tion is statutory and those in which mandamus is awarded to perform a duty enjoined by the charter or by-law of a corporation.53 Mandamus does not supersede legal remedies.54 Nor is the power to grant the writ affected by the existence of a possible equitable remedy.55 But usually the remedy by injunction is held to be inadequate,56 and the same reason applies to the remedy by bringing an action for damages.57 In Ohio, and it may be in other states, the statutes are such that mandamus will not lie as at common law. In that jurisdiction, where the statute declares that the writ of mandamus "must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law," it has been held that mandamus will not lie to compel a corporation or its officers to allow an inspection of its books and papers, as there is an adequate remedy by injunction.58 § 2845. Nature of proceeding; jurisdiction; parties. Without entering into an extended discussion as to matters of procedure when a petition for mandamus is brought, it may be stated that mandamus is a civil remedy,59 and a common-law proceeding.60 The petition is addressed to the court or judge,61 and the remedy is England. Rex v. Merchant Tailors' Co., 2 B. & Ad. 115; Nelson v. AngloAmerican Land Mortg. Agency Co., 1 Ch. 130. Gen. Corp. Act § 33 (Pamph. L. 1898, p. 409), does not restrict the stockholder's power as it is customarily accorded to them at common law and affords no ground for the claim that the discretionary nature of a mandamus proceeding has been in any way abrogated. O'Hara v. National Biscuit Co., 69 N. J. L. 198, 54 Atl. 241. It will be found that where production for inspection has been ordered in an independent proceeding, not strictly mandamus, it has been in states where the jurisdiction of the courts of law and equity has been blended and the line of demarcation between remedies has become indistinct. Fuller v. Alexander Hollander & Co., 61 N. J. Eq. 648, 88 Am. St. Rep. 456, 47 Atl. 646. 53 Wyoming Coal Min. Co. v. State, 15 Wyo. 97, 123 Am. St. Rep. 1014, 87 Pac. 337, 984. 54 Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383. 55 State v. Donnell Mfg. Co., 129 Mo. App. 206, 107 S. W. 1112. 56 See § 2849, infra. 57 See § 2850, infra. 58 Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189, 48 L. R. A. 732, 78 Am. St. Rep. 707, 56 N. E. 1033. See also Wyoming Coal Min. Co. v. State, 15 Wyo. 97, 123 Am. St. Rep. 1014, 87 Pac. 337, 984, as to effect of the Ohio decision. 59 Home Guano Co. v. State (Ala.), 69 So. 419; Merrill v. Suffa, 42 Colo. 195, 93 Pac. 1099. 60 Rodger Ballast Car Co. v. Perrin, 88 Ill. App. 323. 61 Mandamus is prosecuted by a petition addressed to the court or judge, and is not affected by the statutes (Alabama Code, § 5296 et. properly enforceable in the forum where the records and custodians are located.62 Usually state courts have jurisdiction where inspection of the records of national banks is sought,63 while federal courts have power to issue mandamus only in the exercise of jurisdiction to which it is an ancillary proceeding.64 When a secretary of several corporations refuses to allow inspec tion and one action of mandamus is brought, there is an improper joinder of causes of action. In such case there are as many torts as there are corporations involved. 65 The proceedings should be brought by the real parties in interest," in the name of the state.67 The corporation is a proper, if not a necessary party,68 and the writ may issue against the corporation, or against both the corporation and the officer having the custody of the books or papers. 69 Or seq.), as to the commencement of civil actions by service of summons. Home Guano Co. v. State (Ala.), 69 So. 419. 62 Machen v. Machen & Meyer Elec. Mfg. Co., 237 Pa. 212, 42 L. R. A. (N. S.) 1079, Ann. Cas. 1914 B 420, 85 Atl. 100. The Supreme Court of New York may enforce a right by mandamus, and such power is part of its general jurisdiction as successor of the courts of the colony of New York. In re Steinway, 159 N. Y. 250, 45 L. R. A. 461, 53 N. E. 1103. Under the Pennsylvania Act of June 8, 1893 (P. L. 345), and the Act of March 19, 1903 (P. L. 32), courts in counties where chief place of business is located or where corporation transacts business have right to proceed by mandamus to compel performance of an act or duty to be performed within such county. Neubert v. Armstrong Water Co., 211 Pa. 582, 61 Atl. 123. 63 Woodworth v. Old Second Nat. Bank, 154 Mich. 459, 118 N. W. 581, 117 N. W. 893, 15 Det. L. N. 773. 64 Large v. Consolidated Nat. Bank, 137 Fed. 168. 65 Merrill v. Suffa, 42 Colo. 195, 93 Pac. 1099. 66 Merrill v. Suffa, 42 Colo. 195, 93 Pac. 1099; Boardman v. Marshalltown Grocery Co., 105 Iowa 445, 75 N. W. 343. 