the production of affidavits in support of the ground of the motion, in which case, if the motion prevails, a rule to show cause why the writ should not issue, or an alternative mandamus issues upon the ex parte hearing, and the definitive hearing is had upon the return of the rule, or the return to the alternative writ.

3. The more common practice in the American courts (which often hold but one or two short sessions annually in a county, and where, by consequence, such formal proceedings would be attended with embarrassing delays) is, by formal petition, alleging in detail the grounds of the application, which is served upon the opposite party, and all parties supposed to have an interest in the questions involved, a sufficient time before the term to give an opportunity for taking the testimony upon notice; and, upon the return of the petition, the case is heard upon its general merits; and in either form, if the application prevails, a peremptory mandamus issues, the only proper return to which is a certificate of compliance with its requisitions, without further excuse or delay.6

• Hodges on Railways, 640, 641, 642, 643, 644. It is first indispensable to demand of the party, against whom the application is to be made, to perform the duty, and the party must, it would seem, be made aware of the purpose of the demand. The King v. Wilts & Berks Canal Navigation, 3 Ad. & Ellis, 477; The King v. Brecknock & Abergavenny Canal Navigation, 3 Ad. & Ellis, 217. People v. Romert, 18 Cal. R. 89. The refusal must be of the thing demanded, and not of the right merely. The King v. Northleach & Witney Roads, 5 Barn. & Ad. 978. The refusal must be direct and unqualified, but may be made as effectual, by silence as by words or acts, but the party should understand that he is expected to perform the required duty, upon pain of the legal redress being resorted to, without further delay. The Queen v. Norwich & Brandon Railw., 4 Railw. C. 112; The Queen v. Bristol & Exeter Railw., 4 Q. B. 162. But this should be taken, as a preliminary question, according to the English practice. Queen v. Eastern Counties Railw., 10 Ad. & Ellis, 531. But in Commonwealth v. Commissioners, 37 Penn. St. 237, a demand was held unnecessary in the case of public officers neglecting to do their duty.

Conditions precedent must be shown to have been performed.

But the mere requisition of an act of Parliament that parties claiming damages, by reason of a railway company's works, shall enter into a bond to prosecute their complaint and pay their proportion of the costs, before the company should be obliged to issue their warrant to summon a jury, and if not so done, the company might give notice, requiring the same to be done before commenc

*4. The general rule of the English courts seems to be, that if the first application is denied on account of defects in the affidavits, not to permit a second application to be made; and the rule extends to other writs, resting in the discretion of the court.7

ing the inquiry, was held not to be a condition precedent, unless required by the company. The Queen v. The North Union Railw., 1 Railw. C. 729.

And where an umpire failed to make an award, it was held the company might be compelled, by mandamus, to issue a warrant for the sheriff to assess the compensation, and no formal demand was necessary. Hodges on Railways, 642, and note; South Yorkshire & Goole Railw., in re 18 Law Jour. (Q. B.) 53. A return stating an excuse for non-compliance with a peremptory writ of mandamus, is not admissible. Regina v. Ledgard et als. Mayor, &c. of Poole, 1 Q. B. 616. Application by the prosecutor for leave to withdraw his plea and argue the case on the return refused. R. v. Mayor of York, 3 Q. B. 550; Strong, Petitioner, &c., 20 Pick. 484.

It is the practice for different persons, in the same or similar situation, to unite in the same application for a mandamus, and it is said but one writ can issue in such a case. Rex v. Montacute, 1 Wm. Black. 60; Rex v. Kingston, 1 Strange, 578 (note 1); Scott v. Morgan, 8 Dowl. P. C. 328. But it seems to be considered that where the rights are distinct and wholly independent, one writ will not be awarded, but several, and therefore the application should be several. Reg. . Chester, 5 Mod. 11; The case of Andover, 2 Salk. 433; Smith v. Erb. 4 Gill (Md.), 437; State v. Chester & Evesham, 5 Halst. 292. And the petitioner for a mandamus must set forth clearly his interest in the matter which he presents as the ground of his application. Fleming, ex parte, 2 Wallace (U. S.), 759.

But several connected matters, which are not repugnant, may be included, by of defence, in the return. Reg. v. Norwich, 2 Salk. 436; Wright v. Fawcett, 4 Burrow, 2041; Rex v. Churchwardens of Taunton, 1 Cowp. 413.

way

Upon a mandamus to restore a corporate officer to his functions, the return should specify the grounds of the amotion. Commonwealth v. The Guardians of the Poor of Philadelphia, 6 Serg. & Rawle, 469, unless the officer were removable upon the mere motion of the corporation. Rex v. Guardians of Thame, 1 Strange, 115. It is not a sufficient reason for setting aside a peremptory mandamus that a previous alternative writ had not issued. Knox County v. Aspinwall, 24 How. (U. S.) 376.

