MANDAMUS.

60. Application for a prerogative writ of mandamus shall, during the sittings, be made to a Divisional Court of the Queen's Bench Division by motion for an order nisi; and in the vacation to a judge in chambers for a summons to show cause, upon its being shown to the satisfaction of such judge that the matter is urgent. Provided that this Rule shall not apply to any application for a writ of mandamus under 45 & 46 Vict. c. 50, s. 225.

61. Notice shall be given by the order nisi for a mandamus to every person who by the affidavits on which the order is moved shall appear to be interested in or likely to be affected by the proceedings, and to any person who in the opinion of the Court or judge ought to have such notice.

62. The order nisi shall be served upon each person to whom notice is given by the order, as well as the party whom the order requires to show cause.

63. Any person, whether he has had notice or not, who can make it appear to the Court or judge that he is affected by the proceeding for a writ of mandamus may show cause against the order nisi or summons, and shall be liable to costs in the discretion of the Court or a judge if the order should be made absolute, or the prosecutor obtain judgment.

64. The order absolute for a mandamus need not be served, but the cost of service of the order absolute may be allowed in the discretion of the taxing officer, where the writ is not issued.

65. If the writ of mandamus is directed to one person only the original must be personally served upon such person, but if the writ be directed to more than one, the original shall be shown to each one at the time of service, and a copy served on all but one, and the original delivered to such one.

66. When a writ of mandamus is directed to companies, corporations, justices, or public bodies, service shall be made upon such and so many persons as are competent to do the act required to be done, the original being delivered to one of such persons, except where by statute service on the clerk or some other officer is made sufficient service.

67. The Court or a judge may, if they or he shall think fit, order that any writ of mandamus shall be peremptory in the first instance.

68. Every writ of mandamus shall bear date on the day when it is issued, and shall be tested in the name of the Lord Chief Justice of England. The writ may be made returnable forthwith, or time may be allowed to return it, either with or without terms, as the Court thinks fit. A writ of mandamus shall

be in the Form in the Appendix No. 37 (a), with such variations as circumstances may require.

69. Any person by law compellable to make any return to a writ of mandamus shall make his return to the first writ.

70. Where a point of law is raised in answer to a return or any other pleading in mandamus, and there is no issue of fact to be decided, the Court shall, on the argument of the point of law, give judgment for the successful party, without any motion for judgment being made or required.

71. Where under Rules 70 and 136 the applicant obtains judgment, he shall be entitled forthwith to a peremptory writ of mandamus to enforce the command contained in the original writ, and the judgment shall direct that a peremptory writ do issue.

72. No action or proceeding shall be commenced or prosecuted against any person in respect of anything done in obedience to a writ of mandamus issued by the Supreme Court or any judge thereof.

73. When it appears to the Court that the respondent claims no right or interest in the subject matter of the application, or that his functions are merely ministerial, the return to the writ, and all subsequent proceedings down to judgment shall still be made and proceed in the name of the person to whom the writ is directed, and if the Court thinks fit so to order, may be expressed to be made on behalf of the persons really interested therein. In that case the persons interested shall be permitted to frame the return and conduct the subsequent proceedings at their own expense; and if judgment is given for or against the applicant it shall likewise be given for or against the persons on whose behalf the return is expressed to be made: and if judgment is given for them, they shall have the same remedies for enforcing it as the person to whom the writ is directed would have in other cases.

74. Where, under the last preceding Rule, the return to a writ of mandamus is expressed to be made on behalf of some person other than the person to whom the writ is directed, the proceedings on the writ shall not abate by reason of the death, resignation, or removal from office of that person, but they may be continued and carried on in his name; and if a peremptory writ is awarded, it shall be directed to the successor in office or right of that person.

76. Nor order for the issuing of any writ of mandamus shall be granted, unless at the time of moving an affidavit be produced by which some person shall depose upon oath that such motion is made at his instance as prosecutor, and if the writ be granted

(a) Post, p. 582.

the name of such person shall be endorsed on the writ as the person at whose instance it is granted.

