case the queen against sir gilbert Heathcote lordmayor of London by the custom  of London each of the wardmote be to return four person to the court of  alderman out of which the court be to choose one for alderman of the ware but  if four be choose at a wardmote and four other person return the court of king  bench will not grant a mandamus to the return officer to return the four who  be elect but will leave the party injure to bring a action on the case for a  false return S c fort salk the court of queen bench be move for a mandamus to  be direct to sir Gilbert Heathcote late lordmayor of the city of London to  return such and such person by name to the court of alderman as the person  choose by the wardmote of Broadstreet or to show cause why he will not sir  Gilbert Heathcote have in fact make a return but a return of different person  as to three of they than what the counsel move say appear upon the scrutiny to  have be real choose argument for the mandamus it be say that they be before a  court that have a jurisdiction over all inferior magistrate whatsoever to  compel they to do their duty that as it will without doubt be proper to apply  to this court shall a lordmayor refuse to hold a court of alderman or refuse  to make any return so it be no less proper in the present case where be make a  false one if it be object that the proper remedy lie in the court of alderman  the answer be that the lordmayor preside over that court et no one debet be  modern report judge in not common with others causan and though it may here be  say that the lordmayor who make the return be out of his office yet this in  general must be precarious and uncertain it may have be otherwise and a legal  remedy ought to be certain in all event if the court of alderman be the final  elector and have also a power of allow or disallow return they will have a  absolute power of choose who they please whereas accord to the ancient custom  and practice they be only to choose one of the person return to they it be  true the court of alderman have reject return upon the account of the  insufficiency of the person return or where the return have either fall short  or exceed the just number as when five or three have be return but not because  of its be a false return but suppose the court of alderman have a jurisdiction  why may not this court have a concurrent one it be confess that this be a  unprecedented mandamus that modern report er p be desire but then it be say  the reason be because no lordmayor before have ever make so bold a attempt  upon the liberty and privilege of the city and as there be no precedent for  the mandamus desire so there be no instance to be find in which such a  mandamus have be deny then several case be quote a lev duke of ormond case dr  blithes case a where the court though doubtful whether a mandamus lie have yet  grant a mandamus in order to consider further upon the return and if the court  will act so in case comparative speak of a private nature much more will they  do so in office of a public nature as that of a alderman of the city of London  argument against the mandamus first it be say that the custom general be for  the person injure to pray for a mandamus and the word of the writ be ad damnum  of those that be choose modern report whereas in this case the counsel move  for the mandamus be counsel for the city then it be insist upon that there be  no occasion for this mandamus for that the lordmayor be only a ministerial  officer and the court of alderman be not conclude that this his return by the  custom of the city find upon the bylaw of Henry the four they be to choose one  of the person choose not one of those return to prove the authority and power  of the court of alderman over return the follow instance be produce on the  second day of November in the year sir John more be return two several time to  the court of alderman and as often reject and the court of alderman proceed to  a new election themselves without any more return on the thirteenth day of  July in the year they order a new return to be make for liver reason only not  say what and on the thirty day of January in the year a new return be command  for disorderly proceed in the case of queenhithe the record say therefore to  look at closely be per curian that this return be reject and when five or  three have be return the court of alderman have reject they if now such a  overrule power have be exercise over return by the court of alderman this  court will not certain interpose and deprive the court of alderman of their  right in this matter the common reason why mandamuss concern fellow of college  have be refuse videlicet because their proper remedy be to apply to the  visitor will hold in this case but suppose the return do conclude the court of  alderman yet the court will never grant a mandamus in this case because four  be already return shall the court direct a mandamus for four more to be return  such a command will make the lordmayor subject to action upon the case for  false return for one return must necessary falsify the other it be impossible  that both can be true modern report suppose sir Gilbert Heathcote in obedience  to such a mandamus return another four the consequence be the court of  alderman will have two return before they and either they have a right to  examine which be the true return or they have not if they have not they can do  nothing if they have then they