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The Court held that the bail to the sheriff might J806. make the application; that the application on the part Fl ACK 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 behalt 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. But there having been a trial lost, the rule was made Absolute, the attachment standing as a security.
A mandamus to a bishop to grant a license to a curate, vpon the Curacy. Man-.
TJTON a rule to shew cause why a writ of mandamus Th«Ki»o should not be quashed, the writ was as follows: „., . Oxfordshire. George the Third, &c. To the Right Oxro«». 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 Oxford, 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, aad advanta
1*06. ges, of and belonging to the Said place and office bt The Kino chaplain or curate, of the said church or chapeU
verms And, whereas he, the said Isaac Knipe, after such hia The Bishop . ". ,. . . .
•fOxruuu. nomination and appointment, did, in due manner, request you the said bishop to grant your licence to hirn 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 tbesame 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 pe* ril that may fall thereon. Witness, Edward, Lord £lLenborough, at Westminster, the 8th day of Noiem* ber, in the 4Gth 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 that it should have been stated in the writ, either that 1806.
the rector assented to the curate having the use of the The KjMB pulpit, or that there was an immemorial custom for the
inhabitants to elect a curate to officiate, or an imoiemo- ki-,.<.iff 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 parly ought to suggest whatever is necessary to entitle him to be admitted and, if that is not done, or being done, tKe 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 Aihburton 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,f 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, dcbilo mado, electusfuit. In Rex v. JVard,^ 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 quashimg this writ, because, if there are two or three modes by which we might have aright, we must not state ituudereach form, but confine ourselves to one."
1806. Lawrence, J. "By the common law, the nomiTbeKiHo nation of the curate is in the parson of the parish. If
vtnut Jt jg not so here, must it not he stated in the writ as a Tie Bmiopof . . ,
OxroRp. custom; or, else, bow can it be denied or now introduced into the proceedings."
Mills, "There is no case wberein it is necessary to put the title upon the record."
Lord Ellenborough, C. J. "Debito modoelectus imports, not only thedueelection, but also the power of the persons who elected ; but, in this case, though ' lie was duly nominated and appointed by the inhabitants/ jt 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 tide. "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 stales, 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 tnodo electus, and they have no precedents in the crown office or in Tremaync, of a mandamus to the bishop to Kcence."
Sir Vicary Gibbs, eontri. "There is one in Trtmayne, 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 Tremaync «aO, there is a mandamus to institute into the office of may ox *>f Ihe vill aforesaid, into which place he ought to be 18O6. admitted, and there is a custom stated." The K, N 0
Man Ley, then admitted that in the case of the The Bi<Hop of eight men of Devon there is a return ; and, in the same 0xro,lwhook, tliere is another man damus, in which the custom is very fully set out ; in, the case of Yolland in Tremayne's Pleas of the Crovh, 46S.
Lord Ellenborougii, 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 return1 )ioh debito modo etectus, 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 td 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 elcctus. Here may be a right td 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; Rex v. Bishop of London.* We do not set up a collateral fact as an answer 10 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 hini h right to the institution 5 but here, as in the case of a