A Treatise Upon Some of the General Principles of the Law Volume 4; Whether of a Legal, or of an Equitable Nature Including Their Relations and Application to Actions and Defenses in General Whether in Courts of Common Law, or Courts of Equity and Equa (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1885 Excerpt: ...excuse for not doing it. And the result of a rule to show cause, or an alternative mandamus, are about the same, as in either case, if the relator shows a legal right to have the act done, and the defendant does not show a valid excuse for not doing it, a peremptory writ will issue directing the defendant to do the act in question, and to which the defendant can only return a certificate of compliance, or that the writ improvidently issued State v. County Judge, 12 Iowa, 237; Weber v. Zimmermann, 23 Md. 45), or that it commands the doing of an illegal act (Everitt v. The People, 1 Caines N. Y., 8), or one that is impossible. Regi.na v. Ambergate, 1 El. & BL 381; Regina v. London, etc., R. R. Co., 16 Add. & El. (N. S.) 884. In such cases, the remedy is by motion to quash the writ or vacate the rule granting the motion, and to set aside the writ. Everitt v. People, 1 Caines (N. Y.), 8. It may be observed that if a specific remedy is provided by statute, such remedy is usually exclusive of mandamus. Ottawa v. People, 48 111. 233. A writ of alternative mandamus serves the purpose of a declaration or complaint in an ordinary action, and the defendant must answer it and respond to and meet all the allegations therein (Gorgas v. Blackburn, 14 Ohio, 252), and set forth facts sufficient to excuse performance of the act by him, or a peremptory mandamus will issue. Society, etc., v. Com., 52 Penn. St. 125; State v. Avery, 14 Wis. 122; People v. White, 11 Abb. Pr. (N. Y.) 168. See, also, as to when the allegations in the writ will be taken as true, State v. Cincinnati, 18 Ohio St 262; People v. Burrows, 27 Barb. 89. 2. Who may apply for. In order to entitle a party to the benefit of the writ it must, as we have 6een, clearly appear by a motion based upon...