Q. B.] REG. v. THE JUSTICES OF LLANFILLO, BRECKNOCKSHIRE. was raised in the Bail Court before Crompton, J., on the motion for the quo warranto, and he was of opinion that the election was a void one: (Reg v. Backhouse, 12 L. T. Rep. N. S. 579.) By sect. 21 the chairman is made the returning officer, and his duties are judicial, and he cannot act by deputy. Manisty, Q. C. (Rew with him) in support of the rejoinder.-The question is, whether the candidate having the majority of good votes is not to exercise the office because of the absence of the chairman at the election. Sect. 26 does not require the chairman to collect the votes, but he is to cause the votes to be collected. Under sect. 27, if he is incapable of performing the duty of returning officer, or is ill, may not the persons appointed to assist him act for him? [Q. B. or neglect to quit the same and deliver up the possession thereof to the churchwardens and overseers of the poor of any such parish within one month after notice, and demand in writing for that purpose, signed by such churchwardens and overseers, or the major part of them, shall have been delivered unto the person in possession, or in his or her absence affixed on some notorious part of the premises, it shall be lawful for any two of Her Majesty's justices of the peace, upon complaint to them made by one or more of the churchwardens and overseers of the poor of the parish in which any such house, tenement, or dwelling shall be situate, to issue their summons to the person against whom such complaint shall be made to appear before such justices at a time and place to be appointed by them, and to cause such summons to be delivered to the party against whom the complaint shall be made and such justices are hereby empowered and required, upon the appearance of the deft. to proceed to hear and determine the matter of such complaint, and if they shall find and adjudge the same to be true, then by warrant under their hands and seals to cause possession of the premises in question to be delivered to the churchwardens and overseers of the poor of the parish or to some of them. MELLOR, J.-ID the performance of the acts to be alleging that the party in possession of the premises The application was made upon certain facts, done by the returning officer under sect. 27, a dis-had a legal title to them, and that the claim of the cretion is entrusted to him, which he must personally parish officers was unsubstantial. exercise. LUSH, J.-The language of sect. 27 is different to, that in sect. 26. The acts are to be done by him not that he shall cause them to be done. COCKBURN, C. J.-In case of absence or illness of the chairman, another person is to be appointed returning officer by the local board (sect. 21), which has not been done here. Judgment for the prosecutor. Thursday, Nov. 22. REG. V. THE JUSTICES OF LLANFILLO, Parish tenements-59 Geo. 3, c. 12, s. 24—Disputed title-Power of justices to adjudicate. Although as a rule justices at petty sessions have no jurisdiction to inquire into any case involving a title to real property; yet, when by statute they are empowered to ascertain a certain fact which necessarily involves such a question, their jurisdiction remains. By the 59 Geo. 3, c. 12, s. 24, it is enacted that if any person who shall have been permitted to occupy any tenement, &c. belonging to any parish for the habitation of the poor, or who shall have unlawfully intruded himself into any such tenement, &c., shall refuse to quit the same and deliver up the possession to the parish officers, two justices, upon complaint, may summon the party, and upon his appearance they are to proceed to hear and determine the matter, and if they shall find and adjudge the same to be true, then by warrant under their hands and seals they are to cause possession of the premises to be delivered to the parish officers: Held, that under the foregoing enactment the justices have power to hear and determine, notwithstanding the party in possession disputes the title of the parish officers to the premises. This was a motion for a certiorari to remove into this court a warrant granted by two justices acting for the division of Llanfillo, Brecknockshire, giving possession of certain cottages alleged to be parish property to the parish authorities, on the ground that the said warrant was granted without juris diction. H. Matthews, in moving for the rule, contended that the statute in question does not give the justices a power to decide upon questions involving a title to real property, but was intended merely to empower questionably parish property: them to give possession of premises which are un R. v. The Justices of Middlesex, 7 Dowl. 767; R. v. Ingham, 19 L. J. 189, Q. B. H. James, who was prepared to show cause in the first instance, was not called upon. COCKBURN, C. J.