7 Queen v. Manchester & Leeds Railw., 8 Ad. & Ell. 413. And the same rule obtains where the first writ is denied because no sufficient demand had been made, and a subsequent demand is made. Ex parte Thompson, 6 Q. B. 721. But it is apprehended no such rule of practice could be enforced in this country and very few, we think, would regard it as desirable. It seems to be relaxing in England, where the alteration of the affidavits is mere form. Regina v. The G.› W. Railw., 5 Q. B. 597, 601; Regina v. The East Lancashire Railw., 9 Q. B.

*5. But the late Common-law Procedure Acts in England, 1852, 1854, apply to this class of writs, and have essentially simplified the proceedings, and rendered them more conformable to reason and justice than in some of the American courts even,8 the rule for the issuing of the alternative writ being now, in all cases, made absolute in the first instance, and the whole hearing had, upon the return, which in our practice is still further simplified, by admitting the party to make answer to the petition, alleging the grounds of his refusal, which are tried at once.9 980. And in Reg. v. Derbyshire, S. & W. Railw., 26 Eng. L. & Eq. 101, the writ was amended, as to the name of the company. Reg. v. Eastern Counties Railw., 2 Railw. C. 836, amendment allowed. Regina v. Justices of Warwickshire, 5 Dowl. 382; Reg. v. Jones, 8 Dowl. 307; Shaw v. Perkins, 1 Dowl. (N. s.) 306; Reg. v. Pickles, 3 Q. B. 599, n. State v. Hastings, 10 Wisc. R. 518, 525. 9 And by 23 and 24 Victoria, Ch. 126, § 32, costs are to be allowed against the defendant where an absolute writ is granted unless otherwise specially directed by the courts.

• Walter v. Belding, 24 Vt. R. 658; Rogers, ex parte, 7 Cowen, 526. In the American states the statute of 9 Anne, allowing the prosecutor to traverse the return to the writ or the answer to the petition, and for the court to determine the truth, either upon affidavit or by the verdict of a jury in their discretion, has been pretty extensively adopted, either in practice or by statute. The People v. Beebe, 1 Barb. Sup. Ct. 379; The People v. The Commissioners of Hudson, 6 Wend. 559; Smith v. Commonwealth, 41 Penn. St. 335.

Where the case is fully heard upon the petition or rule to show cause, and there is no dispute in regard to the facts, the court will not delay, for the issuing of the alternative writ and the return thereto, but will in the first instance issue the peremptory mandamus. Ex parte Jennings, 6 Cow. 518; The People v. Throop, 12 Wend. 183. The rule for the peremptory mandamus is sometimes, in the first instance, made nisi, to allow the respondents to consult, if they will comply with the requirements of the judgment. Walter v. Belding, 24 Vt. R. 658. Or sometimes this is done to allow the parties to arrange the matter, or the court to consider the case. Rex v. Tappenden, 3 East, 186.

The court have such control over their own judgments, that, if a peremptory writ of mandamus be unfairly obtained, it will be set aside upon motion. The People v. Everett, 1 Caines, 8.

Courts enforce compliance with the peremptory writ by attachment, as also a return to the alternative writ, without requiring the issue of an alias and pluries, as in the early English practice. The cases are not altogether agreed, whether defects in the writ are cured by admissions in the return, but upon general principles of pleading it would seem they are. The King v. Coopers of Newcastleupon-Tyne, 7 T. R. 548. But see Reg. v. Hopkins, 1 Q. B. 161. But where an alternative mandamus is issued, and the defendants make their return, and the relators, instead of demurring, take issue upon the material allegations in

6. If falsehood is alleged in the return to the alternative mandamus, it was the practice at common law to drive the party to his action for a false return. But by statute in England, and generally by practice in this country, the question is tried in the court issuing the writ, and the remedy there applied, damages and costs being given in the discretion of the court, and execution enforced.

