remedy, being subject to the grant of a fiat by the Crown. The same principle had been suggested much earlier in R. v. Powell (1841), 1 Q. B. 352, at p. 363, when a petition of right formed a far more cumbersome mode of proceeding than it does now. One cannot help doubting, however, whether this part of the decision in In re Nathan was quite satisfactory. The judgment of Bowen, L.J., in particular, was based upon an attitude towards the grant of the fiat which does not seem to be justifiable (see below, p. 377), and he even suggests that an undertaking by the Attorney-General during the course of the case that a fiat would be granted converted the prospective petition of right into an absolute legal remedy.

It is equally well established that no mandamus will issue against officers and servants of the Crown as such, and apart from any duty which they owe, by statute or otherwise, to the public or any member of the public, in addition to the duty to the Crown. Where, however, such a duty to the public rests upon them, a mandamus will lie. Cockburn, C.J., stated in R. v. Lords Commissioners of the Treasury (1872), L. R. 7 Q. B. 387; 41 L. J. Q. B. 178: "In like manner where the parties are acting as servants of the Crown, and are amenable to the Crown, whose servants they are, they are not amenable to us in the exercise of our prerogative jurisdiction"; and Blackburn, J., said: "We cannot enforce that obligation against the servants by mandamus merely because the Sovereign happens to be the principal"; but he adds that it would be otherwise if they were under a statutory obligation. (See also R. v. Registrar of Joint Stock Companies (1888), 21 Q. B. D. 131; 57 L. J. Q. B. 433, below, p. 121.) So in In re Baron de Bode (1838), 6 Dowl. 776, at p. 792, it was said: "Against servants of the Crown, as such, and merely to enforce the satisfaction of claims upon the Crown, it is an established rule that a mandamus will not lie."

The principle was again laid down by Lord Esher, M.R., in R. v. Secretary of State for War, [1891] 2 Q. B. 326; 60 L. J. Q. B. 457: "The appeal must fail on the grounds, first, that a mandamus would not lie against the Crown; and secondly, that it will not lie against the Secretary of State, because in his capacity as such he is only responsible to the Crown, and has no legal duty imposed upon him towards the subject. The principle has been laid down over and over again in many cases." The matter is further discussed below on the cases with regard to the Treasury and the Inland Revenue.

The Attorney-General.

E. p. Newton (1855), 4 E. & B. 869; 24 L. J. Q. B. 246, and E. p. Costello (1868) Ir. R. 2 C. L. 380, have already been dealt with above,

p. 11. In both cases the Court would, it seems, have granted a mandamus against the Attorney-General if he had refused to hear and consider an application for a fiat to a writ of error.

The Treasury.

The law as to mandamus to this Department, and, incidentally, to Government Departments in general, is to be found in the alreadycited case of R. v. Lords Commrs. of the Treasury (1872), L. R. 7 Q. B. 387; 41 L. J. Q. B. 178 (above, pp. 111, 112). It is an extreme case, because the Court was clearly of opinion that the Treasury had been quite wrong in their proceedings, and yet refused to grant a mandamus. Their reason was that there was no statutory obligation upon the Treasury to issue a minute to pay the money in the manner desired by the prosecutors, but that their duty was merely to advise the Crown whether the minute ought to be issued or not.

This case may be said to settle the question of mandamus to the Treasury, which was left uncertain by the previous decisions. In particular, it disapproves of R. v. Lords Commrs. of the Treasury (1835), 4 A. & E. 286; 5 L. J. K. B. 20, where it was held that a mandamus lay to the Treasury to pay a certain retiring allowance. Cockburn, C.J., in the later case, regards the decision as depending on a section of a now repealed statute, and doubtful at that. It would appear that the prosecutor himself got little benefit out of the decision, as the Treasury at once revoked the minute granting his allowance. (See R. v. Lords Commrs. of the Treasury (1836), 4 A. & E. 976, where a mandamus to them to restore the minute was refused.) In R. v. Lords Commrs. of the Treasury (1836), 4 A. & E. 984, Lord Denman, C.J., said that the case only declared that the Treasury must make a return of money which they had admittedly received on account of the prosecutor's pension, and show why it had not been paid over, and that no decision was given on the point of law. In R. v. Commrs. of Woods and Forests (1850), 15 Q. B. 761; 19 L. J. Q. B. 497, however, Lord Denman disowned the last sentence of this. declaration. But a similar observation is made by Lord Campbell, C.J., in Chabot v. Viscount Morpeth (1850), 15 Q. B. 446; 19 L. J. Q. B. 377.

In R. v. Lord Commrs. of the Treasury (1851), 16 Q. B. 357; 20 L. J. Q. B. 305, the Court relied on a statutory duty which it thought to be imposed upon the Commissioners by the now repealed statute already referred to in the case in 4 A. & E. 286, though the rule was discharged on other grounds.

The case in 4 A. & E. 286 was finally disposed of by R. v. Commrs. of Inland Revenue, In re Nathan (1884), 12 Q. B. D. 461; 53 L. J. Q. B. 229 (see below, p. 117).

C.P.

E. p. Walmsley (1861), 1 B. & S. 81, was an unsuccessful attempt to obtain a rule for a mandamus to the Treasury to pay for books, &c. supplied to a County Court under a statute which enacted that all expenses incident to the holding of such Courts should be paid by the Treasury out of moneys provided by Parliament for the purpose. Moneys had, in fact, been appropriated by statute to these purposes in accordance with the estimates. The Court thought that Parliament voted a lump sum, not the payment of each particular debt, and that such debtors must look to the treasurer of the County Court and not to the Treasury. Sed quære whether such a debtor had any remedy against the treasurer. There seems to be a much better case for a mandamus here than in the other instances cited.