67 Mandamus is in the nature of a prerogative writ, and the bill should be presented in the name of the state. (Brown v. Crystal Ice Co., 122 Ten1. 239, 19 Ann. Cas. 308, 122 S. W. 84), or on relation of party beneficially interested. State v. Pacific Brewing & Malting Co., 21 Wash. 451, 47 L. R. A. 208, 58 Pac. 584. 68 State v. Thompson's Malted Food Co., 160 Wis. 671, 152 N. W. 458. 69 Louisiana. Bank, 13 La. Ann. 289. Cockburn v. Union New Jersey. Huyler v. Cragin Cat Screw Co., 16 R. I. 472, 17 Atl. 61 England. Rex v. Merchant Tailors' Co., 2 B. & Ad. 115; Reg. v. Mariquita & N. G. Min. Co., 1 E. & E. 289 Mandamus should be issued against the com the person it may issue against the officer alone, without making the corporation a party.70 In Louisiana, however, it has been held that, in mandamus proceedings to enforce the right to inspect the books of a corporation, the citation should be addressed to the corporation, and not to its manager.71 § 2846. Pleading. In accordance with the rules mentioned hereinbefore,72 it is held that the stockholder 73 seeking information must allege the refusal of his demand for inspection, other party will not invalidate the writ. State v. Pan American Co., 5 Pennew. (Del.) 391, 63 Atl. 1118, 61 Atl. 398. On petition for mandamus, the joinder of the president as a party defendant is not improper or fatal to writ. Bay State Gas Co. v. State, 4 Pennew. (Del.) 238, 36 Atl. 1114. A director and treasurer of the company has been held a proper party. People v. Weber Co., 159 Ill. App. 588. An order for peremptory process against the corporation and its general manager amounts to no more than an order for process against the general manager. Home Guano Có. v. State (Ala.), 69 So. 419. 70 Alabama. Foster v. White, 86 Ala. 467, 6 So. 88. In order to enforce the right of inspection, it is not necessary to make the corporation a party but merely the officer upon whom the statutory duty is devolved. See the following decisions: Colorado. Merrill v. Suffa, 42 Colo. 195, 93 Pac. 1099. Delaware. Swift v. State, 7 Houst. 338, 40 Am. St. Rep. 127, 32 Atl. 143, 6 Atl. 856. Illinois. Stone v. Kellogg, 62 Ill. App. 444, aff'd 165 Ill. 192, 56 Am. St. Rep. 240, 46 N. E. 222. New York. People v. Throop, 12 Wend. 183. or conduct Wisconsin. State v. Bergenthal, 72 Wis. 314, 39 N. W. 566. Evidence showing that a certain officer has the actual custody and control of the books is sufficient to authorize a direction of the writ to him, even though he is not the nominal custodian of them. Cobb v. Lagarde, 129 Ala. 488, 30 So. 326. 71 State v. North American Land & Timber Co., 105 La. 379, 29 So. 910. 72 See §§ 2826-2828, supra. 73 To be entitled to the writ, the relator must be a stockholder at the time it is to be issued. It will not be issued if he has sold his stock. State v. Whited & Wheless, 104 La. 125, 28 So. 922. 74 Latimer v. Herzog Teleseme Co., 75 N. Y. App. Div. 522, 78 N. Y. Supp. 314, 12 N. Y. Ann. Cas. 9. Before a court will be justified in issuing a writ of mandamus to enforce the right of a stockholder to examine the records, papers and books of a corporation, there must have been some refusal or obstruction interposed to the enjoyment of such right by the party against whom the writ is sought. Mathews v. McClaughry, 83 Ill. App. 224. See also § 2828, supra. When the right to examine books is claimed and refused, a stockholder is entitled to mandamus on the averments that he is a stockholder, that he has demanded inspection, that the time was reasonable and that the right was denied. Home Guano Co. v. State, West Virginia. State v. Ice, 75 W. Va. 476, 84 S. E. 181. equivalent to a refusal,75 that the information is necessary to protect his interests,76 and is sought for a proper purpose.77 The relator must disclose a state of facts establishing a legal right to the remedy sought 78 and that the remedy is sought within a proper time.79 The same rules apply where a creditor seeks relief.80 Usually a liberal policy as to amendments is adopted,81 and formal 193 Ala. 548, 69 So. 419; Cobb v. Lagarde, 129 Ala. 488, 30 So. 326; Foster v. White, 86 Ala. 467, 6 So. 88. 75 Bay State Gas Co. v. State, 4 Pennew. (Del.) 238, 56 Atl. 1114. Petition held sufficient where it averred that defendant was a corporation, that plaintiffs were stockholders, that there was proper demand by plaintiffs and refusal by defendants, or conduct equivalent thereto, and that defendants had failed to perform a duty imposed by law. Bay State Gas Co. v. State, 4 Pennew. (Del.) 238, 56 Atl. 1114. On petition for a writ of mandamus, an averment that the president, one of the defendants, was the custodian of the books is not relevant to the question whether the books were open to inspection of the stockholders at the proper time and place. Bay State Gas Co. v. State, 4 Pennew. (Del.) 238, 56 Atl. 1114. 