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gineering and other similar works. We now turn to another class of cases. We have seen, in a former part of this work (t), that the statutes provide that railway companies shall, in certain cases, issue a warrant to the sheriff, requiring him to summon a jury to assess the compensation due to persons who have claims in respect of damage caused by the execution of the railway works. If the company should make default in issuing such a warrant, when duly required so to do, the writ of mandamus is the suitable remedy (u). So, if the sheriff, or other officer who holds the inquisition, refuses to allow the inquiry to proceed, upon the ground that the applicant is not entitled to compensation, mandamus will lie to compel the due execution of the precept (x). So, if the presiding officer refuses to allow costs to a party entitled to receive them, a mandamus will be awarded requiring the costs to be allowed (y).
It was also the practice (z) to enforce the payment of compensation money awarded by a jury, by resorting to a writ of mandamus (a); but, in a late case, Corrigal v. The London and Blackwall Railway Co. (b), the Court of Common Pleas decided, that an action of debt may be brought on an inquisition and verdict, and that remedy must now be resorted to in such cases; and, accordingly, in a subsequent
(t) Ante, 160, 294.
(u) See numerous instances in the collection of compensation cases, ante, 191 to 259. As to when the cause of complaint arises, see Thicknesse v. The Lancaster Canal Co., 4 M. & W. 472; ante, 236.
(x) Walker v. The London and Blackwall Railway Co., 3 Q. B. 744; ante, 193. But if a statute does not allow the removal of proceedings by certiorari, (see ante, 306), the Court will not indirectly bring them under review by mandamus: Rex v. The Justices of the West Riding of York,
1 A. & E. 563.
(y) Rex v. The Justices of the City of York, 1 A. & E. 828; ante, 255; Rex v. Gardner, 6 A. & E. 112; ante, 256; Reg. v. The Sheriff of Warwickshire, 2 Railway Cases, 661; ante, 258.
(z) See ante, 324.
(a) Rex v. The Nottingham Old
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case, where a statute, empowering the Hull and Selby Railway Company to build a bridge over the Ouse, recited that the building of such bridge might diminish the tolls received at a neighbouring bridge belonging to another company, and enacted, that, if there should be an annual decrease in the tolls of the last-mentioned bridge, the railway company should forthwith pay the bridge company a sum equal to ten years' purchase of such annual decrease; and the compensation was claimed: it was decided, that debt lay against the company for the amount; and that a mandamus to pay was not a more effectual remedy, and, therefore, ought not to be granted (c).
Where a sum of money was awarded to a creditor by an arbitrator, a mandamus lies to compel the company to pay the amount found to be due, where it appeared that, by the statute incorporating the company, the creditor was unable to issue execution against the individuals who formed the company, or against their effects (d). But if a statute directs that costs shall be taxed and levied in the manner pointed out, it will be premature to apply for a mandamus before the costs are taxed, and an attempt made to levy them in the prescribed manner (e). So, where a company was incorporated, with power to make calls, and to sue and be sued in the name of their treasurer, or any director, and an action was brought against the trea surer, and judgment entered up against the company, who appeared to have no assets, a mandamus was refused to compel the company to pay the amount recovered by the judgment, upon the ground, that, as the plaintiff had entered his judgment, not against the public officer, but against the company, he was in a situation to enforce the ordinary
(c) Reg. v. The Hull and Selby Railway Co., 6 Q. B. 70; and see ante, 324.
