The COURT held that the bail to the sheriff might make the application; that the application on the part of the bail was the same as that on the part of the sheriff'; and that as it was sworn that it was made on behalf of the bail, who were entitled to be let in to make a defence, if there should be found to be any, it was not necessary for them to swear to merits. there having been a trial lost, the rule was made ABSOLUTE, the attachment standing as a security. But 1806. FLACK versus BEECROFT. EASTER TERM. The KINO against the BISHOP of OXFORD. April 24th. Curacy. Manthat damus. Debito A mandamus to a bishop to grant a license to a curate, upon the modo electus. UPON a rule to shew cause why a writ of mandamus The KING should not be quashed, the writ was as follows: verzus The Bishop of Oxfordshire. George the Third, &c. To the Right OXFORD. Reverend Father in God, John, Lord Bishop of Oxford, greeting, Whereas the Rev. Isaac Knipe, Clerk, hath been duly nominated and appointed by the inhabitants of the township, village, or hamlet of Piddington in the parish of Ambrosden, in our county of Orford, or the major part of them, to be chaplain or curate of the church or chapel of Piddington aforesaid. And whereas, he, the said Isaac Knipe, by virtue of such his nomination and appointment, ought by you to be licensed to officiate as chaplain or curate of the said church or chapel of Piddington aforesaid, and to have, use, and enjoy, all the privileges, profits, and advanta 3 1306. versus The BISHOP ges, of and belonging to the said place and office of The KING chaplain or curate, of the said church or chapel. And, whereas he, the said Isaac Kuipe, after such his of OXFORD. nomination and appointment, did, in due manner, request you the said bishop to grant your licence to him the said Isaac Knipe to officiate as chaplain or curate of the church or chapel of Piddington aforesaid. Yet you the said bishop, well knowing the premises, but not regarding your duty in this behalf, have absolutely neglected and refused, and still do absolutely neglect and refuse, without any reasonable cause whatsoever, to grant a licence unto the said Isaac Knipe, to officiate as chaplain or curate of the church or chapel of Piddington aforesaid; In contempt of us, and to the great damage and grievance of the said Isaac Knipe, as also of the inhabitants of the township, village, or hamlet of Piddington aforesaid, as we have been informed from their complaint made to us in this behalf; (as it is reasonable), We command you firmly enjoining you that, immediately after the receipt of this our writ, you do without delay grant a licence to the said Isaac Knipe to officiate as chaplain or curate of the church or chapel of Piddington aforesaid, and to have,use, and enjoy all the privileges, profits, and advantages belonging to the same, or shew us cause to the contrary thereof, lest by your default the same complaint be repeated to us, and in what manner you shall have executed this our writ make appear unto us, at Westminster on Tuesday next, after fifteen days from the day of St. Martin then returning unto us this our writ. And this you are not to omit on peril that may fall thereon. Witness, Edward, Lord ELLENBOROUGH, at Westminster, the 8th day of Novem ber, in the 46th year of our reign. And upon this writ it was objected that it was defective, in not stating a good title to the relief prayed, and 1806. The KING that it should have been stated in the writ, either that the rector assented to the curate having the use of the pulpit, or that there was an immemorial custom for the inhabitants to elect a curate to officiate, or an immemo- OXFORD. rial endowment. MILLS and MANLEY shewed cause. "There is no case to shew that a writ of mandamus which is sufficient to call for a return can be quashed, In 6 Mod. 310. Lord Holt says, the party ought to suggest whatever is necessary to entitle him to be admitted and, if that is not done, or being done, the facts are false, in either of these cases it is sufficient matter for a return.' Here the mandamus could not be sued out without stating that which is necessary upon affidavit to entitle the party to it. In Tremaine's Pleas of the Crown,* there is a precedent of a mandamus to the Dean of Exeter, to admit one of the eight men of Ashburton to a particular office, but there is nothing stated in the mandamus as to the right. So in the King v. the Dean and Chapter of Dublin, it is said as to the expression of the mandamus, this party has no reason to shew the statutes, as the other must do that in his answer and return.' And here as to the want of title, in this case, there is as much stated as in the case of election to a corporation, where it is stated only that the party, debito modo, electus fuit. In Rex v. Ward,‡ it was not averred in the writ, that Dr. Ward was a person bound to admit and swear in, and Strange answered that if he was not he should return that.' There would be no benefit derived from quashing this writ, because, if there are two or three modes by which we might have a right, we must not state it under each form, but confine ourselves to one." versus The BISHOP of * 467. Strange, 536, 2 Strange, 893. 1806. The KING versus The BISHOP of LAWRENCE, J. "By the common law, the nomination of the curate is in the parson of the parish. If it is not so here, must it not be stated in the writ as a custom; or, else, how can it be denied or how introduced into the proceedings." MILLS, "There is no case wherein it is necessary to put the title upon the record." Lord ELLENBOROUGH, C. J. "Debito modo electus imports, not only the due election, but also the power of the persons who elected; but, in this case, though he was duly nominated and appointed by the inhabitants,' it does not appear that they had a right to nominate." MILLS. "In all the cases they have shewn these things as cause against the mandamus, and I find no case in which the mandamus has gone, that it has been quashed for this cause." MANLEY, on the same side. "A mandamus is merely in the nature of an action upon the case, and, in all cases of action on the case, the declaration is very general; as in an action for not grinding of corn at a mill, the party only states, that he is possessed of the mill, and all the rest is merely evidence. I do not find one case in which a mandamus has been quashed, for not stating more than debito modo nominatus or debito modo electus, and they have no precedents in the crown office or in Tremayne, of a mandamus to the bishop to licence." SIR VICARY GIBBS, contra. "There is one in Tremayne, to institute churchwardens, elected differently from the common law mode of election, and there the custom is stated." LAWRENCE, J. "Writs are not uncommon for persons to be instituted into offices. In Tremayne +50, there is a mandamus to institute into the office of may or of the vill aforesaid, into which place he ought to be admitted, and there is a custom stated." 1806. The KING versus OXFORD. MANLEY, then admitted that in the case of the The BISHOP of eight men of Devon there is a return; and, in the same book, there is another mandamus, in which the custom is very fully set out; in the case of Yolland in Tremayne's Pleas of the Crown, 468. Lord ELLEN BOROUGH, C. J. "If they had traversed in this case, they could not have been the better for it, for he might be appointed, yet the bishop might not be bound to licence." Sir VICARY GIBBS. "In Yolland's case they return non debito modo electus, and then there is a mandamus stating that, whereas the parish is an ancient parish, and there is and ought to be, &c. and so stating the custom. In 2 Shower's Reports, 217, the court say to the counsel, state your right, or otherwise the writ shall do you no pleasure.' If my answer is to arise. out of those facts which are stated, then the writ is sufficient. As in the case of a mayor, who states that A. B. was duly elected; his title is complete, if the fact be true that he was duly elected, although in proof of that title it might be necessary to shew many other facts, which might make out that more complex fact, debito modo electus. Here may be a right to appoint a curate, but that is not a right to have a license, unless he obtain the consent of the rector to let him officiate; Rer v. Bishop of London.* We do not set up a collateral fact as an answer to the right which they have shewn, but merely allege, that they have not stated a sufficient prima facie right. If a man is duly elected a freeman, the common law gives him a right to the institution; but here, as in the case of a |