-I think that there should be no rule in this case, upon the ground that the justices were not ousted of their jurisdiction by the fact of the title to the premises coming in question. The rule which prohibits justices from adjudicating upon questions of title cannot apply where by statute they have a duty cast upon them to inquire into that question. I am very far from saying, where certain things are required to be upheld by evidence, in order to warrant the magistrates in issuing a warrant or making an order, or whatever the particular subject may be, that if they proceed to deal with the facts, or any fact essential to the establishment of the matter before them as proved, when in point of fact there is no evidence whatever to prove it, this court will not under such circumstances consider they have acted without jurisdiction, and control the exercise of their authority; but it is a very different thing where a fact is to be proved which is of the very essence of the inquiry, and there is evidence before the magistrates upon the one side, and evidence upon the other. that case I should be far from saying that because we might see reason to think that, if they have drawn a conclusion one way, it would have been better to have drawn it the other, are to take upon ourselves to control the exercise of their jurisdiction as regards their inquiring into that matter or fact. There is not only no authority for such a proposition, but I the court. In all cases in which a collateral matter think it is contrary to the established principle of becomes the subject of inquiry, and in such collateral selves jurisdiction by finding facts which they are not matter they proceed without evidence to give themwarranted in finding, the court will review their finding, and if they have improperly given themselves jurisdiction, will set aside their proceedings. we In By sect. 24 of the 59 Geo. 3, c. 12, it is enacted, That if any person who shall have been permitted to occupy any parish or town house, or any other tenement or dwelling-But where the question is a material element in the house belonging to, or provided by, or at the charge of any parish for the habitation of the poor thereof, or who shall have unlawfully intruded himself or herself into any such house, tenement, or dwelling-house, or into any house, tenement, or hereditament belonging to such parish, shall refuse consideration of the matter they have to determine, where they have exercised their judgment as judges of the fact and have decided it on a conflict of evidence, there it is contrary to principle and Q. B.] Reg. v. The JusTICES OF LLANFILLO, BRECKNOCKSHIRE. [Q. B. practice that this court should interfere, and in | it is sought to eject had intruded, or in which holding this language I think I am speaking con- they continued after notice to quit, be a sistently with the judgment of the court in the case parish house. The words are "parish house of Reg. v. Bolton. It seems to be the view of the or houses to be provided by the churchwardens or judgment there, that where the question was one overseers for the habitation of the poor." Therefore of fact for the justices, and evidence was given on it was a necessary matter to be inquired into, the one side and the other, whatever might be the because in this section it is said the justices case in which the court would interfere, they would shall hear and determine the matter of such not interfere where the question is one of fact. I complaint, and if they shall find and adjudge the think that is the principle we should proceed upon same to be true, then by warrant under their when called upon to review the decision of the hands and seals they shall cause possession of the magistrates in matters where they have exercised premises in question to be delivered to the churcha summary jurisdiction. Therefore I think there wardens and overseers; and this they are required ought to be no rule. to do without any appeal from their decision; and, indeed, an appeal from their decision would entirely frustrate the object of the Act, which provides a summary remedy in a short time, and I cannot distinguish this case from the case of Reg. v. Bolton, in which it was decided to be sufficient to give the magistrates jurisdiction, that the complaint made to them was a matter which, in the words of the Act of Parliament, if proceeded upon, would bring it within their jurisdiction, and that though it should appear upon a more full examination of the evidence before the magistrates that their conclusion was not wholly satisfactory, yet, if there is evidence before them on which they might arrive at the conclusion to which they came, that this court ought not and would not interfere with their decision. If there was no evidence at all on which their adjudication was properly to proceed, they would be acting improperly, and disregarding in fact altogether the provisions of this section of the Act of Parliament. MELLOR, J.