415 



MANDAMUS. 



MANDARINS. 



440 



transferred in the case of lands in the city only by the ceasio in 

 jure ; but in the case of lands in the country, also by mancipatii). 

 But this observation applies only to Italic lands ; in the provinces, 

 rights of this kind, such as right of road, of conveying water, &c., were 

 matter of contract. 



Some difficulty has arisen from the use of the word nexum, or nexus, 

 in connection with mancipium. " Nexum" properly signifies that 

 which is bound or obligated, and hence it may signify the engagement 

 or contract. Thus in the laws of the Twelve Tables, in the words, 

 " quum nexum faciet mancipiumque," " nexum" may signify the con- 

 tract. Cicero (Topica, 5) defines " Abalienatio" to be " ejus rei qua) 

 maneipi est, aut traditio alteri nexu, aut in jure cessio, inter quos ea 

 jure civili fieri possunt ;" from which it follows that there are only two 

 ways of transferring the ownership of things " mancipi," and as the 

 in jure cessio is here mentioned as one, the nexus must represent the 

 other, that is, the mancipatio. The " nexus" then in this case must be 

 equivalent to the " mancipatio," or, as a more general term, must eon- 

 tain the mancipatio ; for the mancipatio does not contain the nexum. 

 This would be consistent with Varro (De Liny, Lut., lib. 7,) quoting 

 Mamilius, who says that everything is " nexum" which is transacted by 

 the piece of money and scales (per sea et libram), which includes 

 mancipium : but he adds that M. Sceevola considered " nexum" to be 

 everything transacted per as et libram, so as to be thereby bound, 

 except things which were transferred by mancipatio. Thus, the defini- 

 tion of Scscvola would exclude " mancipatio" from the " nexum," but 

 would include a testamentary disposition, inasmuch as that also was 

 made per ;es et libram (Gaius, ii., 103), and it would also include that 

 form of marriage called coemplio. But if Scsevola is right, and this can 

 hardly be doubted, Cicero 'is wrong in the use of " nexum," in the 

 passage quoted. In the " Orator" (i. 39) he mentions both " nexa" and 

 " mancipia" in his enumeration of the various subjects brought before 

 the Centumviri. Assuming Scoevola'a definition to be correct, Cicero 

 may have properly distinguished " nexum" from " mancipium" in the 

 passage in the " Orator ;" and have used nexu, with some inaccuracy in 

 the passage from the " Topica." 



Brissonius adopting Grouovius's explanation, maintains that the differ- 

 ence between the nexus and the mancipatio was not in the form or 

 mode of transfer but in the effect ; for whereas no transfer of the 

 douiinium or full ownership was necessary when the nexus was adopted, 

 the mancipatio always conferred a Quiritarian domiuium. (' Brisson 

 sub voce Nexus/) 



M AXDA'MUS is a writ by which the court of queen's bench, in the 

 name of the reigning sovereign, commands the party to whom it is 

 addressed to do some act in the performance of which the prosecutor, 

 or person who applies for or sues out the writ, has a legal interest ; 

 that is, not merely such an interest as would be recognised in a court 

 of equity or in a court of ecclesiastical jurisdiction, but an interest 

 cognisable in a court of common law ; the right must also be one for 

 the enforcing of which the prosecutor has no other specific legal 

 remedy. Thus, a copyholder can transfer or alien his customary 

 tenement or estate [COPYHOLD] in no other manner than by surrendering 

 it into the hands of the lord of the manor to the use of the purchaser 

 or surrenderee. The courts of common law formerly took no notice 

 of the right of the surrenderee to call upon the lord for a grant or 

 admittance, and the court of queen's bench therefore left the party to 

 seek hi remedy in a Court of equity, and would not interfere by 

 granting a mandamus. But the obligation on the part of the lord to 

 admit the surrenderee is not merely an equitable liability, because this 

 mode of transferring property of this nature is founded upon ancient 

 custom, and rights dependent upon custom are matters of common-law 

 cognisance. Of late years the court of queen's bench appears to have 

 taken this view of the subject, and has awarded writs of mandamus in 

 all cases where the lord has refused to admit the party to whose use a 

 surrender of the copyhold has been made. Again, the duty of 

 parishioners to assemble in vestry for parochial objects, whether those 

 objects be of a temporal or spiritual nature, is a common law-duty, and 

 a mandamus will be granted to compel the parishioners to meet. But 

 when they are met, the power of the court to interfere further by 

 mandamus depends upon the nature of the act which the parishioners 

 have to do. If the provisions of a statute are to be carried into 

 execution, the act to be done, whatever its nature, is considered a 

 temporal matter, because the construction of statutes belongs pre- 

 eminently to the courts of common law. But if the object for which 

 the vestry are assembled be one purely of ecclesiastical cognisance, as 

 the getting up of bells, the purchase of books or vestments necessary 

 for 'divine service, or the making provision for the repairs of the fabric 

 of the church (delinquencies in which matters are punishable by 

 interdict [INTERDICT] and ecclesiastical censures), the court of queen's 

 bench, being without judicial knowledge on such subjects, has no 

 jurisdiction. It is probable indeed that ecclesiastical censures would 

 formerly have been pronounced with less severity against the original 

 delinquents than against those who should have attempted to bring 

 such cases before a lay tribunal. Again, the court can by mandamus 

 compel the visitor of an eleemosynary foundation to hear an appeal, 

 but it has no further authority than " to put the visitorial power in 

 motion." It cannot compel him to do any specific act as visitor. 



