View single post by Joe Kelley
 Posted: Fri Aug 23rd, 2019 05:36 pm
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Joe Kelley


Joined: Mon Nov 21st, 2005
Location: California USA
Posts: 6408
A treatise on extraordinary legal remedies, embracing mandamus, quo warranto and prohibition
by High, James L. (James Lambert), 1844-1898

A comparison of the writ of mandamus, as now used in England and America, with the writ of injuction, discloses certain striking points of resemblance as well as of divergence in the two writs. Both are extraordinary remedies, the one the principal extraordinary remedy of courts of equity, the other of courts of law, and both are granted only in extraordinary cases, where otherwise there courts would be powerless to administer relief. Both, too, are dependent to a certain extent upon the exercise of a wise judicial discretion, and are not grantable as of absolute right in all cases. It is only when we come to consider the object and purpose of the two writs that the most striking points of divergence are presented. An injunction is essentially a preventive remedy, mandamus a remedial one. The former is usually employed to prevent future injury, the latter to redress past grievances. The functions of an injunction are to restrain motion and to enforce inaction, those of a mandamus to set in motion and to compel action. In this sense an injunction may be regarded as a conservative remedy, mandamus as an active one. The former preserves matters in status quo, while the very object of the latter is to change the status of affairs and to substitute action for inactivity. The one is, therefore, a positive or remedial process, the other a negative or preventative one. And since mandamus is in no sense a preventive remedy, it can not take the place of an injunction, and will not be employed to restrain or prevent an improper interference with the rights of relators.

Footnote: See further as to the distinctions here noted, People v. Inspectors of State Prison, 4 Mich.187; Attorney-General v. New Jersey R.& T. Co., 2 Green Ch.136; Washington University v. Green, 1 Md. Ch. 97; Blakemore v. Glamorganshire R. Co., 1 Myl. & K. 154; Crawford v. Carson, 35 Ark. 565; Fletcher v. Tuttle, 151 Ill. 41.
Legg v. Mayor of Annapolis, 42 Md. 203.