The mandamus is said to be a prerogative writ ; by which is meant, —either that the power to award is not delegated by the crown to the ordinary judges between party and party, that is, the justices 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 fawnr 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 applicant lays before the court the affidavit of himself or 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 pro bable cause for interference, grants a rule calling upon the party against whom the writ is prayed, to show cause why such writ should not be awarded, or the court may grant a rule absolute in the first instance (17 & 18 Vict., c. 125, s. 76).
In the case of a mandamus to elect a corporate officer, if the appli cant gives ten days notice of the application, with a statement of the grounds, and a copy of the affidavits, cause may be shown in the first instance. (6 & 7 Vict., c. 89, s. 5.) In other cases at the appointed time the party 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 insufficiency of the facts disclosed by the affidavits upon which the rule was obtained, or by producing other affidavits which give a different aspect to the trans action. if the resistance bo effectual the rule is discharged ; if not, the mandamus is awarded.
The writ, in the first instance, issues in an alternative form, requir ing 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 returned are insufficient in law, the oourt quashes the return, and awards a peremptory mandamus requiring the party absolutely, and without allowing him any alternative, to do the act. Where the answer is apparently sufficient, the mandamus 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 Will. IV., c. 21, to engraft an action upon the mandamus itself by traversing the return, namely, by putting in a plea contradicting the allegations contained in such return .(Comyns'e Digest ; Selwyn's Nisi Prins) ; and the prosecutor may demur to the return, and a writ of error lies upon the judgment (6 & 7 Vict., c. 67).
Besides this prerogative writ of mandamus, the plaintiff in any action in the superior courts, except replevin and ejectment, may now indorse upon the writ and copy to be served, notice that be intends to Maim a writ of mandamus, and the plaintiff may thereupon claim in the declaration, either together with any other demand which may be enforced in such action, or separately, a writ of mandamus, Commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested. (Common Law Procedure Act, 1854; 17 & 18 Vict., c.125, s. 68.) The Court of Queen's Bench has held that this provision is confined to those cases where a writ of mandamus might have been applied for. (Benson v. Paull, 2 Jur., N. S. 425.) Besides these provisions facilitating the writ of mandamus, justices of the peace may now be called upon by a rule iu the ordinary way, to perform their duties (11 & 12 Vict., e. 44, s. 5), and so may judges or officers of the County Court (19 & 20 Vict., c. 108, s. 43).