time of the service of the alternative mandamus, the company had time to institute compulsory proceedings for taking lands, it was held, that if, instead of doing so, they attempted to defend the writ, and failed, it was at their peril, and the court would not excuse them, upon the ground that in the mean time their compulsory powers had expired.2

2. And where it was attempted to defend against the writ, on the ground that it was not shown that the company had funds, the court said, in the last case referred to: "We shall presume that the company have funds." But it would seem that the want of funds, and of the ability to obtain them, if shown on the return to the alternative mandamus, might be an excuse.3 *And the com

denying the authority of Reg. v. Birmingham & Gloucester Railw., 2 Q. B. 47, upon this point, as justifying the writ. And in the former case it was held, the prosecutors were guilty of laches in not sooner applying for the writ. But a plea that the cause of action did not accrue within six years, is a bad plea to a declaration for a mandamus, as the statute of limitations does not bar an action for such a writ. Ward v. Lowndes, 6 Jur. N. S. 247 ; s. c. 1 Ellis & Ellis, 940, 956; 2 id. 419; 29 L. J. Q. B. 40.

2 Reg. v. York, Newcastle, & Berwick Railw., 16 Q. B. 886; s. c. 6 Eng. L. & Eq. 259; Reg. v. Lancashire & Yorkshire Railw., 16 Q. B. 906; s. c. 6 Eng Law & Eq. 265; Reg. v. G. W. Railw., 1 El. & Bl. 263, 744; s. c. 18 Eng. L. & Eq. 364. In this case it was held, that the return must show that the company's compulsory powers for taking land had expired, and that they could not obtain the necessary land without exercising those powers. Where, on motion for mandamus to compel the company to build a bridge, it was stated on behalf of the company that they could not build it without purchasing additional land, and that their powers for that purpose had expired, and the prosecutor stated that they could build it without taking additional land, it was held that a writ of mandamus should issue to the company, and that they might return their inability from want of power to purchase land. Regina v. Dundalk & Enniskillen Railw., 5 L. T. N. S. 25. Where mandamus was issued to a railway, reciting that premises in the occupation of B. had been injuriously affected by the works of the company, and that the company having declined to join in the appointment of an arbitrator to estimate the damage to B., he had appointed an arbitrator, who had duly made his award, and commanding the company to take up his award, and the company returned that B. also occupied other lands that were taken by the company, and that, before the execution of their works, it was agreed between him and the company that the company should pay to him a certain sum in satisfaction of the lands so taken, and the premises so injuriously affected, this was held a good return. Regina v. West Midland Railw., 11 W. R. 857, in the Queen's Bench.

3 Lord Campbell, Ch. J., in Reg. v. London & N. W. Railw., 16 Q. B. 864; s. c. 6 Eng. L. & Eq. 220; Reg. v. Ambergate, &c. Railw., 1 El. & Bl. 372; s. c. 18 Eng. L. & Eq. 222. In Reg. v. Eastern Counties Railw., 10 Ad. &

pany are not estopped from making this plea by reason of having, in some instances, exercised their compulsory powers of taking land.4

3. But it is no sufficient excuse that the road has become unnecessary, or that it would not prove remunerative, or that, in all reasonable probability, the funds which will come to the hands of the company will prove inadequate to the completion of the work.5

4. By the English statute the court may quash part of a return to the writ which is bad in law, and put the prosecutor to plead to or traverse the remainder. But if the grounds of defence to the writ be repugnant, the court may, upon that ground, quash the whole.

5. The counsel for the crown are allowed to begin, although the return may be in the nature of a demurrer to the writ. The validity of the writ may be impeached on the return.8

6. In a case where the approaches to a bridge across a railway were not of the width required by the special act, a return to the writ of mandamus, that they were as convenient to the public as the original road, or as they could be made, in execution of the powers of the act, and that to widen them to the dimensions defined in the act would require more land, and that their powers for taking land compulsorily had expired before they were called upon to widen these approaches, is bad."

7. The peremptory writ will not be issued until all the * matters contained in the alternative writ are finally determined in favor of the application.10

Ellis, 531, it was considered no objection to granting the writ that the company had not the requisite funds, and could not raise them, without a new act.