-I am entirely of the same opinion. I think the whole question depends on what the statute itself prescribes as constituting the offence. If the statute in constituting the offence renders some inquiry into it necessary, as, for instance, in the case before us, in which the words are, "if any person who shall have been permitted to occupy any parish or town house," the magistrates must ascertain and determine whether it was a parish or town house within the meaning of the section. Therefore, if there was evidence on both sides on which the magistrates might come to that conclusion, I think we cannot interfere simply because we think the evidence preponderated the other way. If there was evidence to found the jurisdiction the inagistrates must go on where it is an ingredient in the offence, and they must determine the title if it is a necessary ingredient. It is very distinguishable from the case in which a limited jurisdiction depends on the finding of the facts. In those cases we have acted upon the rule that the magistrates cannot give themselves jurisdiction by an erroneous finding upon a matter; but it is entirely different where it is a very ingredient of the offence itself. I need not do more than say that Rex v. Dayman, 26 L. J. 128, M. C., appears to proceed upon a distinction that it was an essential matter to be determined whether it was a new street or not. However, the cases are unanimous that where it is said there has been an erroneous decision, it is a matter essential to the determination of the offence. I do not think that Mr. Matthews can point out any case where there has been any real difference of opinion; I therefore think that in this case it is essentially necessary for the justices to make the inquiry on which they entered, and we cannot interfere with their finding, even if we thought the evidence preponderated the other way. SHEE, J.-I am also of the same opinion. The object of the Act of Parliament seemed to be to provide a summary remedy for a great inconvenience, the inconvenience of persons who have been occupying parish houses or houses built for the habitation of the poor, or persons who have intruded into such houses, and continued there against the will of, and disregard, the overseers and churchwardens who have given them notice to quit. It provides, for the purpose of remedying that evil, that a notice shall be given by the churchwardens and overseers to such persons as have been permitted to occupy the parish houses, and that if the party to whom such notice has been so given continue to occupy for a month after such notice, the churchwarden shall be empowered to make complaint to the justices, and the justices shall be empowered to require the appearance of the deft., and upon proof on oath that such summons has been served, to proceed to hear and determine the matter of such complaint. There can be no complaint at all unless the house in which the persons whom LUSH, J.-I am of the same opinion. The form of the information is not brought before us, and therefore I presume it contains a statement which on the face of it brings it within the 24th section. If so, it would contain a complaint of the deft. having been permitted to occupy a parish house, and having intruded himself into a parish house after due notice given him to quit, and he refused to give it up. The magistrates were bound to inquire into every one of those allegations, and affirm or disaffirm each of them. They act upon the belief that they are all true, and there is no appeal given in the statute, and no provision as there was in the case of Reg. v. Ingham; and if, in fact, when the title comes into question every one of these allegations becomes an ingredient in the matter, and the magistrate is bound to determine them, it seems to me to be entirely within the doctrine laid down in the case of Reg. v. Bolton. There, in a considered judgment, the Court say: "Where a charge has been well laid before a magistrate on its face bringing itself within his jurisdiction, he is bound to commence the inquiry ; in so doing he undoubtedly acts within his jurisdiction, but in the course of the inquiry, evidence being offered for and against the charge, the proper, or it may be the irresistible, conclusion to be drawn may be that the offence has not been committed, and so that the case in one sense was not within the jurisdiction. Now, to receive affidavits for the purpose of showing this, is clearly in effect to show that the magistrate's decision was wrong if he affirms the charge, and not to show that he acted without jurisdiction; for they would admit that in every stage of the inquiry up to the conclusion, he could not but have proceeded, and that if he had come to a different conclusion, his judgment of acquittal would have been a binding judgment, and barred another proceeding for the same offence." And they go on to say: "Upon principle, therefore, affidavits cannot be received under such circumstances. The question of jurisdiction does not depend upon the truth or falsehood of the charge, but upon its nature; it is determinable at the commencement, not at the conclusion of the inquiry; Municipal corporation-Disqualification of candidate Resignation-Quo warranto-Disclaimer. Where a party who is elected to an office is disqualified and another claims the office as having the only legal votes, the party so elected cannot, by merely resigning his office, deprive the other party of his