice. Reg. v. Exeter (Chapter of). In Exparte Le Cren (3) it was stated, that a mandamus will not lie to Election of compel the vicar, churchwardens, and parishioners of a parish, to meet for an organist. the purpose of electing an organist to the parish church; although within (1) Rex v. Thetford (Mayor of), 8 East, 270. Rex v. Woodrow, 2 T. R. 752. Rex v. Liverpool (Borough of ), 1 Barnard. 83. (2) 12 A. & E. 512. MANDAMUS TO ELECT. the time of living memory, there had always been an organist who had been paid a stipend out of the church rates. At a vestry meeting convened for the purpose of electing an organist, it was unanimously agreed that the course pursued on a former vacancy should be followed, namely, that a committee of the vestry should select six out of the candidates, who should perform in the parish church, each on a separate Sunday, and that one of those six should be elected to the office; but that no vote given for any other than one of the six candidates should be received: it was held, that this mode of proceeding was not unreasonable, and that the Court would not grant a mandamus to admit to the office a person in whose favour the greatest number of votes had been tendered, but who was not one of the six candidates. Mr. Justice Patteson observed, "This was an application for a mandamus to the vicar, churchwardens, Exparte le Cren, and parishioners of St. Stephen, Coleman Street, to proceed to the election of an organist, or to admit Miss Le Cren into that office. Judgment of "On looking at the authorities, I cannot find any which go the length of saying that I can issue such a writ for the election of an organist. The utmost that Lord Stowell decided in the case of St. John's, Margate (Churchwardens of) v. The Parishioners, Vicar, and Inhabitants of the same (1), was, that he would grant a faculty for erecting an organ, because the majority of the parishioners might direct a rate for keeping it up and paying the organist. That is the utmost extent to which that case goes, and I cannot find that the other authorities carry it any further. I therefore think it is impossible that a mandamus should go to the inhabitants generally, to elect an organist. The only case I have found, in which a writ was issued to the inhabitants at large, is Rex v. Wix. (2) There the parishioners were commanded to meet and elect churchwardens, but that is a very different matter, and I can find no case which says, that the Court can issue a mandamus for a purpose like the present. "In this case, it is true, that there has been from time to time a vote for the expenses of the organist out of the church rate; but I see nothing to prevent the parishioners from rescinding their appointment of organist, and determining for the future to have none. "With respect to the other alternative of the motion, I do not think this is a case in which, even if I had the power, I ought to interfere. The facts appear to be, that at the first vestry meeting a committee was ap pointed to reduce the number of candidates to six, and that each of those six should perform the service on a separate Sunday. Sixty candidates offered themselves, and they were reduced by the committee to six. Miss Le Cren was not amongst the six. It appears that one afterwards retired. At a subsequent meeting of the vestry, the minutes of the former meeting, at which this resolution was carried unanimously, were confirmed, without objection; and then an election took place, confined, it is true, to those five, and the successful candidate declared duly elected. I collect from the affidavits that this was the mode of proceeding adopted on the occasion of the last vacancy. I cannot see that this was an unreasonable mode of conducting the election; or that it was not competent, under such an arrangement, to say that no votes should be given for any but the six selected candidates, and to declare that the votes given for any other person MANDAMUS were thrown away." The members of an indefinite body will not be compelled to elect additional members; thus, in Rex v. Fowey (Mayor of) (1), Chief Justice Abbott observed, "There is no instance in which the Court has ever granted a mandamus to compel a corporation to elect members of an indefinite body. The general principle of the Court in issuing a mandamus is very well defined to be, that whenever it is the duty of a person to do an act, the Court will order him to do it." Two cross or concurrent writs of mandamus to proceed to elections will not be granted of course without some special and particular reason; but "if there is a ground of suspicion laid, that the party first applying for such writ does not mean to