Court will grant leave to file an information in the nature of quo warranto MANDAMUS against the person so elected at the time they award the mandamus. (1) TO RESTORE. accused. In all penal cases a legal service of notice must be given to the accused, Notice to of the charge instituted against him; and if a person have been removed from any office of profit or honour without his having had an opportunity to defend himself, a mandamus will be granted for his restoration: quia quicunque, aliquid statuerit, parte inaudita altera, æquum licet statuerit, haud æquus fuerit (2): and the University of Cambridge were compelled to restore Dr. Bentley to academical degrees, he having been deprived of them. without receiving any summons. (3) Although the writ will not be granted to restore the master of a private school, yet it will be granted to restore the master of a free grammar school founded by the crown. (4) A mandamus to restore is the true specific remedy where a person is wrongfully dispossessed of any office or function which draws after it temporal rights; in all cases where the established canon of law has not provided a specific remedy by another form of proceeding, which is the case with regard to rectories and vicarages, and therefore the writ will be granted to restore an incumbent to his benefice, a curate to his chapel, or a curate to a chapel, being a donative endowed with lands. (5) A mandamus lies to the chancellor of an university to restore a person to his academical degrees (6), to restore a fellow of a college where there is no visitor appointed (7), or to restore a curate to his chapel from whence he has been improperly ousted. (8) Master of a free grammar school. Restoration to degrees. Restoration to a fellowship or curacy. Amotion by an incompe. tent jurisdic tion. If a person be removed from any office, &c. by him who has not a jurisdiction so to act, the Court will interpose by mandamus; but when a visitor has exercised a discretionary power, the writ will not be granted, for where the jurisdiction is admitted, the Court will not examine the legality of a deprivation by a visitor (9); and a mandamus was refused against the Visitor having Bishop of Chester, who as visitor had deprived a prebendary for incon- exercised a distinency, although he had omitted to comply with the statutes in not "having admonished the accused three times" against his crime, previous to punishment. (10) Although the Court has the superintendence of all spiritual and temporal jurisdictions, if they exceed their powers, yet if there be an intermediate (1) Rex v. Bedford Level (Corporation of 6 East, 360. Shuttleworth v. Lincoln (Corporation of), 2 Bulstr. 122. Willcock on Corporations, 379. (2) Bagg's case, 11 Co. 99. Le Roy v. Tidderley, 1 Sid. 14. Campion's case, 2 ibid. 97. The Protector and the Town of Colchester, Style, 446. 453. The Protector and Craford, ibid. 457. Protector and the Town of Kingston upon Thames, ibid. 478. (3) Rex v. Cambridge (University of), 1 Str. 557. 2 Ld. Raym. 1334. 8 Mod. 148. 6 T. R. 89. Rex v. Ely (Bishop of ), Andr. 177.; vide etiam Dr. Ewin's case, 15 Vin. Abr. Mandamus (B), 187. pl. 7. (4) Rex v. Morpeth de Balliros, 1 Str. Sed quære The Protector and Craford, Style, 457. Stamp's case, 1 Sid. 40. Dr. Goddard's case, ibid. 29. 300. (8) Rex v. Barker, 1 Black. (Sir W.), cretionary power. When an inter mediate appellate tribunal exists. MANDAMUS TO RESTORE. Sexton. Probable colour of an election. Informality in suspension. Resignation of office. appellate tribunal, it is to that tribunal that an application must be made in the first instance, and a mandamus was refused to restore a person to his fellowship, who had neglected to appeal to the visitor. (1) If a sexton be removed without sufficient cause, a mandamus will lie for his restitution; and a mandamus will also be granted to admit a sexton to his office. (2) But where it appeared that the office was held only during pleasure and not for life, the Court refused to interfere. (3) Whether a writ of quo warranto will lie in the case of a sexton, has never been decided. (4) There must be exhibited to the Court a probable colour of an election having occurred, to sustain an application for the writ; and a mandamus was refused, where the trustees of a chapel of dissenters, who, for want of a pastor, had been without a congregation, engaged with a new pastor for a year at a salary, who gave notice in the papers of the time at which the chapel would be opened, and on the first day of opening, gave notice to the congregation that they should proceed to an election of a pastor after divine service that day, and accordingly took votes. Upon being dispossessed by the trustees after the year, the pastor applied for a mandamus to be restored, alleging that he was elected by the congregation for life-because, supposing there was a competent body to elect, there was not sufficient notice given of the election, and therefore they left the party to try his right in an action.(5) The Court will not grant a mandamus to restore a prosecutor merely because there might have been some informality in his suspension, for if restored in consequence of the writ, he might be instantly suspended or removed for the same cause: and it is not incumbent on those who show cause against a mandamus, to prove that the proceedings have been strictly regular; for the party making the application is not entitled to the writ, if it appear by his own statement of the case, that no injustice has been done him. (6) The writ will not be granted to restore an officer if he have resigned his office, or have been ousted by any process of law. (7) (1) Widdrington's case, 1 Lev. 23. Raym. (Sir T.), 31.; vide etiam Parkinson's case, 3 Mod. 265. Carth. 