Cannon v. Janvier

8 Del. 27

• Court: Superior Court of Delaware
• Decided: July 1, 1864
• Status: Published

Opinion

By the court.

The writ of mandamus is a prerogative writ, as it is termed in the law, by which the Court of King’s Bench in England exercises its supreme jurisdiction over public bodies and officers in the administration of justice in cases, in which the law has provided no adequate or specific remedy, to prevent a failure of justice, and has been peculiarly applied to the regulation of corporations for the purpose of compelling them to observe the ordinances of their constitution and to perform their specific duties and to respect the rights of those who are entitled to participate in their privileges. Wilk. on Mun. Corp. 14 Law. Libr. 193. But the writ of mandamus not being a writ of right, can only be granted like other writs of this kind, such as the writ of habeas corpus for instance, on special application by petition stating such facts as may prima facie entitle them to the writ and to the interposition of the court for the remedy and relief sought under the facts and circumstances, and this statement and presentation of the facts on which the application for it is founded, must be accompanied with and sustained by the affidavit of one or more credible witnesses competent to testify to the truth of them. But we are not aware of any principle of law or rule of practice, either here or in England, which requires that any one or more of the parties interested in or to be benefited by the application, should make the affidavit upon which it is founded, although any one of them may make it, if he is prepared to do so, and, of course, any other person not interested and otherwise competent, may also make it.

Rule made absolute and an alternative writ of mandamus awarded.