may now examine into this present return and  reject it if they see cause acceptance be necessary to a return and this  return be already complete by acceptance of the court of alderman another can  now be make Eyre justice propose a counsel the objection be to a mandamus  shall expose a case if sir Gilbert Heathcote a false return to the court of  return be those that be objection to this mandamus for the consideration of  the that no instance can be produce where obedience man to any trouble or  inconvenience whereas in this obey the mandamus he will be liable to a action  for alderman but if he return that the person already true choose he will be  liable to a action for a false return to the mandamus and afterward to a  action for a false return to the court of alderman for the one action and  verdict can be give in evidence in the other action the counsel for the  mandamus reply as for that objection against the mandamus that the court of  alderman have a power over the return and that therefore this court ought not  to interpose any more than they will in the case of a fellow of a college  where there be a visitor they say the difference take in the famous case of dr  bury bishop of Exeter which pass the house of lord will answer that a lev duke  of ormond case dr blithes case modern report er p objection videlicet that as  to such corporation as be erect for private end only the court will leave  these to visitor and not interpose as in the case of college c contra as to  corporation find upon public account as for the government of great city  modern report c and in the case at bar the metropolis of the whole kingdom be  concern they say it be very unreasonable that the court of alderman shall have  a absolute power over return and be final elector too for then in effect they  have the entire election in themselves and the liberty of the city be  precarious depend upon the pleasure of the court of alderman as for the  instance produce of the power of the court of alderman over return five of  they only be insist upon and in some of they the return carry along with they  evident mark of error as where three or five be return the rest be instance of  such nature as will make one sorry that such a power shall be place in such a  court if so it be as where they reject a return for diverse reason and another  for disorderly proceed to the objection that the power of the lordmayor be  already execute and the return make it be answer that the force of this  objection only amount to this that a officer because he have do wrong must not  do right that the first return if wrong be a nullity and no return at all that  this will be a objection against all mandamuss and that by this rule a  archdeacon may return to a mandamus that he have swear in such a one that his  power be execute and therefore he can not obey the mandamus to the objection  that this mandamus will expose sir Gilbert Heathcote to action whether he obey  it or make a return to it in which it differ from all other mandamuss it be  answer that if be obey the mandamus as he ought if he have already do wrong  that it be his do wrong and not his obedience to the mandamus that expose he  to action that if he have do right in case of disobedience to the mandamus no  action can be successful bring against he for that in these commendatory writ  there be always a alternative modern report si ita be say one si thou to agree  to be able say another and this writ now in debate well causan we significos  in all which case the first part of the writ be only to be obey if true some  special case there be wherein officer may be liable to action mere for execute  the process of the law but in no case can a action be carry on successful in  case he have behave impartial for example upon a become facias direct to a  sheriff put the case there be good in which as it often happen other claim a  property in this case whether he return become to make or no one good and one  he must be will be liable to a action but if it shall appear that he have act  fair and indifferent the law shall secure he whatever return he make and  whether his return be true or false bind take by a sheriff to idemnify he in  such a case have be hold good as to that part of the objection that this  distinguish this case from all other mandamuss they suppose the law to be  otherwise and that shall a archdeacon in obedience to a mandamus swear in a  wrong person he will be liable to all action roll be cite where it be say that  a action lie against a archdeacon for not inducting a clerk instance be urge  wherein the court though doubtful grant mandamuss and it be say that they be  better speak to and with more certainty upon the return Mandamuss find upon  great Charta cap the last day of the term the court videlicet the three judge  then present deliver their opinion seriatim to the follow effect Eyre justice  the question be whether the court ought to grant the mandamus desire the  design in ask it be say to be not so much for the sake of decide the modern  report present controversy as to know what remedy the inhabitant of a ware  have to be represent by one of the four true choose by they in the court of  alderman it be agree that the wardmote be to choose four and return they to  the court of alderman and that the court of alderman be to be the final  elector for they be to choose one of the four it be agree the court of  alderman have quash return