CHAPTER XXI:

                      PRACTICE IN MANDAMUS

                             PARTIES


     The writ  of mandamus,  from its very nature and definition,
is "a  command issuing  in the  name of the sovereign authority."
(Bouvier's Dict.) And although it is substantially a civil remedy
(2 Carter's  Ind. Rep.,  423), yet  in the  United States  it has
always been  issued in the name of the soverignty by which it has
been authorized.  The suit,  therefore, is properly prosecuted in
the name  of the State, on the relation of some person or persons
who is  called a relator. (The State of Ohio v. The Commissioners
of Perry County, 5 O.S. Rep., 497.)

     When the  remedy by  mandamus is resorted to for the purpose
of enforcing  some matter  of private  interest, the relator must
show some  special interest in the matter. Otherwise, it is said,
a mere  stranger might  obtain a  mandamus officiously,  and  for
purposes not  at all  desirable to the real party. (The People v.
Collins et  al.,19 Wend.  65;hamilton v.  The State, 3 Ind. Rep.,
458.)

     Therefore, where  a committee  was appointed  by a  town  to
audit the  accounts of  the overseers of the poor, and to demand,
and receive  from them  the books  of accounts  belonging to  the
town, held by the overseers in the official capacity, it was held
that the  committee had  no such  property in  the books as would
authorize them  to apply  in their  own names  for a  mandamus to
compel the  surrender of  the books.  (Bates v. Plymouth, 14 Gray
(Mass.) Rep., 163.)

     It has  been held  that a  private citizen  has no  right to
apply fora  mandamus to  compel a  public officer  to perform  an
omitted duty,  in a  case where he is not directly injured by its
non-performance.  That   where  the   public  rights  are  to  be
subserved, it isfor the public officers exclusively, to apply for
the writ.  (Samger v. County Commissioners of Kennebec, 25 maine,
291; People  v. Regents  of the University, 4 Mich. 98; People v.
Inspectors of State Prisons, 4 Mich., 187.)

     And in a case where the petitioners for a mandamus showed an
act of  the assembly  requiring the town borough to open an alley
is said  borough; that  he had  notified them  of said  law,  and
requested them  to open said alley, which they had refused to do;
that he was the owner of a lot of ground with two dwelling houses
erected thereon,  through which the alley must pass, and that the
opening of  such alley  would greatly  augment the  value of said
lot. It was held by the court, that the petitioner's interest was
one in  kind, if  not in degree, common to all the inhabitants of
the borough,  and that  he had  no right  therefore to  the writ,
which should  be applied  for by  public  officers.  (Heffner  v.
Commonwealth, 28 Penn., S.R. 108.)

     In the  case of  Sanger v.  County Commissioners,  25 Maine,
291, the  commissioners of the counties of Kennebec and Somerset,
at a  joint meeting  of the  two boards,  adjudged  "that  common
convenience a  nd necessity  required that the road prayed for in
said petition," (and which was in both counties), "be located and
established."  The  commissioners  for  the  ocunty  of  Somerset
thereupon duly  located that part of the road lying in the county
of Somerset,  and the  commissioners for  the county of Kennebec,
duly laid  out that  part of  the same  raod  in  the  county  of
Kennebec, which lay between the northerly end of Marston's bridge
and the  dividing line  of the counties of Kennebec and Somerset.
The residue  of the  same road  never having  been located by the
county commissioners  for the  county of Kennebec, who afterwards
upon a  petition therefor,  declined to  lay out the same. One of
the original petitioners for the road made application for a writ
of mandamus  to  the  county  commissioners  for  the  county  of
Kennebec, requiring  them forthwith  to complete  the location of
that part  of the road lying in the county of Kennebec which they
had omitted to lay out.

     The respondents moved that the petition be dismissed for the
reason, among  others, "that  the petitioner  for the writ prayed
for,  is  interested  only  as  other  citizens  in  opening  new
thoroughfares, and not entitled to the process prayed for."

     Tenney, J., in announcing the opinion of the court upon this
point, said: "A private individual can apply for this remedy only
in those  cases where  he has some private or particular interest
to be  subserved, or  some particular  right  to  be  pursued  or
protected by  the aid  of this process, independant of that which
he holds  in common  with the  public at large, and it is for the
public officers  exclusively to  apply, when public rights are to
be subserved.  (Rex v.  Merchant Factor's  Co., 2 B. & Ald. 115.)
These authorities,  which are  believed to  be in accordance with
others upon  the same  subject, contain  the general  rule of the
common law  upon this  point. And  we are  not satisfied that the
mode provided  by the  statute, to  obtain the  laying  out,  the
alteration and  discontinuance  of  public  roads,  which  is  by
petition, which is often followed by proceedings, which are of an
adversary character,  and are  sometime followed by costs against
the petitioners,  can take  this case  from the general rule. The
reason given  in the  original petition,  for the location of the
road, is,  that the public good requires it." And the judgment of
the joint  board of  commissioners for  the two counties is, that
"common  convenience  and  necessity  require  it."  Neither  the
petition for  the road, nor that for the writ of mandamus, allege
any interest  of this  petitioner to  be promoted,  or  that  his
rights are  in any  degree diminshed,  by the omission complained
of, more than any other individual in the community, andhe is not
shown to  have been  at any  trouble, or  incurred any expense or
liability by  the proceedings  upon the  original application for
the road. However mistaken in their duty the county commissioners
for the  county of  Kennebec may  have been,  in omitting to make
effectual the  judgment of  the joint board of commissioners, and
notwithstanding they  may be  exposed to a peremptory mandamus to
lay out the remainder of the road, by virtue of an application by
a public officer, we think this petition must be dismissed."

     The better  rule, however,  in the  absence of any statutory
provision on the subject, seems to be, that where the proceedings
are for  the enforcement of a duty, affecting not a private but a
public right, common to the whole community, it is not necessary,
that the relator should have a special interest in the matter, or
that he  should be  a public  officer. This rule is maintained by
high authority.

     In the  case of  Hamilton, Auditor,  v.   The State,  3 Ind.
Rep., 452, where this question was raised and distinctly decided,
the court  say: "Were  this a case merely for private relief, the
relator would  have to  show some special interest in the subject
matter. But  here the  case is  different. The defendant, who was
county audtiro,  refused   to issue  the legal  duplicate for the
collection of taxes, and a mandamus was applied for to compel him
to discharge  this duty  of his  office. It  is a  case  for  the
enforcement, not  of a  private, but of a public right; and it is
not necessary,  in such  cases, that  the relator  should have  a
special interest  in the  matter, or  that he  should be a public
officer. That the defendant should discharge correctly the duties
of his  office, was  a mtter  in which Bates, as a citizen of the
county, had a general interest; and that interest was, of itself,
sufficient to  enable him to obtain the mandamus in question, and
have his name inserted as the relator."

     So in  the case  of The  People v. Collins, et al., 19 Wend.
56, it  is said  that in matters of mere public right, the people
are the  real party;  that in  such cases the wrongful refusal of
the officers  to act,  is no more the concern of one citizen than
another; and  that while there was no doubt but that the attorney
general might  very properly  move in  the matter,  yet the court
could not  collect from  any of  the books,  or the reason of the
thing, that he alone had the power to move. (Rex v. The Justices,
etc., 7  T. Rep., 463; Rex v. The Commissioners, & c., 1 T. Rep.,
146; County of PIke v. The State, 11 Ill. Rep., 202.)

     And when the subject matter has relations to the validity of
an election,  it seems  that it is a matter of such public right,
that any  citizen may  be a  relator  in  an  application  for  a
mandamus. (State  v. County Judge, 7 Clark (Iowa) Rep.,186; State
v. Bailey, Ib., 390.)

     When a  suit for  a writ  of mandamus  is prosecuted  by any
public officer  in his official capacity, for the public benefit,
and  he   dies,  or   his  term  of  office  expires  before  the
determination of  the  suit,  it  will  not  abate,  but  may  be
continued by  his successor.  (Felts v.  Memphis, 2 Head. (Tenn.)
Rep., 650.) Though several persons may be included as prosecutors
in the  same writ,  at the  discretion of  the court, and will be
when they  constitute but one officer, and the object of the writ
is to admit or restore such persons to office, or when the object
is to secure some private right, and all claim in the same right,
as to  admit, or  restore several  persons to the same office, in
the same  corporation; yet  when two  or more persons join, whose
interest and  cause of  complaint are  entirely distinct,  it may
well be  doubted whether  a joint application for the writ prayed
for, can  be sustained.  Therefore, when the record showed that a
certain sum  was awarded  to Simon Doe, and another sum to Dennis
Blackwell, as  damages severally sustained by them by reason of a
road laid  out across  their lands, it was held that htere was no
interest common  toboth which  would authorize them to join in an
application for a mandamus, to compel the county commissioners to
order and  direct the  damages so  allowed, tobe  forthwith paid.
(Hoxie et  al. v.  The  County  Commissioners,  25  Maine,  333.)
Neither can  one and the same writ of mandamus be directed to the
officers of  several corporations,  to  compel  them  to  perform
distinct duties,  growing out  of distinct liabilities. (Angell &
Ames on  Corporations, 51.)  It was  therefore held, that one and
the same writ could not be directed to the township committees of
two several townships, to compel them to proceed to do their duty
in the  matter of  a road.  (State v. Chester Eveshane, 5 Halst.,
292.)

     The writ  should be directed to those who are to execute it,
or to  do the  thing required.  And if it be directed to several,
acting  in  different  capacities,  but  the  action  of  all  is
necessary for the accomplishment of the thing required, it should
be taken  distributively,  andeachare  bound  to  obey  the  writ
according to  their several  functions. (3  Stephens' Nisi Prius,
2321.) It  should also appear, that the personto whom it is to be
directed, has the power to execute it, for if he has not, it will
not be  issued. (State  v. Dunn,  Minor, 46; 15 Barb. 607; 12 Ib.
217.)

     Where the  cashier of a bank had refused to allow one of the
board of  directors to examine the discount books of the bank, it
was held  that the cashier had the possession, and control of the
books, and that the writ might be directed to him, and not to the
directors, although  the cashier  had excluded  the relator  from
such inspection,  in pursuance of a by-law passed by the board of
directors, excluding  relator from all access to the books of the
institution. The  court also  intimated that  it  might  also  be
directed to the directors. (The People v. Throop,12 Wend. 183.)

     If the  act commanded must be done by the whole corporation,
or if  a portion of the act by the whole corporation, and another
portion by  the head  officer, the writ should be directed to the
whole corporation,  and not  to the different enumerated classes,
or individual  members who compose it. Thus, a mandamus to compel
an election  of an officer in a corporation should be directed to
the whole  corporation, and not to the individual members. But if
the act is to be done by a select body, as, for instance, certain
officers ofa  corporation, the writ may be directed to the select
body, or to the whole corporation. (Angell & Ames on Corporation,
451; 4 American Law Reg., 163; 6 Conn. Reps., 532.)

     If directed  to  the  officers  by  name,  it  should  state
distinctly  and   accurately  their  proper  capacity.The  common
practice, however,  is, to direct the writ to those officers of a
quasi corporation  who are  to be  required to  perform the  act,
without giving  the names  of such persons. If, however, there is
but a  single person  holding and  performing the  duties of  the
office, as an auditor, or treasurer, it may issue to such officer
by name, and as such officer.

     But in  which ever form the proceedings may be commenced, it
seems that  a notion  for a mandamus against a municipal or quasi
corporation, is virtually, a proceeding against the body, and the
judgment is  obligatory on  the members of the board in office at
the time  of its  rendition.  And  although  it  may  assume  the
character  of   an  individual  proceeding,  yet  if  it  becomes
necessary to  enforce the  orders of  the court by attachment, or
other process  for contempt,  a change  in the  membership of the
board does  not change  the parties  as to abate the proceedings.
The constituent  parts of  the board may not be the same, but the
representative body  remains identical. (Maddox v. Graham, 2 Met.
(Ky.) Rep., 56.)

     A writ  of mandamus,  to a subordinate judicial tribunal, is
properly directed  to the  judge or  judges  of  the  court,  and
especially where there may be other judges authorized to hold, or
participate in  holding the court. In case of disobedience to the
mandate  ofthe   supervisour  court,   the  authority  to  compel
obedience is  exercised over  the judges  personally  having  the
power to  exercise the functions of the court. (Hollister & Smith
v. The  Judges of  the District  court of  Lucas county,  8 O. S.
Reps., 201.)

     And where, to a writ thus directed, it was objected that the
defendants were  judges of the court of Common Pleas, and only as
such, authorized to hold a District court, it was held that as by
the Constitution  and laws  of the State, the judges of the court
of Common  Pleas, constituted  the judges  of the District court,
and as  such, clothed  with full  authorityh to  hol the District
court, and  exercise its  jurisdiction and authority, it mattered
not in  what form of expression the judicial power was conferred.
And that,  therefore, there was nothing in the objection that the
writ was  directed to  them as  the judges of the District court,
instead of the District court. (Ib)

     The writ  is, however,  sometimes directed  to the judges by
name, stating  their position;  and when  the object is to compel
the signing  of  a  bill  of  exceptions,  perhaps  this  is  the
advisable practice.  (The State  of Ohio  v. Todd  et al.,  4  O.
Reps., 351.) This, however, is not universally the practice. (The
State v. The Judges of Common Pleas, 1 West. L. J., 358.)


