Construction of statutes.] Another difficulty may present itself to the mind of a magistrate, under which statute he is to adjudicate, when there are two inconsistent ones on the same matter before him. The rule is laid down to be, that where there be two affirmative statutes, inconsistent and incompatible with each other, the earlier statute is repealed by the later one (k). Although the title of an act of parliament cannot be made use of to control the express provisions of the act, yet if there be in those provisions anything admitting of a doubt, the title of the act is a matter proper to be considered, in order to assist in the interpretation of the act, and thereby to give to the doubtful language in the body of the act a meaning consistent, rather than at variance, with the clear title of the act (1).

The Common Law is the same both in England and Ireland. Justice declining jurisdiction.] The magistrate being possessed of the charge, it becomes his duty to proceed to the examination of it. If he should decline to do so, it is provided by the 12 Vic. c. 16, s. 5 (m)—

That it shall be lawful for the party requiring such act to be done, to apply to the Court of Queen's Bench upon an affidavit, for a rule calling upon the J.P. and also the party to be affected by such act, to show cause why such act should not be done, and if after due service of such rule, good cause shall not be shewn against it, the court may make the same absolute, with or without costs; and the J.P. upon being served with such rule absolute, shall obey the same, and no action shall be commenced against him for having obeyed such rule.

Object of rule.] This provision was introduced in ease of the magistracy, and to meet the case of those who were unwilling to act for fear of incurring liability to an action. It does not, however, apply to the case where they have not refused to act, but have done what they believe to have been their duty. The object of this section is not to make the Court of Q.B. a court of advice to magistrates in every little matter of doubt (n), but

(k) O'Flaherty v. M'Dowell, 6 H. L. Cas. 142; 4 J. N. S. 33.

(7) Shaw v. Rudden, 9 Ir. C. L. R. 219.

(m) The Justices' Protection Act. (n) R. v. Paynter, 26 L. J. M. C. 102.

it is their duty to decide the case according to their conviction, and leave the dissatisfied party to his appeal (o).

When magistrates exercise a discretion vested in them by act of parliament, the Court of Q. B. in the absence of any allegation of corruption, has no jurisdiction to review or control such discretion, and the court will accordingly refuse a rule where the magistrates have exercised their discretion (p), and done what they believe to be their duty (q). The remedy by rule under 12 V. c. 16, is not simply for the benefit of justices, and confined to cases in which the jurisdiction is doubtful, but extends to all cases in which they refuse to do an act relating to the duties of their office (r); and the power of the court to make an order upon magistrates, pursuant to this statute, is analogous to their jurisdiction in mandamus (s). But the court, before it makes the rule absolute upon the justices, must see reasonable ground for believing that the act which it calls on them to do is lawful (†).

Nature of the writ.] This leads to the consideration of the writ of Mandamus, and where it lies. Mandamus is a command issuing in the Queen's name out of the Court of Queen's Bench, directed to any person or inferior court of judicature, requiring them to do some particular thing therein specified, which appertains to their office or duty (u). It is a high prerogative writ, of a most extensively remedial nature; and issues in all cases where the party hath a right to have anything done, and hath no other

(0) See R. v. Dayman, 26 L. J. M. C. 128.

(p) See R. v. King's Co. Js., 8 Ir. C. L. R. 50; R. v. Dublin Js., 4 Ir. J. N. S. 217; 10 Ir. C. L. R. 80.

(q) Clee v. Osborne, 21 L. J. M. C.

112.

As to the practice on framing the order under this section, see R. v. Kelly, 6 Ir. J. 276; see ex parte Hughes, 1 Ir. L. R. 292.

(r) R. v. Aston, 1 Prac. R. 491. (8) R. v. Bristol Js., 18 Jur. 426; R. v. O'Brien, 5 Ir. J. 132. There must be a substantial point in issue between the parties for the court to act upon. R. v. Gt. Yarmouth Js., 4 N. Sess. Ca. 313. See further on this rule, R. v. Dayman, 7 El. & Bl. 676; R. v. Ingham, 17 Q. B. 884;

R. v. Browne, 13 Q. B. 654; R. v. Oxfordshire Js., 6 D. & L. 288; R. v. Shropshire Js., 3 N. Sess. Ca. 641. As to costs of the rule or mandamus, see R. v. Ingham, 17 Q. B. 884; R. v. Surrey Js., 19 L. J. M. 171; R. v. Charlesworth, 15 Jur. 178; 2 L. M. & P. 117; R. v. Middlesex Js., 15 J. 907; Leamington Priors v. Moultree, 7 D. & L., 311; R. v. Brown, 13 Q. B. 654; see Practice as to making affidavits, R. v. Deverell, 3 El. & Bl. 372; R. 2. Kingswinford, 3 ib. 688; Stokes v. Grissell, 14 C. B. 678.

