Wheeling daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1852-1859, 1859-08-30


TnE writ of Mqndamvs, (taking its name
from tho first word of the writ, at time when
all legal process was in the Latin; that first
word, mGndamus, signifying 800 command y is
issued in the name of the Commonwealth, up
on the relation of any one aggrieyed by the
action Of any inferior court of judicature. But
we shall quote the language of Chancellor
Tucker in his commentaries on the laws of Vir-
ginia, book 8, pages 1880.
"a writ of Mandamus is, in general, a com
mand issued inthe Commonwealth name, from
the court having jurisdiction thereof, and di.
Tected to any person, corporation, or inferior
court of judicature, requiring them to do some
particular thing therein specified, which
appertainS to their office and duty, and which
the court has previously determined, or at lenst
supposes to be consOnant to right and justice.
1t is high preTogative writ, of most extern
sive remedial nature; and may be issued in
some cases, where the injured party has also
another more tedious way of redress, as in the
case of admission or restitution to an Office:
but it issues in all cases sOtere the party hath
right to hare Gny thing done, and hath no other
spccIItc4 means OF compelling ats performance"
tsBut Mt present we are more par
ticularly to remark that it issues to the Judges
of any inferior court, commanding them to do
justice according to the powers of their Office,
whenever the same is delayed. For it is the
peculiar business of superior courts, to super
intend all inferior tribunals, and therin to en-.
force the due exercise of these judicial or min
lsterial powers, with which the legislature have
invsted them; and this not only by restraining
their excuses, but also by quickening their
negligence, and obViating their denial of JUS
tlce. This writ is grounded on suggestion,
by the oath of the party injured, of his owl
right, and the denial ofjustice below; where
upon, in order more fully to satisfy the court,
that there is a probable groudd for such inter.
position, n rule IS made Except in some gen
eral cases, where the probable ground is mani.
fest0 directing the party complained of to show
cause why writ of MdndGmus should not is
sue; and, if he show no sufficient cause the
writ itself is issued, at first in the alternative
either to do thus, OF signify some reason to the
contrary; to which q return, or answer, must be
made at certain day. And, if the inferior
judge, or other person to whom the writ is di.
rected, returns or signifies insu fiicient rea-
son, then there issues in the second place,
pre-: enaptOry 1LGndamus, to do the thing abso-
lutey; to which no other return will be admit
ted, out a certificate Of perfect obedience, and
due execution Of the a0rit If the inferior Judge
or other person makes no return or fails in his
respect or obedience, he Is punishable for his
contempt By attachment"
Writing for those not learned in the law, VIC
shall make no apology for these copious ex.
tracts from Judge fuckers Commentaries
The provisions Of the CodO of Virginia upon
the writ of Maadamus, arc very brief and con.
else. We will quote the whole chapter, being
the 154th, consisting of but five short sections.
81. When writ of Mandamus is issued, the
return thereto shall state, plainly and concisey,
the matter of law OF fact relied on in opposition
to the complaint.
2. The complainant may thereupon demur to
the return, or plead specially thereto, or BOTH
g. The defendant may reply, take issue on,
or demur TO the pleas Of the complainant.
4. II verdict be formed, or Judgment rem
dered, for the person suing out the writ on de-
nurrer, or by nal dicit, or for want of repli.
cation, or other pleading he shall recover his
costs and such damages as the jury may assess,
and final judgment thereupon shall be entered
and enforced by execution, as in other cases;
and peremptory MGndGmus shall be awarded
without delay, as If the return to the writ had
been adjudged insufficient
8. If judgment be rendered for the defendant
he shall recover his costs"
BY the 4th section of chap. 100 of the CODE
it is enacted that Jurisdiction of wrts of Nan.
danus, prohibition and certioruri, Except such
as may be issued from the general Court, or
Court of Appeals,) shall be in the Circuit Court
of the county and corporation in which the
record or proceeding is TO which the writ re.
latcs. Any such writ may be awarded either
by the Circuit Court, or lin vacation) by the
Judge thereof" We need only add to, what VIC
have written upon the law relating to the sub.
ject that the Supreme Court of Appeals has
decided that there is noirregalnrity in awarding
a Mandanus nisi in the first instance, without
any previous rule upon the party, to appear and
show cause against the same The writ of Man.
damas nisi is so called because it requires and
commands the party against whom ii is issued,
to do a particular thing, nssi, that is, unless
good and sufficient reason be shown why it
should not be done on a certain day named in
the writ. Such being the form and effect of the
writ of iMandamus nis, previous rule unne-
cessariIy encnmbered thespsoceeding, the writ
being, in effect, substitute Tor the rule.
The.Eevy Court having refused to make the
levy for the aynent of the coupons mentioned
in theiseyOras petitions which had been presen.
ted, eachiof the petitioners at once applied to
the Judge of tho Circuit Court for Ohio County
for writ of Mandamus to compel the County
Court to levy for the payment of the clam