Tewithend other title and the rule (will thereupon be moved to be-made absolute in the usual way; 3rdly. As in these cases there is no special case stated, the iCourt confirms the order, &c., or quashes it, accordding as it is good or bad on the face of it; and, therefore, there is never in these cases any case to be 9 sent back to the sessions to be re-stated. shur od

It only remains to be observed, that the proceedrings of other Courts, such as the Commissioners of Sewers, &c, when removeable by certiorari, are reSomoveable in the same way; except that where it is 9 necessary to enter into recognizance, the amount, &c. wis fixed by other statutes than that above referred b to, or is settled by the Court or the judge on whose fiats the certiorari is issued. In other respects the I practice is similar to what has been stated. The 94rule for a certiorari to remove presentments from -dcourts of sewers may either be absolute in the first Tinstance, or a rule to show cause, as the Court may think proper. b. assalt

Wherever the subject-matter of any order, or other proceeding removeable by certiorari, which - has been made by, or taken place before the justices Toeither in or out of sessions, or any other inferior Court, was within the jurisdiction of the Court, the merits of the case can never be entered into by the Court of Queen's Bench on affidavit; for where the inferior jurisdiction had power to decide, the superior Court will never enter into the propriety or impropriety of that decision in any other manner than by looking at the face of the order or other proceeding itself. But it will sometimes happen that the Court, or jurisdiction by which the order, &c. was made, had in fact no jurisdiction to enter into the subject at all, and that therefore the proceeding was coram non judice, and this want of jurisdiction may not appear upon the face of the order or proceeding. In such a case it would be manifestly improper in the Court not to receive affidavits; because in this case (and herein it differs

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the

9 from the other) sho competent tribunal has ever exercised its judgment on the subject-matter of the 9 order,&c. In this case, therefore, the legality or -fillegality of the order must be determined by eviIdence laid before the Court on affidavit; and such affidavits vass are intended to be used should usually be made before moving for the certiorari, and the Imotion for that writ should be made upon these toaffidavits. On this motion the Court will either grant a rule absolute for the certiorari in the first instance, or a rule to show cause, but generally the latter; and when the certiorari is obtained, and the border or other proceedings removed, a rule to show cause why the order, &c. should not be quashed will be obtained, either upon the affidavits filed on moving for the certiorari, or upon other and stronger mones, if it be found in the mean time that the case Je can be strengthened; the other side will then obstain office copies of the affidavits, and answer them; and the case is set down in the crown paper, 10 and comes on for argument like any other. It only remains to be observed, that all affidavits used before 29 the certiorari is obtained and returned must be enTo titled, "In the Queen's Bench," and with no other 9ftitle ego After the certiorari is returned all affidavits 9dmust be entitled:

བལྟ་

TodioHere A. B" represents, and is to be substituted

by the name or names of the party or parties obtaining and prosecuting the certiorari; that is, the party 19or parties against whom the order or proceeding is made, and who seek to get rid of it.

CHAPTER V.

MANDAMUS.

Nature and Object of the Writ of Mandamus-In what Cases it may be obtained-Motion for Leave to issue it-Must be grounded on a Refusal by the Party moved against to do what is required-Showing Cause against Rule-How Motion disposed of Issuing and service of the Writ-As to Necessity for obeying it-In what Cases an Excuse returned-Returning Mandamus where Writ obeyed-How to proceed to return it where not obeyed-Prosecutor's Proceedings on Return coming in-Effect of a Return which is sufficient and also true-How to proceed where Return insufficient-Peremptory Mandamus-Modes of proceeding for a False Return-Action on the Case-Plea to or Traverse of the Return -Damages-Costs of Action and Proceedings on Traverse of or Plea to Return-Peremptory Mandamus after Judgment-How to compel Return to Mandamus-As to Proceedings in case of Adverse Claims-As to Applications for Costs of Motions for and Writ of Mandamus under stat. 1 W. IV. c. 21, s. 6.

A WRIT of mandamus is the proper proceeding in those cases where there is a legal right, but no specific legal remedy. It issues in the name of the Queen from the Court of Queen's Bench, and is directed to any person, corporation, or inferior Court of judicature in England or Wales, commanding some particular thing specified in the writ to be done, and which it is suggested to the Court the party to whom the writ is directed is legally bound to do. It is the want of a specific legal remedy which gives the Court jurisdiction to issue this writ, and, therefore, where the same object can be clearly and certainly attained by means of any other legal proceeding, the Court will not issue this writ.

It is beyond the object of the present work to give any enumeration of the cases in which the writ of mandamus has been, or may be obtained; it will be sufficient to state, generally, that it lies to compel the admission of a party to an office, where he is wrongfully refused admission, to restore a party to an office from which he has been wrongfully ousted, to compel corporate and other bodies to proceed to elections when they are legally bound to do so, to compel inferior Courts and justices of the peace to proceed in due course of law, either by giving judgment or doing any other legal act; but in the former case, though the Court will compel judgment to be given, it will never direct it to be given in any particular manner for it is the duty of the inferior Court or justice to exercise its or his own judgment on the subject. This writ also lies to compel justices and others to appoint officers, such as overseers, surveyors of the highways, &c., and to the lord of a manor to compel admission to a copyhold, but these must only be considered as instances to illustrate the general proposition, that a mandamus lies where there is a legal right without a specific legal remedy; for this writ is of very extensive application, and our business is, at present, with the practice relating to it rather than with the law.

Where it is determined to apply for a writ of mandamus, a motion grounded on affidavits must be made to the Court of Queen's Bench for leave to issue it, and a rule is granted, if a proper case be laid before the Court, calling on the party to whom it is proposed to direct the writ to show cause why it should not issue; this rule he has an opportunity of showing cause against, and if it clearly appear that there is no ground for the writ the rule will be discharged, otherwise it will in general be made absolute.

Before making the motion, however, there is one thing to be especially attended to; and that is, that however clear the applicant's right to have the thing

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done which he asks for mandamus to enforce the doing of, the Court will not give leave to issue the unless

that the applicant has required the party he applies against to do the thing, and that that party has refused to do it, or, at least, has disregarded repeated or demands in such a way, and for such a time

the applicant Ppears clearly upon the affidavits

f

though he may have evaded an express refusal, his conduct tis tantamount to such refusal; where therefore, a mandamus is to be applied for, this must be borne in mind, and the case not left defective in this respect. (See Rex v. Brecon and Abergavenny Canal Company, 3 Ad. & Ellis, 217; also Rex v. Wilts and Berks Canal Company, 3 Ad. & Ellis, 477.)

The affidavits to ground the motion must state the facts fully, to show the Court that the party has a right to the performance of the act he seeks to enforce,” and that its performance has been refused. They must be entitled simply "In the Queen's Bench," and are subject to the same rules as other affidavits, When made they must be sent to the agent, who must be requested to make the necessary application, which he will do, and a rule nisi is obtained and served, and an affidavit of service sent as in other cases. The party against whom the application is made will obtain copies of the affidavits on which the rule is granted through the agent; and affidavits in answer, entitled as before, be sent up, in order that cause may be shownnst the rule. When the motion comes on, the rule will either be discharged without costs, or with costs, or it will be made absolute in its terms, or the Court may modify those terms, if necessary, and grant a less extensive mandamus than is asked for by the rule.

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When a rule for a mandamus is made absolute, the applicant's agent obtains from the Crown Officer the writ of mandamus and an office copy of it, both of which he sends into the country for service; in this case the service is made differently from other cases, for here the original writ of mandamus is des