93. Rex v. All Soul's College (Warden of), Jones (Sir T.), 174. Appleford's case, 1 Mod. 82. Prohust's case, Carth, 168. Rex v. Wheeler, 3 Keb. 360. Rex v. Gower (D. D.), 3 Salk. 230. Rex v. St. John's College, Cambridge (Master of), Comb. 279. Skinn. 546. A mandamus will also be granted to restore to a public office of a financial character if granted for life or quamdiu se bene gesserit, such as the office of Comptroller of the Bridge Estates in London, particularly where the officer is obliged, on admission, to take an oath of office, and of duty to the government; or to such an office as that of Clerk of the Works of London, an office for life, with fees and profits, for which the possessor pays a premium on admission, and takes such oaths. It has likewise been granted for the office of Clerk to the Company of Masons, in London, or Treasurer to the Governors of the new Water Works. Rex v. London (Mayor of), 2 T. R. 182. Rex v. London (Aldermen of), 2 Barnard. 398. Lord Hawley's case, 1 Vent. 145. The Protector and the Town of Colchester, Style, 452. Stamp's case, Comb. 348. Rez v. Azbridge (Mayor of), 2 Cowp. 523. Rez v. Governors of the London Water Works, 1 Lev. 123. Middleton's case, 1 Sid. 169. (2) Ile's case, 1 Vent. 153. (3) Rex v. Guardianos Ecclesia de Thame in Com. Oron. 1 Str. 115. Rer v. St. James (Churchwardens of), 1 Cowp. 413. (4) Rex v. Stoke Damerel (Minister of 5 A. & E. 584. ante, 647. 20. (5) Rex v. Dagger Lane Chapel, 2 Smith, (6) Rex v. Axbridge, 2 Cowp. 593. Rer v. London (Mayor, &c. of ), 2 T. R. 177. (7) Rex v. Tidderley, 1 Sid. 14. Rer v. Campion, ibid. Willcock on Corporations, 380. Neither will it be granted to a mere private officer, such as the clerk of MANDAMUS the Butcher's Company of London. (1), If the prosecutor never acquired a legal title to the office, the writ will not be granted; thus, A. was amoved from an office and B. elected in his place; A. having been subsequently restored, the title of B. was vacated, but the office afterwards became vacated by A., and B. without a re-election, applied to be restored, but the writ was refused. (2) The writ will not be granted to a financial officer for life, or quam diu se bene gesserit, who has been suspended, until he has submitted his accounts to the proper officers, and paid over the balance where it is his duty to do so, and it appears from his own showing that he has refused, and been guilty of contumacy and improper conduct. (3) TO RESTORE. Ousted by process of law. Private officer. Non-acquirement of a legal title. Suspension of officer for im proper conduct. sion. A mandamus does not lie to restore a party to an office from which he Just, but irrehas been irregularly suspended, if it appear that there were sufficient gular suspengrounds for his suspension (4); or to restore to an office, where it is confessed that the removal was just, though no notice was given (5); or in favour of an officer who is only temporarily suspended, for the freehold Temporary remains still in him (6); or for an officer holding office durante bene placito. suspension. A mandamus does not lie to a visitor to restore a canon whom he had expelled, or to reverse his own sentence - because, if a visitor be in his jurisdiction, his visitatorial acts are not to be inquired into; if out of it, his acts are void. (7) The writ does not lie to restore a person to a university, against whom a sentence of banishment has been pronounced (8); nor to restore the clerk of a dean and chapter, because he has nothing to do with the public, his office being only to enter leases granted, &c. (9); nor for the registrar of a dean and chapter, unless he have ecclesiastical jurisdiction, (10); nor for a deputy registrar, because it is an office only at will. (11) Holding office durante bene placito. 7. INFERIOR COURTS. The Court of Queen's Bench having a superintendency over all inferior courts and magistrates, may, by the plenitude of its power, correct errors in judicial proceedings, and extra-judicial errors and misdemeanors, tending to the breach of the peace, oppression of the subject, to the raising of faction, controversy, debate, or any manner of misgovernment; so that no retort or injury, whether public or private, can be committed, but what may be reformed and punished according to the due course of law. (12) INFERIOR INFERIOR ECCLESIASTI- IONS AND JUSTICES. COURTS LEET AND BARON. A mandamus will lie to the ecclesiastical courts in matters of a temporal character -- but it will not be granted for a matter of purely ecclesiastical cognisance. (1) the law -- The Court will compel magistrates by mandamus to act in accordance with - in fact, justices will be put in motion in cases where they ought to act. (2) But they will not be commanded to do an act, which may render them liable to an action (3); nor to do that, which may occasion costs for which they have no means of reimbursement. (4) Justices will be directed to hear a complaint, but they will not be directed to adjudicate in any particular manner, as by making an order of removal, or convicting a party of an offence. (5) If a court of competent jurisdiction have