                          CHAPTER XXII:

                     PROCEEDINGS IN MANDAMUS


     The proceedings  in mandamus  were formerly  commenced by  a
motion in  court, the  grounds for  which were  supported by  the
production  of   affidavits,  asking   for  a  rule  against  the
defendant, to  show cause  why the  writ of  mandamus should  not
issue. The  hearing on  the motion  was ex-parte, and no previous
notice to  the opposite  party was  necessary; the  defendant was
notified of  the granting of the rule, by serving upon him a copy
of the rule.

     It was  necessary that  the affidavits  in  support  of  the
motion,  should   contain  a   precise  statement  of  the  facts
constituting the  relator's right  to the  writ; and  it was held
that they  were insufficient  if the allegations in them were not
so positive,  that an  indictment for perjury could be maintained
upon them  if false.  They should also show that the applicant is
entitled to  the relief  he prays;  that he has complied with all
the forms  necessary to constitute his right; that he has applied
to the  defendant to  do that  which he asks the court to command
the performance of; and the refusal or neglect. (3 Stephens' Nisi
Prius, 2318, 2319; 1 Swift's Digest, 564.)

     The  defendant   might  come  into  court,  and  by  counter
affidavits, show  cause against  the rule;  and if,  upon reading
such affidavits,  or hearing  counsel against  the rul, it became
perfectly apparent that the relator was not entitled to the writ,
the rule was discharged. But if his right appeared only doubtful,
the court  made the  rule absolute, in order that the right might
be tried.  On the rule being made absolute, an alternaitive write
of mandamus  was issued,  in which  writ it  was necessart to set
forth the  facts which  entitled the  prosecutor  to  the  relief
prayed for,  and the  duty to  be performed by the defendant, and
directed to the person or persons whose duty it is to perform the
act, commanding  them to  do the  thing requited, or signify some
reson why  they should not do it.  To this writ the defendant was
required to  make a  written return,  either  denying  the  facts
stated in the writ on which the claim of the relator was founded,
or setting  forth other  facts sufficient  in law  to defeat  the
relator's claim.

     If the  writ was defective, either in form or substance, the
defendant could  move to  quash it.   If  the defect  was of form
only, the  motion to  quash should  have been  made before return
made to  the writ.  But if the defect was one of substance in the
writ, as  a want of sufficient title in the relator to the relief
sought, it  could be  taken advantage  of at  any time before the
peremptory mandamus  was awarded.  (The Commercial Band of Albany
v. The Canal Commissioners, 10 Wend.26; 6 Conn. 532; 7 East. 245;
4 Cowen's Reps. 73.)

     If  the  return  was  adjudged  insufficient,  a  peremptory
mandamus was  issued commanding,  absolutely, the defendant to do
the thing  required, and  if not  obeyed,  an  attachment  issued
against the  person disobeying  it.  If the return was sufficient
in law,  although galse  in fact,  the relator could not traverse
it, but was compelled to resort to his action for a false return.

     But after  the passage  of the statute of 9 Anne, C. 20, the
relator might  reply, take  issue, or  demur to  the  return.  (3
Black. Com. 265.)

     The more common practice in the American courts is to file a
formal petition,  complaint, or  application, as  it is variously
called, alleging  in detail  the grounds  of the application, and
praying for  a writ  of mandamus  to be issued.  This petition is
swprn to  by the  applicant, or  supported by  the affidavits  of
others.  If this petition and affidavits make a prima facie case,
an  alternative  writ  of  mandamus  is  issued,  commanding  the
defendant to  do the thing required or to show to the court cause
why it  should not be done.  This writ serves the same purpose as
a declaration in an ordinary case, and the defendant must move to
quash or  demur according to the peculiar practice of the courts,
or make return denying the allegations of the writ, or setting up
new matter, constituting a defense to the relator's claim.

     In some  States, however,  the ptactice seems to be to serve
the petition  or complaint  upon all  parties supposed to have an
interest in  the question  involved, a sufficient time before the
term to gave an opportunity for taking the testimony upon notice;
and upon  the return  of the  petition the case is heard upon its
general merits.   In  either form, if the application prevails, a
peremptory mandamus  issues, the only proper return to which is a
certificate of  compliance with its requisitions, without further
excuse or  delay. (Redfield  on Railways,  441; State v. Smith, 9
Iowa, 334.)

     This general rule that the respondent must certify in answer
to  the   writ,  that   he  has   complied  with  or  obeyed  its
requirements, is  subject to exceptions in case the writ has been
improvidently issued,  or has  commanded the  performance  of  an
illegal act. (State v. County Judge, 12 Iowa, 237.)

     In such  case, a  motion to  vacate the  rule  allowing  the
peremptory writ and setting the mandamus aside, has been granted.

     And where  an agreement  was made  between counsel  for  the
relator  and  counsel  for  the  respondents,  that  all  further
proceedings in  a mandamus  cause should be stayed until the next
term of the court, and notwithstanding such agreement the relator
procured other counsel, and in the absence of the relator and his
counsel, and  before the  next term  of  the  court,  procured  a
peremptory mandamus to be issued, the rule granting the writ was,
on motion,  vacated, and  the mandamus set aside. (Everitt v. The
People, 1 Caines Rep. 8.)


                         CHAPTER XXIII:

                         THE APPLICATION


     The petition  for a  writ of mandamus, should present to the
court a  prima facie case of duty on the part of the defendant to
perform the  act demanded,  and  an  obligation  to  perform  it;
otherwise the  alternative writ  will not  be granted.  It should
also appear  from the petition that a demand has been made on the
defendant to do the thing he is sought to be compelled to do, and
that he had refused or neglected to do it. (Stephens' Nisi Prius,
2318, 2319;  9 Mich.  R. 328.)  And the  facts and  circumstances
under which  the petitioner  claims the  relief prayed, should be
stated fully,  clearly and  unreservedly, and  not inferentially.
(Commonwealth v.  Commissioners, 37  Penn. S.  R. 277.)   And  it
should also  be shown  that the  defendant has it in his power to
perform the act.

     It has,  therefore, been  held that  a complaint in mandamus
against a  comptroller is fatally defective if it fails to allege
that there are "moneys not otherwise appropriated by law," out of
which the  compensation sought  for, is  to be paid.  (Redding v.
Bell, 4 Cal. R. 333.)

     And where  a petition  for a  mandamus alleging  a  contract
between the  petitioner and  the justice  of a county by which he
was to  be paid  a certain sum for bhuilding a court house, and a
certain other  sum for  building a fail, in monthly installments,
for lumber and work, and praying for a writ of mandamus to compel
the payment of what was due, without averring that any particular
sum was  due, was held defective and on motion should be quashed.
(McCoy v. Hurnett County, 5 Jones Law [N.C.], 265.)

     Where the  practice is  to hear the case on its merits, upon
the reutn  of the  petition, the petition serves the purpose of a
declaration in  a civil  case; and can be quashed, if it fails to
present such  facts, as  shows the relator entitled to the remedy
demanded.   Where, however,  the practice  is to grant, on an ex-
parte hearing  of the petition, and alternative writ of mandamus,
the alternative  writ takes  the place  of a declaration, and the
retun motion  to quash,  or demurrer  should be to it, and not to
the petition.

     The truth  of the  facts set forth in the petition should be
shown by the oath of the petitioner, or the affidavits of others.

     The petition  should  include,  as  parties  defendant,  all
persons interested  in the defense, and who are to be required to
act upon the order.


                          CHAPTER XXIV:

                      THE ALTERNATIVE WRIT


     If an  alternative writ  is allowed  by the court, it is the
duty of  the relator's  counsel to  prepare it, and not depend on
the clerk  of the  court to  draft it. As the petition upon which
the writ  issues is  no part  of the  pleadings, the writ must be
sufficient in  itself to  show precisely what is claimed, and the
facts upon which the claim is made. (Commercial Band of Albany v.
Canal Com.,  10 Wend. 25.)  To draft such writ properly, requires
time, legal  skill, and  a knowledge of the case.  (Johnes v. The
Auditor of State, 4 O. S. Rep., 493.)

     The petitioner's  rights, and  the circumstances under which
he claims  them, must be stated unreservedly, fully, and clearly;
and it  has even  been said,  that it  ought to  answer  all  the
objections that can reasonably be anticipated.

     It should  not only  show facts  sufficient to  entitle  the
relator to  the relief  which he  claims, but it should also show
his right  to all  he claims.    For  it  seems  in  the  English
practice, at  least, that if the writ issue in the first instance
for some  things, which  the defendant  is not  bound to  do,  it
cannot  be  supported  even  as  to  those  things  which  he  is
compellable to  perform, and  will be quashed on motion.  (3 Eng.
L. & Eq. R., 285; 22 Iv., 113; 3 Eng. Railw. & Canal Cases, 774.)

     Nor can  reference be made to the petition and affidavits on
which the  order was  granted,  in  aid  of  the  writ,  in  this
particular.

     And where  a writ  of mandamus  commands the  defendant as a
judge or  referee, to settle a case and exceptions by disallowing
certain words  and sentences,  and allowing others, bu t contains
nothing showing that the case thus settled would truly detail the
events of  the trial,  it is  not a  mere defect  in form, but an
omission of  a substantial statement or recital, essential to the
relator's title to the relief claimed.

     So, a mandamus issued to a railroad company, commanding them
to issue  their warrant  to the  sheriff  to  summon  a  jury  to
estimate the  damage caused to the relator by the company, in the
construction of  their road, is insufficient if it use simply the
general words of the statute.  The writ should state specifically
the nature  and cause of the injury complained of.  (The Queen v.
The Eastern  Counties Railway  Company, 2  Eng. Railway and Canal
Cases, 540.)

     The court  may grant the relator leave to amend his writ, by
setting forth  his damages  fully and specifically, or perhaps to
make any  other proper and necessary alterations.  (4 O. S. Rep.,
493.)

     And where a mandamus was issued to compel a railroad company
to proceed  to purchase the lands necessary for the completing of
their roads,  between the  points specified in their charter, and
to set  out and  define the line of their road deviating from the
line set  forthi in  the act of incorporation, in pursuance of an
act amending  their act of incorporation, which writ did not aver
that the  company had  given up  their design,  or had  willfully
exercised any  injurious option,  or that they were not effecting
it with  all convenient speed, or that even a reasonable time had
elapsed,  in   the  opinion   of  the   prosecutor,  without  due
preparation being made, or that it would not be more advantageous
to all  concerned to abide by the original line, than set out and
define a different one, was held insufficient.  (The Queen v. The
Eastern Counties Railway Company, 2 Eng. Railway and Canal Cases,
190.)

     And as has before been observed, the writ should demand just
the remedy  to which  the relator  is entitled, for if it demands
too much,  it is  substantially defective.   (1 Hill's Reps,. 50,
55; 35 Barb., 110.)

     Therefore, where the alternative writ was issued, commanding
the respondents  as a  board of  supervisors, to  raise by  tax a
certain sum  of money  to pay the relators the whole amount to be
due them  for the  performance of  a  certain  contract,  and  it
appeared that  only a  portion of the contract was yet performed,
and therefore only a portion of the whole sum due, the peremptory
writ was refused on the ground that the alternative writ demanded
more than  the relators  were legally  entitled to.   That as the
peremptory writ  must follow  the alternative, there could not be
judgment for  the relators  for part, and the respondents for the
other part.   (The  People v.  The Board  of Supervisors  of  the
County of New York, 18 How. P. Reps., 152.)

     An alternative  writ of mandamus, to compel the treasurer of
school funds,  to pay  a bill, should show that the treasurer has
funds from which he ought to pay the bill; and if it does not, it
may be quashed on motion.  (State v. Slavin, 11 Wis., 153.)

     It should also appear that the relator has no other specific
legal remedy to which he can resort, to compel the performance of
the duty,  and that the party to whom the writ is to be directed,
has it  yet in  his power  to perform it.  (34 Penn. State Reps.,
494; 20  Ill. Reps.,  525.)  A distinct assertion, that he cannot
have adequate  relief without  the aid of a writ of mandamus, has
however been  held a  sufficient averment  of the  want of  other
legal remedy.

     And  it   seems  that   a  mandamus  requiring  a  municipal
corporation to  provide for  the payment  of the  interest on its
bonds, need not set forth when the principal will become due, nor
when, nor where, the interest is to be paid.  Nor is it necessary
that the  relator's title  to the  bonds should be set forth; the
averment of  his wonership  being sufficient to show his right to
ask the interference of the court by mandamus.  (Ib.)

     But where  an alternative  writ was  issued, to  compel  the
judges of a court to vacate a rule granted by them, and no reason
appeared upon  the face  of the  writ why  the rule  of the court
should be vacated, it was held that the writ was defective, and a
peremptory writ  refused, even  after a return to the alternative
writ had been made.  (The People v. The Judges of Columbia Common
Pleas, 3 How. P. Reps., 30.)

     The command  of the writ must also be according to the duty.
It was  therefore held  bad to  require supervisors  to expend  a
certain sum  of money,  in repairing a bridge; the command should
be simply  to repair.  (The People v. The Supervisors of Dutchess
County, 1  Hill's Reps.,  50, 362.)  It must also correspond with
the order, directing its issue.  (Hawkins v. Mone, 3 Pide's Rep.,
345.)

     The  alternative  writ  in  the  absence  of  any  statutory
provision upon  the subject, should be served upon the defendants
a sufficient  length of  time before the hearing to allow them to
make their  defense.   For it  is a  feneral and well established
rule, that no motion which in its operation is to have the effect
of a  final judgment ought to be granted without giving the party
against whom it is made an opportunity of being heard.  This is a
common right, and to deprive a party of this right is a violation
of the spirit and fundamental principles of our government.  (The
People v.  The Judges  of Rensselaer  Com. Pleas,  3 How. P. Rep.
164.)