(d) Rexv.The St. Catherine's Dock Co., 4 B. & Ad. 360; Corpe v. Glyn,
3 B. & Ad. 801. And see 6 Q. B. 76, note (d).
(e) Reg. v. The London and Blackwall Railway Co., 15 Law J., Q. B., 42.
legal remedy of an execution against the goods of the company. It was also decided, that the Court would not order a mandamus to go, merely because, under the circumstances, the execution might produce no fruits (ƒ). And, in this case, the Court intimated a very strong opinion, that a mandamus would lie to compel the company to proceed to enforce the payment of calls, if it were shewn that judgments recovered against the company were unsatisfied for want of assets. On this important point of the case, Lord Denman, C. J., said: "We might, perhaps, if the facts had warranted us, have made the rule absolute on them for the latter part, the making a call on the shareholders. For this is not the case of an ordinary corporation possessing or supposed actually to possess corporate property, and with which individuals contract on the faith of such present possession; but a corporation with a power of creating a future corporate property, from time to time, out of the private assets of its individual members, and with which contracts are made on the faith that an honest exercise will be made of such power, when necessary. If, therefore, it were clearly establised that they were evading the payment of their debts, and the due satisfaction of judgments recovered against them, on the ground that they had no corporate assets actually in possession, we should not, perhaps, go beyond the principle which regulates our extraordinary interposition by mandamus, if we compelled them to exercise that power with which the legislature has trusted them for this very purpose, and to put themselves in funds to answer the demands of their creditors. We think it right to state thus much, to guard against a misconstruction of our present judgment, and wishing to leave the Court entirely unfettered, should such a case as we have supposed be brought before us. But, in the case now under consideration, it was distinctly admitted
(ƒ) Reg. v. The Victoria Park Co., 1 Q. B. 288. See also the remarks made on this case, ante, 128.
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by the counsel for the rule, that a mandamus to make calls was unnecessary, because they had already been made to a sufficient extent; and it also appeared, that practical difficulties might arise from the present state of the corporation, in attempting to obey a mandamus so couched."
But the Court will not, in any case, grant a mandamus to enforce the general law of the land, which may be enforced by action (g). Thus, in a case where a railway company were common carriers, and therefore liable to carry all goods if they had room and means (h), a mandamus was refused to compel them to convey goods, although they had agreed with certain persons to carry their goods to the exclusion of all others (i); it appearing that there was no clause in their act of incorporation which required them to carry all goods offered for conveyance. And it has been said, that the Court will never grant a writ of mandamus except for public purposes, and to compel the performance of public duties. On this ground, a mandamus was refused to compel the Governor and Company of the Bank of England, at the instance of one of its members, to produce their half-yearly accounts, for the purpose of declaring a dividend (j); and, in like manner, the writ was refused to require a private trading company, acting under a royal charter, to permit a transfer of stock to be made in
(g) But if part of an injury for which a party seeks compensation has been done under the authority of a statute, the proper remedy for that part is by mandamus, and not by action at law. Reg. v. The North Midland Railway Co., 2 Railway Cases, 1; ante, 195. See also Elwell v. The Birmingham Canal Company, 6 Law Times, 434.
(h) See ante, 458.
(i) Ex parte Robins, 7 Dowl, P. C., 566.
(j) Rex v. The Bank of England, 2 B. & Cr. 620. In Rex v. The Master and Wardens of the Merchant Tailors' Co., 2 B. & Ad. 115, an application made by members of a corporate body for a mandamus to inspect the documents of the corporation was refused, it not being shewn that such inspection was necessary, with reference to some specific dispute or question depending on which the applicants were interested.
their books (k). Some of the modern cases already cited, in which the writ has been granted (), seem to break in upon the two last-mentioned decisions, and it appears that the remedy by mandamus is now more extensively applied than it was formerly.
Lastly, it may be observed, that writs of mandamus must be applied for within a reasonable time after the injury has been sustained (m). But, in some cases, where compensation is claimed, it is necessary to wait until all the damage has been sustained, and then a jury may assess compensation for the whole (n).
(k) Rex v. The London Assurance Co., 5 B. & Ald. 899.
(And see Rex v. The Worcester Canal Co., 1 Man. & Ry. 529; ante, 126, n. (o).
(m) Rex v. The Stainforth and Keadby Canal Co., 1 M. & S. 32; Rex v. The Commissioners of Cockermouth Inclosure Act, 1 B. & Ad. 378;
Reg. v. The Leeds and Liverpool Ca-
(n) Ex parte Parkes, 9 Dowl., P.
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