right to the advantage which a judgment of ouster upon a quo warranto will give him. A., who was a town councillor of the borough of T., which was a municipal borough within the 5 & 6 Will. 4, c. 76, having one ward only, was also mayor and returning officer of such borough, and on the 1st Nov. his term of office as councillor expired and he was re-elec ted. B. also was a candidate, but was unsuccessful in consequence of A. polling a greater number of votes. A. made the declaration as councillor required by the Act, but finding that he was disqualified by reason of being the returning officer, he resigned his office on the 9th Nov. On the 12th Nov. a rule nisi was obtained for a quo warranto information against him for exercising the office of town councillor at the instance of B., who was relator and claimed to be duly elected: Held, that he was entitled to file the information, for that without a disclaimer on the part of A., he would not be entitled to a mandamus to be admitted to the office. This was a rule calling upon Mr. Blizard to show cause why a quo warranto information should not be filed against him for exercising the office of town councillor of the borough of Tewkesbury. It appeared that Tewkesbury is a municipal borough within the operation of the Municipal Corporation Act (5 & 6 Will. 4, c. 76), and has only one ward. Upon the 1st Nov. last the annual election for councillors took place, and the then mayor, Mr. Blizard, the present deft., whose term of office as a town councillor then expired, was a candidate for re-election. There were four councillors to be elected, but there were five candidates, the present relator, Mr. Moore, being one. At the election the mayor and three others had the majority of votes, Mr. Moore being the unsuccessful candidate. It appeared from the affidavits that on the Saturday, the 29th Oct., Mr. Moore served Mr. Blizard with a notice to the effect that as he was mayor he was ineligible to be a candidate, and that votes given for him would be thrown away. The mayor being indisposed did not attend as returning officer at the polling booth, but the deputy mayor attended for him, except that during an hour and a half in the middle of the day the mayor himself attended, when finding he was too unwell to continue he withdrew, and left the deputy mayor as his deputy. The return of himself and the three others was made as being duly elected, and he subsequently, and before the 9th Nov., made the declaration required by sect. 50. Mr. Moore had attended to qualify, but was refused. Upon the 9th Nov. Mr. Blizard, finding that as returning officer he was disqualified from being elected, resigned his office of town councillor, paying 101, the amount provided in such cases by the bye-laws, which resignation was unanimously accepted by the council. This rule was moved for on the 12th Nov. [Q. B. Powell, Q. C. now showed cause, and argued that, as Mr. Blizard had resigned his office before this rule was moved for, the rule was useless, as he no longer held the office from which it was the object of these proceedings to remove him. He was stopped by the Court. Cook, Q.C.(Dowdeswell with him), in support of the rule, argued that, as the relator himself claimed the seat, inasmuch as the votes given for Mr. Blizard, who was returning officer, were thrown away (Reg. v. Owen, 28 L. J. 316, Q. B.), it was necessary that Mr. Blizard should disclaim the office, which he could only do upon a quo warranto information; that it is necessary for the relator's purpose, as he claims the seat, that it should appear upon record that Mr. Blizard had intruded into it, and that a mere resignation was no admission that he was not lawfully elected; that a writ of mandamus would not do, as a return might be made to it that Mr. Blizard was elected: Reg. v. Wardlow, 2 M. & S. 75; Reg. v. Earnshaw, 3 Ell. & Bla. 143, n. c; COCKBURN, C. J.-I am of opinion that this rule should be made absolute. At first I certainly entertained a strong opinion that the rule was unnecessary and should therefore be discharged; but I am bound to admit that Mr. Dowdeswell's argu ment has convinced me that it should be made absolute. In an ordinary case, if a man is elected and discovers that he is not qualified, I am far necessary in order to divest him of his office. The from saying that a proceeding by quo warranto is elected has resigned his office after proceedings have cases cited have mostly been where the party been commenced against him. I do not decide with reference to those cases. In this case the facts are very different. If the purpose of this application were merely to procure a vacancy in the office, I should be of opinion that a resignation would accomplish that object as effectually as a quo warranto information. But here the proceedings are instituted by a relator, who not merely questions the qualification of the party, but claims the office himself. He gives notice of his design, and says that the votes given for his opponent are thrown away, and that the effect is to place him in his position. Now, to enable