be done to comply with the statute, it will be quashed, notwithstanding the party might have been entitled to this remedy to a certain extent.3

SECTION VIII.

Enforcing Payment of Money awarded against Railways.

1. The enforcement of payment of money against corporations by mandamus.

2. Where debt will lie, the party not entitled

to mandamus.

4. Mandamus not allowed in matters of equity jurisdiction.

5. Contracts of company not under seal enforced by mandamus.

3. Mandamus proper to compel payment of 6. Where a statute imposes a specific duty, compensation under statute.

an action will lie.

§ 158. 1. It seems to have been the more general practice to enforce the payment of money awarded against a corporation, in pursuance of a statute duty, by mandamus, where no other specific remedy is provided.1

3 York & North Midland Railw. v. Milner, 3 Railw. C. 774, reversing, in the Exchequer Chamber, The Queen v. York & N. M. Railw., 3 Railw. C. 764.

'The King v. Nottingham Old Waterworks, 6 Ad. & Ellis, 355; Rex v. Trustees of Swansea Harbor, 8 Ad. & Ellis, 439. In this case one party moved for a certiorari with a view to quash the proceedings, and the other for a mandamus to carry them into effect. The rule for the former was discharged, and for the latter made absolute. Reg. v. Deptford Improvement Co., 8 Ad. & Ellis, 910. Where a city council is authorized and required by law to levy and collect a tax upon the real and personal property of the city, sufficient to pay the interest upon bonds issued by the city in payment of a subscription to the stock of a railway company, and the council refuses to do so, and there is no specific legal remedy provided for such refusal, mandamus may be issued to compel them to perform that duty, at the instance of holders to whom the bonds have passed from the company. An express or explicit refusal in terms is not necessary to put the respondents in fault; it will be sufficient that their conduct makes it clear that they do not intend to do the act required. The writ, in such case, may be applied for by any of the bondholders; and it is not necessary that all the bondholders should be parties to it. Nor is it necessary to make the railway corporation, to which the bonds were originally executed, or the tax-payers of the city, or the commonwealth, parties to the bills, in Kentucky. And it is no objection to the issuing of the writ that an action has been brought against the city, upon some of the coupons, such action having been dismissed before judgment, on the petition for mandamus. Maddox v. Graham, 2 Met. (Ky.) 56.

It is laid down in the above case, that a proceeding for a mandamus against the city council is virtually a proceeding against the corporation, and the judgment is obligatory upon the members of the common council who may be in office at the time of its rendition. And a change in the membership of this council does not so change the parties as to abate the proceeding. Ib.

*2. But it has been held that an action of debt will lie upon the inquest and assessment of compensation for land. And where, in granting to a railway the right to erect a bridge across the river Ouse, it was provided in the act of parliament, that, if the erection of such bridge should lessen the tolls of another bridge company upon the same river, after a trial of three years, as compared with the three years next preceding the erection of the railway bridge, the railway company should pay to the bridge company a sum equal to ten years' purchase of such annual decrease of tolls; it was held that debt will lie for such purchase, and that mandamus is no more effectual remedy and ought not to be granted. If the party have no right to execution, upon an award, mandamus will be awarded, otherwise not.4

3. So the court will not enforce an ordinary matter of contract or right, upon which action lies in the common-law courts, as to compel common carriers to perform their public duties, or special contracts, the statute not requiring them to carry all goods offered. But where compensation is claimed for damages done under a statute, the proper remedy is by mandamus, although the party may claim that the company went beyond their powers, and thus committed a wrong for which the proper remedy is an action. 4. Nor will mandamus lie where the proper remedy is in equity,7

串

2 Corrigal v. The London & Blackwall Railw., 5 Man. & Gr. 219.

3 Reg. v. The Hull & Selby Railw., 6 Q. B. 70; Williams v. Jones, 13 M. & W. 628. Courts of equity will not interfere where there is a remedy before sheriffs' jury. East and West India D. & B. Railw. v. Gattke, 3 Mac. & G. 155; s. c. 3 Eng. L. & Eq. 59.

