here the party prosecuting the writ has proceeded *irregularly, for, the [*358 writ de contumace capienda having been delivered out to the sheriff, a capias ought to have issued out of K. B. The 53 G. 3, c. 127, s. 1, substitutes the writ de contumace capiendo for that of excommunicato capiendo, and directs that the provisions contained in the 5 Eliz. c. 23, as to the latter writ, be applied to the writ de contumace capiendo. Now, sect. 2 of that statute enacts, that every writ of excommunicato capiendo that shall be granted out of Chancery shall be returnable in K. B., and that, after it shall be sealed, it shall be brought into that Court and there delivered of record to the sheriff; and if the sheriff make default in returning it at the day, he is subject to be fined. [TAUNTON, J. Sect. 4 enacts, that if the sheriff return non est inventus, the justices of K. B. are to award a capias. Here no return has been made to the first writ, whereon to found a capias. DENMAN, C. J. In Rex v. Eyre, 2 Str. 1189, it was excepted to a second writ de excommunicato capiendo, that a former writ of excommunicato capiendo being enrolled in K. B., the Court of Chancery could not issue a second writ, but by 5 Eliz. c. 23, such second writ was to issue from K. B.; but the answer, given at the bar and adopted by the Court, was, that the act related only to the case where the first writ had actually issued, and the sheriff had returned non est inventus. PARKE, J. There can be no doubt that the second writ in this case issued conformably to the practice of the Court of Chancery, as stated in the affidavits.] Then the writ ought to have been returnable in term. The 23d of May is not in term. That defect is not cured by 1 W. 4, c. 3, s. 2, which section only applies to writs on mesne process, for it enacts that the *day for appearance shall, as heretofore, be the third day after such return. [PARKE, J. It applies to all writs [*359 returnable in the King's Bench, Common Pleas, or Exchequer on general return. days. The question is reduced to this, whether a defendant is privileged from arrest in returning from attendance before a Judge on a habeas corpus sued out by himself.] Cur. adv. vult.

DENMAN, C. J., now delivered the judgment of the Court. In this case, which was argued before us on Saturday, all the questions were disposed of but one; and that was, whether the defendant was privileged from being taken under a writ de contumace capiendo. He had been in custody under a former writ of the like nature, and had sued out a writ of habeas corpus; and the learned Judge before whom it was returnable, being of opinion that it was void for want of a proper interval of time between the teste and return, discharged him; whereupon the prosecutor sued out another writ, and apprehended him on it on his way home from the Judge's chambers. And upon consideration we think he was privileged from arrest on this occasion. There is no case to be found in which this privilege has been extended to persons going and returning on a writ of habeas corpus except that of Rex v. Delaval, 1 Sir W. Blackst. 410, 439; 3 Burr. 1434, S. C., which is, however, not precisely like this case. But as it turned out in this instance, that the defendant's detention under the former writ was wrongful, and he was driven to his habeas corpus to obtain his liberty, it may fairly be considered as coming within the principle whereby parties *to a suit, for the sake of public justice, are protected from arrest in coming to, attending upon, and returning from the Court. The rule, [*360 therefore, must be absolute with costs; Mr. Blake to bring no action for this Rule absolute.

arrest.

The KING on the Prosecution of THOMAS CORPE v. The Treasurer and Directors of the ST. KATHARINE DOCK Company. Nov. 26.

It is discretionary in the Court either to determine the validity of a return to a mandamus on motion, or to order the case to be set down in the crown paper for argument. The St. Katharine Dock Company were incorporated by act of parliament, which directed

that all actions against the company should be prosecuted against the treasurer or a director for the time being; but that the body or goods, lands, &c., of such treasurer or director should not, by reason of his being defendant in such action, be liable to execution. An action having been brought by T. C. against the treasurer as such, and another by the company, in the name of the treasurer, against T. C., all matters in difference were referred to an arbitrator, who awarded that T. C. had cause of action against the defendant, as such treasurer, for a certain sum, and directed that the treasurer should pay T. C. that sum on demand; and as to the other suit, he awarded that the treasurer, as such, had no cause of action, and ordered him, as such treasurer, to pay T. C. the costs on demand: Held, that a mandamus would lie to the treasurer and directors, commanding them to pay the sums awarded.