Reg. v. Ambergate, &c. Railw., 1 El. & Bl. 372; s. c. 18 Eng. L. & Eq. 222. 5 Reg. v. York & N. M. Railw., 16 Eng. Law & Eq. 299, not reversed upon these points. Reg. v. L. & Y. Railw., 7 Railw. Cas. 266; s. c., 16 Eng. L. & Eq. 327.

69 Anne, c. 20; Reg. v. Mayor of Cambridge, 2 T R. 456; 4 Burrow, 2008; Rex v. Mayor of York, 5 T. R. 66.

7 Reg. v. St. Pancras, 6 Ad. & Ellis, 314; State v. Directors of Bank, 28 Vt. 594.

8 Clarke v. Leicestershire & Northamptonshire Canal Co., 6 Q. B. 898; s. c. 3 Railw. C. 730.

Reg. v. Birmingham & Gloucester Railw., 2 Q. B. 47; 3 id. 223; 2 Railw. C. 694; Rex v. Ouse Bank Commissioners, 3 Ad. & Ellis, 544.

10 Reg. v. Baldwin, 8 Ad. & Ellis, 947. This was where the alternative writ required two sums of money to be paid, and it had been found that one of the sums was due, and the inquiry was not finished in regard to the other. The

8. The court will not quash a return summarily, or order it taken off the file, unless it is frivolous, so as to be an obvious insult, and contempt of court.11

9. No excuse for non-compliance with a peremptory writ of mandamus is admissible.12 It is no ground of objection to a mandamus, that a requisition is made on parties in the alternative, to do one of three things, if the duty enjoined by the act of parliament forms one of them, and there has been a general refusal to comply with the requisition.18 And the demand for the rate in this case was held sufficient, notwithstanding the church-wardens required the vestry to lay the rate, or do another act, which last was illegal. 13

SECTION VII.

Where the alternative Writ requires too much, it is bad, for that which it might have maintained.

§ 157. It seems to be well settled in the English practice, that if the writ issue, in the first instance, for some things which defendant is not bound to do, it cannot be supported, even as to those things which he is compellable to perform. But the writ * may be awarded to complete such portions of their road as the company are still compellable to build, although from lapse of time it has become impossible to build the entire road.2

But if the alternative writ commands more than is necessary to court refused to grant a peremptory writ for the payment of the sum, about which the controversy was ended.

"Reg. v. Payn, 3 Nev. & P. 165; The King v. Round, 5 Nev. & M. 427. But the return to a writ of mandamus must be very minute in showing why the party did not do what he was commanded to do. Reg. v. Port of Southampton, 1 El. B. & S. 5; s. c. 7 Jur. N. S. 990; 30 L. J. Q. B. 244.

12 Reg. v. Mayor of Poole, 1 Q. B. 616. But after judgment for the crown, on a return to a writ of mandamus, the defendants having voluntarily, and with the prosecutor's assent, done the act commanded, the court will quash a peremptory writ of mandamus as unnecessary, and an abuse of the process of the court. Reg. v. Saddlers' Company, 3 El. & El. 42; s. c. 10 Ho. Lds. Cas. 404; 33 L. J. Q. B. 68. Reg v. St. Margarets, Leicester, 8 Ad. & Ellis, 889.

13

1 Reg. v. Caledonian Railw., 16 Q. B. 19; s. c., 3 Eng. L. & Eq. 285; Reg. v. East & West India Docks & Birm. Junc. Railw., 2 El. & Bl. 466; s. c. 22 Eng. L. & Eq. 113.

2

Reg. v. York & North M. Railw., 16 Eng. L. & Eq. 299. reversed in Exchequer Chamber upon other grounds.

This case was

be done to comply with the statute, it will be quashed, notwithstanding the party might have been entitled to this remedy to a certain extent.3

3. Mandamus proper to compel payment of 6. Where a statute imposes a specific duty, compensation under statute.

an action will lie.

§ 158. 1. It seems to have been the more general practice to enforce the payment of money awarded against a corporation, in pursuance of a statute duty, by mandamus, where no other specific remedy is provided.1

3 York & North Midland Railw. v. Milner, 3 Railw. C. 774, reversing, in the Exchequer Chamber, The Queen v. York & N. M. Railw., 3 Railw. C. 764.

