the issuing of the alternative writ being now, in all cases, made absolute in the first instance, and the whole hearing had, upon the return, which in our practice is still further simplified, by admitting the party to make answer to the petition, alleging the grounds of his refusal, which are tried at once.9 * 6. If falsehood is alleged in the return to the alternative mandamus, it was the practice at common law to drive the party to his action for a false return. But by statute in England, and generally by practice in this country, the question is tried in the the defendant where an absolute writ is granted, unless otherwise specially directed by the courts. 9 Walter v. Belding, 24 Vt. 658; Rogers, ex parte, 7 Cowen, 526. In the American states the statute of 9 Anne, allowing the prosecutor to traverse the return to the writ or the answer to the petition, and for the court to determine the truth, either upon affidavit or by the verdict of a jury in their discretion, has been pretty extensively adopted, either in practice or by statute. The People v. Beebe, 1 Barb. Sup. Ct. 379; The People v. The Commissioners of Hudson, 6 Wend. 559; Smith v. Commonwealth, 41 Penn. St. 335. Where the case is fully heard upon the petition or rule to show cause, and there is no dispute in regard to the facts, the court will not delay, for the issuing of the alternative writ and the return thereto, but will in the first instance issue the peremptory mandamus. Ex parte Jennings, 6 Cow. 518; The People v. Throop, 12 Wend. 183. The rule for the peremptory mandamus is sometimes, in the first instance, made nisi, to allow the respondents to consult, if they will comply with the requirements of the judgment. Walter v. Belding, 24 Vt. 658. Or sometimes this is done to allow the parties to arrange the matter, or the court to consider the case. Rex v. Tappenden, 3 East, 186. The court have such control over their own judgments, that, if a peremptory writ of mandamus be unfairly obtained, it will be set aside upon motion. The People v. Everett, 1 Caines, 8. Courts enforce compliance with the peremptory writ by attachment, as also a return to the alternative writ, without requiring the issue of an alias and pluries, as in the early English practice. The cases are not altogether agreed, whether defects in the writ are cured by admissions in the return, but upon general principles of pleading it would seem they are. The King v. Coopers of Newcastleupon-Tyne, 7 T. R. 548. But see Reg. v. Hopkins, 1 Q. B. 161. But where an alternative mandamus is issued, and the defendants make their return, and the relators, instead of demurring, take issue upon the material allegations in the return, they thereby admit that, upon its face, the return is a sufficient answer to the case made, by the alternative writ. And if no material fact is disproved upon the trial, the defendants will be entitled to a verdict in their favor. The People ex rel. Kipp v. Finger, 24 Barb. 341. The return should set forth an available justification for defendant's refusal to do the act sought to be enforced, and it may allege different independent facts as furnishing such justification. court issuing the writ, and the remedy there applied, damages and costs being given in the discretion of the court, and execution enforced. 7. Costs in all the proceedings for mandamus rest in the discretion of the court, unless controlled by statute. By the English practice it is common to award costs where the application is denied, but not always where it prevails.10 The more general and the more equitable rule in regard to costs, in proceedings where the court have a discretion, in that respect, is to allow costs to the prevailing party, unless there is some special reason for denying them.11 *8. Service of such process, and indeed of all process, by summons, in England, is by delivering the original where there is but 1 Wm. 4, c. 10 Reg. v. Mayor of Bridgenorth, 10 Ad. & El. 66; Reg. v. The Eastern Counties Railw., 2 Q. B. 578, 579, and cases cited by counsel. Reg. v. East Anglian Railw., 2 El. & Bl. 475; s. c. 22 Eng. L. & Eq. 274. 21, § 6, makes costs discretionary with the courts, in England. Victoria, c. 126, § 132. Regina v. St. Saviour, 7 Ad. & Ell. 925. v. Brighton & South Coast Railw., 10 Law T. N. S. 496. 23 and 24 See Regina 11 Reg. v. Thames & Isis Commissioners, 8 Ad. & Ell. 901, 905; 5 Ad. & Ell. 804; Reg. v. Fall, 1 Q. B. 636; Reg. v. Justices of Middlesex, 6 Eng. L. & Eq. 267, unless strong reasons for denying costs exist; 1 Q. B. 751. Where the prosecutor omitted to proceed with a mandamus after a return had been made, the Court of Queen's Bench compelled him to elect either to proceed or pay the costs. Reg. v. Mayor of Dartmouth, 2 Dowl. (N. S.) 980. If the quo warranto, mandamus, or other like writ, is procured by the real party in interest, who is able to pay costs, to be prosecuted by some one, not able to pay costs, the Court of Queen's Bench will grant a rule, requiring the real party to pay costs. Reg. v. Greene, 4 Q. B. 646. See also a general rule, adopted immediately after the decision of the last case, Easter Term, 1843, requiring a formal rule, for payment of costs in mandamus, to be drawn up immediately on reading all the affidavits on both sides, 