entertained a case, and exercised its discretion thereon, the Court of Queen's Bench will not, by mandamus, control the exercise of their discretion, or compel them to rehear the case: thus, if a court of quarter sessions decide that the grounds of an appeal are insufficient to let the appellants into proof of the case set up by them, the Court will not grant a mandamus to the sessions to enter continuances and hear the appeal. (6) A mandamus will not be issued to require justices in sessions to grant a case on any point determined by them, because that is a matter which is purely for their discretion; but if a case have been granted, they may be compelled by mandamus to state it, or to rehear the appeal. (7) Where the sessions quashed an order stating the decision to be not on the merits, a mandamus was refused to compel the justices to hear the appeal, although the Court was of opinion that the judgment was on a point touching the merits, and that it was erroneous. (8) Justices will not be permitted to annex conditions to the performance of their duty which the law does not warrant; and where magistrates refused to issue a distress warrant for levying a poor rate, unless an indemnity were given, they were commanded to do so by mandamus. (9) The writ will be issued to hold a court leet, and the Court will direct that a court leet and a court baron shall be held in the accustomed place, if certain vested rights would otherwise be damnified. (10) On a commission of charitable uses it was agreed between the lord of the manor of A. and the inhabitants of W. within the manor, that certain copyhold lands should be let for the maintenance of a stipendiary curate of the chapel of W., to be nominated by a majority of the inhabitants, and to be allowed by the lord, and by him presented to the ordinary for a licence to preach; the usage of nominating, &c. had been pursuant to the agree ment: the lord having refused to allow and present the nominee of a (1) Stephens on Nisi Prius, 2309, 2310. tit. MANDAMUS. (2) Rex v. Barker, 6 A. & E.388. (3) Rex v. Buckinghamshire (Justices of), 1 B. & C. 485. Rex v. Broderip, 5 ibid. 239. (4) In re Lodge, 2 A. & E. 123. (5) Rex v. Middlesex (Justices of ), 4 B. & A. 298. Exparte British and Foreign Patent Invention Company, 7 Dowl. P. C. 614. (6) Reg. v. Kesteven (Justices of), 13 Law Journ. N. S. Magistrates' Cases, 78. overruling Reg. v. Carnarvonshire (Justices of), 2 Q. B. 325. and Reg. v. West Riding (Justices of), ibid. 331. (7) Rex v. Suffolk (Justices of), 1 Dowl P. C. 163. Exparte Jarvin (Inhabitants of), 9 ibid. 120. (8) Exp. Ackworth, 13 Law Journal, N. S. Magistrates' Cases, 38. Reg. . Pontefract (Inhabitants of ), ibid. 5. (9) Reg. v. Middlesex (Justices of), 12 ibid. 36. (10) Rex v. Grantham ( Corporation ef"}, 2 Black. (Sir W.), 716. Rex v. Colebrooke, 2 Ld. Ken. 163. COURTS. majority of the inhabitants, the latter prayed a mandamus, which the Court INFERIOR refused; for their right is either a mere trust, and then their remedy is in equity, or it is a legal right, and then a quare impedit will lie. (1) TO INSPECT AND PRODUCE 8. TO INSPECT AND PRODUCE RECORDS AND OTHER DOCUMENTS. A mandamus lies to deliver up public documents to the constituted RECORDS AND authorities: thus, the writ will be granted to compel the delivery of records which concern the public administration of justice to a new officer. (2) Any person having a prima facie right to a public office, has a right to inspect every document relating to that title. (3) OTHER DOCU- books. Corporate books are public books; they are common evidence, which Corporate must of necessity be kept in some one's hands, and then each individual possessing a legal interest in them has a right to inspect and to use them as evidence of his rights; but with respect to a mere stranger, unconnected in interest, such books are to be considered as the books of a private individual, and no inspection can be compelled. (4) Thus, in Bristol (Mayor of) v. Visger (5), which was an action for tolls due to a corporation, it appeared that the defendant had acquired the character of a corporator after the cause of action arose, but before trial; when it was held, he had no right to inspect the corporation books, and must still be considered as a foreigner quoad this action. From Barry v. Alexander (6) it appears, that in those cases where the defendant would be entitled to a bill of discovery for the inspection of documents, he will have redress at law by mandamus, without going into equity. A mandamus will be granted to compel a trustee to produce documents Trustees. for the purposes of inspection: thus, in Rex v. Chester (Sheriff of) (7) Chief Justice Abbott said, "The ordinary case, where the Court allows a party to inspect documents in the hands of a third person, is that in which the party called upon is the trustee for the applicant. Those cases are, not where the documents come originally into the trustee's hands for his own benefit, but for the benefit and advantage of the party desiring to see them." But the Court will not, on motion, compel a person, not a party to the suit, to produce a deed for inspection, which he holds as a mere trustee, where the individual praying the inspection is not a party to the deed, though he claims to be interested, and may, by operation of law, be affected by it. (8) A mandamus will lie to inspect deeds in the possession of attornies or Attornies or agents. agents. |