It is the common remedy for restoring per sons to corporate offices, of which they are unjustly deprived: the title to the office having been before determined by proceeding by quo warranto. 1 Burr. 402 ; 1 Ld. Raym. 426 ; 1 Salk. 314 ; 2 Head, Tenn. 650. And see the cases fully reviewed in Redfield, Railw. / 197, pl. 5, nn. 9-14.
6. This remedy must be sought at the earliest convenient time in those cases where important interests will be affected by the delay. 12 Q. B. 448. But it is often neces sary to delay in order to determine definitely the rights and injuries of the several parties concerned. Parke's ex parte, 9 Dowl. Parl. Cas. 614; 4 Q. B. 877.
It is no sufficient answer to the application that the party is also liable to indictment for the act complained of. 2 Railw. Cas. 599 ; 3 Q. B. 528. And where a railway company attempted to take up their rails, they were re quired by mandamus to restore them, notwith standing they were also liable to indictment, that being regarded a less efficacious remedy. Abbott, Ch. J., 2 Barnew. & Aid. 646. But mandamus will alwaYs be denied when there is other adequate remedy. 11 Ad. & E. 69 ; 1 Q. B. 288 ; Redfield, Railw. / 199, and cases cited in notes.
It is not a proper proceeding for the cor rection of errors of an inferior court. 13 Pet. 279, 404 ; 18 Wend. N. Y. 79 ; 13 La. Ann. 481 ,; 7 Dowl. & R. 334. Indeed, by statute 6 & 7 Viet. ch. 67, / 2, the decisions of the English courts upon proceedings in manda mus may be revised on writ of error, and upon principle a writ of error will lie when the decision is made to turn upon a question of law, and not upon discretion merely. Red field, Railw. / 200, and notes.
7. The writ is not demandable, as matter of right, but is to be awarded in the discre tion of the' court. 1 Term, 331, 396, 404, 425 ; 2 id. 336 ; Redfield, Railw. 441, / 190, and cases cited in notes.
The power of granting this writ in Eng land seems originally to have been exercised by the court of chancery, as to all the in ferior courts, but not as to the king's bench. 1 Vern. Ch. 175 ; Angell & A. Corp. / 697. But see 2 Barnew. & Ald. 646 ; 2 Maule & S.
80 ; 3 Ald. & E. 416. But for a great num ber of years the granting of the prerogative writ of mandamus has been confined in Eng land to the court of king's bench.
S. In the United States the writ is gene rally issued by the highest court of judica ture having jurisdiction at law. 34 Penn. St. 496 ; 20 111. 525.
The thirteenth section of the act of con gress of Sept. 24, 1789, gives the supreme court power to issue writs of mandamus, in cases warranted by the principles and usages of law, to arty courts appointed or persons holding office under the authority of the United States. The issuing of a mandamus to courts is the exercise of an appellate juris diction, and, therefore, constitutionally vested in the supreme court ; but a mandamus di rected to a public officer belongs to original jurisdiction, and, by the constitution, the ex ercise of original jurisdiction by the supreme court is restricted to certain specified cases, which do not comprehend a mandamus. The latter clause of the above section, authorizing this writ to be issued by the supreme court, to persons holding office under the authority of the United States, is, therefore, not warranted by the constitution, and void. 1 Cranch, 175. See 5 Pet. 190; 13 id. 279, 404; 5 How. 103.
The circuit courts of the United States may also issue writs of mandamus ; but their power in this particular is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction. 7 Cranch, 5(14 ; 8 Wheat. 598 ; 1 Paine, C. C. 453.
9. The mode of proceeding in obtaining the writ is: first, to demand of the party t,o perform the act. And it would seem that the party should be made aware of the purpose of the demand. 3 Ad. & E. 217, 477. The refusal must be of the thing demanded, and not of the right merely. 5 Barnew. & Ad. 978. The refusal should be absolute and un qualified; but it may be by silence only. But the party should understand that he is re quired to perform the duty upon pain of the legal redress being resorted to without fur ther delay. 4 Railw. Cas. 112. But any ex ception to the demand should be taken as a preliminary question. 10 Ad. & E. 531 ; Red field, Railw. a 190, and notes.