ment given thereon, any party to the record who thinks himself aggrieved by the judgment may sue out a writ of error to reverse it, and proceedings thereon are to be taken, and costs awarded, as in ordinary cases of writs of error upon judgments. Provision is made for the issue of a peremptory writ of mandamus in case of the reversal of the judgment of the court below; and it is declared that no action shall be prosecuted against any person for anything done in obedience to a peremptory writ of mandamus.

1515 Damages and costs.—Wherever a party traversing a return obtains a verdict, he is now, since the passing of the 1 Wm. 4, c. 21, s. 3 (ante, p. 1284), entitled to some damages and costs; and if, at the trial of any issue raised on a traverse of any material allegation contained in the return, the jury omit to find damages, the judge who tried the cause may order, from his recollection, the verdict to be entered on the postea for nominal damages, to enable the successful party to recover his costs(t).

The costs for the application for the writ, independently of the trial of issues of fact raised by traverse or the return, etc., are regulated by the 1 Wm. 4, c. 21, s 6, which enacts, that in all cases of application for a writ of mandamus, the costs of the application, whether the writ shall be granted or refused, and also the costs of the writ, if the same shall be issued and obeyed, shall be in the discretion of the court; and the court is authorized to order and direct by whom and to whom the same shall be paid.

1516 Judgment non obstante veredicto.-Where the issues raised are altogether upon immaterial points, and the return is virtually and substantially a good return, the court will give judgment for the defendant, notwithstanding the finding of the jury on those immaterial issues for the plaintiff(u).

1517 Action or information for a false return.-Actions for a false return are maintainable by the party injured or aggrieved thereby(x), unless damages have been recovered by him, under the statute of Anne, against the person making the return, upon a traverse of the facts contained therein, and an issue thereupon raised under the statute (ante, p. 1283). The action must be brought against the party or parties who caused the return to be made(y). It is not maintainable

(t) Reg. v. Fall, 1 Q. B. 636. As to costs in error, see supra.

(u) Reg. v. Darlington School Governors, 6 Q. B. 719.

(x) Green v. Pope, 1 Ld. Raym. 125. Vaughan v. Lewis, Carth. 227.

(y) Rex v. Ripon (Mayor of ), 1 Ld. Raym. 564.

against one who voted against the false return, and was consequently no party to it(z).

If the matter of the return concerns the public government, and no particular person is so concerned or interested as to be aggrieved or injured thereby, an information may be filed against the particular persons joining in and making the false return(a). 1518 Attachment for disobedience of peremptory writ of mandamus.-Objec tions to the validity of a peremptory writ of mandamus may be taken on a motion for an attachment, and it may be shown that the writ either commands the defendant to do more than he is bound to do, or that he is enjoined to do it in some particular mode, where the law gives him an option or discretion in the mode of performance. But no return will be permitted to a peremptory writ of mandamus other than a certificate of perfect obedience and due execution of the writ(b).

SECTION II.

OF THE CLAIM TO A WRIT OF MANDAMUS IN AN ACTION AT COMMON LAW.

1519 Of the union of an action in respect of a private injury with an applica

tion for a mandamus.-By the Common Law Procedure Act, 17 & 18 Vict. c. 125, it is enacted (s. 68), that the plaintiff, in any action in any of the superior courts, except replevin and ejectment, may indorse upon the writ and copy to be served a notice that the plaintiff intends to claim a writ of mandamus, and the plaintiff may thereupon claim in the declaration, either together with any other demands which may now be enforced in any such action, or separately (c), a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested. The declaration in such action (s. 69), is to set forth sufficient grounds upon which such claim is founded, and that the plaintiff is personally interested therein, and that he sustains, or may sustain, damage by the non-performance of such duty, and that performance thereof has been demanded by him, and refused or neglected. The pleadings and other proceed

(2) R. v. Pilkington, Carth. 172.

(a) Surgeons' Company's case, 1 Salk. 374. Rex v. Abingdon (Mayor of), 2 Salk. 431. (b) Reg. v. Ledgard, 1 Q. B. 616.

(c) See Fotherby v. Metrop. Rail. Co., post, p. 1289.

ings in any action in which a writ of mandamus is claimed (s. 70) are to be the same, as nearly as may be, and costs are to be recoverable by either party, as in an ordinary action for the recovery of damages. In case judgment is given for the plaintiff, that a mandamus do issue, the court in which such judgment is given may (s. 71), if it shall see fit, besides issuing execution in the ordinary way for the costs and damages, also issue a peremptory writ of mandamus to the defendant, commanding him forthwith to perform the duty to be enforced. The writ need not recite (s. 72), the declaration or other proceedings, or the matter therein stated, but may simply command the performance of the duty, and may, in other respects, be in the form of an ordinary writ of execution, except that it must be directed to the party, and not to the sheriff, and may be issued in term or vacation, and returnable forthwith; and no return thereto, except that of compliance, is to be allowed; but time to return it may, upon sufficient grounds, be allowed by the court or a judge, either with or without terms. An action for a mandamus may be maintained separately, i.e., without the commencement of another action, and it lies whenever a public duty, in the fulfilment of which the plaintiff is interested, is created by statute, whether the plaintiff has sustained damage or not(d).

The writ of mandamus so issued is to have (s. 73) the same force and effect as a peremptory writ of mandamus issued out of the Court of Queen's Bench, and, in case of disobedience, may be enforced by attachment. The court may (s. 74), upon application by the plaintiff, instead of proceeding against the disobedient party by attachment, direct that the act required to be done may be done by the plaintiff, or some other person appointed by the court, at the expense of the defendant; and, upon the act being done, the amount of such expense may be ascertained by the court, either by writ of inquiry or reference to a master, as the court or judge may order; and the court may order payment of the amount of such expenses and costs, and enforce payment thereof by execution.

