TO INSPECT AND CORDS AND MENTS. Deeds deposited as a security. Parochial documents. Court rolls of a manor. Motion must be supported by affidavits. Where certain books of the plaintiff had come into the defendant's pos session as his agent, and the plaintiff was desirous of inspecting them, the Court ordered the defendant to allow an inspection, but would not order him to deliver them up. (1) If one part of a deed be executed by the plaintiff alone, but remains in the possession of the defendant's attorney, the Court of Common Pleas will order the latter to give an inspection and copy of it to the plaintiff, and the affidavit for such inspection need not set out the plaintiff's cause of action. (2) The Court will not, however, exercise its authority over an attorney or agent to give an inspection of documents in his custody, if the documents have not come into his hands by virtue of his professional character. (3) And if a deed of assignment be deposited in the hands of A. as a security for money lent, he is not bound to produce it on an application by the assignor in an action between the latter and a third person. (4) Parochial documents are for some purposes considered as public, and persons interested in them have a right to inspect and take copies of such parts as relate to their interest. (5) Where a party applies for a mandamus to compel churchwardens to allow him to inspect their accounts according to the directions of stat. 17 Geo. 2. c. 38., he must state some special reason for which he wishes to see the accounts. It is no answer to the application, that the statute imposes a penalty upon the churchwardens improperly refusing the inspection. (6) But a parishioner has no right to inspect parish books, for the purpose gaining information which may be useful to him, with a view to support his claim to an estate in the parish. (7) The court rolls of a manor are kept in the custody of the lord or his steward, not for the use of the lord alone, but as the common evidence of the manorial rights; to which evidence all the tenants of the manor, whether copyhold or freehold, have an undoubted right of access, as well in actions between the tenants and the lord, as between the tenants themselves: but the privilege of inspecting the court rolls and books of a manor is confined to the tenants of the manor. (8) But a mandamus will not lie to the lord and steward of a manor to inspect court rolls for the purpose of supporting an indictment against the lord for not repairing a road within the manor (9); nor to decide a question of boundaries in an action of trespass by a stranger against the lord (10); nor to allow the inspection of the records of a court leet, unless the party assigns some satisfactory reason for the inspection. (11) The motion for a rule to inspect and have copies must be supported by affidavits detailing the circumstances on which the claim is founded, and (1) Jones v. Palmer, 4 Dowl. P. C. 446. (4) Schlencker v. Moxsy, 1 C. & P. 178. (5) Warriner v. Giles, 2 Str. 954. (7) Rex v. Smallpiece, 2 Chitt. 288. v. Hemet, 2 Black. (Sir W.), 1061. Addington v. Clode, ibid. 1030. Hobson v. Parker, Barnes, 237. 2 Phillips on Evidence, 182. 9 ed. (9) Rex v. Cadogan (Earl of), 5 B & A. 902. (10) Smith. Davies, 1 Wils. 104. (11) Rex v. Maidstone (Mayer of }, 6 D & R. 334. AND PRODUCE showing that an application has been made to the proper officer for the To INSPECT same purpose, and that he has refused to comply with it. RECORDS AND MENTS. The rule requires that the expense attending obedience to the writ shall OTHER DOCUbe borne by the person who obtains it, and also allows the officer a remuneration for his trouble. If the officer disobey the rule to allow an inspection, and give copies of, Disobedience or to produce corporate documents, the Court will grant an attachment to the rule. against him; but not if he swear he neither has them in his custody, nor knows in whose possession they are; nor if there be a fair doubt whether the books fall within the terms of the rule. (1) 9. NOTICE FOR, RULE FOR, ISSUING AND SERVICE OF THE Writ. NOTICE FOR, RULE FOR, As a general principle, no notice of an application for a mandamus is requisite, except it be the demand to do the act in question. The writ can be moved for by counsel any day during term. The application for the writ should be made within a reasonable time When applicaafter the commission of the act complained of: and promptly after the demand and refusal to do the act required. If an act be required by statute to be done so many days at least before a given event, the time must be reckoned, excluding both the day of the act and that of the event. (2) The motion for a mandamus to examine witnesses on an information for offences in India, must be made within the first four full days after plea pleaded. (3) An application for a mandamus to justices to enter continuances and hear an appeal should be made in the term following the sessions at which the refusal was made, unless under special circumstances, which should be stated in the affidavits, to account for the delay. (4) A mandamus to proceed to an election upon judgment of ouster, cannot be moved for, till judgment be actually signed. (5) There is no absolute rule upon the subject — but in every case of application for a mandamus, any considerable delay in making the application after the refusal to do the act required, should be properly accounted for. (6) Where a canal company had been in possession of land for fourteen years, the Court refused a mandamus to compel them to summon a jury to assess compensation. (7) Where eleven or twelve years had elapsed since the making of an allotment under an inclosure act, the Court refused to entertain an application for a mandamus to set out an occupation road to the allotments. (8) (1) Rex v. John, 8 Mod. 134. (2) Reg. v. Shropshire (Justices of), 8 A. & E. 173. (3) Stephens on Nisi Prius, 2318. tit. MANDAMUS. (4) Reg. v. West Riding of Yorkshire (Justices of), 2 Q. B. 506. Reg. v. Ellis, 2 D. &D. P. C. 361. (5) Rez V. ), 3 Burr. 1386. West Looe (Corporation (6) Reg. v. West Riding of Yorkshire (Justices of), 2 Q. B. 506, in not. Rex v. Lancashire (Justices of), 12 East, 366. (7) Rex v. Stainforth, &c. Canal Company, 1 M. & S. 32. Reg. v. Leeds and Liverpool Canal Company, 11 A. & E. 316. (8) Rex v. Cockermouth Inclosure, 1 B. & Ad. 378. UUS tion for writ should be made. Application for the writ should not be delayed. NOTICE FOR, No particular form of an affi davit. Where the application is founded upon documents. Restoration to office. Eleemosynary rights. Defective affidavits. Respecting the affidavits, they should be entitled in the Queen's Bench only, without any cause; if made in the country, they must be described as having been sworn before a commissioner of the Court of Queen's Bench. (1) There is no particular form of an affidavit for a rule nisi for a mandamus; the affidavit should contain a precise substance of facts, and such facts should make up a complete case, and show a title to the writ. It should appear from the affidavits that a default has been committed (2), and that the applicant had applied to the defendants to do that which he requires the Court to command the performance of, and their refusal or neglect (3); it must also appear, that the applicant is entitled to the relief he prays (4), and that he has complied with all the forms necessary to constitute his right. (5) Where the application is founded upon any document, a copy of such document verified by affidavit must be obtained, or the substance of it must be sufficiently set out in the body of the affidavit. It may, perhaps, be collected from the cases, that where the obligation or duty to do the act in question, depends upon the document, as in the case of a charter or of a conviction, a copy of it should be produced: but where the document is only used to define the nature of the act to be done, it will be sufficient to set out enough to show it to be such an act, as is required to be done. It is, however, expedient in all cases to furnish a complete copy of any document, unless it be of great length. (6) In applications for admissions or restorations to offices, it is necessary distinctly to show the nature of the office in question, so that the Court may be enabled to see that it is an office for which a mandamus will lie; the name of the office merely, will in many cases be insufficient for this purpose. (7) In applications concerning eleemosynary rights, the constitution of the corporation must be shown either by a copy of the charter verified by affidavit, or in the case of prescriptive corporations, by setting out in the affidavit the constitution of the corporation, or so much of it as may be necessary to show the right of the party claiming. (8) If a rule nisi for a mandamus be discharged on account of a defect in the affidavits, the writ will not be afterwards granted on amended affidavits, unless the defect be merely in the title or grant; and there is no difference in this respect, whether the application be made in a public or private capacity. (9) (2) Bull. N. P. 199. (a). (4) Rex v. Oxford (Bishop of), 7 East, (5) Stephens on Nisi Prius, 2218, 2319. tit. MANDAMUS. (6) Crosby v. Fortescue, 5 Dowl P. C. 273. Bull. N. P. 200. Rer v. Simms, 4 Dowl. P. C. 294. (7) Eight Men of Ashburn Court ( Case of the), 2 Mod. 316. (8) Vintner's Company (Case of), Bull. N. P. 200. In cases of municipal corporations within stat. 5 & 6 Gul. 4. e. 75. this is usually done by stating that the borough is one of those mentioned in schedule (A) or (B) annexed to that act; and then proceeding to state the constitution of the borough in respect of the office in question according to that act or the acts amend ing it. (9) Reg. v. Pickles, 3 Q B. 599. in not. RULE FOR, ISSUING AND Counsel must be instructed to move upon the affidavits for a rule calling NOTICE For, upon the party required to do the act to show cause why a mandamus should not issue directed to him or them commanding them to do such act, or for a rule absolute, as the case may require. Generally a rule to show cause why the writ should not issue is granted in the first instance, but sometimes a rule absolute is granted at once, and in some particular cases of urgent necessity, a peremptory mandamus may be granted on the first application. (1) THE WRIT. nisi. A rule nisi having been granted, it is to be drawn up at the Crown Office, Service of rule and a copy served on the parties called