sometime for the number and insufficiency of the  person return sometime for irregularity in the choice it must likewise be  agree that this court have a general jurisdiction in this matter and be to  take care that public office be discharge by modern report er p person that be  duly elect and that mandamuss have be the way whereby this power have be  general execute I agree therefore that unless some mandamus I say some  mandamus will lie in this case there be no remedy for as for action upon the  case for false return they lie only in damage but can never restore the person  wrong to the possession of their right it ought to be the concern of a court  of justice to take care that while they be grant a remedy to one they do not  at the same time expose other to great inconvenience and likewise that the  remedy be such as may prove effectual bag be case a   a and the last mandamus  Act b Ann c b do not concern the present question for the former treat of  mandamuss in general and the latter only speed the proceed upon mandamuss but  do not give any new mandamus it be confess of all hand that the mandamus  desire be without a precedent all mandamuss be either to restore person turn  out or to admit those refuse I say not this by way of objection against the  mandamus but only to show that the reason of other case must be our guide the  case quote have be of mandamuss to archdeacon to swear in churchwarden or to  corporation to admit burgess but these case can warrant modern report this  mandamus because this be a mandamus liable to great inconvenience and less  effectual than either of those for a archdeacon be perfect safe in obey a  mandamus direct to he but here in the case before we obedience to this  mandamus suppose he to have do right already will be no defence in a action  upon the case for a false return for it will be of very dangerous consequence  that it shall for first the person be name in the mandamus be no evidence of  their be choose but be bare the suggestion of the party and second the  consequence will be that the person who shall be so diligent or fortunate as  to get the first mandamus whether choose or not choose can not be remove  though no case have be quote to show and the reason I be sure be because there  be none that a archdeacon swear in a wrong person in obedience to a mandamus  be liable to a action for so do yet it have be attempt to be prove that in the  reason of the thing a action ought to lie and for this purpose it have be say  that a action will lie against a archdeacon for not admit or refuse to swear  in c but certain it do not from hence follow that obedience to a mandatory  writ of this court will subject he to a action further yet this mandamus may  possible expose sir Gilbert Heathcote to a double vexation suppose he return  that the person before return be true choose be will be liable to a action for  a false return to the mandamus and likewise to a action for a false return to  the court of alderman for the evidence give in one action will not be evidence  in the other this objection receive a additional strength from the late  mandamus Act where there be a special clause to secure man from double  vexation but the great objection against this mandamus be that it must prove  vain and fruitless whereas in all other case the mandamus be a immediate and  effectual remedy for the court of alderman can be bind modern report by the  proceed upon this mandamus be stranger to it and consequent accord to the  verdict give upon the trial in a second mandamus to the court of alderman and  without any regard to the trial proceed and verdict upon the first mandamus it  be that the peremptory mandamus must go so that to I it seem to have no effect  at all it be high proper there shall be a remedy but for these reason I can  think this a proper remedy the Abingdon case as appear to I point out the  mandamus that ought to go in this case by the constitution of that corporation  the freeman be to choose two and present they to the mayor alderman and  burgess who be to elect one of they now in this case there be a mandamus grant  to the mayor alderman and burgess suggest that such a one and such a one be  the person choose and command they to choose one of they that the court of  alderman be to elect one of the four choose by the wardmote and not one of  they return by the lord mayor be very plain from the power by they exercise  over return now therefore as it appear to I we shall grant a mandamus to the  court of alderman suggest such four to be choose and command they to choose  one of they this seem to I not liable to those objection and inconvenience the  other way be attend with and also answer that objection rational start that  they be modern report er p in truth the sole elector beside suppose the court  of alderman have as be pretend such a power over return they be the proper  person to return their own privilege as to the objection that the lord mayor  preside in the court of alderman and have a power to adjourn the court at  pleasure may prevent any return ungrateful to he the answer be that in so do  he will be guilty of a contempt and so will the court of alderman shall they  refuse to obey or return to the mandamus modern report powys justice I be of  opinion this mandamus ought to go bag be case a   a be say to have be the  beginning of mandamuss but certain they be of much great antiquity in dr  Widdringtons case b lev b