this mean that the plaintiff must have a legal right to recover his demand, as well as an equitable right to the fulfilment of the duty, in other words does this limit the power to those cases in which compensation in damages can be obtained as well as specific performance decreed? Another question will arise whether the duty, in the fulfilment of which the plaintiff is interested, must be in the nature of a private duty, and not partake of the character of a public duty? An action will not lie by mortgagee of turnpike tolls against the trustees, for arrears of interest, although they have money in hand sufficient for the payment of such arrears, the only relation between the parties being that of trustee and cestui que trust, and the remedy being exclusively in a Court of Equity: (Pardoe v. Price, 16 M. & W. 451.) Neither, in such a case, could a mandamus be granted before this statute to compel the trustees to pay the interest: (Reg. v. The Trustees of Balby, &c. Turnpike Road, 22 L. J. 164, Q. B.) A mandamus was, in general, obtainable only where there existed a legal right, and there was no mode of enforcing it except by this prerogative writ: (Ex parte Napier, 21 L. J. 332.) There is a class of cases in which it has been held that persons in the nature of public servants, as government officers, justices of the peace, commissioners of public works, &c. are not liable to actions upon contracts: (Macbeath v. Haldimand, 1 T. R. 172; Allen v. Waldegrave, 8 Taunt. 566; Moffatt v. Dickson, 22 L. J. 265, C. P.; Bogg v. Pearse, 10 C. B. 534; Edwards v. Lowndes, 22 L. J. 104, Q. B.) In these cases, although the parties are engaged in the execution of a public trust, that fact creates a duty, for neglect of which, in Cane v. Chapman, 5 A. & E. 647, an action on the case was held to lie. In the judgment of the Court in Edwards v. Lowndes, it seems to have been assumed that such bodies had a duty to fulfil. The recommendation of the commissioners to give to the Common Law Courts an equitable jurisdiction, was based upon the proposition that every court ought to possess within itself the means of administering complete justice within the scope of its jurisdiction (supra, p. 35); and it was suggested that "the Courts of Common Law, to be able satisfactorily to administer justice, ought to possess in all matters within their jurisdiction the power to give all the redress necessary to protect and vindicate common law rights, and to prevent wrongs, whether existing or likely to happen, unless prevented:" (supra, p. 39.) Bearing this in mind the right construction of this section seems to be Declaration in action for that the power conferred is only supplementary to that already existing in the court, and no original jurisdiction is given by this section, that is to say, unless the plaintiff has a right of action, he cannot have a mandamus to enforce the fulfilment of the duty, if before this act the plaintiff's only remedy was in equity, that is his only remedy now; but if before he had a remedy at law, but on account of its inadequacy a Court of Equity granted further redress, in such a case this section applies. 69. The declaration in such action shall set mandamus. forth sufficient grounds upon which such claim is founded, and shall set forth that the plaintiff is personally interested therein, and that he sustains, or may sustain, damage by the nonperformance of such duty, and that performance thereof has been demanded by him, and refused or neglected. Proceedings upon claim mus. 70. The pleadings and other proceedings in for manda- any action in which a writ of mandamus is claimed shall be the same in all respects, as nearly as may be, and costs shall be recoverable by either party, as in an ordinary action for the recovery of damages. Judgment and execution. Form of peremptory writ. 71. In case judgment shall be given to the plaintiff that a mandamus do issue, it shall be lawful for the court in which such judgment is given, if it shall see fit, besides issuing execution in the ordinary way for the costs and damages, also to issue a peremptory writ of mandamus to the defendant, commanding him forthwith to perform the duty to be enforced. 72. The writ need not recite the declaration or other proceedings, or the matter therein stated, but shall simply command the performance of the duty, and in other respects shall be in the form of an ordinary writ of execution, except that it shall 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, shall be allowed, but time to return it may, upon sufficient grounds, be allowed by the court or a judge, either with or without terms. No doubt the new rules will provide for the service and return, &c., of the mandamus. writ of 73. The writ of mandamus so issued as afore- Effect of said shall have the same force and effect as a mandamus, peremptory writ of mandamus issued out of the and proceedings to enCourt of Queen's Bench, and, in case of disobedience, may be enforced by attachment. The only return that can be made to such a peremptory mandamus is that of obedience, but upon the hearing of the attachment for contempt for disobedience, there is an opportunity for the defendant exculpating himself, and any objection to the validity of the writ may then be taken: (Reg. v. Ledgard, 1 Q. B. 616.) force it. may order the expense fendant. 