     The allegations  or  recitals  in  an  alternative  writ  of
mandamus being  in the nature of a pleading, their sufficiency to
support the  writ is  brought in  question  on  demurrer  to  the
return, or  any subsequent  pleadings, the same as in an ordinary
action, and  the party  must fail  who commits the first error in
matter of  substance; and defects in these allegations are not to
be aided by the affidavit on which the writ was granted.  (People
v. Baker, 35 Varv. R. 105; 10 Wend. 26.)

     If the writ is not quashed, the defendant must make a return
thereto, unless  he think proper to put an end to the controversy
by doing the act required.


                          CHAPTER XXV:

                           THE RETURN


     The return must, in all cases, be made by the person to whom
it is  directed. Where  a mandamus  is directed to the mayor, the
mayor alone can make the return, and the other component parts of
the corporation  cannot disavow  it,  becuase  the  court  cannot
refuse the  mayor's return, he being the officer to whon the writ
is directed and to whom it is actually delivered. (Stephens' Nisi
Prius, 2326.)

     It  stands   as  the   second  pleading  in  the  action  or
proceeding, and  must be  good, tested  by the  ordinary rules of
pleading, both in form and substance.

     It must  either deny  the facts stated in the writ, on which
the claim  of the  relator is  founded, or must state other facts
sufficient in  law to defeat the relator's claim, and these facts
should be  stated positively  and distinctly;  and if  instead of
stating facts  the return merely sets out or refers to matters of
evidence  from   which  these   facts   are   inferred,   it   is
objectionable. (10 Wend. 20; 35 Barb. 105; 37 Penn. S. R. 237; 32
Ib. 218.)

     Threfore upon a return to a mandamus to the canvassers of an
election that they rejected certain election returns because they
were not  made according  to the  statute, it  was held proper to
order the respondents to state the defects specifecally, that the
court might judge of them. (7 Clarke [Iowa] Reps. 390.)

     And where  one has  been expelled  from  a  society  for  an
alleged violation  of the  rules of  the society,  to which rules
there are  certain exceptions, the return to the alternative writ
must deny  that the  case comes  within the exceptions. Therefore
where the  rules  of  a  religious  society  provided  "that  all
disputes between  members are  to ve  settled by arbitration, and
any member  who commences an action at law against another member
is liable to expulsion, except the case be of such a nature as to
require and  justify a process at law," and the return simply set
forth that  the plaintiff  brought suit  against a  member of the
society in violation of the rules of the church, but did not aver
that the  case was not of such a nature as to require and justify
a process at law, the return was held insufficient.

     And where the return stated that the plaintiff was tried and
expelled by  a "select  number of  the sid  society, and  in  the
presence of  three deacons  and a preacher," but it was not shown
of how  many this  select number  consisted, or by what authority
they proceeded to try and expel a member, the return was declared
insufficient.

     The court  say: This  is a  radical defect, for the power of
expulsion myst  belong to  the society  at large,  unless by  the
fundamental articles,  or some  by-law founded on those articles,
it is  transferred to a select number. It ought therefore to have
been set  forth from  what wource  this select  committee derived
this authority,  and in  what manner they were selected, in order
that the  court might  judge  whether  the  proceeding  had  been
conducted according  to law. (Green v. African Methodist, etc., 1
Serg. & Rawle, 254.)

     So, too, it has been held not a good return to a mandamus to
restore a  member of  a corporation,  that "he  consented  to  be
turned out."  This was  held not  a  return  of  resignation.  (2
Raymond's Reps., 1304.)

     And upon  a mandamus to swear in two church wardens, alleged
in the  writ to be duly elected, a return that they were not duly
elected was held bad, unless it also alleged that neither of them
were elected. (Ib., 1008.)

     And where  the writ  recited that  the  plaintiff  was  duly
elected, admitted  and sworn  into an  office, and  without  just
cause had  been removed,  and the return was that he was not duly
elected, admitted and sworn, and therefore they could not restore
him, it  was declared  a defective  return. For  if he  had  been
admitted, although  vot duly  elected or  sworn, yet  the  return
should show  a good  cause for  the removal.  If he  had not been
admitted, the  return might  be good; or if the return had stated
that he  had not  been elected,  admitted or  sworn, it  would be
good. (Douglas' Reps., 79.)

     A return  to a  mandamus commanding  a railroad  company  to
purchase  the   lands  necessary  for  making,  constructing  and
completing their  road, which  set forth that all their power and
authority given  them by  law for the compulsory purchase of land
had expired  before the  writ of  mandamus issued, or was applied
for, was  held a  sufficient return.  (Reg.  v.  The  London  and
Northwestern Railway Co., 6 Eng. Railway and Canal Cases, 479.)

     The court say: "A writ of namdamus supposes the required act
to be  possible and  to be  obligatory when the writ issues. What
power have the defendants now to purchase the lands necessary for
making a  line of railway of several miles? A peremptory mandamus
going as  is prayed,  no excuse  can afterwards  be made, and the
defendants must  implicitly and  fully  obey  it  under  pain  of
imprisonment. Supposing  that they  were bound  to pay any prices
which might  be demanded, however extortionate, can it reasonably
be supposed  that all  the land  owners along  the line  will  be
willing to  sell at  any prices,  and that none of them are under
disability to  sell? Mr. Knowles contended that the return should
have shown  an application  to all the land owners, and a refusal
by them. But such a return, and the issues arising upon it, would
be highly  inconvenient; and  even if  all had  promised to sell,
without binding  contracts have  been entered  into,  they  might
afterwards  change  their  minds  and  the  defendants  might  be
subjected to  perpetual imprisonment  for not  doing what the law
forbids them to do."

     But it  seems not  a good return, that the prescribed period
for the  compulsory purchase  of the  necessary land  has  nearly
expired, if  there is still a period during which the company may
take the requisite initiatory steps. (Reg. v. The York, Newcastle
and Berwick Railway Company, 6 Eng. Railw. and Canal Cases, 489.)

     And where  a  mandamus  is  issued,  requiring  a  municipal
corporation to  probide for  the payment  of the  interest on its
bonds, and  the writ  avers that  the relator is the assignee and
owner of the bonds, a return, averring simply that the bonds were
not transferred  in accordance  with the  acts  of  assembly,  is
insufficient; it  should show  wherein the supposed illegality of
the transfer  consists. Neither is it sufficient to aver that the
liability of  the corporation  is disputed, without setting forth
facts from  which the  court may  determine that  the debt is not
due. (Commonwealth v. Pittsburg, 34 Penn. S. R., 496.)

     Every intendment  is made  against a  return to  a  writ  of
mandamus, which does not answer the material facts; therefore, it
has been  held that  where it is shown that an ex-officer had the
seal of  a corporation  on the  fifteenth  of  June,  it  is  not
sufficient to  avoid the  writ, to  return that he had no control
over, or  possession of  it in  July, unless he also shows how he
has parted  with the  control. (The  People v.  Kilduff, 15 Ill.,
492.)

     For the  same reason  it has  been held  that a  return of a
justice to an alternative mandamus to send up papers, that at the
time of service has fees had not been paid, is no defense against
making the writ peremptory, for they may have been paid since the
service. (People v. Harris, 9 Cal. Reps., 571.)

     It seems,  also, that  an answer  to  an  alternative  writ,
setting up  prior proceedings  on the  same subject  in the  same
court, as a justification of the defendant's action, is defective
if it  fails to  set forth  those proceedings  fully, so that the
plaintiff may  reply thereto,  and the  court be enabled to judge
whether the pleadings present a good defense. (State v. Jones, 10
Iowa, 65.)

     If the return be insufficient, the relator may demur (Gorgas
v. Blackburn  et al., 14 O. R., 252.) or move to quash it; and on
motion the peremptory writ will issue. (People v. State, 2 Barb.,
554; Commonwealth v. Commissioners, 32 Penn. S. R., 218.)

     But on demurrer, motion to quash, or motion for a peremptory
writ, the truth of the return is admitted (24 Miss., 439.)

     The return,  formerly, was  not  traversable;  but  in  some
States the  relator is  permitted to  plead to it, while in other
States, new matter set up in the return is undeerstood as denied,
without a reply. In such case, if a reply to the return be filed,
a motion  to quash  the reply  will be  granted. (9  O. S. Reps.,
599.)

     But when the relator pleads to the return, he thereby admits
that, upon  its face,  the return  is a  sufficient answer to the
case made  by the  alternative writ;  and if,  on the  trial,  no
material fact  on the  return is disproved, the defendant will be
entitled to the verdict. (People v. Finger, 24 Barb., 341.)

     A return  to a  writ of mandamus need not be single, but may
contain several  defenses, or justifications; and if one of those
be sufficient,  the return must be allowed as to that. (Wright v.
Fawcett, 4 Burr, 2041.)

     Where, however,  inconsistent causes  for  not  obeying  the
mandamus are stated in the return, it must be quashed; for, taken
as a whole, it is false. (Angell and Ames on Corporations, 457.)

     In the case of "The King v. The Mayor, etc., of Cambridge, 3
Durnford &  East's Reps.,  456," the court say: "Where two causes
returned to  a mandamus  are  inconsistent,  the  whole  must  be
quashed, because  the court  cannot know which to believe, and it
is an  objection to the whole return. It is like a declaration in
which two  inconsistent counts  are joined;  there the  plaintiff
cannot have judgment." (5 Durnford & East's Reps., 66.)

     But where  the return  was, first,  that the relator was not
duly elected  sexton; and,  secondly, that  there was a custom to
remove, and  that he  was removed pursuant to such custom, it was
held by the courst that the return was not inconsistent; for that
he might  have been  elected in  fact,  and  afterwards  removed.
(Cowp., 413.)

     So, it  seems not  to be  inconsistent to  return  that  the
relator was  not eligible to the office, and also that he was not
elected. (3 Durnford & East's Reps., 461.)

     It, however,  was inconsistent  to state  in a  return to  a
mandamus to  certifu the  election of a recorder, supposed in the
writ to  be on  the 15th day of January, that the corporation was
not them  duly assembled;  and afterwards, in the same return, to
state the  election of  another corporate  officer on the 15th of
January of  the same  year; for  if it was not duly assembled, it
could not have elected such other corporate officer. (The King v.
The Mayor of York, 5 Durn. & East's R., 66.)

     But a  return to  a mandamus  directed to the steward of the
Court Lect  of a  borough, commanding  him to admit and swear the
relator a freeman of the borough, which set forth that he was not
elected, and  further that  he was  not entitled  to be  sworn in
because he has not been previously approved of by the lord of the
manor, which  is essentially  necessary to be done according to a
custom which the steward sets forth before he can be admitted and
sworn, was held consistent. (4 Burr, 2044.)

     If a  return to  a mandamus  consists of several independent
matters not  inconsistent with  each other, but part of them good
in law,  and part  bad, the court may quash the return as to such
part only  as is  bad, and  put the  prosecutor to  plead to,  or
travers the rest. (3 Durn. & East's Reps. 461.)

     A return to a mandamus, directed to the judge of the Probate
court, commanding  him to  grant probate of a will, which stes up
the pendency  of a  suit, in  the proper  court, to  contest  the
validity of the will, is a sufficient return to the writ. (Rex v.
Dr. Hay, 4 Burr, 2295.)

     It has  been said,  that in a return to a mandamus, the same
certainty is  required as  in indictments, or returns to writs of
habeas corpus. (The King v. The Mayor of Lynn Regis, Doug., 149.)
It may, however, well be questioned, whether this is not carrying
the rule too far. Lord Mansfield, in the case of "The King v. The
Mayor, etc.,  of Lynn  Regis, Doug.,  177,"  said:  "In  criminal
prosecutions, technical  forms are  established, and  ought to be
followed. If,  in an  indictment, you  say that  A.  forged,  and
caused to  be forged,  the proof  of either fact will support the
indictment; but  to say  that he  forged, or caused to be forged,
would be bad. This being determined, must be adhered to. But such
nicety is  not required in accusations against a corporation in a
corporate court.  There substantial  certainty  is  all  that  is
necessary."

     Such  certainty  only  is  required  as,  upon  a  fair  and
reasonable construction,  may be called certain without recurring
to possible  facts which  do not appear. Therefore where a return
to a  mandamus to  restore, it  was stated  that  the  party  was
removed by  the corporate  body at  large, the  return  was  held
sufficient without  averring that the power is incidental to such
corporate body,  unless given by charter, by-law or otherwise, to
a select body. (The King v. The Mayor of Lynn Regis, Doug., 149.)

     Where a mandamus was issued suggesting that the relator was,
in easter week, chosen church warden, and the return was that the
relator was  not elected in easter week, it was held by the court
that the return was sufficiently certain, because it pursued that
suggestion of  the writ.  (Rex v.  Penrice,  2  Strange's  Reps.,
1235.)

     On a  mandamus to  restore an  officer who is in at pleasure
only, it  is held  a good  return to say it was their pleasure to
remove him. (1 Ib., 115.)

     Ouster upon  quo warranto is always a sufficient return to a
mandamus to  restore one  to an office. And where the writ avers,
heverally, that the prosectuor has been elected, it is sufficient
to answer  generally in the return, that he has not been elected,
or what is the same thing, that he has not been duly elected.

