able condition for the accommodation of the public travel on a proper application being made therefor by the proper authority. The principle has been extended so as to compel the replacing of a track after it had been removed by the company.2

§ 897. Other cases.-There is virtually no limit to the uses of this form of specific relief where plain duties are due by corporations, and there is shown to be no other adequate legal remedy.

The following are additional instances where it has been granted, to protect the rights of land owners to compensation for their lands taken in the construction of railroads and other works of public improvement; 3 and to compel the erection and maintenance of a depot,+ the acceptance of tax receipts in payment of freight or passage where the duty to accept them was imposed by law, delivery of shares of the capital stock of a

1 State v. Hartford, & N. H. R. Co., 29 Conn. 538. The petition should show for what purpose the company was chartered. People v. Colo. Centr. R. Co., 42 F. 638. Where mandamus is asked to compel a railroad company to run its trains more frequently over a certain part of the road, and to repair and put in safe condition such part of the road, and the company answers that such part of the road has never paid expenses, and that it is financially unable to make the repairs demanded, or run additional trains, the writ will be refused. Ohio & M. Ry. Co. v. People, 120 Ill. 200; 11 N. E. 347.

2 King v. Severn & Wye Ry. Co., 2 Barn. & Ald. 644.

3 Queen v. Eastern Counties R. Co., 2 Ad. & E. N. S. 347; King v. Water Wks. Co., 6 Ad. & E. 355; Queen v. Trustees of Swansea Harbor, 8 Ad. &. E. 439; Queen v. Deptford Pier Co., 910.

R. R. Commrs. v. P. & D. C. R. Co., 63 Me. 269.

5 Mobile & O. R. Co. v. Wisdom, 5 Heisk, 125. It is the duty of a railroad company at common law, as well as under, 2 Starr & C. St. Ill. C. 114, par. 88, providing that "all regular passenger trains shall stop. . . at the railroad stations of county-seats," etc., to stop a sufficient number of trains at its station at a countyseat to meet the demands of public convenience and business necessities; and this duty may be enforced by mandamus. People v. Louisville & N. R. Co., 120 Ill. 48; 10 N. E. 657. But a railroad company with a terminus at a countyseat, is vested with discretion as to the points of location of its tracks and stations in that town; but when it has once been exercised such discretion by locating the track and stations, and maintaining them as located for thirteen (13)

railroad company to a municipal corporation whose bonds have been already delivered to it; a railway company to deliver at a particular warehouse or grain elevator grain consigned to it, there being in the particular instance, no other adequate remedy; the payment of taxes upon capital stock.3

2

§ 898. Cases where it is not the proper remedy.-Where a tax had been illegally assessed and collected by sale of the relator's property, it was held that a mandcmus directed to the board of supervisors and ordering them to audit and pay the amount so collected was not the proper remedy, but he should have sued the assessor who wrongfully assessed his property, for damages.* It may be stated as a well established rule, that where a county treasurer has funds of the county available for the payment of claims against the county, the holder of a claim which has been duly audited may sue the treasurer and his bondsmen at law and is not entitled to a mandamus.5

As a general rule, no mandamus will lie where the petitioner has merely an equitable right."

.

years it cannot remove them, or refuse to stop its regular passenger trains at such stations. Id.

1 State v. Cheraw & C. R. Co., 16 S. C. 524.

2 Chicago & N. W. R. Co. v. The People, 56 Ill. 365.

3 Emory v. The State, 41 Md. 38.

+ People v. Supervisors of Chenango County, 1 Kernan, 563.

