ANNEX

3 BVIUl. 1264. REX V. BARKER 823

[126B] Hilary Term, 2 Geo. 3, B. R. 1762. ^,⅛∙^3a[31]- Λ.C -iif it be in a matter of public concern, or attended with profit;) and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy ; this Court ought to assist by a mandamus; upon reasons of justice, as the writ expresses—-Nos A.

The interposing this writ where there is no other specific remedy, is greatly for the benefit of the subject and the advancement of justice. The speedy decision of the question, in that case which has been mentioned, by an immediate trial in a feigned issue shews it.

This case is not indeed quite the same as that was; but still it is reasonable to grant a rule to shew cause.

On Monday, 23d November 1761, Mr. ThurIow and Mr. Dunning shewed cause against the mandamus.

They controverted, by affidavit, the election of Mends ; and endeavoured to support the election of Mr. Hanmer₁ whom the trustees had put into possession.

The majority of the congregation seemed to be on the side of Mends: the trustees espoused Hanmer₁ and meant to maintain him with a high hand.

There was no colour for the election of Hanmer: and that of Mends was liable to objections.

This contest had raised great animosity, spirit, and obstinacy; especially in those who were for Hanmer; and as they thought their strength lay in throwing obstacles in the way of any (more especially a speedy) redress, as Hanmer was upholden and maintained in possession by the trustees; their counsel, with great earnestness and ability, argued against making the rule absolute for a mandamus ; and contended that it could not be “ to admit,” where another was in possession.

A mandamus “ to admit ” goes no further (they said) than to give a legal possession where otherwise the [1267] party would be without remedy. And to prove the dis­tinction between a mandamus to admit and a mandamus to restore to a former possession—they cited the case of Rex v. Dean and Chapter of Dublin, 1 Sir J. S. p. 538, per Pratt. “A mandamus to admit is only to give a legal, not an actual possession; though in a mandamus to restore, the Court will go further.”

But here, another person (Mr, Hanmer) is in possession : and Mr. Mends never has been so. Here is no legal right: and this Court can not take notice of trusts, so as to give relief, upon an equitable title only. Nor is this gentleman the cβstuy qui trust: at most, bis title is only equitable.

Lord Mansfield—A mandamus is a prerogative writ; to the aid of which the subject is intitled, upon a proper case previously shewn, to the satisfaction of the Court. The original nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced, to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all

S∞RR13M. REX υ. BARKER 825

occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.

Within the last century, it has been liberally interposed for the benefit of the subject and advancement of justice.

The value of the matter, or the degree of its importance to the public police, is not scrupulously weighed. If there be a right, and no other specific remedy, this should not be denied.

Writs of mandamus have been granted, to admit lecturers, clerks, sextons, and scavengers, &c. to restore an aiderman to precedency, an attorney to practice in an Inferior Court, therefore obstinately persisted in opposing a mandamus and refusing a trial.

Lord Mansfield—Every reason concurs here, for granting a mandamus.

Here is a function, with emoluments; and no specific legal remedy. The right depends upon election : which interests all the voters. The question is of a nature to inflame men’s passions. The refusal to try the election in a feigned issue, or proceed to a new election, proves a determined purpose of violence. Should the Court deny this remedy, the congregation may be tempted to resist violence by force: a dispute “ who shall preach Christian charity,” may raise implacable feuds and animosities; [1270] in breach of the public peace, to the reproach of Government, and the scandal of religion. To deny this writ, would be putting Protestant Dissenters and their religious worship, out of the protection of the law. This case is intitled to that pro­tection ; and can not have it in any other mode, than by granting this writ.

The defendants have refused either to go to a new election, or to try it in a feigned issue.

We were, all of opinion, when a trial was proposed to them, that a mandamus ought to issue, in case of a refusal. Their answer ought to be put into the rule, as prefatory to it: and I do this, with a view that their refusal may be authentically given in evidence to the jury, upon a trial.

Many cases have gone as far as this, or farther.

Mr. Justice Denison, Mr. Justice Foster, and Mr₁Justice Wilmot, all declared themselveβ of the same opinion.

The Court ordered a mandamus to issue.

V. post, pa. 1379, 1380, 28th April 1763.