4 Q. B. 653. The rule for costs is decided upon the reading only of the affidavits, with reference to which the rule is drawn up. Reg. v. St. Peter's College, 1 Q. B. 314, overruling Rex v. Kirke, 5 B. & Ad. 1089. The parties are, in the English cases, required to pay costs occasioned by their delay. Reg. v. Mayor of Cambridge, 4 Q. B. 801. But where the judge makes a mistake, the parties who come to defend his ruling, which they are bound to suppose correct, do not pay costs. Reg. v. London & Blackwall Railw., 3 Railw. C. 409, and note. The party who institutes proceedings for mandamus, which he is compelled to abandon, by personal misfortune, as being pauperized by the loss of his trade, must still pay costs, as the court could only conclude he had no grounds to support his petition. Reg. v. London & Blackwall Railw., 4 Jurist, 859. See also Morse, Petitioner, 18 Pick. 443. one person summoned, and where there are more than one, by showing the original, and delivering a copy to each defendant but one, and the original left with such one. But service by copy of a writ of mandamus was held sufficient.12 13 9. By the latest English statutes upon the subject of mandamus,1 any party requiring any order, in the nature of specific performance, may commence his action in any of the superior courts of common law in Westminster Hall, except in replevin and ejectment, and may indorse upon the writ and copy to be served, that the plaintiff intends to claim a writ of mandamus, and the plaintiff may thereupon claim in the declaration, either together with any other demand which may now be enforced in such action, or separately,. a writ of mandamus, commanding the defendant to fulfil any duty, in the fulfilment of which the plaintiff is personally interested. And if a mandamus is awarded, it may issue peremptorily in the first instance, in aid of the execution, for damages and costs. The form of the writ is very brief, and compliance with its requisition is to be enforced by attachment. The prerogative writ is still retained, but its use, and also that of decrees for specific performance in equity, seem to be pretty effectually superseded by these provisions.14 12 Reg. v. Birmingham & Oxford Railw. Co., 1 El. & Bl. 293; s. c. 16 Eng. L. & Eq. 94. The conductor of a railway train in some of the states is regarded as a hired agent" of the company, within the meaning of the statute allowing the service of process upon such agent. New Albany & Salem Railw. v. Grooms, 9 Ind. 243. 13 17 & 18 Vict. ch. 125. 14 A mandamus to a local board of health, constituted under 11 & 12 Victoria, ch. 63, recited that the prosecutor had been injured by the board in the prosecution of its powers under the act; that he had demanded compensation from the board, and that they had denied all liability, and commanded the board that compensation be made to him out of the general or special rate to be levied under the act. The return stated that the board had not denied all liability, and that it was always ready to make compensation, as soon as it had been duly ascertained under the act; that it had not as yet been so ascertained; nor had the prosecutor as yet taken any steps to ascertain the amount, nor notified the board of the amount of his claim, nor appointed nor given notice to appoint an arbitrator. This return was traversed, generally; and on the trial it was found that the board had denied all liability, and a verdict was entered for prosecutor. On a motion to enter the verdict on the rest of the return for the board, and to enter judgment for the board, Held, that the mandamus was good, and that the prosecutor was entitled to a verdict on the whole of the return, and to a peremptory mandamus, on the ground that, as there did not appear by the return *SECTION II. Particular cases where Mandamus lies to enforce Duty of Corporations. § 152. The opinion of Jervis, Ch. J., in the case of York & North Midland Railway v. Reg.,' is perhaps the best commentary to be any dispute as to the amount, the rest of the allegations in the return, apart from the traverse of denial of liability, were immaterial. Regina v. Burslem Board of Health, 5 Jur. N. S. 1394; s. c. 1 Ellis & Ellis, 1077, 1088. And generally, where a debt is of such a nature that mandamus will be granted to enforce its payment, it is not necessary that the amount of the debt should be previously ascertained, but such amount may be ascertained in the verdict of the jury in the action in which mandamus is claimed. Ward v. Lowndes, 5 Jur. N. S. 1124; s. c. in Exch. Cham. 1 L. T. N. S. 268; 1 Ellis & Ellis, 940. But see McCoy v. Harnett County, 5 Jones Law, 265. 