they be say to have be as old as the time of Edward  the second and Edward the three there have be positive affidavit read of  misbehaviour which be ground enough for we to look into it my brother Eyre  have own that there be no way of come at this matter but by a mandamus I can  see of what use a mandamus direct to the court of alderman will be for they  can do nothing upon such a mandamus the person not come before they in a legal  way videlicet by the return of the lord mayor beside to grant a mandamus at  first to the court of alderman will be to proceed per narrow passage neglect  the proper degree to be observe in this matter but it be object that a  application to the court of alderman be the proper remedy I answer no for that  will be to appeal from the lord mayor to the lord mayor for be preside in that  court and can hold or adjourn it at pleasure it be out of that court the lord  mayor be choose and as every member there life in expectation of the chair in  his turn that court will consider the privilege of the lord mayor as their own  it seem very unreasonable that the same body of man shall be to choose out of  the return and have a absolute power over the return too there have indeed be  instance produce of their power over return some of which do not come up to  the point and one be of so arbitrary a nature as be never before practice nor  I hope ever will again it be object that sir Gilbert Heathcote have already  execute his power and will you have he do it over again a strange objection  where a officer have do wrong be use as a argument against his be oblige to do  justice modern report suppose mere stranger have be return must this have be  look upon as a exercise of his power No certain a false return be no return  will it be a good return for a archdeacon to say I have already swear in a  wrong churchwarden therefore I can obey the writ No it will not Mandamuss be  never peremptory but have always a disjunctive well causan we signify if he  have make a return and a true return be may return non dainties but if these  man be real choose it be absolute necessary for they to be return since that  be the only legal way by which they can be bring before the court of alderman  it be object that this mandamus will be ineffectual I say no for it will have  its proper effect which be not that these man shall be alderman but put in a  capacity of be so by be return as to sir Gilbert heathcotes be expose to  action nay to double vexation that be not to be put in the scale with the  peace and quiet of the city in the next place no action can be bring against  he successful in case he have do right and in case of double vexation the  damage a jury will give upon such a second trial after the merit have be fair  try before will be inconsiderable but it be object that the mandamus desire  differ from all other they be either to admit or restore but this for a  possibility only I say not for it be for a nomination thus much of the  mandamuss lie de jure but now suppose it doubtful yet I think we ought to  grant it many be the instance where this court have grant mandamuss in  doubtful case as to the treasurer of the new river water a side a to fellow of  a college b lev b all case of mandamuss be grant hsitante curian c lev c and  the ground they go upon be this that it will be better speak to upon the  return now if this court have act thus in matter of a inferior nature strong  will it do so in a case of modern report this importance the return of sir  Gilbert Heathcote may give some further light in the matter if we shall err in  grant this mandamus the error be retrievable it may be quash erronice modern  report er p to flow out but suppose there be another remedy that be no  objection for the law in many case give a double remedy as suppose a clause in  a will that whatever controversy shall arise upon the construction of it shall  be decide by such and such arbitrator the party will have their election to  decide their controversy either by arbitrator or by law Parker chief justice  this be a case of consequence I shall not only give my opinion but free  declare that which seem to I the best and proper remedy in this affair among  the instance produce to prove the power of the court of alderman over return  one be their reject a return because the Lord mayor sir Samuel Garrard have  refuse a poll this I suppose they do upon a complaint bring before they which  seem to I in this case the most proper remedy the effect of this mandamus be  to have such and such return the consequence of which will be the court of  alderman will have seven before they and then they must consider who the four  be that be choose by the wardmote that so they may choose one of they for  unless they do this there must go another mandamus to the court of alderman  the consequence of which be that this election may come to be try twice  videlicet upon the return of sir Gilbert Heathcote to his mandamus and of the  court of alderman to they so that this way the right may not possible be  settle without much expense and length of time when person be false return the  proper way be for the person grieve to complain to the court of alderman for  redress and if they refuse then this court will grant a mandamus to the court  of alderman modern report who be the proper person to return their own  privilege as for the mandamus desire two thing be to be consider first whether  it lie second