We have seen that the prerogative writ of mandamus is never granted for the enforcement of a mere private duty, where there is a clear cause of action, and compensation in damages would be an effectual remedy (ante, p. 1264). And the same rule has been held to apply to the action of mandamus; and that where the duty to be performed is nothing more than the ordinary duty springing out of a contract in respect of which an action for damages is the appropriate

(d) Fotherby v. Metrop. Rail. Co., L. R., 2 C. P. 188.

remedy, the action for a mandamus does not lie. A mandamus, therefore, cannot be claimed to make a debtor pay a mere private debt, in respect of which the ordinary remedy by action is available(e). 1520 Actions in which a claim for a mandamus may be sustained.—Wherever, by charter or Act of Parliament, a duty is imposed upon a corporate body or chartered company, in the fulfilment of which the plaintiff is interested, and in respect of the non-fulfilment of which the plaintiff is entitled to maintain an action for damages, he may in the same action claim a mandamus for the fulfilment of the duty(ƒ). Thus where the plaintiff, in an action for a mandamus against a trading company, set forth the incorporation of the company by letters patent, directing amongst other things that the capital of the company should be divided into shares, and provision made for the registration of the names of all the proprietors of such shares; and showed that a register of shareholders had been established, in conformity with the provisions of the charter; and that the plaintiff was entitled, as the executor of a deceased shareholder, to have his name inserted in such register; averring that he was personally interested, etc., and had sustained damage, and had made a demand on the company to have his name entered, and that they had refused, etc., it was held on demurrer that the plaintiff was entitled to the writ; for wherever there is a duty in the fulfilment of which the plaintiff is personally interested, and which ought to be fulfilled under royal charter, the non-performance being a grievance to an individual, that is a case for an action for a mandamus(g). It is a case also, as we have seen, where a prerogative writ would be granted independently of the statute(h).

So, where the plaintiff having set forth that the defendants were a joint-stock company, duly incorporated under the Joint-Stock Companies Act, and that the plaintiff was duly entered on the register of shareholders as a holder and proprietor of certain shares, numbered, etc., and that the defendants removed his name from the register, and refused, after demand, to restore it, etc., and claimed damages and a mandamus, is was held that the claim was properly made(i).

(e) Bush v. Beavan, 32 Law J., Exch. 54; 1 H. & C. 500. Benson v. Paul, 6 Ell. & Bl. 273; 25 Law J., Q. B. 274.

(f) See Morgan v. Metrop. Rail. Co., L. R., 3 C. P. 553.

(g) Ld. Campbell, Norris v. Ir. Land Co., 8 Ell. & Bl. 512; 27 Law J., Q. B. 116. But a company is not bound to register a transfer not in accordance with the statutable form. Reg. v. Gen. Cem. Co., 6 Ell & Bl. 415; 25 Law J., Q. B. 342. Copeland v. North-East Rail. Co, 6 Ell. & Bl. 277.

(h) Ante, pp. 1273, 1274.

(i) Swan v. Brit. Austr. Co., 7 II. & N. 604; 2 H. & C. 175. Ward v. South-East. Rail. Co., 99 Law J., Q. B. 177.

Where the plaintiff, in his declaration against the clerk of a local board of health, set forth that certain improvement commissioners, appointed under a loca] Act, contracted to pay him a certain sum for certain services towards carrying into effect the purposes of the Act; that the services were rendered, but the commissioners neglected to pay, and that afterwards, by virtue of another Act of Parliament, the duties of the commissioners were transferred to the local board of health; and it was enacted that all debts payable by the commissioners should be satisfied by the local board out of rates they were authorized to levy; and the declaration went on to show that the debt remained unpaid; that the plaintiffs were personally interested in the levying a rate for payment thereof; that they had demanded and been refused payment and a rate, and sustained damage; and they then claimed a mandamus; and the cause went to trial, and the damages were assessed, it was held that the plaintiff was entitled to the mandamus claimed. "The provisions of the Common Law Procedure Act," observes Hill, J., "now enable a plaintiff, in an action in which he might recover judgment, but could not have execution, and would have had to apply for a mandamus, to combine a claim for a mandamus with his action, so that if he succeeds, a mandamus issues as part of the judgment. In such a case, I think the amount of the debt for which the mandamus is ultimately to issue may be ascertained in the action"(k).

Commissioners, or the members of a local board, appointed annually for executing the powers of a local Act of Parliament, are generally a fluctuating body in the nature of a corporation, represented by their clerk, who is the party, as we have seen, to be sued for services rendered them for purposes within the scope of the Act(). But for the statute, the commissioners who retain, or order the services to be rendered by, the plaintiff would be personally liable; but as they are acting for public purposes under statutory authority, with power over a public fund created by the statute, they are generally expressly exempted from personal liability, and the burthen of satisfying and discharging the debts they incur in the execution of the purposes of the Act is thrown upon the fund they are authorized to administer. An action to enforce payment of these debts must, as we have seen, be brought against them in the name of their clerk, and when judgment is obtained against the clerk, the public fund, or the rates, are to be

(k) Ward v. Lowndes, 1 Ell. & Ell. 940; 28 Law J., Q. B. 265; 23 ib. 40.

(1) Ante, p. 917. Bush v. Martin, 33 Law J., Exch. 17.