5 Arrington v. Van Houten, 44 Ala. 284; State v. Bridgman, 8 Kans. 458; State v. McCrikus, 4 Kans. 250.

6 King v. Marquis of Stafford, 3 Term Rep. 646; Queen v. Trustees of Balby Tp. Road, 16 Eng. L. & E. 276. The collector of a county deposited in bank money to which the legal title was by law vested in the board of chosen freeholders, but which was deposited to the credit of an account opened in his own name as collector. When his term of office expired the bank refused to pay over to the board, on its order, the balance remaining to the credit of this account. Held, that mandamus will not lie to compel payment of the money to the board, as it has no legal right as against the bank to such payment. Board of Chosen Freeholders of Essex County v. Newark City Nat. Bank (N. J.), 21 A. 185.

But the fact that the party has a remedy in equity in addition to his legal right, will not be a reason for refusing relief by mandamus where his legal right is plain; and in that case the writ will generally be refused.1 A different rule prevails in California, where it is held that the pendency of a suit involving the same rights either at law or equity is no good reason for refusing the writ.2

The writ will not be granted to enforce mere contract obligations except where the claim of the relator is not disputed and he is without a remedy by action of law. In that case and where the party has reduced his claim to judgment, a mandamus will be issued to compel the proper officer or board of a municipality to provide for its payment. A court should take into consideration any damages which may result to third parties by reason of delay in making application for the writ and if other interests have arisen which will be affected by the writ, if granted, it should be denied.*

§ 899. The pleadings. The general rules of pleading are substantially the same in mandamus as in other civil actions. The alternative writ of mandamus takes the

Hardcastle v. Maryland, etc., R. R. Co., 32 Md. 32; School Inspectors v. People, 20 Ill. 525.

2 Calaveras County v. Brockman, 30 Cal. 325; Oroville & R. Co. v. Plumas County, 37 Cal. 354.

3 State v. Zanesville Turnp. Co., 16 Ohio St. 308. See Ham v. Toledo R. R. Co., 29 Id. 174; People v. Green, 66 Barb. 630; Mansfield v. Fuller, 50 Mo. 338.

+ People v. Supervisors of Westchester County, 15 Barb. 607; Savannah v. State, 4 Ga. 26.

5 Commercial Bank v. Canal Commrs., 10 Wend. 26; People v. Ransom, 2 Comst. 490; People v. Supervisors of S. F., 27 Cal. 655. In mandamus to compel a railroad company to receive and recognize the relator as one of its directors, the peremptory writ must designate the term during which he is to be admitted as a director, and it is not sufficient to require the company to receive him "for the year for which directors were elected at the last general meeting of stockholders." Cross v. West Virginia C. & P. Ry. Co. (W. Va.), 12 S. E. 765.

place of a declaration or complaint in an ordinary action at law. A demurrer to the writ brings before the court the whole legal merits of the controversy. If the demurrer is overruled or sustained and amendments made which make the petition sufficient prima facie to entitle the petitioner to the relief sought the respondent must "make return" which takes the place of an answer and is usually designated as such. Upon the return being filed the petitioner may demur or take issue as in other cases. A jury may be called to try issues of fact raised by the pleadings; or, if the proceeding is in the supreme Court, such issues will be framed and sent to the proper county for trial when necessary.

906. Relation between stockholders and corporation with respect to statutory liability.

907. The statutory remedy cumulative.

908. Benefits purely personal to creditors.

909. Meaning of "debts and liabilities" as used in the statute.

910. Judgment against corporation as evidence.

911.

Where the shareholder is also a creditor.

912. Priority of payment.

913. Parties at law.

914. Parties to proceeding in equity.

915.

Defences, limitation, set-off, etc.

916. Advantages and disadvantages or proceeding in equity. 917.

Election of remedies.

918. On claims given a statutory preference.

919. Constitutionality of laws imposing individual liability.

§ 900. Distinct from liability to contribute capital.—The liability of creditors to enforce unpaid subscriptions, courts of equity took cognizance of at common law.1

But upon no rule of the common law or equitable principle should the members of a corporation be charged with a personal liability on account of its debts, beyond the amount of capital represented by shares taken or held by them.2

1 Supra, § 784.

2 Toner v. Fulkuson (Ind.), 25 N. E. 218.