     This general  answer, gowever, is not sufficient if the writ
sets forth  certain facts,  and concludes with "by reason whereof
the relator  was eleted;"  but the  return in  such  case  should
traverse some  material fact,  on the truth of which the election
is founded;  or if  this cannot be done, and the facts stated are
nevertheless insufficient  to sustain  the  election,  it  should
state what  is necessary  to a  legal election,  and negative the
legal nature  of that  set forth  in the  writ. (Angell & Ames on
Corporations, 457.)

     In every  case of  amotion or  disfranchisement, the  return
should show  precisely the cause of the same, and the proceedings
had; as  that an  assembly of  the proper  persons was duly held,
notice given  to the  prosecutor, a conviction of an offense, and
an actual  amotion or  disfranchisement thereupon,  in order that
the court  may judge  of  the  legality  of  the  cause  and  the
regularity of the proceedings.

     Accordingly if the return merely alleges that the prosecutor
was duly  amoved or  expelled the  corporation for a violation of
duty, without specifying the charges upon which he was convicted,
or the  manner of  proceeding, it  is insufficient.  (Ib., 461; 6
Serg. & Rawle, 469.)

     If the  offecer is  entitled to  notice before  amotion, the
return must  specifically aver  that notice  was given  to him to
appear and  defend himself, or must show that the corporation did
all they  could do  to give  him such  notice; but if it is shown
that the  prosecutor actually  appeared and  defended himself, no
previous  notice   need  be   alleged.  (Commonwealth   v.  Penn.
Beneficial Inst., 2 Serg. & Rawle, 141.)

     The  return  should  also  state  specifically  the  charges
preferred against  the relator  as grounds  for his  removal, and
that they  were either  proved on  oath or confessed. It however,
seems not  necessary to  aver that  the  amotion  was  under  the
corporate seal,  or that it was entered on the corporation books,
even where  it is  required by law that it shall be so entered on
the corporation  books, and  under the corporate seal, because it
is said that this will be implied in the general averment that he
was removed.  (Angell &  Ames on  Corporations. 461;  Willcock on
Corp., 423.)

     A return  averring that  the relator  was only an officer at
pleasure, and  that upon  due summons  to choose another, another
was chosen,  and thereby  the relator  was amoved, was held good.
(Strange's Reps., 674.)

     Where the  charter of a railroad company makes it obligatory
upon the  company to  complete their road, a return to a mandamus
to comple  them to complete it alleging that the road will not be
remunerative to  the company, is not a sufficient return. Neither
would it  be a  good return "that the making of the same railroad
would be  a useless  expenditure of  labor and  money, whilst  it
would be  destructive of the lands through which it would go, for
any agricultural or other useful or benificial purpose."

     For although  the making  of  a  particular  railway,  or  a
portion of it, may not be profitable to the company, it may be of
great benefit  to particular individuals, and to the public, that
the whole  should be  completed. And  in such cases it also seems
not a good return to allege "that all and every, the sum and sums
of money applicable for the purposes of the said act which can in
reasonable probability come to the possession of or be disposable
by us,  the siad  company, will fall short by a very large sum of
money of  the aggregate  sum necessary  for  the  making  of  the
railway authorized  by the  said act,  and  which  we,  the  said
company, are  by the annexed writ commanded to make." To say that
"in reasonable  probability" they  may not have funds for all the
purposes of  the act, is not saying positively that the4y have no
funds which  would be  sufficient to  enable them  to do all that
they are commanded to do.

     Were it,  however, clearly  made out  to the satisfaction of
the court that the company, although carrying out the design with
good faith,  and with  prudence, was  from unforeseen  casualties
left entirely  without funds,  it is  probably the  court, in the
exercise of  its discretion,  would refuse  the application,  and
leave the  parties  to  such  relief  as  they  might  obtain  by
interposition of  the legislature.  (Regina v. The York and North
Midland R. C., 16 Eng. L. & Eq. Rep., 299.)

     And where a mandamus recited that a railroad company had, in
Novermber, 1838  (a time after the compulsory powers given to the
company for  taking land had expired), cut through and taken part
of a turnpike road forty feet wide, and had made a bridge thereon
for carrying  it over the railway, the said bridge and approaches
being about  thirty feet  wide only, and which writ commanded the
company to restore the turnpike road to the width required by its
charter, it  was held  that a  return alleging  that the  company
could not  obey the writ without taking more land, and that their
compulsory powers  to take  land had  expired  before  they  were
required by  the trustees  of the  road to  widen  it,  was  held
insufficient. (The  Queen v. The Birmingham, etc., 2 Eng. R. & C.
Cases, 507.)

     The court  say: "When  the company  avail themselves  of the
very great  powers with which they are vested against the public,
they should  take care  to act stictly within those powers. As to
the compulsory  rights of  taking land having expired, that rests
entirely with  the company; for the act having passed in the year
1836, the  works in  question were  not begun  till more then two
years after, when the power was gone."

     A return  to a  writ of mandamus commanding the admission or
restoration of  the relator to the privileges and franchises of a
corporation to  which by  law he is entitled, must set forth such
matter, in  the absece  of any special statutory provision on the
subject, as is recognized by the common law as cause of exclusion
or expulsion.  Of these  there seems  to be but three classes: 1.
Violation of  duty to the society as a member of the corporation.
2. Offenses  as a  citizen, against  the laws  of the country. 3.
Breach of duty in respect alike to the corporation and the laws.

     If, therefore,  the return sets forth certain conduct of the
relator before  he became  a member of the corporation as a cause
for his exclusion or expulsion, which conduct was neither illegal
nor immoral,  but simply  a  violation  of  the  by-laws  of  the
society, it  does not  set forth a sufficient return. The by-laws
are abligatory only upon those who are members of the society. At
least this  is the case where neither the general statute nor the
by-laws of  the society  make the  antecedent observance  of this
regulation a  condition fo membership. (The People v. The Medical
Society of the County of Erie, 32 N. Y. Reps., 187.)

     It has  before been  said that  formerly if  the return  was
sufficient in law, although it should be false in fact, the court
would not  try the  truth of  the fact, but would for the present
believe the  return to  be true,  and proceed  no further  on the
mandamus. The party injured by the false in fact, the court would
not try  the truth of the fact, but would for the present believe
the return  to be  true, and  proceed no further on the mandamus.
The party  ingured by  the false  return might  then prosecute an
action against  the respondent for his false return, and if found
to be  false  by  the  jury,  was  entitled  to  recover  damages
equivalent to the injury sustained; and thereupon the court, upon
a new  motion founded  upon the postea, or judgment in the action
for the  falst return,  would grant  the writ  of mandamus in the
peremptory form. (3 Black. Com. 111.)

     But the practice in such cases was changed by the statute of
9 Anne, c. 20, by which the relator was permitted to plead to the
return, and  his antagonist might reply, take issue or demur, and
the same  proceedings were  had as  if an action had been brought
for making  a false  return; and  after judgment obtained for the
prosecutor a  peremptory writ  might issue,  and a  judgment  for
damages and costs recovered.

     This statute,  with some  modification, has  been enacted by
many of  the American  States. And  it seems that where, upon the
relator's  recovering   judgment,  he   is  entitled  to  have  a
peremptory mandamus  granted to  him without delay; and such writ
is a  complete remedy,  and gives  to the party all he is entitle
to, he is permitted to recover only nominal damages.

     Where, however,  the relator has sustained actual damages by
being deprived  of his  rights (as  in case  of expulsion from an
office, or  the refusal  to induct  into an  office, whereby  the
relator has sustained loss by being deprived of the emoluments of
the office),  the relator  would, in addition to his judgment for
the peremptory  writ, be entitled to a judgment for the amount of
his damages actually sustained, and no more.

     Therefore, where a mandamus had been sued out, requiring the
supervisors  to  audit  certain  damages  assessed  by  competent
authority at  the sum  of $200, for the land of the relator taken
for a  highway, and to the end that the same should be levied and
collected  in   a  certain  town,  or  to  show  cause,  and  the
supervisors made  a false  return, and  the relator had been kept
out of the damages so assessed for some time, it washeld that the
supervisors were  liable in damages to the extent of the interest
upon the  two hundred dollars while thus kept out of it; but that
as  he   was  entitled  to  a  peremptory  writ,  commanding  the
supervisors to  audit and  allow  the  amount  so  assessed,  his
judgment for  damages should  not include  the sum  of two undred
dollars. And  had the  law permitted the supervisors to audit and
allow the  interest, as  well as the sum assessed, it seems there
would be  no ground  for any  damages, other  than nominal.  (The
People v.  The Supervisors  of the  County of  Richmond, 28 N. Y.
Reps., 112.)

     A return,  on leave  of court,  may be amended in matters of
substance, even  after it  has been  filed and  exceptions  made.
(Doug. Reps., 135; 10 Pick. Reps., 59.)

     The motion, however, for leave to amend, should probably set
forth specifically  the points  sought to be corrected. (State v.
County Judge, 12 Iowa, 237.)

     And where  the return is insufficient, and in law no defense
to the writ, the court may, on motion, grant the peremptory writ;
yet the court will not, ordinarily, in the first instance order a
peremptory writ,  where there  is the apperance of having a valid
defence, but will direct the respondent to file a fuller and more
perfect answer. (State v. Jones, 10 Iowa, 65.)

     In the English practice, as well as in many of the States of
America, questions of fact, arising on a mandamus, are tried by a
jury. (1  Eng. Railway  and Canal  Cases, 317;  2 Eng.  R. and C.
Cases, 711.)


                          CHAPTER XXVI:

                       THE PEREMPTORY WRIT


     It seems  that the  peremptory writ  may, where  the  moving
papers preclude  the  possiblility  of  any  valid  excuse  being
consistent with  the facts  therein contained,  be issued  in the
first  instance,   and  without   the  previous   issuing  of  an
alternative writ. (Harkins v. Seneerbos, 2 Min., 344; Knox County
v. Aspinwall, 24 How. [U.S.] Reps., 376.)

     This, however, can only be done where both parties have been
fully heard,  as upon motion for a rule for a mandamus, and there
is no  dispute about  facts, and the court is perfectly satisfied
of the  propriety and  legality of  compelling the performance of
what is  asked. (Ib.;  The People  v. The  Contractting Board, 27
N.Y. Reps., 378; Crary's Prac., 286.) The more common practice is
not to  issue the  peremptory writ,  until after a hearing on the
reutn to the alternative writ.

     The peremptory  writ should  be like  the  alternative  one,
except that  the words, "or show cause why you have not done so,"
are left  out. Therefore, though the direction of the alternative
mandamus was  erroneous, the  peremptory writ  founded upon,  and
issuing to enforce it, must be directed in the same manner.

     And where  the defendant  has his  option to  do one  or the
other of two or more things, a peremptory mandamus commanding him
absolutely to do one of them, leaving him no option to do the one
or the other, it is invalid and void.

     Therefore, when the act of parliament provided that, "if the
line of  the railway  cross any turnpike road, or public highway,
then (except  when otherwise  provided by the special act) either
such road  shall be  carried over such road, by means of a bridge
of the height and width, and with the asent or descent by this or
the special  act in  that behalf  provided," it  was held  that a
mandamus commnding  the railway  compnay to cause the said public
highway to be carried over the said railway by means of a bvridge
of a  certain height  and width,  was invalid in not allowing the
defentdants to exercise their option, to either carry the railway
over the highway, or the highway over the railway. (Regina v. The
South Eastern R. Co., 25 Eng. L. & Eq. Reps., 13.)

     If the defendant neglects to make a return to an alternative
writ of  mandamus, an  attachment may  issue against  him,  under
which the  court may punish the contempt and enforce obedience to
their writ.  The court may, however, issue a peremptory mandamus,
on  proof  of  the  service  of  the  alternative  writ,  without
compelling a return. (People v. Judges, John's Reps., 64)

     The relator is not entitled, as of course, to the peremptory
writ, where no return has been made; but should generally proceed
to enforce  a return, unless there is some statutory law upon the
subject. (State v. Baird, 11 Wis. Reps., 260.)

     The peremptory  writ may be amended so as to correspond with
the judgment.  But the  motion to  amend should  specifically set
forth the  points of  variance sought  to be corrected. (State v.
County Judges, 12 Iowa, 237.)

     If it  be made  to appear that a peremptory writ of mandamus
has been  unfairly obtained, it has been said that the court have
such control  over their  own judgments that the writ will be set
aside on motion. (The People v. Everett, 1 Caines' Reps., 8.)

     Courts  enforce  compliance  with  the  peremptory  writ  by
attachment. And if the defendant be a corporation, the attachment
issues against  the persons  guilty  of  the  contempt  in  their
natural capacity.  And it  has been  said that  if  the  writ  is
directed to several in their natural capacity, unless all join in
making the  return, the  attachment for  disobedience must  issue
against all,  whether guilty  or not, though when they are before
the court their punishment will be proportioned to their offense.
(Angell & Ames on Corporations, 467.)

     The application  for an  attachment is made by a motion upon
which the  defendant may show cause unless the contempt be gross,
when the  rule is made absolute at first. (Tidd's Practice, 484.)
In the case of "The King v. Tooley, 12 Mod. 312," upon affidavtit
that the  defendant had  kept out  of the  way so  that  personal
service of a peremptory writ could not be made upon him, and that
the writ  had been  left at  his house,  the court ordered him to
show cause.  And it  seems that an attachment may be granted if a
frivolous return  is made, or if when the writ is directed to the
head officer  and also  to the  corporation, he  makes  a  return
contrary to  the consent  of the  corporation. (Angell  & Ames on
Corporations, 467.)