MANDAMUS to the defendants recited that by an act of 6 G. 4, c. cv., certain persons were incorporated by the name of "The St. Katharine Dock Company;" that two actions had been commenced in K. B., one at the suit of G. C. Glyn, as treasurer of the company, against Thomas Corpe, and another at the suit of Corpe against Glyn as such treasurer; that Corpe's action was brought for the recovery of certain sums of money alleged to be due to him from the company; that pending the two actions an order was made by Lord Tenterden that all matters in difference between the parties should be referred to an arbitrator, the costs of the causes to be in his discretion; that that order was made a rule of Court; that the arbitrator awarded that Corpe had a good cause of action against Glyn as such treasurer for the sum of 25607., and ordered Glyn, as such trea*361] surer, to pay Corpe on *demand that sum, together with the costs of such action, and that the said action should be stayed; and as to the other action, the arbitrator awarded that, at the time of the commencement thereof, Glyn, as such treasurer, had not, nor had he then, any cause of action against Corpe for the matters therein mentioned, and that the action should be discontinued, and the costs thereof paid by Glyn, as such treasurer, to Corpe on demand. (See Corpe v. Glyn, 3 B. & Ad. 801.) The writ then, after stating "that the two several sums awarded had not been paid by Glyn," proceeded "to command the treasurer and directors of the company to pay or cause the same to be paid to Corpe."

To this writ the treasurer and directors made a return, containing statements, the object of which was to shew that the award was not final, because the arbitrator had not decided one of the matters in difference brought before him. A rule nisi was obtained for quashing the return, on the ground that it did not thereby appear that the arbitrator had not adjudicated upon that particular matter; and the Court, upon cause being now shewn, were of that opinion; but as their judgment on this point turned entirely upon the very special terms in which the return was framed, it has been thought unnecessary to notice it here.

Sir James Scarlett and Platt shewed cause on the above point; and they further contested the motion on the following grounds. The Court will not quash the return on motion; the case ought to have been set down in the crown paper, as in Rex v. The Mayor of London, 3 B. & Ad. 255. Secondly, any *362] objection to the writ *itself may be made even after a return. Now, to found an application for a mandamus, there must be a specific legal right, and a want of specific legal remedy, Rex v. The Archbishop of Canterbury, 8 East, 213; and, therefore, it will not lie to compel a man to obey an order of sessions, Rex v. Bristow, 6 T. R. 168, or to oblige the Bank of England to transfer stock, Rex v. The Bank of England, 2 Dougl. 524, there being a remedy in the one case, by indictment, in the other, by a special action of assumpsit. Here, there is no want of a specific legal remedy; for an action might have been brought on the award, and though it would have been formally against Glyn, as treasurer, it would have been, substantially, against the company, execution might have issued against their effects.

and

Campbell (Solicitor-General), contrà. It is discretionary in the Court to quash a return for insufficiency, on motion, or to order the case to be set down

for argument. If the return be clearly bad on the face of it, the Court will quash it on motion. But if the case be one of difficulty, they will, as in Rex v. The Mayor of London, 3 B. & Ad. 255, order it to be brought on in the crown paper. Here the case is devoid of any difficulty, for Corpe has a legal right without any practical legal remedy. If he brings an action on the award, it must be against Glyn, and the execution, which must follow the form of the judgment, must be against him also. But the 6 G. 4, c. cv., s. 161, expressly provides that the body or goods of the treasurer shall not, by reason of his *being defendant in any action, be liable to be taken in execution. (See Corpe v. Glyn, 3 B. & Ad. 801.) Then, if that be so, Corpe is without legal remedy unless a mandamus be granted. The act does not authorize execution to issue against the effects of individual members of the corporation, as in Bartlett v. Pentland, 1 B. & Ad. 704.

[*363

DENMAN, C. J. The first question in this case is, whether a mandamus will lie, and it undoubtedly will if the party has no other legal remedy. It does not appear that Corpe has any power of taking in execution the goods of the company. An action on the award must be against the treasurer, and the judgment would be against him; and as the execution must follow the form of the judg ment, it would be against Glyn as treasurer; but the act of parliament incorporating the company provides that the body or goods of the treasurer shall not, by reason of his being defendant in any action, be liable to be taken in execution. Then as to the course of proceeding, I take it to be perfectly clear, that it is discretionary in the Court either to quash the return at once on motion, or to have the case set down in the paper for argument.

