Mandare in United Kingdom

Meaning of Mandare (Latin Term)

The following is an old definition of Mandare (latin term) [1]: To enjoin, command: literally, to put into one’s hand. Mandamus. We command; we command you. The emphatic word in the Latin form of the writ of that name: a command issuing in the king’s name, directed to any person, corporation, or inferior court of judicature within the king’s dominions, 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 least supposes, to be consonant to right and justice. A high prerogative (discretionary) writ of a most extensively remedial nature, where justice is refused or neglected. It issues where a party has a right to have a thing done or has no other specific means of compelling its performance: as, to compel admission or restoration to an office or franchise of a public nature; for the production or inspection of public documents; to compel a judge of an inferior court to do justice according to the powers of his office, as to admit an attorney to practice. A proceeding to compel officers and others to act in the discharge of the duties and trusts imposed upon them. It is not designed to review their action when discretion may be exercised, or where action depends upon facts to be determined by them. The courts are disposed to confine the remedy to cases where there is no other adequate specific remedy. The writ affords a summary and specific remedy where without it the party will be subjected to serious injustice. In modern practice, in effect, is nothing more than an ordinary action at law between the parties, and not regarded as a prerogative writ. It came into use by virtue of the prerogative power of the English crown, and was subject to rules and regulations long since disused. It may be said to be an established remedy to oblige inferior courts and magistrates to do that justice which they are in duty, and by virtue of their office, bound to do. The writ lies where the plaintiff has a clear legal right to the performance of an official or corporate act, by a public officer or corporation, and no other adequate, specific remedy exists. Regularly the writ lies against a public officer to compel the performance of a public duty; never to restore to a private office or to execute a private right; and, as a rule, never where the applicant has another adequate remedy. Its office is to compel the performance of a duty resting upon the person to whom the writ is sent. The law geeks to enforce a personal oliligation, whatever the facts or relations out of which the duty grows. It is a personal action, resting upon the averred and assumed fact that the defendant has neglected or refused to perform a personal duty, to the performance of which by him the relator has a clear right. Hence, demand, and refusal, to do the thing, is necessary. The writ is grounded on a suggestion of right in the petitioner, and a denial of justice; whereupon, in order more fully to satisfy the court that there is probable ground for such interposition, a rule is made (except where probable ground is manifest) directing the party complained of to show cause why a mandamus should not issue; and if he shows no sufficient cause, the writ itself is issued, at first in the alternative: to do thus or show some reason to the contrary; to which an answer is made at a certain day; and if the respondent shows an insufficient reason, there issues a peremptory mandamus: to do the thing absolutely; to which perfect obedience is required. A rule first issues to show cause why a peremptory writ should not issue. After due service, the respondent makes return to the charge contained in the rule – by denying the matters .or setting up new matter, or he moves to quash the rule, or demurs to the allegations. A matter charged and denied must be proved by the relator, and new matter in avoidance, if denied by the relator, must be proved by the respondent. Several defenses may be set up. The appropriate functions of the writ are the enforcement of duties to the public by officers and others, who neglect or refuse to perform them, and for which there is no other specific remedy. The presentation of a prima facie case of duty in the respondent and an obligation to perform it precedes the granting of an alternative writ, and this is considered as done when the court has awarded the writ. The respondent is bound to deny the allegations in the writ, or else by a demurrer or by a traverse of the facts, generally or by confession and avoidance, show cause why he should not. In case of traverse, the facts relied upon must be set forth clearly, specifically, and certainly, so that the court may see at once that the facts, if established or admitted, are sufficient as the alternative for obedience to the writ. The writ does not lie to control judicial discretion, except when that discretion has been abused; but it is a remedy when the case is outside of the exercise of this discretion, and outside of the jui’isdiction of the court or officer to which or to whom the writ is ad- dressed. A peculiar and common use is to restrain inferior courts and to keep them within their lawful bounds. The writ does not abate by expiration of the terra of office, where there is a continuing duty irrespective of the incumbent. There is a preponderance of authority in favor of the doctrine that private persons jnay move for a mandamus to enforce a public duty, not due to the government as such, without the intervention of the government law-officer. The principal reasons urged against the doctrine ai-e that the writ is prerogative – a reason which is of no force in this country, and no longer in England,- and that it exposes the defendant to be harassed with many suits – but the writ, being discretionary with the court, will not be unnecessarily granted. The writ lies to restore an attorney who has been disbarred unlawfully, and for cases where there is a legal right without any other remedy; to compel Satisfaction of a judgment against a municipality, by the levy of a tax, if the authorities have taxing power, and the creditor is unable to obtain payment by execution. But not to compel the officers of a State to perform their political duties, as, to levy a tax for the payment of bonds, the payment being repudiated by the State. The Supreme Court has power to issue the writ in cases warranted by the principles and usages of law to the Federal courts or officers, where a State, an ambassador or other public minister or consul is a party. Application for the writ to a subordinate court is ” warranted by the principles and usages of law ” in cases where the subordinate court, having jurisdiction, refuses to hear and decide the controversy, or where such a court, having heard the cause, refuses to render judgment or enter a decree, but not to re-examine a judgment or decree, nor to direct what judgment or decree shall be rendered, nor where remedy by appeal or writ of error lies. Mandatum. L. A gratuitous bailment. See Mandate, 3. Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud. When anything is commanded, commanded also is everything by which it can be effected. The law authorizes the doing of every thing necessary to accomplish what it commands; as, where effect is to be given to a statute. For this reason, also, a constable may order by-standers to assist him to compel offenders to keep the peace, and the sheriff command citizens to join the posse. Compare Grant, 2, 3; Incident

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Notes and References

1. Concept of Mandare (latin term) provided by the Anderson Dictionary of Law (1889) (Dictionary of Law consisting of Judicial Definitions and Explanations of Words, Phrases and Maxims and an Exposition of the Principles of Law: Comprising a Dictionary and Compendium of American and English Jurisprudence; William C. Anderson; T. H. Flood and Company, Law Publishers, Chicago, United States)