(t) R. v. Colling, 17 Q. B. 816; R. v Leicester Js., 29, L. J. M. C. 203.

(u) 5 Burn. 47.

specific means of compelling its performance (v). The power of issuing a mandamus is exclusively confined to the Court of Queen's Bench, and is therefore said to be the flower of that court (w), and as no writ of error lies thereon, it must be exercised with great care (x).

Application for.] An application for a mandamus is an application to the discretion of the court; it is a prerogative writ, and is not a writ of right (y). Before making an application for a mandamus, or for a rule calling upon the justices to hear and determine a matter brought before them, care must be taken to distinguish between those cases in which they have declined to enter upon the enquiry, in consequence of a mistaken view of the law as to some preliminary point, and those in which, having entered upon the inquiry, they have actually arrived at a decision, however erroneous it may be. In the former instance, in which they are said to decline jurisdiction, the court will compel them to proceed; in the latter, the court will not interfere, except upon appeal (2). In order to constitute such a declining of jurisdiction as will warrant the interference of the court, the wrong conclusion to which the magistrates have come, in respect of the preliminary matter, must be one of law, and not of fact (a).

Declining jurisdiction.] When the preliminary objection is taken, that the proper parties are not before the court, and if the justices uphold that objection, they do not exercise jurisdiction, but decline it; and Coleridge, J. says, "if the magistrates say that, whatever they think as to the merits, they are not at liberty to give a judgment, because they are unable, for want of right parties or any similar objection, to enter into the question, that

(t) 3 Bla. Com. 110.

(2) Poph. 176.

(x) id.

(y) R. v. Commissioner of Excise, 2 T. R. 385; R. v. Lancashire, 12 East, 336; R. v. Buckinghamshire Js., 1 B. & C. 485; R. v. Broderip, 5 B. & C. 239.

(2) See as to practice, where on the

face of a return to a mandamus the law and facts are mixed. R. v. Corporation of Dublin, 9 Ir. L. R. 65.

(a) Per Patteson J. in R. v. Recorder of Liverpool, 20 L. J. M. C. 35; R. v. Pratt, 7 A. & E. 27; R. v. Singleton, 8 Ir. L. R. 21. Paley on Conv. 4th ed. 65.

is a declining of jurisdiction" (b). Lord Campbell has said (c), "Where justices or others, on a mistaken view of the law, refuse to hear on a point on which jurisdiction depends, we call upon them to go into the enquiry. But when they have heard and determined, we do not review their decision."

No responsibility for obeying mandamus.] No responsibility is now incurred by magistrates for anything done in obedience to a peremptory writ of mandamus (d) or a rule in the nature of a mandamus (e). Alluding to the alteration in the law in this respect, Coleridge, J. observed, "In consequence of the Statute 11 & 12 Vic., c. 44, (which is indentical with the 12 Vic., c. 16, Ir.) by which justices are protected when they act in obedience to the process of this court, the burden is shifted; we may issue our process to the justices, even where the law is not quite clear, and the person to be affected by the act commanded, may try the question by resisting the order of the justices" (f). In a case in which the court considered the question to be too doubtful to be decided upon a rule under the statute, they left the applicants to move for a mandamus (g).

Practice as to issuing.] It is the practice both in England and Ireland, when a serious question has arisen on an application for a mandamus, to allow the writ to go, in the first instance, upon the return to which the court may pronounce a solemn judgment (h).

