The King against The Bishop of Oxford
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1806 |
| Date | 23 June 1806 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 133
IN THE COURT OF KING'S BENCH.
the king against the bishop OF oxfokd. Thursday, April 24th, 1806. In a writ of mandamus such facts should be alleged as are necessary to shew that the party applying for it is entitled to the relief prayed. Therefore where a mandamus to the Ordinary to license a curate only stated that he had been duly nominated and appointed by the inhabitants of a township to be curate of the church of P., without stating either the consent of the rector or any endowment or custom for the-inhabitants to make such nomination and appointment, the Court quashed the writ. A writ of mandamus issued in Michaelmas term last to the bishop; which, reciting that the Rev. Isaac Knipe, clerk, had been duly nominated and appointed by the inhabitants of the township of Piddington, in the parish of Ambrosden, in the county of Oxford, or the major part of thenij to be chaplain or curate of the church or chapel of Piddington; and that by virtue of such nomination and appointment lie ought to be licensed by the bishop to officiate as chaplain, &c and to enjoy all the privileges and profits belonging to the said place and office of chaplain. And that after such his nomination and appointment he did in due manner request the bishop to grant him his licence; yet that the bishop, well knowing the premises, &e. refused, without reasonable cause, to license the said J. K. &c. to the damage and grievance of the said J. K. as also of the inhabitants of the said township; therefore commanded the bishop to grant the said licence. [346] Whereupon a rule was obtained in the last 134 THE KING 1). THE BISHOP OF OXFORD 7 EAST, 347. term, calling upon the prosecutor to shew cause why the writ should not be quashed for the insufficiency thereof apparent upon the face of it; inasmuch as it neither suggests a custom for the inhabitants to elect a chaplain who was entitled to the use of the pulpit without the consent of the rector; nor the consent of the rector in case there be no such custom; without one or other of which the mandamus would be against common right and nugatory. Milles and Manley now shewed cause against the rule. It is sufficient upon the face of this prerogative writ to state generally the right of the party applying; but though any thing be omitted which ought to have been suggested, in order to entitle the party to what he prays, that, according to Lord Holt, in Beat's case (a)1, will be good matter to return. That the party was debito modo electus is all that is stated in a mandamus to a corporation to admit and swear in a corporator. So the mandamus to the Dean and Chapter of Exeter (5)1, to admit and swear in one Yolland to the office of one of the eight men of the parish of Ashburton, in the county of Devon, merely states that he was duly elected into the office: and the circumstances which went to shew that he was not duly elected were stated by way of answer in the return. So a mandamus to the Dean and Chapter of Dublin (c), to admit one to a stall in the choir, and a voice in the chapter, only recites that the party had been legally instituted and inducted to his stall and voice, which the dean aind chapter had refused him: and they in their return state [347] the cause of that refusal. And in Bex v. Ward (of, where one of the objections taken to the writ (being a mandamus to the defendant to admit and swear in H. D. to be deputy registrar of the Archbishop of York's Court) was that it was not averred in the writ that the defendant was the person bound to admit and swear in the deputy registrar; the answer given, which the Court appears from the report to have thought sufficient, was, that if Dr. Ward were not the person to whom the executing the writ belonged, he should have returned so (Vf. They admitted [348] that since the eases of Rex v. The Bishop of (a)1 6 Mod. 310. (J)1 Trem. P. C. 467. (c) 1 Stra. 536, and 8 Mod. 27. (a)2 2 Stra. 893. Fitzg. 123, and 1 Barnard. 252, 294. The writ in this ease was directed to the defendant as commissary of the province of York. Ford's MS. (5)2 This was not the true answer which the Court gave to that objection; for it appears from Mr. Ford's MS. (the best reports of that period, for the use of which I am much indebted to Mr. E. Ford his son) that Filmer objected that it was suggested in the writ that the commissary was bound to admit by his office, which he said was a usual clause in all writs of this nature, and that it was void unless it appeared that the person to whom it was directed was obliged by his office to do the thing commanded in the writ. To this point see Trem. Entr. 452, 3, 4, 46L And it was said that no return, but that he was the proper officer, would make the writ good; for nothing shall be taken by inference to support a bad writ: for, were that allowable, much less would be requisite whereon to found a peremptory mandamus than an original one : on which, he said, the Court always required an affidavit that the person to whom the writ was prayed was the proper officer to execute it, and that he had refused to do the act, which the Court might compel him to do by the writ; facts which he argued ought to be inserted in the writ. To which it was answered by Strange, that though the writ does not expressly say that Dr. Ward is the proper person to swear in Mr. Dryden, yet it speaks what amounts to a literal affirmation; for it recites that application had been made to him to swear in Mr. Dryden, and that he minus juste had refused it; an expression very absurd, unless he were the officer for that purpose: as was another allegation in the same writ, viz. that his refusal was in contemptum domini Regis. Besides, the mandatory part of the writ being in the disjunctive, either that Dr. Ward should swear in Dryden, or shew good cause to the contrary, (as that he was not the proper person would have been;) his returning another excuse for not obeying the writ is a plain indication that he is the proper person to do this act. He said that...
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