R. (Mulcahy) v. purpose for which the prosecutor seeks the writ (Lawless v. Commissioners of Police, 13 Ir. L. R. 307, S. C.). Although the Court will by mandamus direct justices to hear a complaint, they will not thereby compel them to adjudicate in any particular way (R. v. Dayman, 7 El. & Bl. 676, per Crompton, J.). Where justices are equally divided. In the case of The King (Mulcahy) v. Chairman and Justices Co. Tipperary (1903, 2 I. R. 108), the Court held, that in discretionary applications to Quarter Sessions where there is an equal division of opinion among justices, and they decline to make the order sought, and refuse to adjourn and rehear the matter, the King's Bench will not compel them by mandamus to do so. The facts shortly were-M. applied at the June Quarter Sessions 1902 for a publican's licence in respect of his hotel. The justices were evenly divided upon the question "whether it seemed fit to them to hear the application at the then sessions? The chairman thereupon directed an entry to be made in the Court-book: "This not being the Annual Licensing Quarter Sessions, it not seeming fit to the Court to grant the application, same is refused." The bench declined to accede. to the applicant's request to adjourn and rehear the case. On motion to make absolute a conditional order for writs of certiorari and mandamus obtained by him, the King's Bench held that the Court of Quarter Sessions was not under a legal duty, enforceable by mandamus, to adjourn the matter of the application; that the entry in the Courtbook was substantially good, and the conditional order was discharged. In giving judgment, Mr. Justice Gibson says: "If in the exercise of their discretion the justices did not see fit to adjourn, this Court could not, I think, interpose [ex parte Lewis, 21 Q.B.D. 191; R. v. Justices of London (1895), 1 Q.B. 214]. If there was no adjournment, the summons or other proceedings, if original, dropped and became abortive; if on appeal, the order below stood (Garton's Case, 57 J.P. 328). In many cases an adjournment would be useless as a remedy for equal division, or inexpedient (as where there was a full bench, and the effect of the adjournment would be that some of the justices present would be unable to attend again, or where (as here) the adjournment would be to the next regular Licensing Sessions. His Lordship continues: "No authority can be referred to, showing that justices who have honestly done their best to decide a case, and by whose disagreement an application automatically drops, can be compelled by the King's Bench to adjourn, or can be treated as if they had refused to hear and determine. It is the duty of justices to hear an application, and to grant or dismiss it, if they can agree but lex non cogit impossibilia-they cannot be made to reassemble on the chance of their reconciling their differences. How often must the Court adjourn if they cannot agree? وو I know of no case holding that adjournment can be compelled as a result of equality of votes on the bench, or that such a bench can be treated as having refused to determine, and therefore subject to mandamus. The only consequence that necessarily flows in an ordinary case from such equality is that the application falls to the ground." Much of the very important scope of mandamus lies outside the purview of this book. But, as may be seen, it chiefly comes into play where there has been a declining of jurisdiction by justices, and that at any stage of the proceedings. In the case of R. v. Brown (7 El. & Bl. 767), Coleridge, J., suggests as a test: Is the objection such that, whatever the merits of the case, whether the defendant be guilty or not, the magistrates hold that they cannot decide upon the merits owing to the objection in point of law-e.g. want of parties, or of notice? Such holding is a declining of jurisdiction, and not an adjudication. Discretion.-If magistrates have a discretion to proceed or not, and in the exercise of that discretion have refused to proceed, the Court will not compel them to do so (per Coleridge, J.). When magistrates have a discretion to grant or refuse a summons, and exercise that discretion properly, the Court will not grant a mandamus to hear and determine the matter (R. v. Huggins, 60 L. J. M. C., 130). In R. v. Lewisham Union (1897), 1 Q.B., it was held and declared to be an established rule that an applicant must show that he has a legal specific right to ask for the interference of the Court before he is entitled to a mandamus. Licensing.