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1-254 (Text)

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addressee author,male,Australian, The,un
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Decisions of NSW Supreme Court
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This important case came on for argument this day. The Solicitor General appeared on behalf of the Sheriff to shew cause against the Rule being made absolute. The learned Gentleman commenced by reading a passage from Blackstone, describing the nature of a Writ of Mandamus.
He then observed, that this was not an application to restore to the applicants, any suspended privelege; but to impose upon them a burthensome duty, from which, according to the tenor of various provisional clauses in acts of Parliament, it would be clearly shewn, persons generally were anxious to be exempted.
He then adverted to the reasons which exempted persons from serving the office of jurors, and proceeded to state, that a mandamus did not lie where the party had a specific remedy: as was held in the case of "the King v. Bishop of Chester." The parties in this case were complaining without any ground. They were presuming that they would be excluded. 
They were calling on the sheriff to do that, which they only feared he would not do. Now, the Sheriff might think it prudent, or even necessary to include their names in the next pannel; that such might be for the public good he might from such an opinion, from even the present argument. In the old edition of "Buller's Nisi Prius", fol. 199, the Court will not grant a writ, till there was a default. No fault had yet been shewn: therefore it could only be by anticipation he would contend that the Court had no right to presume, that the Sheriff would not do his duty --- - it was not because he was once in fault, that he was always to continue in error.
He would admit, for the sake of argument, that a writ of mandamus would lie; and he would also shew, that even in that case, they were not in a situation to apply for it. They must not speak on belief, but swear to facts. The parties, besides, had not shewn themselves entitled to this privelege. The statute required them to be freeholders --- - they might be so, but they may not be such as the law required --- - they must remember that a larger freehold qualification was necessary here, than in England. Fifty acres of cleared land, or a substantial tenement, was necessary. He would notice one particular point, which went to impute to the Sheriff, very dishonourable and even disgraceful conduct towards the Emancipists --- - (a designation technically unknown) in intentionally and wilfully omitting the names of the deponents; if such had been the case, he was liable to an action at law --- - and consequently there was one special remedy, which would prevent a mandamus lying They complained of an intention to degrade them in the general estimation of society --- - a degradation he thought might be implied from an inclusion, rather than from an exclusion. He would contend, however, that this was not the proper mode of proceeding. A mandamus was a high prerogative writ --- not to be applied for on all trifling occasions --- if this were granted on the present occasion, he should expect to hear of persons applying for a mandamus to be sent to the tread mill, or to direct gentlemen to attend that Court completely accou