*

7. Costs in all the proceedings for mandamus rest in the discretion of the court, unless controlled by statute. By the English practice it is common to award costs where the application is denied, but not always where it prevails.10 The more general and the more equitable rule in regard to costs, in proceedings where the court have a discretion, in that respect, is to allow costs to the prevailing party, unless there is some special reason for denying them.11

the return, they thereby admit that, upon its face, the return is a sufficient answer to the case made, by the alternative writ. And if no material fact is disproved upon the trial, the defendants will be entitled to a verdict in their favor. The People ex rel. Kipp v. Finger, 24 Barb. 341. The return should set forth an available justification for defendant's refusal to do the act sought to be enforced, and it may allege different independent facts as furnishing such justifi

cation.

10

Reg. v. Mayor of Bridgenorth, 10 Ad. & Ell. 66; Reg. v. The Eastern Counties Railw., 2 Q. B. 578, 579, and cases cited by counsel. Reg. v. East Anglian Railw., 22 Eng. L. & Eq. 274. 1 Wm. 4, c. 21, § 6, makes costs discretionary with the courts, in England. 23 and 24 Victoria, c. 126, § 132. Regina v. St. Saviour, 7 Ad. & Ell. 925. See Regina v. Brighton & South Coast Railw., 10 Law T. N. S. 496.

11 Reg. v. Thames & Isis Commissioners, 8 Ad. & Ell. 901, 905; 5 Ad. & Ell. 804; Reg. v. Fall, 1 Q. B. 636; Reg. v. Justices of Middlesex, 6 Eng. L. & Eq. 267, unless strong reasons for denying costs exist; 1 Q. B. 751.

Where the prosecutor omitted to proceed with a mandamus after a return had been made, the Court of Queen's Bench compelled him to elect either to proceed or pay the costs. Reg. v. Mayor of Dartmouth, 2 Dowl. (N. s.) 980. If the quo warranto, mandamus, or other like writ, is procured by the real party in interest, who is able to pay costs, to be prosecuted by some one, not able to pay costs, the Court of Queen's Bench will grant a rule, requiring the real party to pay costs. Reg. v. Greene, 4 Q. B. 646. See also a general rule, adopted immediately after the decision of the last case, Easter Term, 1843, requiring a formal rule, for payment of costs in mandamus, to be drawn up immediately on reading all the affidavits on both sides, 4 Q. B. 653. The rule for costs is decided upon the reading only of the affidavits, with reference to which the rule

8. Service of such process, and indeed of all process, by summons, in England, is by delivering the original where there is but one person summoned, and where there are more than one, by showing the original, and delivering a copy to each defendant but* one, and the original left with such one. But service by copy of a writ of mandamus was held sufficient.12

9. By the latest English statutes upon the subject of mandamus,13 any party requiring any order, in the nature of specific performance, may commence his action in any of the superior courts of common law in Westminster Hall, except in replevin and ejectment, and may indorse upon the writ and copy to be served, that the plaintiff intends to claim a writ of mandamus, and the plaintiff may thereupon claim in the declaration, either together with any other demand which may now be enforced in such action, or separately, a writ of mandamus, commanding the defendant to fulfil any duty, in the fulfilment of which the plaintiff is personally interested. And if a mandamus is awarded, it may issue peremptorily in the first instance, in aid of the execution, for damages and costs. The form of the writ is very brief, and compliance with its requisition is to be enforced by attachment. The prerogative writ is still retained, but its use, and also that of decrees for specific performance in equity, seem to be pretty effectually superseded by these provisions.14

is drawn up. Reg. v. St. Peter's College, 1 Q. B. 314, overruling Rex v. Kirke, 5 B. & Ad. 1089.

The parties are, in the English cases, required to pay costs occasioned by their delay. Reg. v. Mayor of Cambridge, 4 Q. B. 801. But where the judge makes a mistake, the parties who come to defend his ruling, which they are bound to suppose correct, do not pay costs. Reg. v. London & Blackwall Railw., 3 Railw. C. 409, and note.

The party who institutes proceedings for mandamus, which he is compelled to abandon, by personal misfortune, as being pauperized by the loss of his trade, must still pay costs, as the court could only conclude he had no grounds to supSee also port his petition. Reg. v. London & Blackwall Railw., 4 Jurist, 859. Morse, Petitioner, 18 Pick. 443.

The con

12 Reg. v. Birmingham & Oxford Railw. Co., 16 Eng. L. & Eq. 94. ductor of a railway train in some of the states is regarded as a “hired agent” of the company, within the meaning of the statute allowing the service of process upon such agent. New Albany & Salem Railw. v. Grooms, 9 Ind. R. 243. 13 17 & 18 Vict. ch. 125.

14 A mandamus to a local board of health, constituted under 11 & 12 Victoria,