[*364

PARKE, J. The first question in this case is, whether a mandamus should issue. The objection, that it ought not to have issued at all, though it might more properly have been made at the time when cause was shewn against the rule for issuing it, may be made in this stage of the proceeding. Now, as the act of parliament provides, that neither the person nor property of the treasurer, when made defendant, shall be liable to be taken in execution, it follows that there is no other mode but a mandamus by which payment of this debt can be enforced. In Wormwell v. Hailstone, 6 Bingh. 668, where an action was brought against the clerk of trustees of a turnpike road under a statute which permitted the trustees to sue and be sued in the name such clerk, a verdict having passed for the plaintiff, he sued out execution against the goods of the clerk, and it was held that execution could not issue against that individual personally; but Tindal, C. J. in delivering judgment, said there could be no doubt that the funds of the trustees might be made answerable for the amount ascertained in the action (in case of a refusal to apply them,) either by a mandamus or a bill in equity. As in this case there is no other legal remedy by which the company can be made subject to the payment of its debts, it follows that a mandamus will lie.

TAUNTON, J. and PATTESON, J. concurred.

Rule absolute.

of

*Ex parte MATANLE. Nov. 26.

[*865

The rule of Trinity term, 21 G. 3, which empowers the marshal of the King's Bench to to regulate the admission of persons to visit the prisoners, does not authorize him at his pleasure to prevent an attorney from visiting his client in the prison, but he must have some ground to shew for so doing; provided the attendance of such attorney is on the client's business, and necessary to, or required by him.

ALEXANDER had obtained a rule, calling upon the marshal of the Marshalsea to shew cause "why W. G. Matanle, an attorney of this court, should not be admitted, at all seasonable times, into the interior of the prison of this court, and the rooms of the prisoners therein, in the same way as other attorneys of

this court usually are." In support of this application, it was sworn by Mr. Matanle that he had been accustomed to go into the prison as other attorneys did, but that on the 17th of June last he called there "for the purpose of conversing with one Joseph Lancaster, who was, and still is, a prisoner there, and was then, and still is, a client of this deponent;" and he was then refused admittance in consequence of certain alleged misconduct (which he denied) with respect to an order of discharge formerly brought to the prison by him for a prisoner named Barrett. He further stated, that he had several clients in the prison, whose interests had been, and were, materially affected by his exclusion. An application had been made to Littledale, J. at chambers, but he thought he could not make an order upon the marshal for Mr. Matanle's admission. The affidavits in answer stated grounds upon which the supposed misconduct was imputed. The Solicitor-Generał now shewed cause. By a rule of Court, Trin. 21, G. 3, the marshal is to "prescribe in what manner, and for how long, visitors shall be *366] *allowed to see or stay with the prisoners, according to the circumstances of every case, in his discretion." (a) And if the exercise of that discretion were liable to be questioned, the facts of this case justify the marshal's conduct. The rule is made for the benefit of prisoners, not of attorneys. The Court then called upon

Alexander in reply. The rule of 21 G. 3, is not the only one on this subject. The rule Mich. 3, G. 2, directs, "that the turnkeys of the said prison do diligently attend at the gate or door of the said prison as the duty of their office requires; and do admit all such persons to have access to any of the prisoners as by law are entitled thereto." It cannot have been intended by the rule of 21 G. 3, that the marshal should absolutely exclude any person, even a professional man, at his discretion, though he may regulate the admission of visitors and their conduct, according to the words of the rule. This Court may control the marshal, and in a case like the present it ought to be shewn to the satisfaction of the Court that the party excluded was not a proper person to be admitted. [DENMAN, C. J. The discretion given to the marshal is an answer to such an application as this, unless the facts shew that he has misconducted himself in the exercise of it.] They shew it in this case. If the rule were such as it is assumed to be on the other *side, the marshal might order the perpetual exclusion of any person at his pleasure.

