the record, and it must be obeyed accordingly, or the return will be bad (Dalt. c. 195, p. 475). When the record is required the certiorari is obeyed by transmitting the record itself formally made up, and not a mere transcript or copy of it, to the Court into which the writ is made returnable (Palmer v. Forsyth, 4 B. & C. 401). In a return to a certiorari removing a conviction the information or complaint should be returned. with the conviction; but the evidence on which the conviction was founded need not be returned; but if it is, it becomes part of the record before the Court. The Court will then consider its sufficiency, and if satisfied that it is insufficient to sustain the conviction, the conviction will be quashed [R. v. Rowan MacNaughton, 9 Ir. L. R. 93; Overseers of Walsall v. L. & N.W. R. Co., 4 A. C. 30; Kydd v. Liverpool Watch Committee (1907), 2 K.B. 591].

A want of jurisdiction should not appear upon the face of the return. A summary conviction made by two justices out of Petty Sessions, was quashed because it did not appear, on the return to a writ of certiorari to remove the conviction, that the prosecutor was in fact unable to give bail for his appearance at Petty Sessions (R. v. Dublin Justices, 13 Ir. C. L. R. 375). The conviction to be returned should, strictly speaking, be written on parchment.

When to be filed.-The instruments to be returned should be enclosed with the writ and certificate, made as above mentioned, and together remitted to the Crown Office in the King's Bench Division, where they are filed.

False return. If a false return be made the Court will not, unless in public cases, stay the filing of it on affidavits of its falsehood; but the persons making it will, according to the circumstances, be liable to an action at the suit of the party aggrieved or to a criminal information (R. v. Bolton, 1 Q.B. 66).

Affidavits. In the argument on a certiorari and return the Court will not refer to affidavits (R. v. Hamilton, 6 Ir. Jur., N.S., 154), but on an argument as to whether the certiorari should issue, they will (R. v. Bolton, 1 Q.B. 66).

Counsel.-In the argument on a certiorari and return junior counsel should be retained, but counsel may arrange among themselves who shall argue the case, and in what order (R. v. Hamilton and another, 6 Ir. Jur., N.S., 154).

Confirmed or quashed after death. If the party who sued out the certiorari die after the return and before the argument, the Court will nevertheless proceed, and confirm or quash the conviction (R. v. Roberts, 2 Stra. 937).

Procedendo. The writ of certiorari, if it has been issued where it would not lie, or if it be misdirected or otherwise bad in point of law, may be superseded by the Court, and a procedendo awarded (Woodcraft v. Kinaston, 2 Atk. 318). A procedendo cannot be moved for while the certiorari is on the file of the Court (R. v. Clace, 2 Burr. 2455). The operation of the writ is to remove the suspension created by the

certiorari, so that cause may be proceeded with in the Court below. If the Court below state in their return to the certiorari circumstances from which the Court judge that the writ ought not to have issued, a procedendo will be awarded.

When a conviction has been removed into the King's Bench, and affirmed, whether after an appeal or otherwise, the penalty, if not already paid, must be levied by process from the King's Bench (R. v. Pullen, 1 Salkeld, p. 369).

Practice. The writ must be signed at the Crown Office on the affirmance of the conviction, or on filing the previous writ of execution with the return thereto, as the case may be, and must be sealed. But where the Act of Parliament, on which a conviction which had been brought up by certiorari and affirmed, gave the convicting justices a discretionary power to imprison the offender for a limited period, in case of there being no sufficient distress to levy the penalty, the Court of King's Bench, after a return of nulla bona had been made, held that they had no power to exercise the discretion (which the convicting justices would have) as to the term of imprisonment, and sent back the conviction by procedendo, in order that the justices might cause it to be enforced (R. v. Neville, 2 B. & Ad. 200).

CHAPTER XIII.

MANDAMUS.

MANDAMUS is a command issuing in the King's name out of the King's Bench Division, directed to any person, corporation, or inferior Court of judicature, requiring them to do some particular thing therein specified which appertains to their office or duty. It is a high prerogative writ of a most extensively remedial nature, and issues in all cases where the party has a right to have anything done, and has no other specific means of compelling its performance (3 Black. Comm., p. 110).

The duties of magistrates in taking cognisance of matters are sometimes discretionary, sometimes imperative.

Discretionary.-Many are the definitions of "discretion." Lord Mansfield said it means "sound discretion guided by law" (R. v. Wilkes, 4 Burr. 2539).

Imperative. In most cases a magistrate is called on imperatively to act. Generally where a statute directs the doing of the thing for the sake of justice, or the public good, the word "may" is the same as "shall," and it is imperative on the magistrate to proceed. In each case one must look to the provisions of the Act and its subject matter (Nicholl v. Allen, 1 B. & S., 928) or to the whole scope of the statute (Liverpool Borough Bank v. Turner, 2 De G. F. & J. 507).

The question of the purport of such words as "it shall be lawful " in a statute, must be solved aliunde, and in general it is to be solved from the context, from the particular provisions, or from the general scope and objects of the enactment (per Lord Selborne, C., Julius v. Bishop of Oxford, 5 App. Cas. 235).

A Rule (12 Vict. c. 16, s. 5) and a mandamus may be applied for at the same time. So, as we have seen, may a certiorari and a mandamus.

Vict. c. 16, s. 5.