     A writ  of mandamus is served by delivering it to the person
to whom  it is  directed, and he, the defendant, makes his return
to it.  For the offecer to read the writ to the person to whom it
is directed,  or leave  with him  a copy  and then  to  keep  the
original writ  and make  his return  upon it, as he would do on a
summons, is  not a  good service  or return.  (3  Stephens'  Nisi
Prius, 2324; 17 Miss. 159.)

     If the  writ is  directed to several persons, a copy must be
served on  all but  one, showing the original to each at the time
of service,  and the  original delevered  to such  one  (Corner's
Crown Practice,  227), the  officer retaining  a copy to make his
return upon. (Hempstead v. Underhill, 20 Ark. 337.)

     But where  a copy  of a  mandamus was served without showing
the original,  the court refused to set the service aside, on the
ground that there was no authority cited for the motion, and that
the object of the service had been effected by appearance. But if
no attention  should be  paid by  the  defendant  to  a  writ  of
mandamus served  by copy  only, it  is very  doubtful whether  an
attachment would  issue for a contempt. (Regina v. The Birmingham
and Oxford R. Co., 116 Eng. L. & Eq. Reps., 94.)


                         CHAPTER XXVII:

                 WHAT COURTS MAY ISSUE THE WRIT


     The power  to issue the writ of mandamus is in England given
to the King's Bench only, as having the general supervisory power
over all  inferior jurisdictions and officers, and a co-extensive
with judicial  sovereignty. These  peculiar powers were possessed
by the  court of  King's Bench  because the  King originally  sat
there in person, and aided in the administration of justice.

     It seems  evident, therefore,  that by the principles of the
common  law,  this  power  would  not,  in  the  absence  of  any
constitutional or legislative enactment, be incident to any court
which did  not possess  the general  superintending power  of the
court of  King's  Bench,  in  which  the  sovereignty  might,  by
construction of  law, be  supposed to sit, and to exert there its
prerogative powers  in aid  of the  court, in  order that a right
withheld might not be without a remedy. This common law prinicple
may be  modified by legislation, in any manner that may be deemed
proper and  expedient. No  doubt the  British parliament, or  the
legislature of the States, might give the power to issue the writ
to any judicial tribunal in the State, according to its pleasure,
unless the  power is  vested exclusively  in certain  courts,  by
constitutional provisions;  and in many of the States, this power
is vested  in other  judicial tribunals than the highest court of
original jurisdiction.  (Kendall v. The United States, 12 Peters'
Reps., 526.)

     The Constitution  vests the  whole  judicial  power  of  the
United States  in one  Supreme court, and such inferior courts as
Congress shall,  from time  to time, ordain and establish. In the
distribution of  this power  it is  declared that,  "the  Supreme
court shall  have original  jurisdiction in  all cases  affecting
ambassadors, other  public ministers  and consuls,  and those  in
which a  State shall  be a  party. In all other cases the Supreme
court shall  have appellate  jurisdiction." It has therefore been
held, that  to enable  the Supreme  court to issue a mandamus, it
must be  shown to be an exercise of appellate jurisdiction, or to
be necessary  to enable  them to  exercise appellate jurisdiction
and not original. That it is the essential criterion of appellate
jurisdiction, that  it revises  and corrects the proceedings in a
cause already instituted, and does not creat that cause. And that
although a  mandamus may be issued by the Supreme court, directed
to courts,  yet to  issue such  a writ  to public  officers is in
effect the  same as  to sustain an original action, and therefore
appears not  to be  warranted by  the Constitution.  (Marbury  v.
Madison, 1 Cranch, 137.)

     The  Supreme  court,  ikn  the  exercise  of  its  appellate
jurisdiction, may  issue writs  of mandamus  to inferior  courts,
commanding them  to sign  a bill of exceptions (Ex-parte Crane, 5
Peters', 190),  or to  enter judgment  (8 Peters',  291),  or  to
proceed to judgment (Ex-parte Many, 14 How. [U.S.] Reps., 24), or
to reinstate  a cause erroneously dismissed (Ex-parte Bradstreet,
7 Peters'  Reps., 634),  or to execute the mandate of the Supreme
court (Stafford  v. Union  Bank, 17  How., 275),  or to permit or
refuse  amendments  in  the  pleading.  (Ex-parte  Bradstreet,  7
Peters' Reps., 647.)

     It has  also been  held, that  a writ of error will lie from
the Supreme  court, upon  the judgment  of  the  Circuit  courts,
awarding a peremptory mandamus to restore to an office, where the
matter in controversy was sufficient to g ive jurisdcition to the
court; that  the matter in controversy in such cases is the value
of  the   office,  which  must  be  ascertained  by  the  salary.
Therefore, an  error from  the Supreme court to the Circuit court
for the  District of  Columbia, to  reverse the  judgment of that
court awarding  a peremptory mandamus, to admit the defendants in
error to  the offices  of directors  in the  Columbian  Insurance
Company, it  not appearing  that the value of the office amounted
to one  thousand dollars,  the sum  required to  give the Supreme
court appellate  jurisdiction from the final judgments or decrees
of the  Circuit court  for the  District of  Columbia, the  court
directed the  writ of error to be quashed. (The Columbia Ins. Co.
v. Wheelwright et al., 7 Wheaton's, 534.)

     The power  of the  Circuit courts  of the  United States  to
issue the writ of mandamus is confined exclusively to those cases
in  which   it  may   be  necessary  to  the  exercise  of  their
jurisdiction. (Smith v. Jackson, 1 Paine, 453.)

     Therefore, upon  a motion  for a mandamus to the register of
the land  office at  Marietta,  commanding  him  to  grant  final
certificates of  purchase to the plaintiff for lands, to which he
supposed himself entitled under the laws of the United States, it
was held  by the  Supreme court,  that the  Circuit court did not
possess the power to issue the writ. (McIntire v. Wood, 7 Cranch,
504.)

     The Circuit  courts of  the United  States may,  it has been
said, issue  a mandamus  to  a  State  court,  which  refuses  to
transfer a  cause under the act of Congress to the Circuit court.
(Spraggins v. County Court of Humphries, 1 Cooke, 160.)

     This, however,  may safely  be said not to be free of doubt.
The Supreme  court of  Ohio has  held, that where a suit has been
instituted in a State court, by a citizen of the State, against a
citizen of  another State, for the recovery of over $500, and the
defendant at  the time  of entering  his  appearance,  files  his
petition, offers  surety, and complies with the provisions of the
act of  Congress for  the removal of the cause for trial into the
Circuit court  of the  United States;  and the  State  thereupon,
refusing to  accept the  surety  and  stay  further  proceedings,
proceeds to  trial and  renders judgment  in the case against the
defendant, the  proper remedy  for the  defendant is the ordinary
one of petition in error, the facts being made to appear upon the
record by plea to the jurisdiction, or by bill of exceptions; and
that the  extra-ordinary remedy  of  a  peremptory  mandamus,  is
neither an appropriate nor an adequate remedy in this case.

     Although the decision was based in part upon the ground that
as no  stay of  execution was  had, and the judgment had probably
been executed,  and therefore  the court  were unable to perceive
wherein  the  relator  would  be  benefited  by  the  case  being
certified into  the Circuit  court, yet the lelading reason given
for the  decision was, that the proceedings for the correction of
errors was a complete and adequate remedy, and therefore mandamus
ought not to lie.

     Sutlief, J.,  in announcing  the opinion of the court, said:
"The writ  of mandamus  at common  law was  a  prerogative  writ,
introduced to  prevent discord  from a failure of justice, and to
be used  on occasions  where the  law had established no specific
remedy. It  is, however,  a general  rule at common law, that the
writ of  mandamus does  not lie  unless the party applying has no
other adequate legal remedy.

     "The provisions  of our  code seem  strictly consonant  with
this common  law rule,  as to  the cases  in which  the  writ  of
mandamus may  issue. Section  570 provides that this writ may not
be issued  in any case where there is a plain and adequate remedy
in the ordinary course of the law.

     "If we  look to  this case  as presented  by the petition of
relators and  the answer of the defendant, it is evident that the
relators had  a plain and adequate remedy at law, by excepting to
the holdings  of the  court. The  relators had  only to  prepare,
present and  procure the allowance of a bill of exceptions, so as
to present  a statement  of the  facts upon  the record, and by a
petition in error to subject the rulings of that court to review,
and if  found erroneous,  to reversal  by a  higher court. If, in
fact, any  error intervened  in the  proceedings of  the court of
Common Pleas,  the correction  of  that  error  could  have  been
obtained in  the usual and ordinary course of proceeding provided
by law  in all similar cases. But the relators,  for some reason,
did not  see fit to avail themselves of the ordinary and adequate
remedy provided  for the  correction of  errors in proceedings of
teh court of Common Pleas; and it is evident to us taht having so
neglected their  appropriate and  ordinary remedy,  they not only
are not  entitled to  the extraordinary  remedy of  a  peremptory
mandamus,  but   that,  at   this  time,   a  mandamus  would  be
inappropriate and  inadequate." (Isaac  Shelby  et  al.  v.  B.F.
Hoffman, 7  O.S.R. 451.) The motion for a peremptory mandamus was
overruled.

     If it  be true  that a proceeding in error is a complete and
adequate remedy  in such  cases, it  would seem  to  follow  that
mandamus is  not an appropriate remedy. But how the action of the
court in  the case  of The  State of  Ohio v. The Court of Common
Pleas of  Fairfield County,  15 O.S.R.,  377, cited and quoted in
this work, page 43, is to be reconciled with the doctrines of the
above cited case, is a difficulty we will leave for the courts to
determine.

     It is  also said that the Circuit court of the United States
may issue  mandamus to  a District court which refuses to proceed
to judgment, to compel it to do so. (7 Cranch's Reps., 577.)

     It seems  that under  the Constitution, Congress may give to
the Circuit courts the power to issue the writ of mandamus in all
cases warranted by the principles and usages of law, but has, for
some purpose, seen fit to confine it to certain specified cases.

     Mr. Justice  Johnson, in delivering the opinion of the court
in the  case of  McIntire v.  Wood, 7  Cranch's Reps., 504, said:
"But although  the judicial power of the United States extends to
cases  arising   under  the   laws  of  the  United  States,  the
legislature have  not thought  proper to delegate the exercise of
that power  to its  Circuit courts,  except in  certain specified
cases. When questions arise under those laws in the State courts,
and the  party who  claims a  right or  privilege under  them, is
unsuccessful, an  appeal is  given to the Supreme court, and this
provision the legislature has thought sufficient, at present, for
all the  judicial purposes  intended to be answered by the clause
of the Constitution which relates to this subject."

     In the  case of McCluny v. Silliman, 6 Wheaton's Reps., 598,
the court  not only  sustains the doctrine maintained in the case
of McIntire  v. Wood,  but also  held that  a State  court cannot
issue a  mandamus to  an officer  of the United States. It seems,
therefore, that  without further  legislation upon  the  subject,
there is  no means  provided for compelling by mandamus a federal
officer beyond  the jurisdiction  of the  Circuit court  for  the
District of  Columbia, to  perform a  ministerial duty,  when the
issuing of  the writ  is not  necessary to  the exercise  of  the
proper jurisdiction  of  the  Circuit  court,  or  the  appellate
jurisdiction of  the Supreme  court. That the issuing of the writ
in such cases is not among the reserved powers of the States, nor
has it  yet been  conferred on the federal courts by the necesary
legislation.

     Mr. Justice  Johnson, delivering the opinion of the court in
the case  of McCluny  v. Silliman,  before cited,  said: "When we
find it  withholding from  its own  courts the  exercise of  this
controlling power  over its  ministerial officers employed in the
appropriation of  its lands,  the inference  clearly is, that all
violaltions of  private right  resulting from  the acts  of  such
officers, should  be the  subject of  actions for  damages, or to
recover the  specific property  (according to  circumstances), in
courts of competent jurisdiction. That is, that parties should be
referred to  the ordinary  mode of  obtaining justice, instead of
resorting to  the extraordinary  and unprecedented mode of trying
such questions on a motion for a mandamus."

     It has  been held by the Supreme court of the United States,
in the  case of  Kendall v.  The United States, 12 Peters' Reps.,
526, that  as the  act of Congress of the 27th of February, 1801,
concerning the  District of  Columbia, and  by which  the Circuit
court  of   the  District   is  organized   and  its  powers  and
jurisdiction pointed  out, declared that the laws of the State of
Maryland, as  they now  exist, shall  be and continue in force in
that part  of the  District which  was ceded by that State to the
United States;  and as  at the date of that act the common law of
England was  in  force in Maryland, and that the power to issue a
mandamus in  a proper  case is  a branch  of the common law fully
recognized as  in practical  operation in  that State at the time
the Circuit  court for the District of Columbia was organized, it
was thereby  vested with  broader powers and jurisdiction in this
respect than is vested in the Circuit courts of the United States
in the  several States,  and that  it does  possess the  power to
issue the  writ of mandamus directed to United States ministerial
officers when it is a fit and proper remedy.

     As to  what State courts are clothed with authority to issue
a writ  of mandamus,  reference must  be made to their respective
Constitutions and legislative enactments.


                         CHAPTER XXVIII:

     JUDGMENT UPON PETITION FOR MANDAMUS REVISABLE IN ERROR


     In those States where the court having jurisdiction to award
the writ  of mandamus  is not  the  court  of  last  resort,  the
judgment upon  application for  such writs is revisable upon writ
of error.  (Redfield on  Railways,  468;  Columbia  Ins.  Co.  v.
Wheelwright, 7 Wheaton's Reps., 534.)