74. The court may, upon application by the The court plaintiff, besides or instead of proceeding against the act to the disobedient party by attachment, direct that be done at the act required to be done may be done by the of the deplaintiff, 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 a judge may order; and the court may order payment of the amount of such expenses and costs, and enforce payment thereof by execution. The order for the payment will have the effect of a judgment by virtue of the 1 & 2 Vict. c. 110, s. 18, and further, the amount may be levied by execution. The forms of the writs issued by the judges to carry out the provisions of the 1 & 2 Vict. c. 110, seem adequate to the purpose of this section: (see the forms 9 A. & E. 986; 5 Bing. N. C. 366; 4 M. & W. Prerogative writ of mandamus preserved. Proceedings tive writ of mandamus accelerated. 75. Nothing herein contained shall take away the jurisdiction of the Court of Queen's Bench to grant writs of mandamus; nor shall any writ of mandamus issued out of that court be invalid by reason of the right of the prosecutor to proceed by action for mandamus under this act. So that where the Court of Queen's Bench, by virtue of its prerogative power, can grant a writ of mandamus for enforcing a legal obligation, and there is no other mode of enforcing the obligation at law, that is, the court in which the application for a mandamus should be made; and where the Court of Queen's Bench, assuming to act under its prerogative power, grants a mandamus, the writ is not to be invalid by reason of the right of the prosecutor to proceed by action of mandamus under this act (see note to sect. 68.) 76. Upon application by motion for any writ for preroga- of mandamus in the Court of Queen's Bench, the rule may in all cases be absolute in the first instance, if the court shall think fit; and the writ may bear teste on the day of its issuing, and may be made returnable forthwith, whether in term or in vacation, but time may be allowed to return it, by the court or a judge, either with or without terms. Proceedings on preroga mandamus. That is the prerogative writ of mandamus, and not the mandamus given by sect. 68 of this act. 77. The provisions of the "Common Law Protive writ of cedure Act, 1852," and of this act, so far as they are applicable, shall apply to the pleadings and proceedings upon a prerogative writ of mandamus issued by the Court of Queen's Bench. Specific delivery of chattels. 78. The court or a judge shall have power, if they or he see fit so to do, upon the application of the plaintiff in any action for the detention of any chattel, to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed, and that if the said chattel cannot be found, and unless the court or a judge should otherwise order, the sheriff shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick, till the defendant render such chattel, or, at the option of the plaintiff, that he cause to be made of the defendant's goods the assessed value of such chattel; provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant's goods the damages, costs, and interest in such action. The action of detinue was the only remedy at law for the recovery of a personal chattel in specie, except in those cases where the party could obtain possession, by replevying the same, and by action of replevin. The Common Law Procedure Act (15 & 16 Vict. c. 76) gave the following form of declaration in an action for the wrongful detention of property: "that the defendant detained from the plaintiff his title deeds of land in the county, &c., and the plaintiff claims a return of the said goods or their value, and £ for their detention." This section would seem not to apply in case of trover or trespass. The power is given to the court or a judge; it is not confined to the judge at the trial, but he is the proper party to whom application should in general be made; the election as to the goods or their value is not required to be made at the trial. writ of injunction. 79. In all cases of breach of contract or other claim of injury, where the party injured is entitled to maintain and has brought an action, he may, in like case and manner as hereinbefore provided with respect to mandamus, claim a writ of injunction against the repetition or continuance of such breach of contract or other injury, or the committal of any breach of contract or injury of a like kind, arising out of the same contract, or relating to the same property or right; and he may also in the same action, include a claim for damages or other redress. See Common Law Commissioners' Report, supra, p. 43, for |