Rex v. St. Catherine's Dock Co., 4 Barn. & Ad. 360; Corpe v. Glyn, 3 B. & Ad. 801; Reg. v. The Victoria Park Co., 1 Q. B. 288. And in this case Denman, Ch. J., says, the court should not go beyond our extraordinary interposition by mandamus, to require a corporation to make a call upon the shareholders, to pay debts, where the legislature had intrusted them with that power, and they had no standing capital.

5 Ex parte Robbins, 7 Dowl. P. Cases, 566.

6 Reg. v. North Mid. Railw., 2 Railw. C. 1; 11 Ad. & Ellis, 955; Thicknesse v. Lancaster Canal Co., 4 M. & W. 472; Fenton v. Trent & Mersey Nav. Co., 9 M. & W. 203; Rex v. Hungerford Market Co., 3 Nev. & M. 622.

7 Rex v. The Marquis of Stafford, 3 T. R. 646. See Edwards v. Lowndes, 1 Ellis & B. 92; 20 L. J. Q. B. 404; 16 Eng. L. & Eq. 204. The relation of trustee and cestui que trust gives no right of action at law for money due. Pardoe v. Price, 16 M. & W. 451. The proper remedy is in equity, and mandamus will not lie. Reg. v. Trustees of Balby & Worksop Turnpike, 1 B. B. C. 134; s. c. 16 Eng. L. & Eq. 276.

and the right is one not enforceable at law, but only in equity, as in matters of trust and confidence. But in a case where the act of incorporation allowed the company to sue and to be sued in the name of their clerk, it was held that execution could not issue against the clerk personally, and in giving judgment, Tindal, Ch. J., said: "There can be no doubt but that the funds of the trustees may be made answerable for the amount ascertained in the action, in case of a refusal to apply them, either by a mandamus or a bill in equity." 8

5. And where, after a rule nisi, for a mandamus to compel the company to summon a jury to assess compensation to landowners, a contract was entered into between the land-owners and the agent of the company, wherein they agreed upon the payment of a stated sum, and also a weekly compensation; upon the payment of the stated sum, and the execution of the contract, the proceedings were discontinued. The company paid the weekly sum for a time, and then discontinued the payment. The application for mandamus being renewed, the court held, that, as the contract was not under their seal, no action will lie upon it, against the company, and it should therefore be enforced by mandamus.10

*6. It seems to be the general rule of the English law, that where a statute imposes a specific obligation or duty upon a corporation, an action will lie to enforce it, founded upon the statute, either debt or case, according to the nature of the claim.11

8 Wormwell v. Hailstone, 6 Bing. 668.

9 Reg. v. Mayor of Stamford, 6 Q. B. 433.

10 Reg. v. Bristol & Exeter Railw., 4 Q. B. 162; s. c. 3 Railw. C. 777. This seems to us rather a refinement. If the contract was really obligatory upon the company, it might as well be the foundation of an action, as to be enforced by mandamus. In Tenney v. East Warren Lumber Company, 43 N. H. 343, it was held, that evidence that a deed purporting to be the deed of a corporation was executed by agents duly authorized by it, is prima facie evidence that any seal affixed to it has been adopted by the corporation for that occasion. And the same point is maintained in Ransom v. Stonington Savings Bank, 2 Beasley, 212.

" Tilson v. Warwick Gas-Light Co., 4 B. & Cres. 962; Carden v. General Cemetery Co., 5 Bing. (N. C.) 253.

* 288

SECTION IX.

The Writ sometimes denied in Matters of Private Concern.

1. Mandamus denied to compel company to divide profits.

2. Allowed to compel production and inspection of corporation books.

3. Will compel the performance of statute duty, but not to undo what is done.

4. Allowed to compel the production of the

register of shares, or the registry of the

name of the owner of shares, and in other cases.