77. Every application for the costs of a mandamus shall, unless the Court or a judge shall otherwise order, be made before the fifth day of the sittings next after that in which the right to make such application accrued, and shall be upon notice of motion to be served eight days before the day named therein for moving.

78. The party moving for costs shall leave at the Crown Office Department a notice for the production in Court of all the affidavits filed in support of, and in opposition to, the original order.

79. Every application for a writ of mandamus to justices to enter continuances and hear an appeal shall be made within two calendar months after the first day of the sessions at which the refusal to hear took place, unless further time be allowed by the Court or a judge, or unless special circumstances appear by affidavit to account for the delay to the satisfaction of the Court.

ORDERS IN THE NATURE OF MANDAMUS.

80. An application for an order in the nature of a mandamus, to justices, or to a county court judge, or to justices to state and sign a case, shall be by motion for an order nisi (in the same manner as is provided in Rule 60).

PROHIBITION.

81. An application for a writ of prohibition on the Crown side shall be made by motion to a Divisional Court for an order nisi in all criminal causes or matters; and in civil proceedings on the Crown side by motion for an order nisi or by summons before a judge at chambers.

82. The order may be made absolute ex parte in the first instance on special circumstances being shown, in the discretion of the Court or judge.

HABEAS CORPUS.

A.-Ad subjiciendum.

235. An application for a writ of habeas corpus ad subjiciendum may be made to the Court or a judge.

236. If made to the Court the application shall be by motion for an order, which if the Court so direct may be made absolute ex parte for the writ to issue in the first instance; or if the Court so direct they may grant an order nisi.

237. If made to a judge he may order the writ to issue ex parte in the first instance or may direct a summons for the writ to issue.

238. Provided that no application for a writ of habeas corpus on a warrant of extradition shall be made to a judge at chambers, during the sittings.

239. The writ of habeas corpus shall be served personally, if possible, upon the party to whom it is directed; or if not possible, or if the writ be directed to a gaoler or other public official, by leaving it with a servant or agent of the person confining or restraining, at the place where the prisoner is confined or restrained, and if the writ be directed to more than one person, the original delivered to or left with such principal person, and copies served or left on each of the other persons in the same manner as the writ.

240. If a writ of habeas corpus be disobeyed by the person to whom it is directed, application may be made to the Court on an affidavit of service and disobedience for an attachment for contempt. In vacation an application may be made to a judge in chambers, for a warrant for the apprehension of the person in contempt to be brought before him, or some other judge, to be bound over to appear in Court at the next ensuing sittings, to answer for his contempt, or to be committed to the Queen's prison for want of bail.

241. The return to the writ of habeas corpus shall contain a copy of all the causes of the prisoner's detainer endorsed on the writ, or on a separate schedule annexed to it.

242. The return may be amended or another substituted for it by leave of the Court or a judge.

243. When a return to the writ of habeas corpus is made, the return shall first be read, and motion then made for discharging or remanding the prisoner, or amending or quashing the return.

244. On the argument of an order nisi for a writ of habeas corpus the Court may in its discretion direct an order to be drawn up for the prisoner's discharge, instead of waiting for the return of the writ, which order shall be a sufficient warrant to any gaoler or constable or other person for his discharge.

245. Upon the argument before the Court on the return of a writ of habeas corpus the party in whose favour judgment is given shall forthwith draw up an order in accordance with the decision of the Court at the Crown Office, and the writ, and return, and affidavits, shall be filed there. When the order has been made by a judge at chambers, the writ, and return, with the affidavits and a copy of the judge's order, shall be forthwith transmitted to the Crown Office to be filed.

THE SUMMARY JURISDICTION RULE, 1891.

The forms in the schedule hereto (b), or forms to the like effect, may be used with such variations as circumstances may require for the purposes of the Reformatory Schools Act, 1866, the Industrial Schools Act, 1866, the Industrial Schools Act Amendment Act, 1880, and the Elementary Education Act, 1876, and this rule may be cited as the Summary Jurisdiction Rule, 1891.

(b) Post, p. 589.