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MANDAMUS, WRIT OF

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Originally appearing in Volume V17, Page 558 of the 1911 Encyclopedia Britannica.
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MANDAMUS, See also:WRIT OF , in See also:English See also:law, a high See also:prerogative writ issuing from the High See also:Court of See also:Justice (named from the first word in the Latin See also:form of the writ) containing a command in the name of the See also:king, directed to inferior courts, corporations, or individuals, ordering them to do a specific See also:act within the See also:duty of their See also:office, or which they are See also:bound by See also:statute to do, and performance whereof the applicant for the writ has a specific legal right to enforce. See also:Direct orders from the See also:sovereign to subjects commanding the performance of particular acts were See also:common in See also:early times, and to this class of orders mandamus originally belonged. It became customary for the court of king's See also:bench, in cases where a legal duty was established but no sufficient means existed for enforcing it, to See also:order performance by this writ. Under the Judicature Acts and the See also:Crown Office Rules, 1906 (r: 49), the See also:powers of the court of king's bench as to the See also:grant of the prerogative writ of mandamus are exercisable only in the king's bench See also:division of the High Court. The writ though of right is not of course: i.e. the applicant cannot have it merely for the asking, but must satisfy the High Court that circumstances exist calling for its issue. The See also:procedure regulating the grant and enforcement of the writ is determined by the Crown Office Rules, 1906 (rr. 49-68, 125). Mandamus has always been regarded as an exceptional remedy to supplement the deficiencies of the common law, or defects of justice. Where another legal or equitable remedy exists, equally appropriate, convenient, speedy, beneficial and effectual, the writ will as a See also:rule be refused. It is occasionally granted even when a remedy by See also:indictment is available: but is not issued unless the existence of the duty and refusal to perform it are clearly established, nor where performance in fact has become impossible. The writ is used to compel inferior courts to hear and determine according to law cases within their See also:jurisdiction, e.g. where a See also:county court or justices in See also:petty or See also:quarter sessions refuse to assume a jurisdiction which they possess to See also:deal with a See also:matter brought before them. It has in See also:recent years been employed to compel municipal bodies to See also:discharge their duties as to providing proper See also:sewerage for their districts and to compel See also:anti-vaccinationist guardians of the poor to appoint See also:officers for the See also:execution of the See also:Vaccination Acts; and it is also employed to compel the promoters of railway and similar undertakings to discharge duties imposed upon them towards the public by their See also:special acts, e.g. with reference to highways, &c., affected by their See also:railways or other undertakings.

The courts do not prescribe the specific manner in which the duty is to be discharged, but do not stay their hands until substantial compliance is established. Besides the prerogative common-law writ there are a number of orders, made by the High Court under statutory authority, and de-scribed as or as being in the nature of mandamus, e.g. mandamus to proceed to the See also:

election of a corporate officer of a municipal See also:corporation (Municipal Corporations Act 1882, s. 225) ; orders in the nature of mandamus to justices to hear and determine a matter within their jurisdiction, or to See also:state and sign a See also:case under the enactments See also:relating to special cases. At common law mandamus lies only for the performance of acts of a public or See also:official See also:character. The enforcement of merely private obligations, such as those arising from contracts, is not within its See also:scope. By s. 68 of the Common Law Procedure Act 1854, the See also:plain-tiff in any See also:action other than See also:replevin and See also:ejectment was empowered to claim a writ of mandamus to compel the See also:defendant to fulfil anyduty in the fulfilment of which the See also:plaintiff was personally interested. By s. 25 (8) of the Judicature Act 1873 a mandamus may be granted by an interlocutory order of the High Court in all cases in which it shall appear to the court just or convenient that such an order should be made. This enactment does not deal with the prerogative mandamus but empowers the king's bench and the See also:chancery divisions to grant an interlocutory mandamus in any pending cause or matter by an order other than the final See also:judgment and even by an order made after the judgment. S. 68 of the act of 1854 has been repealed and re-placed by Order LIII. of the Rules of the Supreme Court.

The remedy thus created is an See also:

attempt to engraft upon the old common law remedy by See also:damages a right in the nature of specific performance of the duty in question. It is not limited to cases in which the prerogative writ would be granted; but mandamus is not granted when the result desired can be obtained by some remedy equally convenient, beneficial and effective, or a particular and different remedy is provided by statute. An action for mandamus does not See also:lie against judicial officers such as justices. The mandamus issued in the action is no longer a writ of mandamus, but a judgment or order having effect See also:equivalent to the writ formerly used. Mandatory See also:Injunction.—The High Court has a jurisdiction derived from the court of chancery to grant injunctions at the suit of the See also:attorney-See also:general or of private persons. Ordinarily these injunctions are in the form of See also:prohibition or See also:restraint and not of command. But occasionally mandatory injunctions are granted in the form of a direct command by the court. Specific Performance.—The jurisdiction of the High Court, derived from the court of chancery, to See also:decree specific performance of See also:con-tracts has some resemblance to mandamus in the domains of public or quasi-public law. See also:Ireland.—The law of Ireland as to mandamus is derived from that of See also:England, and differs therefrom only in See also:minor details. See also:British Possessions.—In a British See also:possession the See also:power to issue the prerogative writ is usually vested in the Supreme Court by its See also:charter or by See also:local legislation. See also:United States.—The writ has passed into the law of the United States. " There is in the federal judiciary an employment of the writ substantially as the old prerogative writ in the king's bench practice, also as a mode of exercising appellate jurisdiction, also as a proceeding See also:ancillary to a judgment previously rendered, in exercise of See also:original jurisdiction, as when a See also:circuit court having rendered a judgment against a county issues a mandamus requiring its officers to See also:levy a tax to provide for the See also:payment of the judgment." And in the various states mandamus is used under varying regulations, See also:mandate being in some cases substituted as the name of the proceeding.

End of Article: MANDAMUS, WRIT OF

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