Swan v. Gray

Citations

• 44 Miss. 393

Syllabus

<p>1. Mandamos — Practice.—There being no statutory provisions regulating proceed- - ings for mandamus, our courts are governed by the rules of the common law. A reten to a mandamus in the alternative is to be taken as true, and the aggrieved party is left to his action on the caso for false return, and if he succeed, the court will grant a peremptory mandamus. 6 Bac. Ab., 452. In a return to a mandamus, the defendant must either deny the facts stated in the alternative writ, or show othorfaots sufficient to defeat the relator’s claim. 10 Wendell, 25.</p> <p>2. Same. — The petition is ex parte; if it make & prima faoie case, the alternative writ of mandamus is awarded, which the defendant must answer, by. showing that he has performed the act required, demur to the writ (which, if sustained, ends the caso), or make return denying the allegations of the writ, or setting up now matter constituting a defense.</p> <p>3. Chancery clerk — Omtcial discretion. — The duty of the chancory clerk to approve official bonds is in the nature of a judicial act, requiring the exorcise of judgment or discretion in its performance, and the court cannot act directly'on the officer and guide and control his judgment or discretion in a matter entrusted to him in the discharge of his official duties. 14 Peters, 497. when an officer has a discretion the court will not grant a mandamus to control that discretion. 6 Bac. Ab., 420, 423; ex parte Jesse Hoyt, 13 Peters, 279. Where a judge 'acts in his judicial capacity as deciding on the propriety of issuing a warrant, a mandamus will not be granted to compel him to decide according to the dictates of any judgment but his own. Post Master general v. Trigg, 11 Poters, 179.</p>