Justices refusing to act.-Formerly, if justices refused to act, the only A "Rule," 12 method of compelling them to do so was by obtaining a writ of mandamus; but by 12 Vict. c. 16, s. 5, it is provided that in all cases where a justice shall refuse to do any act relating to the duties of his office as such justice, it shall be lawful for the party requiring such act to be done to apply to the Court of King's Bench, upon an affidavit of the facts, for a rule calling upon the justice, 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 shown against it, the Court may make the same absolute, with or without costs; and the justice, 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 magis

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tracy, and to meet the case of those who were unwilling to act through fear of incurring liability to an action. It does not extend the jurisdiction of the Court, or enable the Court to grant a rule where before it could not issue a mandamus. It does no more than give a cheaper and more summary remedy than the writ of mandamus. The granting of a rule under this statute lies in the discretion of the Court, and the powers of the Court to grant it is analogous to their jurisdiction in mandamus. The remedy by rule under this statute is not simply for the benefit of the justices, or confined to cases in which their jurisdiction is doubtful, but extends to all cases in which they refuse to do an act relating to the duties of their office.

It does not, however, apply to the case where they have not refused to act, but have done what they believed to be their duty. The King's Bench Division will only require the justices to hear and determine. When magistrates exercised a jurisdiction vested in them by statute, the King's Bench Division, in the absence of any allegation of corruption, has no jurisdiction to review or control such discretion, and the Court will refuse a rule where justices have exercised their jurisdiction, and done what they considered right (R. v. Dublin JJ., 10 Ir. C. L. R. 80). Justices must have exercised their discretion reasonably and not capriciously (R. v. Boteler, 4 B. & S. 959). Justices will not be allowed to annex conditions to the performance of their duty. Where they refused to issue a distress warrant for levying a poor-rate unless an indemnity were given them, and where they directed the warrant not to be executed for three months, the Court compelled them to act and issue the warrant (R. v. Middlesex JJ., 12 L. J. M. C. 35). The Court before making the rule absolute must see reasonable grounds for believing that the act which it calls upon the justices to do is lawful (R. v. Byrom, 12 Q.B. 321). There must be a substantial point in issue between the parties for the Court to act upon (R. v. Great Yarmouth JJ., 4 New Sess. Cas. 313). An order bad in part may be enforced as to the good part, if on the face of the order the two parts are clearly separable, and it is not necessary in such a case to quash the bad part of the order before enforcing the residue (R. v. Green, 20 L. J. M. C. 168).

Application. An application for a mandamus is an application to the discretion of the Court; it is a prerogative writ, not a writ of right. The Court may refuse to grant the writ, not only upon the merits, but upon some delay or other matter personal to the party applying for it. In this, the Court exercises a discretion which cannot be questioned (R. v. Littledale, 10 L. R. I. 78; on appeal 12 L. R. I. 97). Before making an application for a mandamus, or for a rule, care must be taken between two classes of cases

(1) In which the justices have declined to enter on the inquiry in consequence of a mistaken view of the law as to some preliminary point;

(2) Where, having entered on the inquiry, they have actually arrived at a decision, however erroneous it be (R. v. Goodrich, 19 L. J. Q.B. 413). In the first class the Court will compel them to proceed. "If persons exercising an inferior jurisdiction, on a mistaken view of law, refuse to hear a case, they erroneously decline to exercise their jurisdiction, and

this Court will compel them by mandamus to hear and decide it." (Lord Blackburn, in R. v. Mayor of Monmouth, L. R. 5 Q.B. 256).

Declining jurisdiction.-When a preliminary objection is taken, that the proper parties are not before the Court, and the justices, through a mistaken view of the law, allow that objection, then they refuse to act, and so decline jurisdiction; 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 is declining of jurisdiction" (R. v. Brown, 7 El. & Bl. 757).

In the second class Lord Campbell has said: "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 inquiry. But when they have heard and determined, we do not review their decision" (R. v. Goodrich, 19 L. J. Q.B. 413).

Justices are bound to issue a distress warrant against Poor Law Guardians and Town Commissioners who have been surcharged by the auditor of accounts, and have not appealed against it, on summons and proof of so much as is required by the statute in these respective cases; and if they refuse to do so they decline jurisdiction, and may be compelled by mandamus or rule to issue the warrant (R. v. Roscommon JJ., 12 L. R. I. 331).

INSTANCES WHERE MANDAMUS IS NOT Granted.

No responsibility for obeying mandamus.-No responsibility is now incurred by magistrates for anything done in obedience to a peremptory writ of mandamus, or a rule in the nature of a mandamus. In R. v. Brown, 13 Q.B. 654, Coleridge, J., said: "In consequence of the statute, 11 & 12 Vict. c. 44 [which is identical with 12 Vict. c. 16 (Ireland)], 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 when the law is not quite clear, and the person, if unaffected by the act commanded, may try the question by resisting the order of the justices."

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 show an intention in the party to withhold from doing the act required (R. v. Dublin JJ., 12 L. R. I. 178).

A mandamus will not be granted where a magistrate has so far adjudicated as to pronounce an order which has been entered in the Order Book, but which he afterwards discovers to be illegal. In such a case he should not vouch it by his signature (R. v. Creagh, 5 Ir. Jur., O.S., 109).

Nor to compel a magistrate to issue a warrant of distress for a rate when he entertains any reasonable doubt as to its validity (R. v. Middlesex JJ., 2 A. & E. 606).

Nor to compel magistrates to produce informations, when the affidavit to ground the application neither states the object nor the

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