Home >> Cyclopedia Of Knowledge >> Knight Of Shire to Militia >> Mandamus_P1

Mandamus

court, party, writ, act, bench, lord and nature

Page: 1 2

MANDA'MUS is a writ by which the Court of King's Bench, in the name of the reigning king or queen, commands the party to whom it is addressed to do some act in the performance of which the prosecutor, or person who applies for or sues out the writ, has a legal interest ; that is, not merely such an interest as would be recognised in a court of equity or in a court of ecclesiastical jurisdiction, but an interest cognizable in a court of common law ; the right must also be one for the enforcing of which the prosecutor has no other specific legal remedy. Thus, a copyholder can transfer or alien his customary tenement or estate [Corr norm] in no other manner than by sur rendering it into the hands of the lord of the manor to the use of the purchaser or snrrenderee. The courts of common law formerly took no notice of the right of the surrenderee to call upon the lord for a grant or admittance, and the court of king's bench therefore left the party to seek his remedy in a court of equity, and would not interfere by granting a man damus. But the obligation on the part of the lord to admit the surrenderee is not merely an equitable liability, because this mode of tranferring property of this na ture is founded upon ancient custom, and rights dependent upon custom are matters of common-law cognizance. Of late years the court of king's bench appears to have taken this view of the subject, and has awarded writs of mandamus in all cases where the lord has refused to admit the party to whose use a surrender of the copyhold his been made. Again, the duty of parishioners to assemble m vestry for parochial objects, whether those ob jects be of a temporal or spiritual nature, is a common-law duty, and a mandamus will be granted to compel the parishioners to meet. But when they are met, the power of the court to interfere further by mandamus depends upon the nature of the act which the parishi .ners have to do. If the provisions of a statute are to be carried into execution, the act to be done, whatever its nature, is considered a temporal matter, because the construc tion of statutes belongs especially to the courts of common law. But if the object for which the vestry are assem bled be cue purely of ecclesiastical cog nizance, as the setting up of bells, the purchase of books or vestments necessary for divine service, or the making pro vision for the repairs of the fabric of the church (delinquencies in which matters are punishable by ecclesiastical censures), the court of king's bench, has no juris diction. Again, the court can by manda

mus compel the visitor of an eleemosynary foundation to hear an appeal, but it has no further authority than "to put the vi sitorial power in motion." It cannot com pel him to do any specific act as visitor.

The term "mandamus" (we command) is found in a great variety of writs, and those usually distinguished by this name by the old law writers are totally differ ent from the modern writ of mandamus, which appears to be nothing more than the ancient " writ of restitution" enlarged to embrace a great variety of objects, that writ being adapted merely to the pur pose of restoring a party to an office from which he has been unjustly removed.

The writ of mandamus is now granted not only to restore a man to an office from which he has been wrongfully moved, but also to admit to an office to which the party has been duly elected or appointed. It hes for a mayor, recorder, alderman, town-councillor, common-councilman, burgess, and town-clerk,—for a preben dary, master of a free-school, parish-clerk, sexton, and scavenger,—to hold a court baron, court-leet, or a borough court of reeord,—to justices, to do an act within the scope of their authority, and which will not subject them to an action,—to restore a graduate in a university to de grees from which he has been suspended— to a corporation, to pay poor-rates where they have not sufficient destrainable pro perty,—to parish officers, to receive a de serted infant, —to permit inspection of do cuments of a public nature in which the party is interested,—to appoint overseers of the poor,—to swear in churchwardens, —to proceed to the election of a corporate officer,—to grant probate or letters of administration,—to affix the common seal to an answer agreed to by the majority of the members of a corporation aggregate, —and to allow a poor-rate, in which case the rule for a mandamus is absolute in the first instance.

Page: 1 2