5. It is the common remedy for restoring persons to corporate offices of which they are unjustly deprived.

§ 159. 1. Where the charter and subsequent acts relating to the Bank of England required the corporation to divide their profits semi-annually, a mandamus to compel the production of the books of the company, so as to show an account of their net income and profits, since the last dividend was declared, more than six months having elapsed, was denied.1 Abbott, Ch. J., said it was in effect "an application, on behalf of one of several partners, to compel his copartners to produce their accounts of profit and loss, and to divide their profits, if any there be." It was also said, that this might very properly be done in a Court of Chancery, but a court of law is a very unfit tribunal for such a subject. "A mere trading corporation differs materially from those which are intrusted with the government of cities and towns, and therefore have important public duties to perform." Bayley, J., said: "The court never grant this writ, except for public purposes, and to compel the performance of * public duties." Best, J., said: "If we were to grant this rule we should make ourselves auditors to all the trading corporations in England."

2. But in a later case 2 it was held, that mandamus may be granted to compel the production and inspection of corporation books and records at the suit of a corporator, where a distinct controversy has already arisen, and the relator is interested in the question, and the former cases upon the subject are elaborately reviewed, and held to confirm this view.3

1 Rex v. The Bank of England, 2 B. & Ald. 620.

2 Rex v. Merchant Tailors' Company, 2 B. & Ad. 115.

3 Rex v. Hostmen of Newcastle-upon-Tyne, 2 Strange, 1223. So to inspect the court roll of a manor, at the instance of a tenant who has an interest in a pending question, and has been refused permission to inspect the court rolls by

3. The court has refused to grant a mandamus to a private trading corporation, to permit a transfer of stock to be made in their books. In one case the writ was applied for, to compel a railway company to take the company seal off the register of shareholders.5 Lord Campbell, Ch. J. said: "If I had the smallest doubt, I would follow the example of the high tribunal (Q. B. in Ireland), which is said to have complied with a similar application. But having no doubt, I am bound to act on my own view. The writ of mandamus is most beneficial, but we must keep its operation within legal bounds, and not grant it at the fancy of all mankind. We grant it when that has not been done which a statute orders to be done, but not for the purpose of undoing what has been done."6"It is said the court will compel the corporation to affix its seal, when it refuses to do so, without legal excuse, but will not try the legality of an act, professedly done in pursuance of a statute." The difference seems to be one of form rather than substance, and to rest mainly upon the consideration, that after the act is done, its legality had better be tested in the ordinary mode, by an action at law or in equity.

*

4. But the writ has been granted to compel the production of a register of shareholders, to enable a creditor to proceed against them. So, too, to compel the registry of the name of the owner of shares, properly transferred, or of the name of the personal

the lord of the manor.

Rex v. Shelley, 3 T. R. 141.

But not otherwise. Rex v. Allgood, 7 T. R. 746. But it is not necessary a suit shall be pending, if a distinct question have arisen. R. v. Tower, 4 M. & S. 162. And in an action against an incorporated company, which had ceased to carry on business, a director of the company may be ordered by the court or a judge to give the plaintiff inspection of documents not denied to be in his possession, or under his control. Lacharme v. Quartz Rock Mariposa Gold Mining Company, 31 L. J. Exch. 335; s. c. 1 H. & C. 134. And the corporators may compel the inspection of the stock ledger, if that contain important evidence, although the corporation do not keep the books required by law. People v. Pacific Mail Steamship Co., 50 Barb. 280.

* Rex v. The London Assurance Company, 5 B. & Ald. 899.

5 Nash, ex parte, 15 Q. B. 92.

6 The office of the writ of mandamus is to stimulate and not to restrain the exercise of official functions; and after the officers have performed the duties imposed upon them, they are no longer subject to it. School Directors of Bedford Borough v. Anderson, 45 Penn. St. 388.

7 Reg. v. Worcestershire & Stafford Railw., Q. B. Weekly R. 1853–54, 482.