ters contained in the alternative writ are finally determined in favor of the application.10

8. The court will not quash a return summarily, or order it taken off the file, unless it is frivolous, so as to be an obvious insult, and contempt of court.11

9. No excuse for non-compliance with a peremptory writ of mandamus is admissible.12 It is no ground of objection to a mandamus, that a requisition is made on parties in the alternative, to do one of three things, if the duty enjoined by the act of parliament forms one of them, and there has been a general refusal to comply with the requisition.13 And the demand for the rate in this case was held sufficient, notwithstanding the church-wardens required the vestry to lay the rate, or do another act, which last was illegal.13

* SECTION VI.

Where the alternative Writ requires too much, it is bad, for that which it might have maintained.

§ 195. It seems to be well settled in the English practice, that if the writ issue, in the first instance, for some things which defendant is not bound to do, it cannot be supported, even as to those things which he is compellable to perform.1 But the writ

10 Reg. v. Baldwin, 8 Ad. & Ellis, 947. This was where the alternative writ required two sums of money to be paid, and it had been found that one of the sums was due, and the inquiry was not finished in regard to the other. The court refused to grant a peremptory writ for the payment of the sum, about which the controversy was ended.

11 Reg. v. Payn, 3 Nev. & P. 165; The King v. Round, 5 Nev. & M. 427. But the return to a writ of mandamus must be very minute in showing why the party did not do what he was commanded to do. Reg. v. Port of Southampton, 1 El. B. & S. 5; s. c. 7 Jur. N. S. 990; 30 L. J. Q. B. 244.

12

Reg. v. Mayor of Poole, 1 Q. B. 616. But after judgment for the crown, on a return to a writ of mandamus, the defendants having voluntarily, and with the prosecutor's assent, done the act commanded, the court will quash a peremptory writ of mandamus as unnecessary, and an abuse of the process of the court. Reg. v. Saddlers' Company, 33 L. J. Q. B. 68.

13 Reg. v. St. Margarets, Leicester, 8 Ad. & Ellis, 889.

1

Reg. v. Caledonian Railw., 3 Eng. L. & Eq. 285; Reg. v. East & West India Docks & Birm. Junc. Railw., 22 Eng. L. & Eq. 113.

may be awarded to complete such portions of their road as the company are still compellable to build, although from lapse of time it has become impossible to build the entire road.2

But if the alternative writ commands more than is necessary to 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 VII.

Enforcing Payment of Money awarded against Railways.

1. The enforcement of payment of money | 4. Mandamus not allowed in matters of equity against corporations by mandamus. jurisdiction.

2. Where debt will lie, the party not entitled 5. Contracts of company not under seal en

to mandamus.

forced by mandamus.

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

$196. 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

2

Reg. v. York & North M. Railw., 16 Eng. L. & Eq. 299. This case was reversed in Exchequer Chamber upon other grounds.

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.

1 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 railroad 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

* 2. But it has been held that an action of debt will lie upon the inquest and assessment of compensation for land.2 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

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,5 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, althe bondholders should be parties to it. Nor is it necessary to make the railroad 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

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

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 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.

though the party may claim that the company went beyond their powers, and thus committed a wrong for which the proper remedy is an action.6

7

4. Nor will mandamus lie where the proper remedy is in equity, 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,9 and it should therefore be enforced by mandamus.10

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.

'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, 16 Eng. L. & Eq.

276.

10 Reg. v. Bristol & Exeter Railw., 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. R. 343, it was held, that

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

SECTION VIII.

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.

§ 197. 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 evidence that a deed purporting to be the deed of a corporation was executed by agents duly authorized by it, is primâ 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.

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

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