whether it ought to be grant in case it be doubtful whether it  lie or not as to what have be say concern the jurisdiction of this court that  be out of dispute but though a court have jurisdiction yet it ought not to be  exert but where it be necessary and if the court of alderman be to choose one  of the four erect by the wardmote and not return by the lord mayor then sure I  be that this mandamus can be necessary for then it will be just the same thing  whether the person choose come before the court of alderman by way of  complaint or by the return of the lord mayor in obedience to this mandamus as  this mandamus be unnecessary so will it be ineffectual for the end of it be  only to bring the person choose before the court of alderman which may be do  as well by complaint of the person injure and after this mandamus grant the  alderman must do just the same thing they be bind to do now upon complaint  videlicet consider which be the person choose by the wardmote the darkness  complain of in the scrutiny only prevent that examination which upon a  complaint may be have one difference there be between proceed by complaint and  mandamus that the former be more Compendious and less expensive now as to the  person that may be affect by this way of proceed to begin with the court of  alderman they will be under a necessity of return their own privilege to a  mandamus consequent of this now ask or no mean be leave they to know which be  true choose of obey the writ blind without know whether they do wrong or right  modern report as for sir Gilbert if he obey the writ be be subject to a action  for a false return to the court of alderman and no instance yet have be  produce where obedience to a mandatory writ of this court expose a man to a  action if he return non dainties he be liable to a action upon both return  action have indeed be bring against a archdeacon for refuse but never as my  brother Eyre have observe for pay obedience to a mandatory writ of this court  it have be object there be some case wherein person by mere execute the  process of the law may become subject to action but sure such a consequence be  a very good reason for not give way to a unprecedented process unless  otherwise there will be a failure of justice it have be object that it be high  unreasonable for the same person to be judge of the goodness of the return and  to choose one of they too I answer it be unreasonable that they shall be at  liberty to take which four they please but not at all that they may consider  which of the party be real elect it do by no mean follow that because they be  the final elector that therefore they be the proper judge to do right and  judge which four be duly elect and if they do wrong then be the proper time  for this court to interpose by grant a mandamus indeed it have be modern  report er p say that a mandamus will not lie in the first place to the court  of alderman that the alderman have no authority but upon the return of the  lord mayor and consequent that a mandamus to the court of alderman can be of  no use unless it be subsequent to the mandamus to sir Gilbert Heathcote this  objection suppose the court of alderman conclude by the return of the lord  mayor and if this be so then there be no way to let these person into their  right but by set aside the return already make which can be do modern report  by mandamus but by action of deceit only Even in the case of a sheriff where  the return be into our own court there be no way of do it but by a action of  deceit much less can it be do in the case of a return to a foreign court if  this be so the mandamus will signify nothing for the court of alderman will be  conclude by the first return I be once consider whether a second return make  in obedience to a mandamus of this court may not vacate the former but then I  see this inconvenience will still attend the court of alderman be bind by the  return though this shall be so videlicet that if a return shall be make in the  long vacation then such a return though a false one and evident so must yet  conclude the court of alderman it be then impossible to apply for a mandamus  but another absurdity ensue from this opinion videlicet two conclusive return  I say two for if the last be not a conclusive return and the former be this  mandamus be vain and if the first be not conclusive why shall the last but  this opinion be confute by the bylaw of Henry the four which direct they to  choose one of the four choose not return likewise all the instance produce of  the power of the court of alderman over return confute this fancy in short the  way by complaint be a Compendious one that by mandamus long and intricate for  upon these two mandamuss videlicet that desire and the subsequent one to the  court of alderman there may be contrary verdict which will leave it at last  doubtful whether right be do or not as to the second point whether the court  may not grant this mandamus though doubtful whether it lie or not there be no  doubt but this court have grant mandamuss when doubtful but as they may grant  so most certain they may refuse which I think we ought to do in the present  case where the grant of it will modern report probable long continue that  confusion in the city that a little good advice may soon put a end to a the  contest which prevail in the city at this period at length produce the statute  Geo c by which the mode of these election be now regulate a