copy in evidence, and the order at the Old Bailey was read by way of objection. But the chief justice (Lee) said, he would not refuse to let the plaintiff read it (the copy of the indictment;) for an order was not necessary to make it evidence, nor is it ever produced in order to introduce it. So the copy of the indictment was read, and a verdict obtained for the plaintiff, which the court refused to set aside. An averment, that the suit is wholly ended and determined, is evidenced by proof of the rule to discontinue upon payment of costs, and that the costs were taxed and paid. This action cannot be maintained without proof of malice, either express or implied. Malice may be implied from the want of probable cause, but that must be shewn by the plaintiff. Proving an acquittal for want of prosecution, is not primâ facie evidence of malice to support this action. In an action for a malicious prosecution against the defendant for having indicted the plaintiff of perjury, the proof on the part of the plaintiff (in addition to the format proof of the record of acquittal) was, that after the indictment found was ready for trial, the prosecutor (the present defendant) was called, and did not appear; on which the verdict of acquittal passed. Ld. Ellenborough, C. J. thought that this was not sufficient to support the action, without evidence of express malice, or at least of circumstances evincing such entire want of probable cause, whence malice was to be presumed, and therefore he nonsuited the plaintiff. The court of B. R. afterwards concurred in opinion with the C. J. N. The indictment assigned the perjury on an affidavit made by the plaintiff swearing to words uttered by the defendant. It must appear that the plaintiff was acquitted upon the prosecution, before the action was brought; but the day of the acquittal is not material. Hence, where it was stated in the declaration, under a scilicet, that the acquittal took place on the morrow of the Holy Trinity, (which allegation was not accompanied with a prout patet per recordum) and by the record when produced in evidence, it appeared that it took place on Tuesday next after Easter Term; the latter day having been before action brought, the variance was holden to be immaterial, on the ground that the day z Legatt v. Tollervey, 14 East, 302. S. P. See also Stockfleth v. De Tastet, 4 Camp. N. P. C. 10. a Bristow v. Heywood, 1 Stark. N. P. C. 48, 4 Camp. N. P. C. 214. S. C. b Purcell v. Macnamara, 9 East, 361. c Purcell v. Macuamara, 9 East, 157. in which Pope v. Foster, 4 T. R. 590. was overruled. See also Woodford v. Ashley, 2 Camp. N. P. C. 194. mentioned in the declaration was not alleged as part of the description of the record of acquittal (9). In an action on the case for a malicious prosecution, where there was not any person present at the time when the supposed felony was committed, except defendant's wife; Holt, C. J. allowed the evidence of the wife, given at the trial of the indictment, as good evidence to prove a felony having been committed. In an action on the case for maliciously indicting plaintiff and others for a conspiracy, the counsel for the plaintiff called one of the grand jury, before whom the bill of indictment had been preferred, and found a true bill, to prove that the defendant was the prosecutor of the indictment. Garrow, for the defendant, objected to his being examined, observing, that the grand juryman could collect this circumstance of defendant's having been the prosecutor, from the testimony only which had been produced before him in his character of grand juryman, and which by his oath he was bound not to disclose; but Kenyon, C. J. thought that the question of "who was prosecutor of the indictinent?" was a question of fact, the disclosure of which did not infringe upon the grand juryman's oath, and therefore permitted him to be examined as to that point. Case for malicious prosecution of an indictment, whereof (as was alleged) plaintiff was legitimo modo acquietatus; upon the trial it appeared, that he was acquitted no otherwise than by an entry of a nolle prosequi. Per cur. "This evidence does not support the declaration; for the nolle prosequi is a discharge as to the indictment, but it is not an acquittal of the crime. c Johnson v. Browning, 6 Mod. 216. e Goddard v. Smith, Salk. 21. 6 Mod. 261. S. C. (9)" There are two sorts of allegations; the one of matter of substance, which must be substantially proved; the other of description, which must be literally proved." Per Ld. Ellenborough, C. J. S. C." Where the day laid is made part of the description of the instrument referred to, which instrument is necessary to be proved, the day laid must be proved as part of that instrument. But where the day laid is not material in itself, and need not have been proved as laid, supposing the proof to have been by parol, if the fact proved will support the declaration, I see no ground for any distinction between making such proof by matter of record or by parol." Per Lawrence, J. S. C. 9 East, 162. CHAP. XXVIII. MANDAMUS. I. Nature of the Writ of Mandamus.—Manda- II. In what other Cases the Court will grant a Mandamus. III. Where not. IV. Form of the Writ. V. Of the Return. VI. Of the Remedy, where the Party to whom the Writ of Mandamus is directed, does not make any Return, or where he makes an insufficient, or false Return. I. Nature of the Writ of Mandamus.