-Mandamus is also the proper course when magistrates have wrongfully refused to hear an application for a licensing certificate or where they refuse on a ground which is not a good ground of refusal or where an order of refusal should show the ground of refusal : and the order is silent or states a ground which is not a valid ground for the refusal [R. (O'Callaghan) v. Donegal JJ. (1898), 2 I. R. 653; R. v. De Rutzen (1875), 1 Q.B.D. 55; R. (Kinsella and Kavanagh) v. Wicklow JJ. (1877), I. R. 11 C. L. 59]. Costs. It is the general rule of the Court to order the person unsuccessfully resisting a writ of mandamus to pay all costs incurred [R. (Rogers) v. Antrim JJ. (1900), 2 I. R. 288]. Affidavit in support of.-The affidavit should contain a precise statement of facts, and its allegations should be positive. The affidavit must also show clearly that the party against whom the motion is to be made ought, either by the common law of the land, or by force of some statute, to do the act required to be done; that he has been required to do such act and has refused, or has acted in a manner equivalent to a refusal; for the obligation to do the act, the demand of him to do it, and the refusal to do it, are the gist and foundation of the motion. The affidavits must make out a complete case, and show a title to the writ. Appeal. An appeal lies from a rule made absolute by K. B. D. (R. v. Wermouth Board, 52 B. D. 67). CROWN OFFICE RULES. The following are the Rules of the Crown Office relative to Mandamus: ORDER LXXXIV. R. 33. Application for a prerogative writ of mandamus shall during the sittings be made to a Divisional Court of the King's Bench Division by motion for a conditional order to show cause; and in the vacation, or when there is no sitting of the Divisional Court, by similar motion to a judge, upon its being shown to the satisfaction of such judge that the matter is urgent. R. 34. The order absolute for a mandamus need not be served, but, if served, the costs of service of the order absolute may be allowed in the discretion of the taxing officer, where the writ is not issued. R. 35. Unless the Court or judge otherwise direct, if the writ of mandamus is directed to one person only, the original must be personally served upon such person; but if the writ be directed to more than one, the original shall be shown to each one at the time of service, and a copy served on all but one, and the original delivered to such one. R. 36. Unless the Court or judge otherwise direct, when a writ of mandamus is directed to companies, corporations, justices, or public bodies, service shall be made upon such, and so many persons as are competent to do the act required to be done, the original being delivered to one of such persons except where by statute service on the clerk or some other officer is made sufficient service. R. 37. The Court or a judge may, if they or he shall think fit, order that any writ of mandamus shall be peremptory in the first instance. R. 38. Every writ of mandamus shall bear date on the day when it is issued, and shall be tested in the name of the Lord Chief Justice. The writ may be made returnable forthwith, or time may be allowed to return it, either with or without terms, as the Court may think fit. R. 39. Any person by law compellable to make any return to a writ of mandamus shall make his return to the first writ. R. 40. Where a point of law is raised in answer to a return or any other pleading in mandamus, and there is no issue of fact to be decided, the Court shall, on the argument of the point of law, give judgment for the successful party without any motion for judgment being made or required. R. 41. Where under Rules 40 and 104 the applicant obtains judgment, he shall be entitled forthwith to a peremptory writ of mandamus to enforce the command contained in the original writ, and the judgment shall direct that a peremptory writ do issue. R. 42. No action or proceeding shall be commenced or prosecuted against any person in respect of anything done in obedience to a writ of mandamus issued by the Supreme Court or any judge thereof. R. 43. When it appears to the Court that the respondent claims no right or interest in the subject matter of the application, or that his functions are merely ministerial, the return to the writ, and all subsequent proceedings down to judgment, shall still be made and proceed in the name of the person to whom the writ is directed, and, if the Court thinks fit so to order, may be expressed to be made on behalf of the persons really interested therein. In that case the persons interested shall be permitted to frame the return, and conduct the subsequent proceedings at their own expense; and if judgment is given for or against the applicant, it shall likewise be given for or against the person on whose behalf the return is expressed to be made; and if judgment be given for them they shall have the same remedies for enforcing it the person to whom the writ is directed would have in other cases. R. 