Mr. Moore to obtain that position and be admitted, it must necessarily be assumed that there never was an election of Mr. Blizard at all. A resignation implies that he has been elected, for a man cannot be said to resign an office to which he has not been elected, and to receive a resignation is also to assume that the party has been elected. To refuse this rule, therefore, would be to deprive Mr. Moore of the advantage to which he is entitled, and be merely to drive him to a new election. I admit, therefore, that Mr. Dowdeswell is right in saying that it is an act of justice to Mr. Moore to make this rule absolute. He has a right to a judgment which shows that Mr. Blizard was an intruder into the office, whereupon he can come to this court for a mandamus to be himself admitted. The rule will be made absolute accordingly unless Mr. Blizard undertakes at once to disclaim. As regards the costs, it seems that Mr. Blizard, as soon as he became aware that he really was disqualified, did all in his power to divest himself of his office; it is hardly fair, therefore, that he should be saddled with the costs of this rule. I think the only costs he should be called upon to pay are those incident to the disclaimer. C. P.) THE MAYOR of HEREFORD v. MORTON. LUSH, J.-I entirely agree with my Lord. I certainly at first thought that this rule was useless, but I am convinced that it is otherwise. As Mr. Moore himself claims the office a mere resignation is not sufficient, and he is entitled to a disclaimer from Mr. Blizard. Rule absolute. COURT OF COMMON PLEAS. Reported by W. MAYD and W. GRAHAM, Esqrs., Barristers-at-Law. Monday, Nov. 12, 1866. THE MAYOR OF HEREFORD v. MORTON. A corporation included in words "person or persons." A complaint had been preferred by the surveyor of the city of Hereford, on behalf of the mayor, aldermen, and citizens, against the resp., that he "did break a lamp and pillar belonging thereto, and did not, upon demand by the Hereford Gas Company's superintendent, make satisfaction for the damage done, contrary to the form of the statute in such case made and provided." This complaint was heard and dismissed by the justices. It was admitted that the resp. did accidentally and without negligence break a lamp and pillar, which had been purchased by, and was the property of, the apps., and that the amount demanded for compensation had not been paid. The 59th section of an Act for lighting with gas the city of Hereford and the suburbs and liberties thereof, 5 Geo. 4, c. 77, enacts, company That if any person or persons shall carelessly or accidentally break, destroy, throw down, damage, or injure any lamp or lamps hung out, set up, or belonging to the said company, or by any person or persons at his, her, or their private expense, or any pipe, pillar, pedestal, post, plug, or other apparatus, matter, or thing belonging thereto, or to the said and shall not upon demand by the said company, or their clerk, or superintendent, or other person or persons authorised by them, make satisfaction for the damage done then and in every such case it shall and may be lawful to and for the mayor, or any one or more justice or justices of the said city of Hereford, and he or they is and are hereby empowered and required, upon complaint to him or them made, to summon before him or them the party or parties against whom the complaint shall be preferred, and upon hearing the allegations and proofs on both sides, or on non-appearance of the party or parties so complained against, to proceed ex parte, and to award such sum or sums of money, by way of satisfaction to the said company, or to such other person or persons (as the case may be and require) for such damage or excess, as such mayor, justice, or justices shall think reasonable. By the Gasworks Clauses Act 1847 (10 & 11 Vict. c. 15), sect. 20, Every person who shall carelessly or accidentally break, throw down, or damage any pipe, pillar, or lamp belonging to the undertakers or under their control, shall pay such sum of money by way of satisfaction to the undertakers for damage done, not exceeding 51., as any two justices or the sheriff shall think reasonable. And by the interpretation clause of this Act, The expression "the undertakers" shall mean the persons by the special Act authorised to construct the gasworks. It is provided by the Hereford Improvement Act [C. P. 1854 (17 Vict. c. 31), sect. 99, that the Gasworks Clauses Act 1847 (with the exception of some of the provisions) be incorporated with that Act, and that the word undertakers shall mean the corporation. By the 100th and 101st sections the corporation is enabled to purchase or lease the gasworks and other property of the gas company constituted by the Act of 1824. It was admitted by the apps. that they had not purchased the gasworks referred to in these sections, but that they contracted with the Hereford Gas Company for the supply of gas. The questions for the court were, whether the words "person or persons" in the 59th section of 5 Geo. 4, c. 77, can include a corporation, and whether the word "undertakers" can