The mandamus is said to be a preroga tive writ ; by which is meant,—either that tho power to award it is not dele gated by the crown to the ordinary judges between party and party, that is, the jus tices of the common pleas, but is reserved for that court in which the king is sup posed to be personally present,—or that it is a writ of grace and favour, granted according to discretion, and not a writ of right, that is, not such a writ as the party applying for it has a right to call upon the court to issue under the clause of Magna Charts by which the king binds himself not to refuse or delay justice or right.
In order to obtain a Mandamus the ap plicant lays before the court the affidavit of himself or of others presenting the facts upon which his right and interest in the thing to be done, and his claim or title to the remedy, are founded. Upon this application the court, if it see a probable cause for interference, grants a rule call ing upon the party against whom the writ is prayed, to show cause why such writ should not be awarded. At the appointed time the party so called upon either does not appear, in which case the rule is made absolute, and the mandamus is awarded as prayed, or he appears and resists the rule, either by insisting upon the insuffi ciency of the facts disclosed by the affida vits upon which the rule was obtained, or by producing other affidavits which give a different aspect to the transaction. If
the resistance be ef&ctual the rule is dis charged ; if not, the mandamus is awarded.
The writ, in the first instance, issues in an alternative form, requiring the party to do the act, or to show why he has not done it. The party may therefore make a return to the writ saying that he has not done the act required for such and such reasons. Where the reasons re turned are insufficient in law, the court quashes the return, and awards a peremp tory mandamus requiring the party abso lutely, and without allowing him any al ternative, to do the act. Where the an swer is apparently sufficient, the manda mus is at an end ; and if the statements are untrue, the remedy is by action on the case for a false return, though in order to avoid expense and delay the party is allowed in some cases, by the statute 9 Anne, c. 20, and now in all cases, by 1 Wm. I V. c. 21, to engraft an action upon the mandamus itself by traversing the re turn, that is, by putting in a plea contra dicting the allegations contained in such return. (Comyns's Digest ; Selwyn's Nisi Pries ; 1 Viet. c. 78.)