The term " mandamus " (we command) is found in a great variety 

 of writs, and those usually distinguished by this name by the old law 



writers are totally different from the modern writ of mandamus, 

 which appears to be nothing more than the ancient " writ of restitu- 

 tion " enlarged to embrace a great variety of objects, that writ being 

 adapted merely to the purpose of restoring a party to an office from 

 which he has been unjustly removed. 



The writ of mandamus is now granted not only to restore a man to 

 an office from which he has been wrongfully removed, but also to admit 

 to an office to which the party has been duly elected or appointed. It 

 lies for a mayor, recorder, alderman, town-councillor, common- 

 councilman, burgess, and town-clerk, for a prebendary, master of a 

 free-school, parish-clerk, sexton, and scavenger, to hold a court- 

 baron, court-leet, or a borough court of record, to justices, to do an 

 act within the scope of their authority, and which will not subject 

 them to an action to restore a graduate in a university to degrees from 

 which he has been suspended, to a corporation, to pay poors-rates 

 where they have not sufficient distraiuable property, to parish officers, 

 to receive a deserted infant, to permit inspection of documents of a 

 public nature in which the party is interested, to appoint overseers 

 of the poor, to swear in churchwardens, to proceed to the election 

 of a corporate officer, to graut probate or letters of administration, 

 to affix the common seal to an answer agreed to by the majority of the 

 members of a corporation aggregate, and to allow a poor-rate, in which 

 case the rule for a mandamus is absolute in the first instance. 



The mandamus is said to be a prerogative writ ; by which is meant, 

 either that the power to award is not delegated by the crown to the 

 ordinary judges between party and party, that is, the justices of the 

 common pleas, but is reserved for that court in which the king is sup- 

 posed to be personally present, or that it is a writ of grace and favour 

 granted according to discretion, and not a writ of right, that is, not 

 such a writ as the party applying for it has a right to call upon the 

 court to issue under the clause of Magua Charta, by which the king 

 binds himself not to refuse or delay justice or right. 



In order to obtain a mandamus the applicant lays before the court 

 the affidavit of himself or others presenting the facts upon which his 

 right and interest in the thing to be done, and his claim or title to the 

 remedy, are founded. Upon this application the court, if it see a pro- 

 bable cause for interference, grants a rule calling upon the party against 

 whom the writ is prayed, to show cause why such writ should not be 

 awarded, or the court may grant a rule absolute in the first instance 

 (17 & 18 Viet., c. 125, s. 76). 



In the case of a mandamus to elect a corporate officer, if the appli- 

 cant gives ten days notice of the applicatiftn, with a statement of the 

 grounds, and a copy of the affidavits, cause may be shown in the first 

 instance. (6 & 7 Viet., c. 89, s. 6.) In other cases at the appointed time 

 the party called upon either does not appear, in which case the rule ia 

 made absolute, and the mandamus is awarded as prayed, or he appears 

 and resists the rule, either by insisting upon the insufficiency of the 

 facts disclosed by the affidavits upon which the rule was obtained, or 

 by producing other affidavits which give a different aspect to the trans- 

 action. If the resistance be effectual the rule is discharged ; if not, the 

 mandamus is awarded. 



The writ, in the first instance, issues in an alternative form, requir- 

 ing the party to do the act, or to show why he has not done it. The 

 party may therefore make a return to the writ, saying that he has not 

 done the act required for such and such reasons. Where the reasons 

 returned are insufficient in law, the court quashes the return, and 

 awards a peremptory mandamus requiring the party absolutely, and 

 without allowing him any alternative, to do the act. Where the 

 answer is apparently sufficient, the mandamus is at an end ; and if the 

 statements are untrue, the remedy is by action on the case for a falsa 

 return, though in order to avoid expense and delay the party is allowed 

 in some cases, by the statute 9 Anne, c. 20, and now in all cases, by 

 1 Will. IV., c. 21, to engraft an action upon the mandamus itself by 

 traversing the return, namely, by putting in a plea contradicting the 

 allegations contained in such return (Comyns's Digest ; Selwyn's Nisi 

 Prtus) ; and the prosecutor may demur to the return, and a writ of 

 error lies upon the judgment (6 & 7 Viet., c. 67). 



Besides this prerogative writ of mandamus, the plaintiff in any 

 action in the superior courts, except replevin and ejectment, may 

 now indorse upon the writ and copy to be served, notice that ho 

 intends to claim a writ of mandamus, and the plaintiff may thereupon 

 claim in the declaration, either together with any other demand which 

 may be enforced in such action, or separately, a writ of mandamus, 

 commanding the defendant to fulfil any duty in the fulfilment of which 

 the plaintiff is personally interested. (Common Law Procedure Act, 

 1854; 17 & 18 Viet., c. 125, s. 68.) The Court of Queen's Bench has 

 held that this provision is confined to those cases where a writ of 

 mandamus might have been applied for. (Benson v. PauU, 2 Jur., 

 N. S. 425.) 



Besides these provisions facilitating the writ of mandamus, justices of 

 the peace may now be called upon by a rule in the ordinary way, to 

 perform their duties (11 4 12 Viet., c. 44, s. 6), and so may judges or 

 officers of the County Court (19 & 20 Viet., o. 108, s. 43). 



MANDARINS is the general name of the officers of state in China. 

 They are chosen from the men of letters or scholars from every part of 

 the empire, who, having obtained their degrees and passed then- 

 examination, have their names inscribed in a register kept by a court 

 or board established for this purpose. When an office in the adminis- 