be interpreted to mean the apps. under the circumstances. for the apps. against the dismissal of the information Harrington (with him Coleridge, Q. C.) argued by the justices, that although the 59th section is not grammatically constituted, it is sufficiently clear to justify the conviction in this case; that inconvenience would result if persons only meant individuals, and that tradesmen and others would have a remedy of which the corporation would be deprived. Secondly, the 13th section of the Gas Clauses Act 1847 gives and as the corporation had exercised this power they power to undertakers to provide lamps and pillars, were undertakers within the meaning of that Act, at least so far as the protection of their property is provided for. Before the counsel for the apps. had concluded, Cooke, Q. C. (with him J. O. Griffits) was called on by the Court for the resp.-He contended that this was not a question as to whether the apps. should suffer damage caused by an accident or not, as a remedy was certainly open to them in the County Court, but whether they had a right to this summary jurisdiction for recompence. Although the corporation may be held to be included in the words person or persons," the corporation cannot be said to put up lamps at their own private expense. 66 The COURT stopped Harrington upon his beginning to reply. ERLE, C. J.-I am of opinion that the case must be sent back to the justices. The information was founded upon an accidental breaking of a lamp and pillar within the city of Hereford; and the question for us is, whether the 5 Geo. 4, c. 77, s. 59. gives the corporation a right to recover damages under such circumstances. I think it does. The words upon which the matter turns are "set up at his or their private expense." The lamps belong to the apps., and were set up by the funds belonging to them in their corporate capacity. The statute could not have been intended to give less protection to the corporation than to private individuals. WILLES, J. Concurred. BYLES, J.-I am of the same opinion. This case falls within the very words of the Act. Persons are by Blackstone divided into natural and artificial, and the latter includes corporations. The enactment is one under which a party injured is to obtain recompence, therefore the words private expense should be interpreted broadly. KEATING, J.-I am of the same opinion. The object of the Act is clear, namely, to protect the lamps belonging to the corporation as well as those of any other person. The question is, whether there is anything in the words "private expense' to prevent this object from being carried out. I think the magistrates ought to have convicted. Harrington asked for costs, but the Court refused, C. P.] FOTHERBY V. THE METROPOLITAN RAILWAY COMPANY. [C. P. considering that such a case was necessary to settle | with any other demand which may now been forced the question for the future. Information sent back to the justices. Attorneys for apps., Marshall, Westall, and Roberts. Attorneys for resps., Hancock, Saunders, and Hawksford. Nov. 12 and 13, 1866. FOTHERBY V. THE METROPOLITAN RAILWAY Mandamus-C. L. P. A. 1854-Action at law The plt. alleged in his declaration that the defts. neglected at law. The declaration stated as follows: For that the defts. are a railway company incorporated by a certain Act of Parliament and the promoters of the undertaking mentioned in the Metropolitan Railway (Tower-hill Extension) Act 1864, and that in the exercise of the powers conferred on them by the said Acts and the Acts incorporated therewith the defts. did on the 22nd Feb. in the year of our Lord 1866, give to the plt. notice that for the purposes of their said undertaking they required to purchase and take certain lands and premises therein mentioned, situate and being in the precinct of the Tower, without the county of Middlesex, belonging to the plt, and that the plt. had a greater interest in the said land and premises than as tenant for a year or from year to year, and that the compensation claimed by him exceeded 50%.; and no agreement having been come to by and between the plt. and the defts as to the amount of coinpensation to be paid to the plt. by the defts. for the said interest in the said lands and premises belonging to the plt, and for the damage sustained by him by reason of the execution of the works authorised by the said Acts, the plt. desired to have the same settled by the verdict of a jury and not by arbitration, and gave notice of such his desire to the defts. stating in such notice the nature of his interest in the said lands and premises in respect of which he claimed compensation, and the amount of the compensation so claimed by him, and that he duly required the defts. to issue a warrant to the sheriff of the said county to summon a jury to assess such compensation as aforesaid, in manner required by law and the several statutes in that behalf, and that all conditions, matters, and things have been done and performed, and have happened and occurred, and all times elapsed which were necessary to be done and