     So in  Virginia it  has been  held that if the Circuit court
refuse to  issue a  mandamus in  a proper  case, the  relator may
apply to  the Supreme Court of Appeals for a supersedeas, or writ
of error to the Circuit court. (Morris, ex-parte, 11 Gratt. 292.)

     The writ  of error,  however, must be prosecuted between the
same persons  who were  the parties  in  the  writ  of  mandamus.
Therefore, an  order for  a mandamus  to compel  the  sheriff  to
accept a  bond for  the trial  of the right of property levied on
under an  attachment, is  not such a judgment, sentence or decree
as will  support a writ of error sued out by the plaintiff in the
attachment suit. (18 Ala. Reps., 436.)

     It appears  that previous to the statute of Anne, c. 20, the
application for  a mandamus  was a  summary proceeding, and never
assumed the  shape of  a common law judgment, but upon the coming
in of  the return to the alternative mandmaus the court summarily
disposed of  the case by granting or refusing the motion, without
inquiring into  the truth  of the  matters alleged in the return.
That statute  authorized the  relator to plead to or traverse the
return; and  if he  availed himself  of this  privilege, the case
then assumed  the regular  form of  a common  law proceeding upon
which a  judgment for  damages and costs might be given; and upon
such a  judgment either party was authorized to sustain a writ of
error. This statute, however, did not abrogate the former mode of
proceeding, and  the relator, upon the coming in of the return to
the alternative  mandamus, had  his election  either  to  proceed
summarily  bymotion,   or  to  adopt  the  more  formal  mode  of
proceeding  by  plea  or  demurrer  under  the  statute.  It  was
deliberately settled  in two differenct causes which were brought
before the  house of  lords a  few years after the passing of the
statutue of  Anne, that  if the case was disposed of by a summary
application, without  plea or demurrer, no writ of error could be
sustained on  such decision.  (The Dean  and Chapter of Dublin v.
The King, 1 Bro. P.C. Tom. ed. 73; Pender v. Herle, 3 id. 505.)

     These two  different methods  of testing  the validity  of a
return to  a mandamus  are recognized by the Supreme court of the
State of New York, and it is also held that no writ of error lies
upon   the granting  or refusing  a mandamus  upon a  mere motion
where no  plea or  demurrer to  the return  has  been  filed,  as
authorized by  the statutes  relative to  writs of  mandamus  and
prohibition.  (The  People  v.  The  President  and  Trustees  of
Brooklyn, 13  Wend. 130.)  In Iowa it has been held that although
an information  for a writ of mandamus should not, in that State,
be entitled of a cause, nevertheless, a defect in this respect is
not one  upon which  error will  lie. (State  v. Board  etc.,  of
Johnson, 10 iowa Reps., 157.)


                          CHAPTER XXIX:

                        COSTS IN MANDAMUS


     Costs in  all proceedings for mandamus, unless controlled by
statute, rest  in the discretion of the court. By statute 1 Will.
4, C. 21, S. 6, it was provided that "in all cases of application
for  any   writ  of   mandamus  whatsoever,  the  costs  of  such
application, whether  the writ  shall be  granted or refused, and
also the  cost of  the writ,  if the  same shall  be  issued  and
obeyed, shall be in the discretion of the court, and the court is
hereby authorized  to order  and direct  by whom  and to whom the
same shall be paid. (3 Stephens' Nisi Prius, 2322.)

     By the  English practice it is ocmmon to award costs against
the relator and to the defendant, when the application is denied,
but not  always to  the relator when it prevails. It is said that
the more general and the more equitable rule, in regard to costs,
in proceedings where the court have a discretion in that respect,
it to  allow costs  to the prevailing party, unless there is some
special reason  for denying them. (Redfield on Railways, 444; Fox
v. Whitneyh,  32 N.H.R.,  408; Ballou v. Smith, 11 Foster's N. H.
Reps., 413; Regina v. Hardin, 24 Eng. L. & Eq. Reps., 167.)

     And where  a petition for a writ of mandamus is entered, and
notice ordered, and at the return term the respondent appear, and
the petitioner  withdraws the  process, the  rule was held to be,
that upon  that withdrawal  of the bill, costs should be adjudged
for the  respondent, unless  it was  shown that  he was in fault.
(Anonymous, 31 Maine, 591.)

     In the  State of New York, if the return is insufficent, the
relator can  demur, or  move for a peremptory writ. The practice,
in that  State, where  costs are discretionary with the court, is
not to  give  costs,  usually,  on  granting  an  alternative  or
peremptory mandamus  on motion.  If the party would secure costs,
he should go to his demurrer or issue of fact. (The People v. The
Supervisors of Columbia, 5 Cow. Reps., 291; 6 Wend., 559.)

     The reason  for this practice seems to rest on the fact that
courts favor,  and wish  to encourage  the more  formal  mode  of
proceeding by plea or demurrer.


                            APPENDIX:


                   FORM OF MOTION AND PETITION

____________________

                            Petition for a mandamus to the Judges

     Ex parte               of the Circuit court of the District
   David Taylor             of Columbia for Washington County.
____________________


     The above  petitioner moves  the honorable the judges of the
Supreme court  of the  United States, for a rule on the judges of
the Circuit  court of  the District  of Columbia  for  Washington
County, to  show cause why a mandamus should not issue commanding
them to  admit the appearance of the petitioner to a suit in said
court by  Thomas Ewing,  Jr., against  said petitioner;  and  the
petitioner moves  for the  said rule  on his  petition,  and  the
transcript therewith filed.

     1. Because  there is no legal cause of bail set forth in the
proceedings in  said suit,  and by   the  refusal of  the Circuit
court to  allow his  appearance to be entered to said suit, he is
unlawfully detained in custody by the marshal of said District.

     2. Because  the act  of Maryland, passed in 1715, C.46,  3,
is in force in the county of Washington, and nowise repealed; and
the petitioner  was by  virtue of  said act entitled to appear to
said suit,  on giving  special bail in the sum of one hundred and
thirty-three dollars  thirty-three and  a third  cents.  But  the
court refused  to allow  him to  appear, or to enter bail in said
account.

     3. Because  the petitioner  has  a  legal  right  to  appear
without bail,  or upon  giving bail to the amount required by the
act of  1715, C.  46,   3, and   thereby  to be  discharged from
prison,  and  the  said  legal  right  does  not  depend  on  the
discretion of  the court,  but is fixed and regulated by law, and
there is  no  other  legal  remedy  for  the  petitioner  in  the
premises.

Respectfully submitted,

/s/ Robert J. Brent

for Petitioner.


To the Judges of the Supreme Court of the United States:


     The petition of David Taylor respectfully showeth that he is
now confined  in the  jail in the city of Washington, at the suit
of a certain Thomas Ewing, Jr., and he refers to the accompanying
transcript of  the record of said suit, and makes the same a part
of this petition, for the better understanding of the proceedings
under which  he is  now unjustly  and  oppressively  detained  in
prison.

     Your petitioner  showeth, that  by said record it appears he
was held  to bail in said suit, upon the affidavit of said Ewing,
and without  a copy  of the  declaration being  served on him, as
required bythe act of the legislature of Maryland of 1715, C. 46,
Section 3.

     That, at  the return  of the writ of capias ad respondendum,
issued  in  said  cause,  your  petitioner  moved  to  enter  his
appearance without  giving special  bail, because  of the alleged
insufficiency of  the affidavit  to hold to bail, but said motion
was overruled  by the  Circuit court  of the District of Columbia
for Washington  county. That, thereupon, your petitioner moved to
enter  his   appearance  to  said  suit,  upon  giving  good  and
sufficient special  bail, in  the sum  of one hundred and thirty-
three dollars  and thirty-three  and one-third  cents, because of
the omission  to  serve  your  petitioner  with  a  copy  of  the
declaration, according to the terms of the aforesaid act of 1715,
C. 40  Section 3;  and your petitioner then and there tendered in
open court good and sufficient bail, in the last mentioned sum of
money. The  sufficiency of  said bail  for said  amount was fully
admitted by  said court,  as will  appear by  reference  to  said
transcript  of   the  record;   but  the   court  overruled  said
application upon  the express  ground that  your  petitioner  was
bound to  enter special bail to said action, in the amount of the
sum sworn  to in  the affidavit of said Ewing, which sum is shown
in said  affidavit to  be four  thousand nine hundred and seventy
dollars. Your  petitioner is  advised that  the aforesaid recited
act of the legislature of Maryland is in full force in Washington
county aforesaid;  and that,  under and by virtue of said law, it
was the  duty of  the Marshal  to require  no greater  appearance
bail, and  of the  court to  require no greater special bail than
the  amount   specified  in  said  act,  where  no  copy  of  the
declaration is  sent  to  be  served  with  the  writ;  and  your
petitioner is  also advised,  that there is in said affidavit, no
legal cause  of bail  whatever. Wherefore,  inasmuch as  the said
Circuit court  has refused  both  of  said  applications  for  an
appearance on  the part  of your  petitioner to said suit, and as
the law  provides no  other  adequate  remedy  in  the  premises,
whereby your  petitioner can,  before the  final determination of
said suit,  regain  his  personal  liberty,  whereof  he  is  now
illegally and  unjustifiably deprived, your petitioner prays that
the writ  of mandamus may be issued and directed to the judges of
said Circuit court, commanding and enjoining them to r eceive the
appearance of  your petitioner  to said  action,  either  without
requiring special  bail, or upon your petitioner causing good and
sufficient special  bail to be entered to said action, in the sum
of one  hundred and  thirty-three dollars  and thirty-three cents
and one-third of a cent.

     And, as in duty bound, your petitioner will ever pray.

Respectfully submitted,

/s/ R. J. B.

for Petitioner.


     Before the  subscriber,  a  justice  of  the  peace  of  the
District of  Columbia, in  and for  Washington county, personally
appear David  Taylor, the within petitioner, and made oath on the
Holy Evangely  of Almighty  God, that  the facts as stated in the
said petition  are true, to the best of his knowledge and belief.
(14 How. [U.S.] Reps., 3.)

J. W. B.
J. P.


     In some  States it  is the practice to issue the alternative
writ, on  filing the  petition, without motion for a rule to show
cause why  it should  not issue.  In such case the following form
will be sufficient:


                    ANOTHER FORM FOR PETITION

To the  Honorable the District Court within and for the County of
............. and State of .................:


     Your  petitioners,   Richard  Phillips,  etc.,  respectfully
represent and  state to the Court, that they constitute the board
of directors  of common  schools  for  the  eastern  and  western
districts  of   the  city   of  Cincinnati,   which  schools  are
established by  law  for  the  education  of  the  colored  youth
residing in  said  city,  and  that  in  pursuance  of  law  your
petitioners rented divers rooms and established divers schools in
said city for the education of said youth, and employed competent
and duly  qualified teachers  as instructors of said youth in the
schools aforesaid.

     And your  petitioners further  state,  that  heretofore,  to
wit., on  the 15th  day of  March, 1850,  William Disney,  in his
capacity as  treasurer of  said city, received from the treasurer
of Hamilton  county the  sum of  two  thousand  one  hundred  and
seventy-seven and sixty-seven one-hundredths dollars, for the use
of your  petitioners and  of the common schools for colored youth
so by  them established,  the same  being the  proportion of  the
public school  funds belonging  to your  petitioners and  to  the
schools under  their charge,  as the  same was apportioned by the
auditor of  said county  in pursuance  of law, which sum of money
still remains  in the  hands of said treasurer in the treasury of
said city.

     And your  petitioners further represent, that on the 1st day
of April,  1850, there became due from them for expenses incurred
inthe support  of said schools the sums hereinafter set forth, as
follows, namedly:  The sum  of six dollars to the trustees of the
New street  church, for  two months' rent of the school room; the
sum of seven dollars to the trustees of the Union Baptist church,
for one  month's rent  of school  room; to Martha S. Whipple, the
sum of  twenty dollars,  for one  month's salary  as teacher;  to
Peter Clarke,  the sum  of twenty dollars, for one month's salary
as teacher;  to William  R. Casey,  for  one  month's  salary  as
teacher, the  sum of  twenty dollars;  and to O.J.B. Nickens, the
sum of  sixty dollars,  for two months' salary as teacher in said
schools; and  that thereupon,  afterwards to wit., on the 5th day
of April,  1850, your  petitioners duly  certified  to  the  city
council of  said city  the correctness  of said several accounts,
together with  the several accounts respectively, and desired the
city council  to pass  an order  directing the  treasurer of said
city to  pay the same out of the funds of your petitioners in his
hands, to  the persons  entitled to  receive the  same; but  your
petitioners state  that the  said city council afterwards, on the
first day  of May,  1850, utterly  refused to  pass any  order in
relation to the payment of said accounts, and they now claim that
they have  no power,  jurisdiction or authority to make any order
in the  premises, whereas,  in fact  and in  law they  have  such
power, and it is in fact their duty to so do.

     Your  petitioners   further  represent,  that  said  William
Disney, treasurer  of said  city, has  no power  to disburse said
funds, nor  any of  the funds  in the  city treasury, without the
order of said city countil, signed by the city clerk, first being
had and  obtained, and has therefore and for that reason, refused
to pay  siad accounts,  without the  order of the city council as
aforesaid.