*367]

DENMAN, C. J. We hardly think the description of visitors, spoken of in the rule of 21 G. 3, extends to the party making this application: the rule seems more properly referable to the wives and families of prisoners, and to persons who might be likely to bring in spirituous liquors. An attorney going in upon the business of his client ought not to be excluded unless some ground can be shewn for it. But upon that subject there are in the present case conflicting affidavits. And the affidavits in support of this motion do not say that the attendance of the party was necessary to his client, or had been required by him, or even that it was upon business. The rule must therefore be discharged.

PARKE, TAUNTON, PATTESON, J., concurred.

Rule discharged.

Sir WILLIAM LONG, Knight, v. WORDSWORTHI, a Prisoner.() A copy of a bill filed against an attorney or prisoner, does not require the indorsement

(a) "That the Marshal of the Marshalsea of this Court shall permit no persons to enter into the prison without their being first searched to see whether they have any spiritous liquors about them, and that he do not suffer the wives or children of any of the prisoners to lodge in the prison under any pretence whatever. And that the Marshal do prescribe in what manner and for how long visitors shall be allowed to see or stay with the prisoners, according to the circumstances of every case, in his discretion."

(b) This case was decided Nov. 16th.

directed by rule II, Hilary, 2 W. 4, to be made upon the copy of any process served for the payment of a debt.

[*368

PLATT had obtained a rule, calling upon the plaintiff to show cause why the defendant should not be discharged out of custody on filing common bail. A bill had been filed against the defendant at the plaintiff's suit for debt, and a copy served upon the turnkey, but there was no indorsement upon the copy so served, of the amount of the debt, and the attorney's claim for costs; and it was contended that, by rule II. Hil. 2 W. 4, (a), such indorsement was necessary, and the want of it made the proceeding irregular. Chandless shewed cause, and contended that the rule, being applicable only to process or copy of process, did not extend to the copy of a bill filed againt a prisoner.

Platt contrà. A bill is the only mode of commencing a suit against a pri soner, and the policy of the rule applies to it, as well as to what is more properly termed process. [PATTESON, J. [PATTESON, J. We have held that a bill against an attorney is not process within this rule.()] There the proceeding does not charge the person; there is not, therefore, the same reason for such a rule. PER CURIAM. There is no distinction. No process is served in either case. Rule discharged.

*GREEN and Others v.

MITTON, Gent.

Nov. 26.

[*369

Plaintiff commenced his action in Hilary term, 1831, and declared in trover. The parties went to issue, and plaintiff was put under a peremptory undertaking to try. In Michaelmas term, 1832, having been advised that the action was misconceived, he moved for leave to substitute a count in detinue for that in trover, and add one in debt; and it was sworn that no new ground of action was contemplated. Leave refused.

CAMPBELL, Solicitor-General, had obtained a rule to shew cause why the plaintiffs should not be at liberty to amend the bill, issue, and record in this case by substituting a count in detinue for a count in trover, and by adding a count in debt. It appeared that the action was brought for the recovery of certain deeds on which the plaintiffs had advanced money, and which had come into the defendant's hands, and were (as was said) improperly detained by him. On behalf of the plaintiffs it was stated that the bill was drawn in trover by the advice of a special pleader, but the plaintiffs' attorney had lately been informed that it ought to be in detinue; that the object of the action, in whichever form brought, was the same, namely, to recover the above-mentioned deeds: and that the motion was not made with any view but the better attainment of that object. On the other hand it was stated, that the action was commenced as long ago as Hilary term, 1831; that the plaintiffs were then fully apprised of all the facts; and that they had been put under a peremptory undertaking to try after Easter term last. There were conflicting affidavits on the merits.

Sir James Scarlett, now shewed cause. There is no pretence for changing the form of action as desired here, when the parties are at issue. Where a plaintiff has applied merely to amend a declaration by changing the form from case

(a) "That upon every bailable writ and warrant, and upon the copy of any process served for the payment of any debt, the amount of the debt shall be stated, and the amount of what the plaintiff's attorney claims for the cost of such writ or process, arrest, or copy and service and attendance to receive debt and costs, and that upon payment thereof within four days, to the plaintiff or his attorney, further proceedings will be stayed." 3 B. & Ad. 390.

(b) In Lewellin v. Norton, moved in the bail court, Easter term, 1832, and referred to all the Judges of this Court.