nies in cases where an action would lie against them. Hill J. Regina v. Hull and Selby Railway Company (a) is an authority that a mandamus may be issued against a party for a matter in respect of which he is liable to an action.] But in truth no legal duty is imposed on the defendants until the money has been received by them from the Dock Company, although they may be guilty of a breach of trust for not levying it. This further appears from the fact that the defendants are directed to bring the amounts of various penalties, forfeitures, and duties into the fund which they are to raise; and it is discretionary with them whether they will levy those penalties and forfeitures and lower those duties. Montague Smith, in reply. No action could be maintained against the defendants by the prosecutors of this mandamus; and, even if it could, non constat that the damages recovered in it would be commensurate with the loss sustained. Where a statutory duty is imposed on a party, a mandamus will lie to compel him to discharge it, although there is a remedy against him in equity; per Buller J. in Rex v. The Marquis of Stafford (b); Regina v. St. Michael, Southampton (c). COCKBURN C. J. I am sorry that, in the judgment I am about to pronounce, I must differ from the other members of the Court; but I am of opinion that this mandamus is bad, and that no fresh one ought to be issued. It appears to me that what this mandamus means is that the defendants are called upon, not only (b) 3 T. R. 651-2. (a) 6 Q. B. 70. (c) 6 E. & B. 807. 1861. The QUEEN V. Commissioners to apply to The Southampton Dock Company for payment of these moneys, but, if necessary, to enforce their demand by proceedings at law. This is the only construction I can put on the words which enjoin the defendants to "take the necessary and legal measures and proceedings for obtaining and recovering payment from The Southampton Dock Company." The word "legal" must, I think, be understood as having some signification, seeing it is superadded to "necessary;" and it is not to be supposed that the Court would introduce the word "legal" into a writ in order to point out to the parties to whom it is addressed that in executing it they are not to take measures which are contrary to law. I therefore suppose that the word "legal" here has the signification which it has in ordinary parlance, namely, as contradistinguished to "moral," and as directing some sort of litigation. Looking, then, at the circumstances of this case as set out in the writ and return, I am of opinion that we ought not to command the defendants, at their own risk, to enter into litigation with The Southampton Dock Company. If, instead of adopting this proceeding by mandamus, the prosecutors had had recourse to a Court of equity, the relators would have been compelled to give the defendants an indemnity against the costs of bringing an action against the Company; and in point of justice we ought not to impose on the defendants the duty of suing The Southampton Dock Company except on the same equitable terms, especially when we see that, in the event of their doing so, there will be a very serious litigation behind. It may indeed be suggested that, as the language of this mandamus is general, the defendants ought to have stated in their return that they applied unsuccessfully to the prosecutors for such an indemnity; but the answer to that is that the writ in its terms is not conditional, but absolute. CROMPTON J. I regret that questions such as are raised in this case should be disposed of on a minute and technical point of special pleading. I agree with my Lord Chief Justice that if this writ had, in words, directed the defendants to bring an action against The Southampton Dock Company for this money, it could not be supported. I think also that the return is bad, for reasons into which it will be needless to enter, and that the defendants might be ordered by mandamus to perform the statutory duty cast upon them by these enactments, even though the right of the prosecutors against them were merely of an equitable nature. But the only point necessary for us to determine is, whether the mandatory part of this writ is good. Now I have always understood that, in the law of mandamus, the rule is that the mandatory part of the writ may be very general, but that the return must, on the contrary, be very minute in shewing why the party did not do what he was commanded. Then the whole question is, are we to understand the mandatory part of this writ as necessarily meaning that the defendants are, at their own risk, to take legal proceedings against The Southampton Dock Company to recover this money? Or may we understand it as simply meaning that they are to take such steps for that purpose as are necessary and proper under the circumstances? My Lord Chief Justice reads it in the former sense, but I do not so read it. The expression "legal measures may mean legal proceedings;" but it does not necessarily mean that; it may mean, دو 1861. The QUEEN V. Commissioners of Port of SOUTHAMP TON. 1861. The QUEEN v. Commissioners for instance, an application to an attorney; and, after the general averments contained in this writ, I think it should not be understood as meaning "legal proceedings." In construing instruments of this nature we must read them as if they contained the words "reasonable and proper." It would be unreasonable to direct the defendants to bring an action against the Dock Company without receiving an indemnity; and the doubt I entertained in this case was whether the writ ought not to have directed them to do so on receiving such an indemnity. But I think the general form of writ here adopted is the proper one-that it is better pleading not to specify with such particularity what is to be done; and if the fact were that no such indemnity was offered, that is matter of return. (HILL J. had left the Court.) BLACKBURN J. After much doubt I have come to the same conclusion as my brother Crompton. The return to this mandamus I consider clearly bad; although I confess it discloses a good deal of matter which, if brought before the Court when it was discretionary to grant the writ or not, would have influenced my mind very much. But that time has gone by, and the only question we have now to determine is the question of pleading, namely, what is the meaning of the expression in this writ that the defendants are to "take the necessary and legal measures and proceedings for obtaining and recovering payment of" this money. Looking at these statutes, I have no doubt that they impose on the Commissioners the legal duty of levying this money, and paying over to the corporation one fifth of the sum levied; and I cannot agree with Mr. Lush that the Com- Judgment for the Crown. The QUEEN against WILLMOTT. 1. On a summary conviction, under stat. 39 & 40 G. 3. c. 89. s. 18., for unlawful possession of naval stores, the Commissioner (or Superintendant, since stat. 2 & 3 W. 4. c. 40. ss. 10., 11.), or justice of the peace, has power, in the alternative, either to inflict a fine or to imprison with hard labour without imposing a fine. 2. Quære whether, in the latter event, an appeal to the Quarter Sessions is given by sect. 21 of that statute? 3. The pendency of an appeal under that section has not the effect of suspending the operation of the sentence. 4. Summary convictions under that statute are not affected by stat. 11 & 12 Vict. c. 43. PRENTICE, in this Term, had obtained a rule call ing on the Captain Superintendant of, and resident at, Her Majesty's Dock Yard at Chatham, to shew |