     And your  petitioners further  state, that by reason of said
refusal by said city council to pass the orders aforesaid, and of
said treasurer  to pay  said accounts,  the teachers  employed by
your petitioners are deprived of the compensation which is justly
due  them  for  their  services,  and  the  schools  so  by  your
petitioners established  have been provided by law, and is now in
the hands of said Disney, as treasurer of said city.

     And your  petitioners further  state, that they are entirely
without remedy  in the  premises, unless  it be  afforded by  the
interposition of  this honorable court by their writ of mandamus;
and they therefore pray that a writ of mandamus may issue against
the city  council of  the city  of Cincinnati, commanding them to
pass an  order directing the said treasurer to pay said accounts,
out of  said fund,  and that  such other  order may be had in the
premises as justice may require.

A. B.
for Petitioners.


THE STATE OF OHIO, |
  Hamilton County. | SS:


     Richard Phillips,  one of  the petitioners  above named, and
president of  the board  of directors  of common  schools for the
eastern and  western districts  of the  city of Cincinnati, being
duly sworn,  saith that  that several  matters and  things in the
foregoing petition  stated are true in substance and in matter of
fact, to the best of his knowledge, information and belief.

Richard Phillips.


    Signed in my presence, and sword to |
before me, this ....... day of ..........


                        FORM OF THE ORDER

__________________________________
The State of Ohio on the relation |
   of ........................,   |       PETITION FOR MANDAMUS
          v.                      |
The City Council of Cincinnati    |
----------------------------------


     And now  came the  said plaintiff and presented its petition
for a  mandamus, against  said city  council, and the court being
fully advised  in the premises, it is ordered that an alternative
writ of  mandamus issue  to the  said city council of the city of
Cincinnati, returnable  to the  District court,  in the county of
Hamilton, on the first day of its next term, commanding said city
council to  pass an  order directing the city treasurer to pay to
the trustees  of the New street church the sum of six dollars; to
the trustees  of the  Union  Baptist  church  the  sum  of  seven
dollars; to Martha S. Whipple the sum of twenty dollars; to Peter
Clarke the  sum of twenty dollars; to William R. Casey the sum of
twenty dollars;  and to  O.J.B. Nickens the sum of sixty dollars,
out of funds in the hands of the said city treasurer, apportioned
by the  auditor of  said county for the use of common schools for
colored youth  in the  city of  Cincinnati,  or  that  siad  city
council show  cause, on  the first  day of  the next term of this
court, why they have not done so.


               FORM OF ALTERNATIVE WRIT

THE STATE OF OHIO,   |
   Hamilton County.  | SS:

To the City Council of the City of Cincinnati, Greeting:


     Whereas, it has been suggested to us, that Richard Phillips,
etc., petitioners,  constitute the  board of  directors of common
schools for  the eastern  and western  districts of  the city  of
Cincinnati,  which   schools  are  established  by  law  for  the
education of  the colored  youth residing  in said  city; that in
pursuance of law they rented divers rooms, and established divers
schools in  said city,  for the  education  of  said  youth,  and
employed competent  and duly qualified teachers as instructors of
said youth in the schools aforesaid.

     That heretofore,  to-wit., on  the 15th  day of March, 1850,
William Disney,  in his  capacity  as  treasurer  of  said  city,
received from  the treasurer  of Hamilton  county the  sum of two
thousand and  one hundred  and seventy-seven and sixty-seven one-
hundredths dollars,  for the  use of said petitioners, and of the
common schools  for colored  youth, so  by them  established, the
same being the proportion of the public school funds belonging to
said petitioners,  and to  the school  under their charge, as the
same was  apportioned by the auditor of said county, in pursuance
of law,  which sum  of money  still remains  in the hands of said
treasurer, in the treasurty of said city.

     That on  the 1st  day of  April, 1850, there became due from
said petitioners  for expenses  incurred inthe  support  of  said
schools, the  sums hereinafter set forth, as follows, namely: The
sum of  six dollars to the trustees of the New street church, for
two months'  rent of the school room; the sum of seven dollars to
the trustees of the Union Baptist church, for one month's rent of
school room; to Martha S. Whipple, the sum of twenty dollars, for
one month's salary as teacher; to Peter Clarke, the sum of twenty
dollars, for  one month's salary as teacher; to William R. Casey,
for one month's salary as teacher, the sum of twenty dollars; and
to O.J.B.  Nickens, the  sum of  sixty dollars,  for two  months'
salary as  teacher in  said schools; and that afterwards to wit.,
on the 5th day of April, 1850, said petitioners, as such board of
directors, certified  to  the  city  council  of  said  city  the
correctness of  said several  accounts, together with the several
accounts respectively,  and desired  the city  council to pass an
order directing the treasurer of said city to pay the same out of
the funds  of your  petitioners in  his  hands,  to  the  persons
entitled to  receive the  same;  but  that  you,  the  said  city
council, afterwards,  on the  first day  of  May,  1850,  utterly
refused to  pass any  order in  relation to  the payment  of said
accounts, and  now claim  that said  city council  have no power,
jurisdiciton or  authority to  make any  order in  the  premises,
whereas in fact and in law said city council have such power, and
it is in fact their duty to do so.

     That said  William Disney,  treasurer of  said city,  has no
power to  disburse said  funds, nor  any of the funds in the city
treasury, without  the order  of said city council, signed by the
city clerk,  first being  had and obtained, and has therefore and
for that  reason, refused  to pay said accounts without the order
of the  city council as aforesaid. That by reason of said refusal
by said  city council  to pass  the orders aforesaid, and of said
treasurer to  pay said  accounts, the  teachers employed  by said
petitioners are  deprived of the compensation which is justly due
them for  their services,  and  the  schools  so  by  said  board
established have been suspended for want of means to carry on the
same, although  a fund  amply sufficient  to sustain said schools
has been  provided by law and is now in the hands of said Disney,
as treasurer  of said  city. That  said petitioners  are entirely
without remedy  in the  premises, unless  it be  afforded by  the
interposition of  this court,  by their  writ  of  mandamus.  Now
therefore, we  being willing  that full and speedy justice should
be done  in the  premises, do command you that you issue an order
directing the treasurer of said city to pay the said several sums
of money  so certified  as herein  before stated,  or   that  you
appear before  the judges  of our  District court, sitting within
and for  the said  county of Hamilton, at the court house in said
county on  the 18th  day of  May, 1850, at 9 o'clock A.M. of said
dcay, to show cause why you refuse to do so.

     Witness I.G.B.,  clerk of  our District court at Cincinatti,
this 16th day of May, A.D. 1850.

I.G.R.
Clerk.


                   FORM OF RETURN, OR ANSWER.

To the  Honorable the District Court within and for the County of
Hamilton and State of Ohio:


     The city  council of   the city of Cincinnati for return (or
answer, as  it may be called) to the alternative writ of mandamus
heretofore issued  by   said court  against them,  on application
made by  Richard Phillips, etc., claiming to constitute the board
of directors  of common  schools  for  the  eastern  and  western
districts of  Cincinnati, for  the education  of colored youth in
said city, say: That the board of trustees and visitors of common
schools of  the city  of Cincinnati  on the 7th day of August, in
the year  1849, passed  a resolution  that  the  city  should  be
divided into  two school districts, for the colored youth of said
city, to  be called the eastern and western districts; and on the
same day  they passed  another resolution  that  the  said  board
should notify the colored adult male tax payers of said districts
that an  election for  school visitors and trustees would be held
in said  districts on  the 13th day of August, 1849, at 2 o'clock
P.M.; and  on the  same day   the city clerk was directed by said
board to  cause to  be published  in  the  Globe  and  Chronicle,
notieces of  the election  provided for  in the  second  of  said
resolutions, to  be held,  in the  eastern district,  at the  New
street chapel,  on New  street, and  in the  western district, at
Zion church, on Third street, between Race and Elm streets, which
notice was  given. Soon  after  this  the  board  passed  another
resolution to  employ suitable  persons to  list the  colored tax
payers and  youth of  said districts,  and did  employ  one  such
person for that purpose in each district.

     This respondent  further says,  that on the 3d day of April,
1850, the  accounts set forth in said application for a mandamus,
some of them certified correct by John I. Gaines, some by Charles
Satchel, one  by William  M. Nelson  and one by Richard Phillips,
were presented  by one  of the  applicants for a mandamus, to the
city council  of said  city, and put on the desk of the president
of said  council, with  a request  that said  accounts should  be
paid. The  said accounts were referred to the committee on common
schools, who, on the 2d day of May, 1850, made the report, a copy
of which  is certified  by the  city clerk,  and hereto  annexed,
marked "Exhigit  A," and  the said report was accepted and agreed
to, and  the city  council refused  to order  said accounts to be
paid.

     This respondent further says, that in pursuance of the order
aforesaid, an  enumeration was  made of the colored youth in said
city, and  there were  found to  be in the eastern district, four
hundred and  twenty-three,  and  in  the  western  district  four
hundred and twenty-two, making together, eight hundred and forty-
five; and  that the white youth of said city were also enumerated
and found  in the  same year  (1849) to  be thirty-three thousand
five hundred  and forty-eight.  A tax  was  levied  by  the  city
council of  said city,  in the year 1849, for school purposes, on
all the  real and  personal property  in said city as returned on
the grand  levy of  the State, without any distinction being made
as to  the ownership  of such property whether owned by white and
colored persons.

     The auditor of Hamilton county made a division of the school
funds in  the treasury  of said  county, to  which  the  city  of
Cincinnati was  entitled, derived  from all sources whatever; and
in making  such division  he appropriated a part of said funds in
proportion to  the number of white youth enumerated as aforesaid,
thirty-three thousand  five  hundred  and  forty-eight,  for  the
support of  schools for  white youth, and a part of said funds in
proportion  to   the  number   of  colored  youth  enumerated  as
aforesaid, at  eight hundred  and forty-five,  for the support of
schools for  colored youth.  The amount appropriated by this rule
for the support of schools for colored youth was two thousand one
hundred and  seventy-seven dollars and sixty-one cents, which was
paid to  William Disney,  treasurer of  said  city,  out  of  the
treasury of  said county, by order of the said county auditor, on
the 13th day of March, 1850.

     The said  city tresurer  was not  willing  to  receive  said
money, supposing  that it  was not  proper for him to receive it,
and he  would not  have received  it  except  for  the  following
reason, to-wit.,  the said  county auditor refused to give him an
order for  the other  school money unless this was also included,
and  all  receipted  for  together.  For  this  reason  the  city
treasurer did  receive said  money, and depostied the same in the
State Bank of Ohio, Franklin branch in Cincinnati, where the same
lies, at  four per  cent interest,  subject to judicial decision.
Said city  treasurer, supposing  as aforesaid,  that it  was  not
proper for  him to  receive said  $2,177.61, has not reported the
receipt thereof  officially to  the said city council, nor to the
city clerk.

     Wherefore this  respondent prays  the judgment  of the court
whether the  said sum  of $2,177.61  has been  legally levied and
collected and appropriated as above set forth, and that the court
will make  such order  in the  premises as  shall be  required by
right  and   justice,  and  that  this  respondent  may  be  hend
dismissed.

D.V.M.,
Att'y for Respondent.


     The foregoing petition, alternative mandamus and return, are
nearly the same as in the case of The State v. City of Cincinnati
et al.,  19 O.R.  178. Some alterations were deemed necesssary in
order  to   make  them   technically  accurate;   especially  the
alternative writ,  which was  thought to  be insufficient, in not
stating facts showing the obligation of the defendants to perform
the act demanded. (10 Wend. 26; 571 Sec. Ohio Code.)

     In Ohio,  by the  provisions of  the  Code,  the  peremptory
mandamus should  be like  the alternative,  except that the words
"or show  cause why  you have  not done so," are left out. In the
absence, however,  of any  statutory provision  upon the subject,
the more  usual practice, it is apprehended, is to also set forth
the findings  of the  court upon the issues of law and fact, made
by  the  return,  or  demurrer,  to  the  alternative  writ.  The
following peremptory  writ was  issued in  the case  of  Ex-parte
Bradstreet, 7 Peters' Rep., 647:

   UNITED STATES OF AMERICA, ss.