performed and to happen and occur, and to elapse in order to entitle the plt. to have the defts. issue their warrant to such sheriff to summon a jury to determine the said amount of compensation, and that a reasonable time in that behalf elapsed before suit, and the plt. was and is personally interested in the performance by the defts, of their duty to issue the said warrant, and has sustained and will sustain damage by the nonperformance by the defts of their said duty, and performance of the said duty by the defts. has been demanded by the plt of the defts. ; yet they wholly neglected and refused, and still neglect and refuse, to perform the same, and to issue their said warrant to the sheriff. And the plt claims a peremptory writ of mandamus to the defts. commanding them to issue their warrant to the said sheriff to assess the said compensation and 1000/. damages. This declaration was demurred to on the ground that no action could be maintained upon the facts stated, and that even if there be ground of action no writ of mandamus can be claimed unless an action is also brought. Keane, Q. C. (with him H. Lloyd) argued for the defts. By sect. 68 of the C. L. P. A. 1854, "the plt. in any action in any of the superior courts, except replevin and ejectment, may indorse upon the writ and copy to be served a notice that the plt. intends to claim a writ of mandamus, and the plt. may thereupon claim in the declaration, either together in such action, or separately, a writ of mandamus commanding the deft. to fulfil any duty, in the fulfilment of which the plt. is personally interested.” It was held in Benson v. Paull, 6 E. & B. 273, that this section applies only to the fulfilment of such duties as might be enforced by the prerogative writ of mandamus, and not to the specific performance of contracts. There can be no action here, for in Burkinshaw v. Birmingham and Oxford Railway Company, 5 Ex. 486, it was held that when a company give notice that they require land, it amounts to an agreement by them for the purchase of those lands. And before the C. L. P. A. 1854, it is clear from Ex parte Parkes, 9 Dowl. 614, a mandamus under such circumstances as these would not have been granted. Delay on the part of a company does not found an action. Also under the 69th section plt. must set forth the damage he has sustained. W. G. Harrison submitted for the plt., first, that under section 68 an action will lie for mandamus to compel a man to do his duty, even though there be no action at common law for the neglect of for mandamus which is ex debito justitia; secondly, that duty, i. e. that the statute creates a new action that an action lies for the nonperformance of this duty, and has already been brought. He quoted from the report of the Common Law Commissioners to show the evils which the statute was intended to remedy. There is nothing but a claim for mandamus in the case of the Eastern Counties Railway Company v. Marriage, 9 H. of L. Cas. 32, 3 L.T. Rep. N.S. 60, and no objection was made that such an action did not lie. And Lord Campbell's judgment in Norris v. Irish Land Company, 8 E. & B. 512, goes the whole length of this case. On the second point, the duty of the defts. is correlative with their right: Ashby v. White, 2 Lord Raym. 938. Keane in reply.-It is necessary either to bring an action with the claim for a writ, or to bring an action and make the claim separately, but both must be done. ERLE, C. J.-In this case judgment will be for the plt. Between the plt. and defts. there is an inchoate relation approximating to that of vendor and purchaser created by notice to treat. The old system concerning a writ of mandamus was fraught with the evils so clearly stated in the report of the commissioners upon the common law procedure. By C. L. P. A. 1864, sect. 68, provision is made for an action for mandamus. And by the next section, "the declaration in such action shall set forth sufficient grounds upon which such claim is founded, and shall set forth that the plt. is personally interested therein, and that he sustains, or may sustain damage, by the nonperformance of such duty, and that performance thereof has been demanded by him and refused or neglected." By sect. 70, "the pleadings and other proceedings in any action, in which a writ of mandamus is claimed, shall be the same in all respects, as nearly as may be, and costs shall be recoverable by either party, as in an ordinary action for the recovery of damages." Here the plt.'s claim is within the class having the remedy of mandamus in respect of his land which is about to be taken away from him; there is a duty in the company to issue a warrant, and the plt. may, with an action, or separately, claim a mandamus. Even if the plt. had not shown a right of action, yet the word "separately" would give him the power to ask for a writ of mandamus. The right to a writ of mandamus is substantive, not adjective to an action. The evils referred to in the commissioners' report are confirmatory of my idea, that the object of the Act is to give one remedy for all such evils; and this is |