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

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 a late case (1850) 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." "It is said the court will compel the corporation to affix its seal, when it refuses to do

*

6

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

* 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 in interest in a pending question, and has been refused permission to inspect the court rolls by 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. 6 L. T. N. S. 502.

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

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

• 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.

VOL. II.

19

* 464

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 representative, in case of the decease of the owner. But in some cases of peculiar necessity for specific aid by way of mandamus, as the delivery of a key to the party entitled to hold it, by the foundation of a private charity, the writ has been awarded.

5. And there can be no doubt the Court of King's Bench has almost immemorially been accustomed to try the validity of municipal and other public corporate elections by quo warranto, which, in case of illegality found, will displace the incumbents, but not establish those rightfully entitled to the function,10 man

1 Reg. v. Worcestershire & Stafford. Railw., Q. B. Weekly R. 1853 – 54, 482. 8 Ante, § 42 and § 44; Reg. v. L. & C. Railw., 13 Q. B. 998. No question is made here but the court will compel the company, by mandamus, to enter a transfer upon their books in a proper case, but the application was denied on other grounds. See Reg. v. Midland Counties & Sh. J. Railw., 9 L. T. N. S. 151, 155. And see Helm v. Swiggett, 12 Ind. R. 194. But not where inspection of the certificate of shares was refused to the directors. East Wheal Martha Mining Co., in re, 33 Beav. 119.

• Reg. v. Abrahams, 4 Q. B. 157.

10 Rex v. Williams, 1 Bur. 402; Rex v. Hertford, 1 Ld. Ray. 426; 1 Sal. 374; Rex v. Breton, 4 Burrow, 2260; Rex v. Cambridge, 4 Bur. 2008; Rex v. Tregony, 8 Mod. 111, 127; Rex v. Turkey Co., 2 Burrow, 999; Anonymous, 2 Strange, 696.

In some English cases the King's Bench seems to have altogether disregarded the distinction between public and private corporations, in exercising control over their functionaries. Rex v. Bishop of Ely, 2 T. R. 290. And in Rex v. St. Catherine's Hall, 4 T. R. 233, the refusal to grant the writ seems to be placed altogether upon other grounds. But it seems a mandamus will not be awarded to compel a voluntary society to recognize the rights of the minority. The King v. Gray's Inn, Douglass, 353; Rex v. Lincoln's Inn, 4 B. & C. 855. Where there is already one in the office de facto, mandamus will not be award

damus * being requisite for that purpose. But whatever may be the English rule in regard to merely private corporations, it is certainly settled in this country that the courts will try the validity of an election and the question of usurpations, and the legality of amotions in private corporations11 in this mode. But there is one case where the court refused to try the title to an annual office by writ of mandamus, for the reason that it would prove unavailing.12 But it has been awarded in England to restore a clerk to a butchers' company, a clerk to a company of masons, and sundry similar officers,13 and in this country, to restore the

ed, quo warranto being the proper remedy to try the title of the officer in possession. Rex v. Mayor of Colchester, 2 T. R. 259,260. But in Rex v. Thatcher it was awarded to the commissioners of land-tax to admit the person clerk having the majority of legal votes. 1 Dow. & R. 426; The People v. The Corporation of New York, 3 Johns. Cases, 79. The St. Louis County Ct. v. Sparks, 10 Missouri R. 117; Bonner v. State, 7 Georgia R. 473; Clayton v. Carey, 4 Maryland R. 26.

11 Commonwealth v. Arrison, 15 S. & R. 131; People v. Thompson, 21 Wendell, 235; s. c. 23 Wendell, 537; People v. Head, 25 Ill. R. 325; State v. Common Council, 9 Wisc. R. 254; State v. Boston, Concord, & M. R., 25 Vt. R. 433; In the matter of the White River Bank, 23 Vt. R. 478; Commonwealth v. The Union Fire and Marine Insurance Co., 5 Mass. R. 231; State v. Ashley, 1 Pike, 570; St. Luke's Church v. Slack, 7 Cush. 226. But in Gorman v. Board of Police, 35 Barb. 527, it is intimated that mandamus will not issue to restore an officer removed in an illegal manner, but for a sufficient cause. Martin v. Board of Police, Id. 550. See to the same point Barrows v. Mass. Medical Society, 12 Cush. 402. And a fortiori mandamus lies where the office concerns the public or the administration of justice. Lindsey v. Luckett, 20 Texas R. 516; Felts v. Memphis, 2 Head, 650.