To the  Honorable ALFRED CONKLING, Judge of the District Court of
the  United  States  for  the  Northern  District  of  New  York,
Greeting:


     Whereas, one Martha Bradstreet hath heretofore commenced and
prosecuted in  your court  several certain real actions, or writs
of right,  in your  court lately  pending between the said Martha
Bradstreet, demandant,  and the following named tenants severally
and respectively,  to-wit., Apollos  Cooper and  (others,  naming
them). And  whereas, heretofore  to-wit., at  a  session  of  the
Supreme court  of the  United States  held at  Washington on  the
second Monday  of January  in   the 1832,  it appeared  upon  the
complaint of the said Martha Bradstreet, among other things, that
at a  session of  your said  court lately  before holden  by  you
according to  law, all  and singular the said writs of right then
and there  pending before  your  said  court,  upon  the  several
motions of  t he tenants aforesaid, were dismissed for the reason
that there  was no  averment of  the pecuniary value of the lands
demanded by  the said  demandant in  the several counts filed and
exhibited by  the said  demandant  against  the  several  tenants
aforesaid, which orders of your said court os dismissing the said
actions were  against the  will and  consent  of  the  demandant;
whereupon the  said  Supreme  court,  at  the  instance  of  said
demandant, granted  a rule  requireing you  to show cause, if any
you had, among other things, why a writ of mandamus from the said
Supreme court should not be awarded and issued to you, commanding
you to reinstate and proceed to try and adjudge, according tot he
law and  the right  of the  case,  the  several  writs  of  right
aforesaid, and  the issues  therein joined.  And whereas,  at the
late session  of the said Supreme court held at Washington on the
second Monday  of January  in the  year 1833,  you certified  and
returned to  the said Supreme court, together with the said rule,
that after  the issues  had been  joined in  the  several  causes
mentioned in  the said  rule, motions  were made  therein, on the
part of  the tenants, that the same should be dismissed, upon the
ground that  the counts  respectively contained  no allegation of
the value of the matter in dispute, and that it did not therefore
appear, by  the  pleadings,  that  the  causes  were  within  the
jurisdiction of  the court; that in conformity with what appeared
to have been the uniform language of the national courts upon the
question, and your views of the law, and in accordance especially
with several  decision in the Circuit court for the third circuit
(see 4  Wash. C.C.  Reps., 482, 624), you g ranted their motions;
and assuming  that the causes were rightly dismissed, it follows,
of course,  that you  ought not  to be required to reinstate them
unless leave  ought also  to be granted to the demandant to amend
her counts.  And whereas, afterwards to-wit., at the same session
of the  said Supreme  court last aforesaid, upon consideration of
your said  return, and  of the cause shown by you therein against
the said  rules being made absolute, and against the awarding and
issuing of  the said  writ of mandamus, and upon consideration of
the arguments  of counsel,  as well on your behalf, showing cause
as aforesaid,  as on  behalf of  the said demandant in supoort of
the said  rule, it  was considered by the said Supreme court that
you had  certified and returned to the said court an insufficient
cause for  having dismissed  the said  actions, and  against  the
awarding and issuing of the said writ of mandamus pursuant to the
rule aforesaid;  the said  Supreme court  being  of  opinion  and
having determined  and adjudged  of the matter aforesaid, that in
cases where  the demand  is not made for money, and the nature of
the action does not require the value of the thing demanded to be
stated in  the declaration,  the practice  of  the  said  Supreme
court, and  of the  courts of  the United States, is to allow the
value to be given in evidence; that in pursuance of this practice
the demandant in the suits dismissed by order of the judge of the
District court,  had a  right to  give the  value of the property
demanded in  evidence, either  at or  before the   trial  of  the
cause, and  would have a right to give it in evidence in the said
Supreme court,  consequently that she cannot be legally prevented
from bringing her cases before the said Supreme court; and it was
also then  and there  considered by  the said Supreme court, that
the peremptory  writ of  the United  States issue,  requiring and
commanding you,  the said  judge of  the said  District court, to
reinstate and  proceed to  try and  adjudge, according to the law
and right  of the case, the several writs of right and the issues
therein joined,  lately pending  in your  said court  between the
said Martha Bradstreet, demandant, and Apollos Cooper and others,
the tenants  aforesaid; therefore,  you are  hereby commanded and
enjoined that  immediately after  the receipt  of this  writ, and
without delay,  you reinstate  and proceed  to  try  and  adjudge
according to  the law and right of the case, the several writs of
right and  the issues therein joined, lately pending in your said
court between the said Martha Bradstreet, demandant, and the said
Apollos Cooper  and others,  the tenants  herein above  named, so
that complaint  be not  again made to the said Supreme court; and
that you certify perfect obedience and due execution of this writ
to the  said Supreme  court, to  be held  on the  first Monday in
August next.  Hereof fail  not at  your peril,  and have then and
there this writ.

     Witness, the  Honorable JOHN MARSHALL, Chief Justice of said
Supreme court,  the second  Monday of January, in the year of our
Lord one thousand eight hundred and thirty-three.      

W.T.C.
Clerk of the Supreme Court of the United States.


     In  some   States,  following   the  former   practice,  the
application for  the writ  of mandamus is founded upon affidavits
stating the  facts upon  which the  party relies,  and which show
that he is entitled to the relief demanded. (1 Johns. Cas., 34; 3
Term R.,  575.) The  affidavits, where  this mode  of practice is
adopted, should,  like a  petition or  complaint, set  forth  the
facts with precision, and should also anticipate and answer every
possible objection  or argument in fact, which it may be expected
will be  urged against the claim. (5 Term R., 66; 2d Johns. Cas.,
2 ed.,  217.) They  should not,  it seems,  be entitled;  as  for
example, Reuben  Turner v. James Haight (2 John's R., 371; 2 How.
Pr. R.,  60; 7  Ib., 124),  and if  so entitled, they will not be
permitted to  be  read.  The  affidavits  having  been  prepared,
application is  made  to  the  court  either  that  a  peremptory
mandamus issue at once, or that an alternative mandamus issue, or
for an  order to  show cause  in the  nature  of  an  alternative
mandamus, why  the particular  act sought  to be commanded should
not be  performed. The  peremptory writ  will, however, seldom be
granted in  the first  instance; although, where both parties are
heard on  the application,  and there  is no  dispute  about  the
facts, and  the law  is with the applicant, the court will permit
the peremptory writ to issue at once. (7 Cowen, 524; 4 Abb. P.R.,
36; 14  Johns, 25.)  It will  also be  permitted to issue at once
where it  is apparent  that no  excuse can  be given for the non-
performance  of   the  act,  and  the  party's  rights  might  be
endangered by delay.


                     FORM OF AFFIDAVIT

[The following forms are particularly adapted to the State of New
York.]


THE STATE OF ....................., |

     County of .................... | ss:


   A.B., of ..........................., in said county, being
duly sworn, says: that [set forth the facts, as before directed].

A.B.


Sworn to before me, and subscribed in my   |
presence, the ... day of ......, A.D. 18.. |


     In the  case of The Albany Water Works v. The Albany Mayor's
Court, 12  Wend. 292, the court say, that in future, a motion for
a mandamus,  or rule  to show  cause,  will  not  be  entertained
without notice  to the  party to  be affected by the proceedings;
and although  it seems  that this  rule  has  not  been  strictly
followed (3  HOw. P.R.,  164), yet  undoubtedly it  is the better
practice to  do so.  If a peremptory mandamus is applied for, the
notice is indispensible.


                    FORM OF NOTICE

TO.....................................,


     Sir: You  will   take notice that upon affidavits, copies of
which are herewith served, I shall move the Supreme court, at the
next special  term thereof,  to be held at the court house in the
village   of    .................,   on   the   .........day   of
............., A.D.  18....., at the opening of the court on that
day, or  as soon thereafter as counsel can be heard, for an order
that a  writ of  mandamus issue out of the said court directed to
you, and  commanding you that [state the object of the writ], and
for such  other or  further relief as the court may be pleased to
grant. (See McCall's Forms, 119.)

Dated ......................

A.B.
by C.D. his Att'y.


                  ORDER THAT A MANDAMUS ISSUE.


IN THE SUPREME COURT.
-----------------------------
  The People ex rel. A.B.,  |

         v.                 |

           E. F.            |
-----------------------------


     At a  special term  of the  Supreme court  held at the court
house in  .......................,  in  and  for  the  county  of
........................     on      the     .....     day     of
...................., A.D. 18.... Present, O.P., Justice,


     On reading  and filing  affidavits, and  on motion  of C.D.,
Esq., counsel  for the  relator, and  after hearing N.M., counsel
for E.F.,  in opposition  thereto, it  is ordered that a mandamus
issue out  of and  under the  seal of this court, directed to the
said E.F.,  commanding him  forthwith to  [state what  is  to  be
done], or  that he show cause to the contrary, before this court,
at the  court house  in the  city of ........................, on
the   ........    day    of    ...............,    A.D.    18....
(McCalls's Forms, 141)


     Although it  would be irregular to entitle the affidavits on
which the  writ is  allowed, yet  it is  otherwise with  the rule
granting the  writ, which  may properly be entitled in the cause.
(2 How. P.R., 60.)


        ORDER TO SHOW CAUSE WHY MANDAMUS SHOULD NOT ISSUE

   IN THE SUPREME COURT.
-------------------------------
  The People ex rel. A. B.,   |

               v.             |

           E. F.              |
-------------------------------


     At a  special term  of the  Supreme court  held at the court
house in  .....................,  in   and  for   the  county  of
.................., on  the ... day of ..........., A.D. 18.....,
Present O.P., Justice,


     On reading  and filing  affidavits, and  on motion  of C.D.,
Esq., counsel  for the  relator, it  is ordered  that E.F., above
named, show  cause at  the next special term of this court, to be
held at  the court  house in  ................, on the ... day of
.............., A.D.  18..., why  the said  E.F.  should  not  be
compelled forthwith to [state the matter required to be done], or
why an  alternative mandamus  should not  issue, directed to him,
and requiring  him to  do the acts above stated, or to show cuase
to the contrary.


     And it  is also  ordered, that  a copy of this order, with a
copy of the affidavits on which the same is founded, be served on
the said  F.D., ....  days before  the time above mentioned. (See
Crary's Practice, 588.)


     The service  should be  made at  least eight days before the
hearing. (3 How. Pr. R., 165.)



                 ALTERNATIVE MANDAMUS TO RESTORE

               ONE OF THE COMMON COUNCIL OF A CITY


THE PEOPLE  OF THE  STATE OF ................, to E.F., etc., the
Common Council of our city of ................., and to every one
of them, Greeting:


     Whereas, A.B.  was duly elected, sworn and admitted into the
place and office of one of the common council of our said city of
.............., in  which said  place and office he the said A.B.
always behaved  and governed  himself  well,  yet  you  the  said
citizens of  the common  council of  our said  city, without  any
reasonable cause,  have unjustly  removed the  said A.B. from the
said place  and office  of one  of the common council of our said
city, in contempt of us, and to the no small damage and grievance
of him  the said  A.B., as we have been informed of his complaint
made to  us in  that behalf; we therefore, being willing that due
and speedy justice be done in this behalf to the said A.B., as it
is reasonable, do command you, that immediately after the receipt
of this  our writ,  you do  restore, or cause to be restored, the
said A.B.  into the  said place  and office  of one of our common
council of our said city of .............., together with all the
liberties, privileges,  and franchises  to  the  said  place  and
office of  one of  the common  council of our said city belonging
and appertaining,  or that  you show  us cause  to  the  contrary
thereof, that  the same  complaint may  not, by  your default, be
repeated to  us; and  how you  shall have executed this our writ,
make known to us ............., on ............., there returning
to us this our said writ.

     Witness  C.D.E.,   Justice  of   the   Supreme   court,   at
..........., the ....... day of ................, A.D. 18..... (2
Johns Cases, note 217, 89.)

N. B. Clerk.


[Indorsed]
By the Court.
A. B. Clerk.


     ANSWER, OR RETURN, TO SUCH ALTERNATIVE WRIT OF MANDAMUS

The answer  of E.F.,  etc., the  Common Council  of the  city  of
.................., within mentioned.


     We, the  said E.F.  etc., common  council  of  the  city  of
................ for  answer to  the alternative writ of mandamus
heretofore issued  against us  on the relation of A.B., say it is
not true that said A.B., was duly elected, sworn or admitted into
the place  and office of one of the common council of the city of
...................., as  by  the  said  writ  is  alleged;  and,
therefore, we  could not  restore, or  cause to  be restored, the
said A.B.  into the  said place  and office  of one of the common
council of said city, as by that writ we were within commanded.

E.F.


     If the  facts in  the return,  or answer,  are denied, or an
issue of fact exists in any other way on the pleadings, the case,
in New York, must go down to the Circuit for trial. (7 Wend. 475)
After the  facts of  the case are settled, either by an issue and
verdict, or by default of one of the parties, the relator obtains
a peremptory  mandamus by  motion to  the court, on notice to the
opposite party, upon the return, pleadings, verdict, etc. (3 How.
Pr. R.,  379.)   For form  of judgment  record in  such case, see
Crary's Practice, 591.


                       PEREMPTORY MANDAMUS

THE PEOPLE  OF THE  STATE OF ....................., to E.F. etc.,
the Common  Council of  our city  of .............., and to every
one of them, Greeting:


     Whereas, A.B.  was duly elected, sworn and admitted into the
place and office of one of the common council of our said city of
..............., in  which said place and office he the said A.B.
always behaved  and governed  himself  well,  yet  you  the  said
citizens of  the common  council of  our said  city, without  any
reasonable cause,  have unjustly  removed the  said A.B. from the
said place  and office  of one  of the common council of our said
city, in contempt of us, and to the no small damage and grievance
of him the said A.B., as we have been informed from his complaint
made to  us in  that behalf, and which complaint we have adjudged
to be true, as appears to us of record.

     Now therefore,  we being  willing that speedy justice should
be done  in this  behalf to  him the  said A.B.,  do command  and
enjoin you,  that immediately after the receipt of this writ, you
do restore,  or cause to be restored, the said A.B. into the said
place and  office of  one of  the common council of our said city
of ...............,  together with all the liberties, privileges,
and franchises  to the said place and office of one of the common
council of our said city belonging and appertaining, lest in your
default complaint should again come to us; and how you shall have
executed this  our writ,  make known to us to our justices of our
said Supreme  court, at the ..................., on the ..... day
of .............,  A.D. 18....., and have you then and there this
writ.

     Witness, Hon.  I.H., one  of the  justices  of  our  Supreme
court, this  ........ day  of ................,  A.D. 18...... (2
McCall's Forms, 93.)

                    
A.B.
Clerk.

[Indorsed]
By the court.
A.B. Clerk.


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Halsey H. Moses