execute it,' it is reasonable to grant the carriage of another like writ to the other side." (2) TO ELECT. Members of an indefinite body will not be compelled to elect additional members. Cross or con current writs. The Court will not fix any day in the writ, upon which the parties are to Day of election proceed to an election, but will leave it to the proper officer. (3) A mandamus may be awarded to justices of the peace to appoint overseers of the poor (4); or to make a new appointment, when the appointment has been made on a Sunday. (5) It lies to appoint overseers of the poor in a hamlet, where there were never any before. (6) Where a parish consists of several townships, some of which maintain their own poor, and have immemorially had overseers separately appointed, the Court will grant a mandamus for the separate appointment of overseers for the remaining townships. (7) will not be fixed in the writ. Appointment of overseers of the poor. sexton. Mr. Justice Rex v. Stoke A mandamus was applied for on affidavits making a prima facie case of Election of a right in the inhabitants to elect a sexton for the parish of Stoke Damerell, in Devonshire. Affidavits were filed in answer, stating facts to show that the right was in the rector, who had filled up the appointment. The office being full, a question arose as to whether the proper remedy was not by quo warranto, instead of mandamus. Upon such facts, Mr. Justice Patteson observed, "I cannot at present find any reported case in which Judgment of a mandamus has been granted to elect, where the office was already filled by a void election; but I am sure, from my recollection, that the practice is so, if the Court is satisfied of the election being void. (8) Damerel In Rex v. Bedford (Corporation of) (9), where the corporation had (Minister of ). elected a mayor who would not attend to be sworn in, because he had not qualified, the Court ultimately granted a mandamus to proceed to a new election: that, however, was after much doubt, and the office was expressly avoided by stat. 13 Car. 2. st. ii. c. 1. s. 12.; but I am confident, that, if the question cannot be tried by a quo warranto, the course is to grant a mandamus for a new election, where the Court is satisfied that the first election is void. Where there is any other mode of trying MANDAMUS Affixing corporate seal to certificate of election. the right, a mandamus ought not to go. Here, prima facie, the appointment is right, being made by the rector, who by the general law, is the proper person to make it. Strong evidence would be necessary to disprove his authority. There is, on the other hand, a custom alleged for the parishioners to elect; and some evidence, not conclusive, but amounting to a prima facie case, has been given to show that the last election was by them. The office, however, is now full by the rector's appointment. If there were no other remedy, I should say that a mandamus ought to go; but there is such a remedy by refusing the fees, or bringing an action for money had and received if they are taken. It cannot be supposed that the sexton will go on for five or six years refusing his fees, to prevent a trial of the right; at least, the probability of it is not one which we can enter into; the rule must therefore be discharged." (1) A mandamus lies as a matter of course to put the corporate seal, when requisite, to a certificate of the election of a corporate officer, if there be an affidavit, that the applicant had the majority of legal votes. (2) MANDAMUS TO ADMIT. The writ enables the he would be left without any legal remedy. When a person be admitted a member of a college or voluntary society. 5. MANDAMUS TO ADMIT. The writ of mandamus will be granted to admit a person to any ecclesiastical or temporal office of a legal and public nature. A mandamus to admit enables the party to try his right, without which he would be left without any legal remedy. (3) Where there is an inchoate right to an office, that is, where there is no discretionary or judicial powers to be further exercised previous to admission — the writ will be granted to enforce such inchoate right, if it appear that the prosecutor has complied with all previous preliminaries to acquire a right to the office. (4) As a general proposition, no person has a right to be admitted a member has no right to of a college or voluntary society, unless he be approved of by those persons who have been deputed to exercise the discretion on behalf of the college or society; and the writ will not be granted to enforce such admission, because a mandamus lies only where the party applying for it has a right to have a particular thing done, and where there is an obligation upon the other party to do it: thus the Court have refused a mandamus to compel the benchers of Lincoln's Inn to admit a person a member of their society, because he did not possess an inchoate right to be admitted. (5) (1) Rex v. Stoke Damerel (Minister and Churchwardens of), 5 A. & E. 589. As to parishioners' right of voting by (2) Rex v. York (Mayor of ), 4 T. R. (4) Townsend's case, Raym. (Sir T.), 69. 