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obeyed; but his right still remains examinable at law, and triable in a proper action; and if in this case the party suing the writ should be admitted, the reversing the award of the peremptory writ upon a writ of error, would not turn him out again. Besides, here were no costs or damages, which the party was adjudged to pay; and [76] therefore the writ of error could give the party suing it, no benefit to be restored to any thing which he had lost. That if a writ of error would lie in this case, it would be attended with very great inconveniences; for, by the same reason, it would lie upon a mandamus to swear in churchwardens, or to deliver the insignia to the mayor of a corporation, or to make a poors rate, and the like, which would introduce a great deal of confusion, delay, and unnecessary expence. That it was humbly apprehended, if a writ of error would lie in this case, yet the Court of King's Bench in Ireland had done right in awarding a peremptory mandamus, upon the insufficiency of the return; for that the Dean and Chapter could not by virtue of any by-law made by them, impose the oath mentioned in the return, when the charter did not require any such oath to be taken; and it would be of mischievous consequence to allow of such a power. But supposing the by-law to be good, yet the return was insufficient, because it was not therein set forth, when, or by whom, such by-law was made. That this point was debated in the argument in the Court of King's Bench in England, and also another point, namely, whether a mandamus would lie in this case or not; but the Court gave no opinion as to these points, their opinion being clear as to the other point, that the writ of error would not lie.

After hearing counsel on this writ of error, and the unanimous opinion of all the Judges present being delivered by the Lord Chief Baron, "that no writ of error will lie upon the award of a peremptory mandamus," with reasons for the same; it was ordered and adjudged, that the said judgment given in the Court of King's Bench, quashing the writ of error returnable in the same court, should be affirmed; and that the record. should be remitted to the said Court of King's Bench in England. And it was further ordered, that the plaintiffs should pay the sum of 5l. for the costs sustained by reason of bringing the said writ of error. (Jour. vol. 22. p. 327.)

This was an action brought in the Court of Exchequer, by the plaintiff, in Hilary Term 1784, for a malicious prosecution, in which the declaration was as follows:

London (to wit) Evelyn Sutton, esq. a debtor of our Lord the now King, cometh before the Barons of this Exchequer, on the [77] 23d day of January in this same term, by Joshua Peart his attorney; and complains by bill against George Johnstone, esq. present here in Court, the same day, of a plea of trespass upon the case; for that whereas, on the 16th day of April, in the year of our Lord 1781, and long before and afterwards, there were open war and hostilities between our Sovereign Lord George the Third, now King of Great Britain, &c. and the French King, his Most Catholic Majesty, and The States General of the United Provinces. And whereas, during such war and hostilities, and before the committing of the several grievances herein-after mentioned (that is to say), on the said 16th day of April, in the said year of our Lord 1781, a squadron of ships and vessels of war, of and belonging to our said Sovereign Lord the King, had been sent out and