In E. p. Edmunds (1872), 25 L. T. 705, it was held that no public duty was cast upon the Treasury to direct the audit of the accounts of a receiver of public moneys, and that, consequently, no mandamus would issue to compel them to do so on the motion of such a person.

The principle which is settled in this country by the above cases was laid down, with, as usual, some vigorous dissenting judgments, by the Supreme Court of the United States in Louisiana v. Jumel (1882), 17 Otto (107 U. S.), 711.

The India Office.

There is no reported instance of mandamus proceedings against the Secretary of State for India or the Secretary of State in Council of India, but E. p. Napier (1852), 18 Q. B. 692; 21 L. J. Q. B. 332, an application for a mandamus against the East India Company, may be cited, as applicable to the Secretary of State in Council of India as successor of the East India Company (see above, p. 24). It was there held that there was no legal obligation upon the East India Company to the Commander-in-Chief in India the arrears of pay due to him, and that therefore a mandamus to pay such arrears could not be granted.

pay

Two earlier cases, R. v. Directors of the East India Co. (1815), 4 M. & S. 279, and R. v. Directors of the East India Co. (1833), 4 B. & Ad. 530; 2 L. J. K. B. 78, arose out of domestic contentions between the Board of Commissioners and the Court of Directors as to the non-transmission of despatches by the latter, and in both the rules were made absolute against the Directors.

The War Office.

In R. v. Secretary of State for War, [1891] 2 Q. B. 326; 60 L. J. Q. B. 457, it was held that a mandamus would not lie against the

defendant to compel him to carry out the terms of a royal warrant regulating the pay and retiring allowances of officers and soldiers, inasmuch as no legal duty in relation to such officers and soldiers was imposed upon him either by statute, or contract, or common law. His position was merely that of agent for the Crown, and he was only liable to answer to the Crown whether he had obeyed the terms of his agency or not.

Exactly the same principle was laid down in Gidley v. Lord Palmerston (1822), 3 B. & B. 275, which was an action brought for a retired allowance by a War Office clerk against the Secretary at War. (See further below, p. 643.)

The Admiralty.

In two early cases, E. p. Pering (1836), 4 A. & E. 949, and E. p. Ricketts (1836), 4 A. & E. 999, rules for a mandamus were refused. In the latter case, the ground was that the prosecutrix had no such vested right in certain half-pay as to entitle her to demand its restoration to her; in the former case, which was an application for a mandamus to settle the terms of user of a certain patented invention, of which the Admiralty had made use, it was said that the application was warranted by the terms of the patent. Patteson, J., however, laid down a principle, which appears to be a great deal too wide: "We cannot grant a mandamus to a public board, ordering them to carry a contract into effect."

If the question arose again, presumably a mandamus would be issued against the Admiralty, if they fell within the general principles already enunciated.

The Board of Trade.

A writ of mandamus would issue to the Board of Trade on the general principles already stated. It is true that the Board is still technically a Committee of the Privy Council (see above, p. 41), and that a mandamus will not issue to the Privy Council in its judicial capacity (E. p. Smyth (1835), 3 A. & E. 719); but that depends on grounds which have no application to the Board of Trade in its performance of its statutory duties.

In R. v. Board of Trade (1874), 22 W. R. 807, reported as Cowes & Newport Rail. Co. v. Board of Trade in 43 L. J. Q. B. 242, the Court seems to have had no doubt of its power to issue a mandamus to the Board to appoint an umpire under the Telegraph Acts, 1868 and 1869, though they refused to do so in the particular circumstances of the case.

The Local Government Board.

Mandamus will issue against the Board to compel them to perform their statutory duties. Thus a mandamus issued in R. v. Local Government Board (1874), L. R. 9 Q. B. 148; 43 L. J. Q. B. 49, to award compensation under the Metropolitan Poor Act, 1867 (30 & 31 Vict. c. 6), and in R. v. Local Government Board (1885), 15 Q. B. D. 70; 54 L. J. M. C. 104, to hear an application for a provisional order under sect. 16 of the Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict. c. 77). See also R. v. Local Government Board (1907), 96 L. T. 650. There have also been numerous cases of mandamus against the Board's predecessors, the Poor Law Commissioners and the Poor Law Board.

The Local Government Board for Ireland.

There are several instances of applications, successful and unsuccessful, for mandamus to the Irish Local Government Board: see R. v. Local Government Board (1900), 34 I. L. T. R. 196, and Local Government Board for Ireland v. R., [1903] A. C. 402; 72 L. J. P. C. 101, under sect. 115 of the Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), and R. v. Local Government Board (1901), 35 I. L. T. R. 147, under sect. 275 of the Public Health (Ireland) Act, 1878 (41 & 42 Vict. c. 52). See also the refusal of a mandamus to the Board's predecessors, the Irish Poor Law Commissioners, in R. v. Poor Law Commissioners (1860), 12 Ir. C. L. R. 212, under the Poor Relief (Ireland) Act, 1838 (1 & 2 Vict. c. 56), s. 48.

The Postmaster-General.

There seems to be no reason why the Postmaster-General should not be subject to mandamus where he is under a duty apart from his duty to the Crown, on the principle already explained.

In R. v. Postmaster-General (1885), 1 T. L. R. 551, which was an application for a mandamus to compensate a railway company for the use of their telegraphs, the Attorney-General "began by protesting that he did not intend to concede that a mandamus would lie against the Postmaster-General as the head of a Government Department, but he desired to waive the objection on the present occasion." The rule was discharged on the merits.

In R. v. Postmaster-General (1873), 28 L. T. 337, a mandamus was applied for to compel the defendant to pay poor rate on the rateable value of telegraph posts and wires as fixed by an assessment committee. The Crown argued that under the statute the only funds which the Postmaster-General had for the purpose were those which the Treasury placed at his disposal; that he had offered to pay