44. Where, under the last preceding rule, the return to a writ of as mandamus is expressed to be made on behalf of some person other than the person to whom the writ is directed, the proceedings on the writ shall not abate by reason of the death, resignation, or removal from office of that person, but they may be continued and carried on in his name, and if a peremptory writ is awarded, it shall be directed to the successor in office or right of that person. R. 45. In any case of mandamus in which proceeding by way of interpleader may be proper, the procedure and practice used with respect to interpleader in the High Court of Justice in Ireland shall be applicable so far as the nature of the case will admit. R. 46. No order for the issuing of any writ of mandamus shall be granted unless at the time of moving an affidavit be produced by which some person shall depose upon oath that such motion is made at his instance as prosecutor, and if the writ be granted, the name of such person shall be endorsed on the writ as the person at whose instance it is granted. R. 47. Every application for the costs of a mandamus shall, unless the Court or judge shall otherwise order, be made before the fifth day of the sittings next after that in which the right to make such application accrued, and shall be upon notice of motion. R. 48. Every application for a writ of mandamus to justices to enter continuances, and hear an appeal shall be made within two calendar months after the first day of the sessions at which the refusal to hear took place, unless further time be allowed by the Court or a judge, or unless special circumstances appear by affidavit to account for the delay to the satisfaction of the Court. R. 49. An application for an order in the nature of a mandamus shall be by motion for a conditional order in the same manner as is provided in Rule 33 (supra). * R. 104. When any return is made to the first writ of mandamus, the applicant may plead to the return within such time and in like manner as if the return were a statement of defence delivered in an action; and subject to the rules of this order (84), this pleading and all subsequent proceedings, including pleadings, trial, judgment and execution, shall proceed, and may be had and taken, as if in an action. CHAPTER XIV. HABEAS CORPUS. THE writ of Habeas Corpus-ad subjiciendum-the most famous of all writs, does not enter largely into the scope of this work. If there be any fault or illegality in the commitment alone, the defendant may obtain his discharge by suing out a writ of Habeas Corpus, ad subjiciendum. In Ireland it is enforced by the 21 & 22 Geo. III. c. 11 (Irish), commonly called the Habeas Corpus Act. The Crown Rules dealing with it are as follows: ORDER LXXXIV. R. 191. An application for a writ of Habeas Corpus, ad subjiciendum, may be made to the Court or a judge. R. 192. If made to the Court, the application shall be by motion for an order, which, if the Court so direct, may be made absolute ex parte for the writ to issue in the first instance; or, if the Court so direct, they may grant a conditional order. R. 193. If made to a judge, he may order the writ to issue ex parte in the first instance, or may direct notice of motion to be served. R. 194. Provided that every application for a writ of Habeas Corpus on a warrant of extradition shall during the sittings be made to the Divisional Court. R. 195. The writ of Habeas Corpus shall be served personally, if possible, upon the party to whom it is directed; or if not possible, or if the writ be directed to a gaoler, or other public official, by leaving it with a servant or agent of the person confining or restraining, at the place where the prisoner is confined or restrained; and if the writ be directed to more than one person, the original delivered to or left with such principal persons, and copies served or left on each of the other persons in the same manner as the writ. R. 196. If a writ of Habeas Corpus be disobeyed by the person to whom it is directed, application may be made to the Court, on an affidavit of service and disobedience, for an attachment for contempt. In vacation an application may be made to a judge for a warrant for the apprehension of the person in contempt to be brought before him, or some other judge, to be bound over to appear in Court at the next ensuing sittings, to answer for his contempt, or to be committed to prison for want of bail. R. 197. The return to the writ of Habeas Corpus shall contain a copy of all the causes of the prisoner's detainer endorsed on the writ, or on a separate schedule annexed to it. R. 198. The return may be amended, or another substituted for it, by leave of the Court or a judge. R. 199. Where a return to the writ of Habeas Corpus is made, the |