INDEX.

ABATEMENT:

If respondent goes out of office, courts divided as to whether suit
abates, § 238.

If resignation alone does not vacate office, it may be disregarded,
§ 239.

See DEATH; CONTEMPT; OFFICERS.

ABATEMENT (PLEA OF):

Waived by plea in bar, § 274.

Contra, § 274, n.

Pendency of civil suit involving same matters, not good as, § 278.
Pendency of mandamus between same parties on same subject is

good as, § 278.

unless second writ necessary to protect rights, § 278.

Plea that prior mandamus was quashed not good as, § 278.

ACCOUNT:

Mandamus lies to proceed in suit when court refuses till plaintiff
files an account, which is not demandable, § 204.

ACTION:

In one state may ask mandamus when judgment obtained, § 245.

ACTION (RIGHT OF):

Often a bar to a mandamus, § 55.

No bar, when will not compel the action desired, § 109.

Is a bar to a mandamus -

to compel court clerk to pay prosecuting attorney his fees, § 53.
to enforce contract of county to pay bounty to volunteers, § 53.
to make a corporation pay a dividend it has declared, § 53.
to recover money expended by public officers, § 53.

ACTION FOR DAMAGES:

Formerly only remedy if return to alternative writ sufficient in
law, § 4.

If such action successful, peremptory writ issued at once, § 4.
Generally right to such action will not bar a mandamus, § 53.

See WAIVER.

ADMINISTRATION:

Mandamus lies to grant administration to proper party, § 189.
Mandamus refused to grant administration to A. pendente lite,
§ 201.

Mandamus lies to probate court to proceed and settle the accounts
of an administrator, § 204.

Mandamus refused to settle accounts of an administrator, when an
injunction against, § 204.

ADMISSION: See CORPORATOR.

AFFIDAVIT:

To motion for mandamus may be made by third parties, § 245.
Affidavit and motion for mandamus may be one paper, § 246.
Has not always been required to motion for mandamus, § 246.
Affidavit to motion for a mandamus -

should be entitled of the court, § 247.
should not be entitled of a cause, § 247.

contrary suggestion, § 247.

if party should know the facts, should be positive, § 248.
must be as positive as ordinary affidavit in a personal action,
§ 248.

forms no part of the record, § 253.

Not required by common law to a return, § 283.

Court may require to a return, § 283.

Form of to a petition for a mandamus, § 318.

See TITLE; MOTION FOR A MANDAMUS.

AGENTS:

Cannot be the relators instead of public officers, their principals, § 231.
AGREEMENTS: See CONTRACTS (PRIVATE).

ALABAMA:

Interlocutory orders of courts reviewed by mandamus, § 199.

ALDERMEN:

Cannot by mandamus be seated as such, when by charter the com-
mon council are final judges in such elections, § 313.

ALTERNATIVE WRIT:

In America order to show cause generally dispensed with, § 250.
Court fixes time to make return to it, § 251.

Corresponds with complaint in an ordinary action, § 253.

Must have certainty to a common intent, § 254.

Must contain necessary averments, but may be informal, § 254.

Must state all facts necessary to give the right claimed, and justify
the order asked, § 255.

ALTERNATIVE WRIT (continued):

Must show petitioner's interest, § 255.

performance of all conditions precedent and mode of perform-
ance, § 255.

the facts imposing the duty on the respondent, § 255.

that respondent still has the power, 255.

that a mandamus will be efficient as a remedy, § 255.

that relator has no other remedy, § 255.

Every material fact must be set forth distinctly, fully and clearly,
$ 255.

Facts must be alleged in an issuable form, § 255.

Deficiency of allegations cannot be supplied by the return, 255.

Must on its face show a good case, § 255.

Allegations should be confined to such facts as are necessary to de-
termine the rights of the parties before the court, § 255.

If a legal liability has been judicially ascertained, sufficient to so
state without alleging the circumstances showing, § 256.
Necessary preliminary circumstances must be stated, § 256.

If option allowed, cannot ask for one act without showing exercise
of option impossible, § 256.

Must show demand of performance or facts making it unnecessary,
§ 257.

Failure to aver demand, when required, fatal to proceedings, § 257.
Refusal to act, or facts equivalent to a refusal, must be alleged, § 257.
Demand to act must be alleged with precision, § 257.

When demand not necessary, refusal to act need not be alleged,
§ 258.

When no direct refusal, may allege facts equivalent thereto, § 258.
Must allege, or show by facts stated, that no other sufficient legal
remedy, § 259.

Mandatory clause must state the precise act required, § 260.
Respondent cannot be required to look beyond the writ, § 260.
Mandatory clause must not be larger than warranted by the recitals,
§ 260.

must not be larger than warranted by the statute, § 260.
must demand no act which cannot be legally required, § 260.
should not contain order in the alternative, § 260.

objections to such ruling, § 260.

may state acts required in general terms when necessary to avoid
great prolixity, § 260.

Should conform to petition, § 262.

When granted on petition, court will mould as to relief, § 262.

When granted after order to show cause, court will not mould as to
relief, § 293.

May be quashed if varies in substance from order of court, § 262.
Allegations generally stated by way of recital, § 263.

ALTERNATIVE WRIT (continued):

Sometimes petition with order of court used as such, § 263.

Must be properly entitled as to parties, § 264.

When informal, an alias may issue, § 265.

If adjudged defective, may be amended, § 271.

Validity of, may be impeached on attachment for contempt, § 269.
Form of, § 319.

Illustration, § 322.

See AMENDMENTS; TITLE; EXHIBITS; MOTION FOR MANDAMUS; RE-
TURN TO ALTERNATIVE WRIT.

AMENDMENTS:

Under early practice only allowed for formal defects, §§ 268, 293.
Formal defects waived unless taken in limine, § 269.

Alternative writ amendable, if adjudged defective, § 271.

Return amendable if adjudged defective, § 287.

Now allowed at any time to promote justice, § 294.
Respondent cannot be forced to amend return, § 294.
Peremptory writ alone is not amendable, § 294.

Alternative writ may be amended, and then peremptory writ issued
in conformity with it, § 294.

On appeal allowed to amend alternate writ in lower court and then
have peremptory writ, § 294.

AMOTION:

Means removal from office and not from corporate membership,
$137.

See CORPORATIONS (PUBLIC); CORPORATIONS (PRIVATE).

APPEAL:

Mandamus not granted in a cause where an appeal lies, § 53.

Has been granted when appeal not sufficiently efficacious, §§ 53, 201.
Inconvenient delay attending appeal, no ground for a mandamus,
§ 201.

Mandamus lies to certify an appeal to the appellate court, § 80.
When appeal suspends judgment, mandamus not granted to put one
into office in accordance with the judgment, § 144.

When appeal does not suspend judgment the appellant cannot have
a mandamus to put him into office, though he has the certificate
when the judgment was for the respondent, § 144.

Mandamus not lie to compel allowance of appeal from interlocutory
order of court, § 196.

Mandamus lies to fix the supersedeas bond on an appeal, § 189.

Mandamus lies to set aside wrongful dismissal of appeal from a non-
suit, § 201.

Cannot review judgment by a mandamus, when no appeal allowed,

because of failure to appeal in time, § 201.