on by the rule to show cause, as directed by the rule: it is not necessary that the service be personal. The party showing cause must take an office copy of the rule, and the Showing Cause. affidavits on which it was moved, and if further time be required to prepare the affidavits for showing cause, a motion may be made to enlarge the rule upon a short affidavit, entitled as the rule nisi, stating when the rule was served, and that the necessary affidavits cannot be obtained by the time named in the rule; and such application will never be denied except where the circumstances are of a very special character. Any affidavits used after the granting of the rule nisi, may or may not be entitled The Queen v. The Party moved against, but it is not usual so to entitle them before the rule is made absolute; after the rule is absolute, any affidavits used in any subsequent stage of the proceedings must be entitled in the cause. The rule nisi may be made absolute or discharged with or without costs. Costs. If discharged, upon hearing counsel on both sides, without costs, it need not be served; if discharged with costs, a rule must be drawn up at the Crown Office, and an appointment obtained to tax the costs there, and then served upon the attorney of the party ordered to pay costs, and the costs will thereupon be taxed. By a rule of Easter Term, 1843 (May 11.), "It is ordered, that in every case in which the Court shall grant a rule for the payment of costs incurred by the application for any writ of mandamus, or the proceedings thereon, or to compel any person not a party to an original rule, to pay the costs of such original rule, such rule for costs shall be drawn up on reading all the affidavits filed in support of, and in opposition to the original rule." The rule absolute for the mandamus must be drawn up at the Crown Rule absolute. Office, but need not be served; the attorney may then draw and engross the writ, or instruct counsel to settle it. Great care should be taken in drawing the writ, as an objection to it for want of form, or for any defect, may be made at any time. The writ must correspond with the rule, with respect to the act to be Direction of done, and to the parties to whom it is to be directed; if it exceed the writ. terms of the rule, it will be liable to be quashed. (2) It is at the peril of the applicant to direct the writ to the proper party; the Court will not specify the party to whom it should be directed; nor is (1) Reg. v. For, 2 Q. B. 246. Reg. v. St. Andrew, Holborn (Governors and Directors of the Poor of), 7 A. & E. 281. Rer v. Fisher, Sayer, 160. Erparte Foundling Hos- (2) Rex v. Water Eaton (Mayor of), 2 NOTICE FOR, ISSUING AND it the practice of the Court to grant cross or concurrent writs without special reasons. (1) If the writ be directed to one person only, the original must be personally served upon such person; but if the writ be directed to several persons, a copy must be first served on all but one, showing the original to each at the time of service, and the original delivered to such one. When the writ is directed to companies, corporations, justices, &c., a quorum should be served, that is, as many as are competent to do the act required to be done, unless by some statutory enactment, service on the clerk or secretary, or some other officer, be made sufficient service. The writ should be personally served if practicable, but if a personal service cannot be effected, the best possible service should be made. 10. THE RETUrn. By stat. 9 Anne, c. 20. s. 1., a return is to be made to the first writ; but if necessary, and upon sufficient grounds, the Court may grant a rule to enlarge the return. The same certainty is required in a return to a mandamus, as in an indictment or return to writs of habeas corpus. (2) If a return be certain to a certain intent, in general it will be sufficient, and it is not requisite to negative the right claimed in the writ, if it be admitted subject to a qualification. (3) Nothing will be intended in a return to a mandamus, and if every part of a return be not good, yet, if it state a sufficient reason to justify the party making it, that will be an answer. (4) A return is good if it pursue the suggestion of the writ (5), and several matters, if consistent with each other, may be returned to the same writ (6); but if some be bad, the Court may admit those that are valid, and reject the invalid. But the return must not be argumentative (7), and if it contain two inconsistent causes it will be quashed. (8) In fact, the general principle is, not to presume anything, either for or against the return. (9) It cannot be returned to a mandamus for restoring a person to an office, that he is not eligible. (10) It will be bad, in a return to a mandamus to elect an officer to state, that the "candidates had an equal number of votes," because, “if there be an equality of votes, and therefore they cannot choose, upon mandamus they must agree, or else they shall be all brought up as in contempt." (11) To a mandamus to admit A. B. into the office of churchwarden, reciting (1) Reg. v. Wigan (Corporation of), 2 Burr. 782. (2) Rex v. Lyme Regis (Mayor of), 1 Doug. 157. (3) Rex v. Dublin (Mayor of), Batty, (4) Reg. v. Lane, 2 Ld. Raym. 1304. |