(b) See R. v. Brown, 7 El. & Bl. 757; R. v. Justices of King's Co., 3 Ir. J. N. S. 294; 8 Ir. C. L. R. 50. See further on this subject the following numerous cases, collected in note to Paley Conv. 66: R. v. Goodrich, 19 L. J. Q. B. 413, overruling R. v. Cumberland Js. 4 A. & E. 695; R. v. Cotton, 15 Q. B. 569; R. v. Blanshard, 13 Q. B. 318; R. v. Recorder of Liverpool, 20 L.J. M. C. 35; R. v. Charlesworth, 2 L. M. & P. 117; R. v. Recorder of Bolton, 18 L. J. M. C. 139; R. v. Js. of Yorkshire, 1 Q. B. 624, 2 Q. B. 331; R. v. Carnarvon Js., 2 Q. B. 325; R. v. Flintshire Js., 2 D. & L. 143; R. v. Aston, 1 L. M. & P. 491; R. v. Js. of Gt. Yarmouth, 4 N. S. Ca. 313; R. v. Js. of Kesteven, 3 Q. B.

810; R. v. Byron, 17 L. J. M. C. 134; re Pratt, 7 A. & E. 27; ex parte British Patent Company, 7 Dowl. 614; Clee v. Osborne 21 L. J. M. C. 112; R. v. Collins, id. 73; R. v. Js. of Worcestershire, 3 El. & Bl. 477; R. v. Overseers of Warblington, 22 L. T. 304; R. v. Bristol Js., 3 El. & Bl. 479 n.

(c) R. v. Goodrich, 19 L. J. Q. B. 413.

(d) 6 & 7 Vic., c. 67, s. 3. (e) 12 Vic., c. 16, s. 5. (f) R. v. Cotton, 15 Q. B. 574. (g) R. v. Brown, 13 Q. B. 654; see Paley on Conv. 57.

(h) R. v. Cork Js., 2 Ir. J. N. S. 431; see R. v. Parish of St. Nicholas, 10 Ir. L. R. 113; R. v. Paving Commissioners, 9 id. 448.

But it seems doubtful if the court will issue a mandamus after a matter is returned, to review the question, or to have it further investigated (i). A mandamus will not be granted unless it is clear that there has been a direct refusal to do that which it is the object of the mandamus to enforce, either in terms, or by circumstances which distinctly shew an intention in the party to withhold from doing the act required (). Upon a sufficient information, properly laid, and where there is no reasonable doubt of their jurisdiction, the magistrates are bound to issue a summons or warrant, and proceed to a hearing; and if they refuse to do so, they will be compelled by rule or mandamus (k). A mandamus will be granted to compel magistrates to hear a second information for the breach of the excise laws, though they have already dismissed one for the same offence upon a technical objection (1). If the magistrate has so far adjudicated as to pronounce an order which has been entered in the order book kept for that purpose, but which he afterwards discovers to be illegal, he should not vouch it by his signature; and in such a case the Court of Queen's Bench refused to compel a magistrate to do so (m). It has also been held that a magistrate is

(i) R. v. Cork, 2 Ir. J. N. S. 431. (See R. v. Brecknock Canal Company, 4 N. & M. 871; R. v. Leicester Js., 4 B. & C. 891; R. v. Trustees of Northleach Roads, B. & Ad. 978; R. v. Frost, 8 A. & E. 822.

(k) R. v. Benn. 6 T. R. 198; 12 Vic., c. 16, s. 5; see Selwood v. Mount, 9 C. & P. 75, where it was doubtful whether the convicting justices had power to issue a warrant of commitment, the Court of Queen's Bench would not grant a mandamus to compel them to do so. R. v. Twyford, 5 Adol. & E. 430; R. v. Ld. Godolphin, 8 A. & E. 338 ; ex parte Fulder, 8 Dowl. 535; re Williams, 9 Q. B. 976. In R. v. Codd, 9 A. & E. 682, a mandamus was granted to compel the issuing of a warrant of commitment upon an order of affiliation.

As to issuing a mandamus to

hear an appeal, see R. v. Staffordshire Js., 12 East, 572.

(7) Commissioners of Excise versus Thompson, 1 Ir. L. R. 5; see practice as to applying to the court to compel a magistrate to receive and take an information, R. v. Gresson, 3 Ir. L. R. 13; and see ex parte Hughes, 1 Ir. L. R. 292; where Burton J. said, "Written informations should be tendered and on applications like the present, these informations should be brought before us, that we may judge of their sufficiency. It is not enough that the substance of them should be stated to the magistrates, but having been reduced to writing and tendered to them, and if they refuse to take them, on coming before us we would, upon due consideration, grant or refuse the motion."

(m) R. v. Creagh, 5 Ir. Jur. 109.