12 Howard v. Gage, 6 Mass. R. 462. But this case was decided upon the ground that the statute of Anne not being in force in that state, the truth of the return to the alternative writ could not be tried till the term would expire. But the decision is scarcely maintainable even upon that ground. But it was held a good defence to a writ of mandamus to compel a township treasurer to pay an order for a teacher's salary, that his term of office had expired, and all the funds in his hands had in good faith been paid over to his successor. State v. Lynch,

8 Ohio St. 347.

13

Angell & Ames on Corporations, § 704. And where, by the custom of a parish, one churchwarden was appointed annually by the parishioners, and one annually by the rector, and the latter appointed a person who was not an inhabitant of or an occupier of property in the parish, it was held that a mandamus to the rector to appoint a churchwarden was the proper process by which to question the validity of the appointment. Barlow in re, 30 L. J. Q. B. 271;

trustee of a private academic corporation,14 a member of a religious corporation, and many similar officers.15

*SECTION IX.

This Remedy lost by Acquiescence.-Proceeding must be Bond

Fide.

1. Remedy must be sought at earliest conven- | 3. In New York may be brought any time ient time. within statute of limitations.

2. Courts will not hear such case, merely to

settle the question.

§ 198. 1. The right to interfere in the proceedings of a corporation by mandamus, is one of so summary a character, that it should be asserted at the earliest convenient time, or it will not be sustained.1 And especially where, in the mean time, the s. c. 5 L. T. N. S. 289. And see Reg. v. Hearts of Oak Benefit Society, 13 W.

R. 724.

14 Fuller v. The Trustees of the Academic School in Plainfield, 6 Conn. R. 532. The opinion of Daggett, J., here discusses the power of amotion of trustees and officers by eleemosynary corporations somewhat at length, and comments very judiciously upon the cases upon the subject.

15 Green v. The African Methodist Ep. Society, 1 Serg. & R. 254; Commonwealth v. St. Patrick Benevolent Society, 2 Binney, 441, 448; Commonwealth v. The Philanthropic Society, 5 Binney, 486; Commonwealth v. Penn. Ben. Institution, 2 Serg. & R. 141; Franklin Ben. Association v. Commonwealth, 10 Barr, 357; Commonwealth v. The German Society, 15 Penn. St. 251. But if the society have the absolute power of expulsion, it would seem their judgment in the matter is not revisable. s. c.

But it was said, a private person who makes a highway upon his own land, and dedicates it to public use, had no such interest in the highway as to enable him to sue for penalties given against a railway which had cut through the highway and not restored it, and a mandamus to enforce the recovery of such penalty was denied on the ground that the prosecutor had no public duty in regard to the highway. Reg. v. Wilson, 11 Eng. L. & Eq. 403.

1 Rex v. Stainforth & Keadby Canal Co., 1 M. & S. 32; Rex v. The Commissioners of C. Inclosure, 1 B. & Ad. 378; Reg. v. Leeds and Liverpool Canal Co., 11 Ad. & Ell. 316; Lee v. Milner, 1 Railw. C. 634, Appendix; Reg. v. London & N. W. Railw., 6 Rail. C. 634, and Reg. v. Lancashire & Yorkshire Railw., Id. 654. So, in Connecticut, where by statute a school district can change its school-house only by a two thirds vote, and a district which has an established school-house voted by a less majority to have the school kept for the

facilities for accomplishing a public work, or the public demand for it have materially changed, the writ will not be awarded.2 But it is often proper and necessary to wait till public works are completed, before moving for the writ.3

4

2. The English courts decline to hear applications for mandamus, which are not bona fide, but merely to obtain the opinion of the court, even where the prosecutor may have bonâ fide purchased shares in the corporation, but for the mere purpose of trying a question in which the public have an interest.

3. In New York it was held, that as there was no special limitation upon this remedy, it might be brought within the time fixed for the limitation of other similar or analogous remedies.5 But this rule seems liable to objection in many cases. The English rule, that the party should suffer no unreasonable delay, in the opinion and discretion of the court, seems more just and equitable, and is countenanced by other American cases. The late decisions of the English courts are very strict upon this point.7

season in a room furnished for the purpose within half a mile from the schoolhouse, more convenient for the children generally, and the district committee kept the school there, a mandamus, being applied for by some members of the district, tax-payers therein, and some of whom had children whom they wished to send to the school, to compel the district committee to have the school kept in the school-house, it appearing that at the time of the application the term of the school had half expired, and had nearly expired at the time of the hearing, this was held not to be such a case as called imperatively for the interposition of the court by mandamus, it not appearing to be a permanent attempt to change the place of the school. Colt v. Roberts, 28 Conn. R. 330. See State v. Lynch, 8 Ohio St. 347.

2 Reg. v. Rochdale & Halifax T. Railw., 12 Q. B. 448.

• Parkes ex parte, 9 Dowl. P. C. 614; Ante, § 88. Reg. v. Bingham, 4 Q. B. 877; 3 Railw. C. 390.

Reg. v. Liverpool, M. & N. Railw., 21 L. J. Q. B. 284; 16 Jur. 149; 11 Eng. L. & Eq. 408; Reg. v. Blackwall Railw., 9 Dowl. P. Cas. 558.

5 The People v. The Supervisors of West Chester, 12 Barb. 446.

6 Mayor, &c. of Savannah v. State, 4 Ga. R. 26.