1 Lev. 91. 1 Sid. 107. Green v. Durham (Mayor of ), 1 Burr. 131. Rex v. Ludlam, 8 Mod. 270. Wannel v. London (Cham berlain of), 1 Str. 675. Rez v. Harrison (Sir T.), 3 Burr. 1238. 1 Black. (Sir W.), 372. Moore v. Hastings (Mayor of ), C. T. H. 353. 363. Rex v. West Looe (Mayor of), 3 B. & C. 686. Crawford v. Powell, 2 Burr. 1016. Rex v. Monday, 2 Corp. 539. Rex v. Hawkins, 10 East, 216. Rer v. Parry, 14 ibid. 561. Vide 1 Stephens on Municipal Corporations, 447. 2d ed. Stephens on Nisi Prius, tit. MANDAMUS, 2292-2311. (5) Rex v. Lincoln's Inn (Benchers of). 4 B. & C. 859. Rex v. Gray's Inn (Benchers of), 1 Doug. $53. Boreman's case, cited Style, 457. 16 Vin. Abr. Mandamus (G), 196. pl. 3. But if an actually admitted member of a college or voluntary society MANDAMUS have acquired an inchoate right capable of being perfected, the Court would TO ADMIT. then exercise its discretionary power to interfere by mandamus, in order to perfect that right, in the absence of any other remedy. The most effectual method of trying the right to officiate in chapels, as to whether it be dependent upon nomination or election, is by mandamus. (1) A mandamus will lie to admit a minister, preacher, or pastor to the use of a pulpit, if he have a legal title to the office; and where (2) a deed of release was made to A. B., a dissenting minister, and other trustees, settling a meeting-house and garden, &c. upon the trustees in trust (inter alia) “to suffer the meeting-house to be for the public worship of God by such congregation of protestant dissenters, commonly called Presbyterians, as should sit under and attend the ministry of A. B., or such other Presbyterian minister, as should in his room successively, in all times then coming, be by the members in fellowship of such congregation regularly and fairly chosen and appointed to be the minister," - the trustees were required to admit A. B. to the use of the pulpit thereof as pastor, minister, or preacher, he having been duly elected thereto : Lord Mansfield observing, "Writs of mandamus have been granted to admit lecturers, clerks, sextons, and scavengers," &c. "Since the Act of Toleration, it ought to be extended to protect an endowed pastor of protestant dissenters, from analogy and the reason of the thing." "Here is a function with emoluments, and no specific legal remedy. The right depends upon election, which interests all the voters. The question is of a nature to inflame men's passions. The refusal to try the election in a feigned issue, or proceed to a new election, proves a determined purpose of violence. Should the Court deny this remedy, the congregation may be tempted to resist violence by force a dispute who shall preach christian charity,' may raise implacable feuds and animosities in breach of the public peace, to the reproach of government, and the scandal of religion. To deny this writ would be putting protestant dissenters and their religious worship out of the protection of the law. This case is entitled to that protection, and cannot have it in any other mode." When an inchoate right has been acquired. The most effectual method of trying the right to officiate in chapels, as to whether it be dependent upon nomination or election, is by mandamus. Ministers, preachers, and pastors. canons. Chaplains. Lecturers. A mandamus has been granted to install a person into a prebend (3); to Prebends. a residentiary canon, where he appeared to have been duly elected (4); to Residentiary the warden of. Manchester College, to admit a chaplain, where there was no visitor (5); to the archbishop and bishop to license a lecturer, where it appeared that the candidate had a right; but it is a good reason against an application for such a licence, to show that the lectureship was appointed within time of memory and supported by voluntary contributions, without any lay fee or temporal right in the party applying; and that he had not the consent of the rector, though chosen by the parishioners to be lecturer. And a refusal by the archbishop must appear, before the Court will entertain a motion for a mandamus to the bishop to license a lectureship under stat. 13 & 14 Car. 2. c. 4. s. 19., which he refused to do on the alleged ground of unfitness. (6) |