—Manda- THE writ of mandamus is a prerogative writ, containing a command, in the king's name, and issuing from the court of King's Bench, directed to persons, corporations, or inferior courts of judicature within the king's dominions, requiring them to do a certain specific act, as being the duty of their office, character, or situation, agreeably to right and justice.. This writ affords a proper remedy, in cases where the party has not any other means of compelling a specific performance. The object of the writ is not to supersede legal remedies, but only to supply the defect of them. The only proper ground of the writ is a defect of justice. It is the absence or want of a specific legal remedy, which gives the court jurisdiction. There must, however, be a specific legal right, as well as the want of a specific legal remedy, in order to found an application for a mandamus. The power to issue this writ belongs exclusively to the court of King's Bench, and is considered as one of the flowers of that court; but this power ought to be exercised with great caution, as a writ of error does not lie on this proceeding. A mandamus lies either to restore a person wrongfully ousted, or to admit a person wrongfully refused. A mandamus lies to restore a person who has been removed from his office without cause; as a mayor, bailiff", alderman, burgess, jurat, common council-man", recorder', town-clerk, or serjeant'. Antiently, in these cases, the writ was termed "a writ of restitution," and appears to have been confined exclusively to offices of a public nature. The title "mandamus," is not found in the old abridgments. By an extension of the antient writ of restitution, a remedy has been provided for persons who have been duly elected to offices, although they never had possession. Hence a mandamus lies to admit, as well as to restore, a person to his office, as a mayor, alderman", town-clerk", &c. (1). 5 Mod. 257. g Anon. 1 Lev. 148. a Per Lord Ellenborough, C.J. Bristol of Clerk's case, Cro, Jac. 506. See also Dock Company, M. 52 G. 3. MS. See also the opinion of Buller, J. in R. v. M. of Stafford, 3 T. R. 652. b Per Lord Ellenborough, C. J. R. v, Archbishop of Canterbury, 8 East, 219. c Poph. 176. d 2 Rol. Abr. tit. Restitution, pl. 4. h 2 Rol. Abr. tit. Restitution, pl. s. i Ib. pl. 6. k Pasch. 2 Car. said to have been ad 12 Rol. Abr. tit. restitution, pl. 7. (1) The admission under the mandamus gives no right, but only a legal possession, to enable the party to assert his right, if he has any. Hence, non fuit electus has been holden not to be a good return to a mandamus, to swear in a church-warden; (R. v. White, M. 11 Geo. 1. cited by Strange, Arg. Str. 894, 5.) because it is directed only to a ministerial officer, who is to do his duty, and no inconvenience can follow; for if the party has a right, he ought to be admitted; if he has not, the admission will do him no good. Wherever the officer is but ministerial, he is to execute his part, let the consequence be what it will. R. v. Simpson, M. 11 Geo. ib, That By the common law, upon the death of a mayor, or other chief magistrate of boroughs or corporations within the year, the court of King's Bench was authorized to grant a mandamus immediately to fill up the vacancy, thus occasioned by the act of God and an ordinary contingency; but, upon an omission to elect at the charter-day, or to do such acts as were by the charter required to be done at certain times, in order to complete the election, or upon the removal of an officer unduly chosen, the court had not any power to compel an election, or the performance of such acts as were necessary to complete an election, before the day came round again; for, to compel the corporation to proceed to an election at another day, would not be enforcing obedience to the king's charter, but to authorize them to act in opposition to it. The omission to elect might be owing to the contrivance of the person who ought to hold the court, or to preside in the assembly where the election was to be made; or it might be the effect of pure accident: in either case, the inconvenience was the same; a forfeiture of the charter might be incurred, and the corporation dissolved, in consequence of such omission. To remedy the mischiefs which might thus arise, it was enacted, by stat. 11 Geo. 1. c. 4. that if no election should be made of the mayor, bailiff, or other chief officer of any city, borough, or town corporate in England, Wales, and Berwick-upon-Tweed, upon the day, or within the time appointed by the charter or usage, or if such election having been made, should afterwards become void, whether such omission, or avoidance should happen through the default of the officer, &c., or by any accident, or other means, the corporation should not be thereby dissolved, but might meet at the town-hall, or other usual place of meeting, on the day after, between the hours of ten in the morning and two in the afternoon (2), and proceed to an election; and in case the o See 8 Mod. 129. See the case of the corporation of a MS. note by Lord Hardwicke, C. J. in R, v. Pasmore, 3 T. R. 221. R. v. Tregony, s Mod. 127. was a mandamus to the Archdeacon of Colchester, to swear Rodney Fane into the office of churchwarden. The archdeacon returned, that before the coming of the writ, he received an inhibition from the bishop; but the court held that was no excuse, and that a ministerial officer is to do his duty, whether the act would be of any validity or not. (2) "I think the time is not essential; but only directory, It was appointed to prevent surprise; and if the election be fairly carried on, though at a different hour, yet such election is good," |