1 1 El. & Bl. 858; s. c. 18 Eng. L. & Eq. 199. "Upon these facts several points arise: First, does the statute of 1849 cast on the plaintiffs in error a duty to make this railway? Secondly, if it does not, is there under the circumstances a contract between the plaintiffs in error and the land-owners, which can be enforced by mandamus? Thirdly, and failing these propositions, does a work, which in its inception was permissive only, become obligatory by part performance? These questions will be found upon examination to exhaust the subject, and to comprehend every view in which the mandamus can be supported. In substance, do these acts of parliament render the company, if they do not make this railway, liable to an indictment for a misdemeanor, and to actions by the party aggrieved? For if they do not, a mandamus will not lie, and thus the question depends entirely upon the construction of the special act, and the statutes incorporated therewith. The act of 1849 may cast the duty upon the plaintiffs in error, in one of two ways; it may do so by express words of obligation, or it may do so by words of permission only, if the duty can be clearly collected from the general purview of the whole statute. The words of the 3d section of the act of 1849, it shall be lawful for the said company to make the said railway,' are permissive only, and not imperative, and it is a safe rule of construction to give to the words used by the legislature their natural meaning, when absurdity or injustice does not follow from such a construction. Indeed, if there were any doubt upon this subject, other parts of the statute referred to in the argument clearly show that these words were intended to be permissive only. The distinction is well put by my brother Erle: The company are permitted at their option to take lands, turn roads, alter streams, and exercise other powers, and these matters are made lawful for them; but they are commanded to make compensation for lands taken, to substitute roads for those they turn, and to perform other conditions relating to the exercise of their powers, and these matters are required of them.' It seems clear, therefore, that the duty is not cast upon the plaintiffs in error by the express words of the statute of 1849; and, indeed, it was not so urged in the * we could give upon the present state of the English law upon this subject. argument; nor was it so put by Lord Campbell in his judgment in the court below. But it does not follow, merely because the words of the 3d section are permissive only, that there is no duty cast upon the plaintiffs in error, by the statute taken altogether, to make this railway. This point was not relied upon in this case in the court below, but it was made the distinct ground of a decision in another case in that court (The Queen v. The Lancashire & Yorkshire Railw. Co.), and was much pressed in the argument before us in support of this judgment. 'It becomes necessary, therefore, to examine the statute in its general provisions, and to consider the grounds on which the Court of Queen's Bench proceeds in the case of the Queen v. The Lancashire & Yorkshire Railw. Co., 1 E. & B. 228; 16 Eng. L. & Eq. 328. We agree with Lord Campbell, that the portion of the line between Market Weighton and Cherry Burton, to which the mandamus applies, is not to be considered as a separate railway, or even as a separate branch of a railway, but it is to be treated as if in its present direction it had been included in the act of 1846. The acts, then, taken together, in substance, recite that it will be an advantage to the public if a railway is made from York to Beverley, through Market Weighton and Cherry Burton, according to certain plans and sections deposited, as required by the practice of parliament, and referred to in the statute, and that the plaintiffs in error are willing to make that railway. On this basis the whole provisions are founded. It has been proved that the work will be advantageous to the public; it is assumed it will be profitable to the company, and that, therefore, they will willingly undertake it. Accordingly, the company are empowered to make this line. If they do make it they may take land; but if they do take land they must make compensation. If necessary, they may turn roads, or divert streams; but if they do, they must make new roads and new channels for the streams they alter. Similar provisions pervade the whole statute, and throughout the command waits upon the authority, and the distinction between may' and 'must' is clearly defined. But as it is manifest that such general powers must stop competition, and may, to a certain extent, be injurious to land-owners on the line, the compulsory power to take land is limited to three years, and the time for making the railway to five, after which the powers granted to the company cease, except as to so much of the line as shall have been completed, and the land, if taken by the company, reverts, on certain terms, to the original proprietors. An argument might have been founded on the terms in which the latter provision is contained. By the 10th section of the act of 1849, it is enacted that the railway shall be completed within five years from the passing of this act. That section was not referred to in the argument for this purpose, but it might be said that these words were compulsory, and imposed a duty upon the company to make the line. The context of the section, however, when examined, shows that such is not the meaning of it. If not completed within five years, the powers of the act are to expire, except as to so much of such railway as shall have been completed. If the section were intended to be obligatory, it would not contain that exception which contemplates that the line may be made in part. It is inconsistent to suppose that the legislature would say to the company in the same section, you may |