'The King v. Nottingham Old Waterworks, 6 Ad. & Ellis, 355; Rex v. Trustees of Swansea Harbor, 8 Ad. & Ellis, 439. In this case one party moved for a certiorari with a view to quash the proceedings, and the other for a mandamus to carry them into effect. The rule for the former was discharged, and for the latter made absolute. Reg. v. Deptford Improvement Co., 8 Ad. & Ellis, 910. Where a city council is authorized and required by law to levy and collect a tax upon the real and personal property of the city, sufficient to pay the interest upon bonds issued by the city in payment of a subscription to the stock of a railway company, and the council refuses to do so, and there is no specific legal remedy provided for such refusal, mandamus may be issued to compel them to perform that duty, at the instance of holders to whom the bonds have passed from the company. An express or explicit refusal in terms is not necessary to put the respondents in fault; it will be sufficient that their conduct makes it clear that they do not intend to do the act required. The writ, in such case, may be applied for by any of the bondholders; and it is not necessary that all the bondholders should be parties to it. Nor is it necessary to make the railway corporation, to which the bonds were originally executed, or the tax-payers of the city, or the commonwealth, parties to the bills, in Kentucky. And it is no objection to the issuing of the writ that an action has been brought against the city, upon some of the coupons, such action having been dismissed before judgment, on the petition for mandamus. Maddox v. Graham, 2 Met. (Ky.) 56.

It is laid down in the above case, that a proceeding for a mandamus against the city council is virtually a proceeding against the corporation, and the judgment is obligatory upon the members of the common council who may be in office at the time of its rendition. And a change in the membership of this council does not so change the parties as to abate the proceeding. Ib.

*2. But it has been held that an action of debt will lie upon the inquest and assessment of compensation for land.2 And where, in granting to a railway the right to erect a bridge across the river Ouse, it was provided in the act of parliament, that, if the erection of such bridge should lessen the tolls of another bridge company upon the same river, after a trial of three years, as compared with the three years next preceding the erection of the railway bridge, the railway company should pay to the bridge company a sum equal to ten years' purchase of such annual decrease of tolls; it was held that debt will lie for such purchase, and that mandamus is no more effectual remedy and ought not to be granted. If the party have no right to execution, upon an award, mandamus will be awarded, otherwise not.4

3. So the court will not enforce an ordinary matter of contract or right, upon which action lies in the common-law courts, as to compel common carriers to perform their public duties, or special contracts, the statute not requiring them to carry all goods offered. But where compensation is claimed for damages done under a statute, the proper remedy is by mandamus, * although the party may claim that the company went beyond their powers, and thus committed a wrong for which the proper remedy is an action. 4. Nor will mandamus lie where the proper remedy is in equity,7

2 Corrigal v. The London & Blackwall Railw., 5 Man. & Gr. 219.

3

Reg. v. The Hull & Selby Railw., 6 Q. B. 70; Williams v. Jones, 13 M. & W. 628. Courts of equity will not interfere where there is a remedy before sheriffs' jury. East and West India D. & B. Railw. v. Gattke, 3 Mac. & G. 155; s. c. 3 Eng. L. & Eq. 59.

Rex v. St. Catherine's Dock Co., 4 Barn. & Ad. 360; Corpe v. Glyn, 3 B. & Ad. 801; Reg. v. The Victoria Park Co., 1 Q. B. 288. And in this case Denman, Ch. J., says, the court should not go beyond our extraordinary interposition by mandamus, to require a corporation to make a call upon the shareholders, to pay debts, where the legislature had intrusted them with that power, and they had no standing capital.

5 Ex parte Robbins, 7 Dowl. P. Cases, 566.

Reg. v. North Mid. Railw., 2 Railw. C. 1; 11 Ad. & Ellis, 955; Thicknesse v. Lancaster Canal Co., 4 M. & W. 472; Fenton v. Trent & Mersey Nav. Co., 9 M. & W. 203; Rex v. Hungerford Market Co., 3 Nev. & M. 622.

7 Rex v. The Marquis of Stafford, 3 T. R. 646. See Edwards v. Lowndes, 1 Ellis & B. 92; 20 L. J. Q. B. 404; 16 Eng. L. & Eq. 204. The relation of trustee and cestui que trust gives no right of action at law for money due. Pardoe v. Price, 16 M. & W. 451. The proper remedy is in equity, and mandamus will not lie. Reg. v. Trustees of Balby & Worksop Turnpike, 1 B. B. C. 134; s. c. 16 Eng. L. & Eq. 276.