76 Latimer v. Herzog Teleseme Co., 75 N. Y. App. Div. 522, 78 N. Y. Supp. 314, 12 N. Y. Ann. Cas. 9. 77 Davidson v. Almeda Mines Co., 66 Ore. 412, 48 L. R. A. (N. S.) 847, 134 Pac. 782. Mandamus will be denied where the petitioners do not show a proper purpose, merely stating vaguely that they wish to be acquainted with the information contained in the books in order that they may use such information for the benefit of the company and its stockholders. In re Hatt, 57 N. Y. Misc. 320, 108 N. Y. Supp. 468. Allegations showing that the purpose of the relator is to ascertain value of stock of company, its prop erty, whether stock issued had been paid for, and whether representations by the president of the company were true or false are sufficient to entitle him to the writ. State v. Pan American Co., 5 Pennew. (Del.) 391, 63 Atl. 1118, 61 Atl. 398. But it has been held that on petition for mandamus under statute, petitioner need not allege and prove purpose of inspection. White v. Manter, 109 Me. 408, 42 L. R. A. (N. S.) 332, 84 Atl. 890. While the facts that inspection is desired with a bad motive, or at unreasonable times, or in such manner as to interfere with the work of officers would constitute abuse of right and would not be permitted by court, such facts are matters of defense and not matters that the stockholders must negative in first instance. Clawson v. Clayton, 33 Utah 266, 93 Pac. 729. 78 State v. Jessup & Moore Paper Co., 27 Del. 248, 88 Atl. 449; Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383. A stockholder who invokes the power of a court of equity to obtain access to the books must show that its intervention is necessary and that his rights have been denied. Coquard v. National Linseed-Oil Co., 171 Ill. 480, 49 N. E. 563, aff'g 67 Ill. App. 20. 79 Foss v. People's Gas Light & Coke Co., 241 Ill. 238, 89 N. E. 351. 80 Hub Const. Co. v. New England Breeders' Club, 74 N. H. 282, 67 Atl. 574. 81 It is proper to amend the alterna objections as to indefiniteness may be obviated by an amendment.82 Defenses existing and warranting denial of inspection must be set up in the answer,83 but it is not sufficient to allege on information and belief that the petitioner is fully acquainted with the facts. sought,84 or that the defendant will furnish all "necessary" information.85 When the answer is insufficient it is subject to demurrer, as where the answer is argumentative in its denial.87 The demurrer in a proceeding of this character stands on the same footing as in other actions,88 and is available where there is an improper joinder of causes of action.89 tive writ in order that it may not in terms go beyond the relief warranted, and so that the peremptory writ may properly follow it. State v. Doe Run Lead Co. (Mo. App.), 178 S. W. 298. An amendment of an alternative writ so as to command inspection of books, and to bring the writ within the confines of the statute (Rev. St. 1909, § 3349), is proper. State v. Doe Run Lead Co. (Mo. App.), 178 S. W. 298. 82 Hub Const. Co. v. New England Breeders' Club, 74 N. H. 282, 67 Atl. 574. 83 State v. Silver King Consol. Min. Co. of Utah, 37 Utah 62, 106 Pac. 520. 84 On a petition for mandamus the court is called upon to consider the petitioner's right to see the records of a company of which he is a director and stockholder, and an answer which sets forth the information and belief of the defendant that the petitioner is fully acquainted with the facts he desired to ascertain is of no consequence. Stone v. Kellogg, 62 Ill. App. 444, aff'd 165 Ill. 192, 56 Am. St. Rep. 240, 46 N. E. 222. 85 Averments of a defendant that he will furnish all information "essential and sufficient," and averments that certain books and statements are not essential for determining the value of the shares of stock are conclusions which cannot be pleaded alone in de IV Priv. Corp.-49 nial of the right of inspection of certain books and statements. State v. Jessup & Moore Paper Co., 27 Del. 248, 88 Atl. 449. 86 Meysenburg v. People, 88 Ill. App. 328. 87 An allegation in an answer to a stockholder's petition for mandamus to compel officers of a corporation to permit him to examine its books and papers, that the stockholder has not been denied the right to examine any record or book to which he was lawfully entitled, is argumentative, and cbnoxious to demurrer. Stone v. Kellogg, 165 Ill. 192, 56 Am. St. Rep. 240, 46 N. E. 222, aff'g 62 Ill. App. 444. 88 Thus a demurrer admits matters of fact which are sufficiently stated. Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383. And the facts of a return well pleaded are confessed by demurrer. State v. Doe Run Lead Co. (Mo. App.), 178 S. W. 298. But it does not admit conclusions of law. Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383. Alternative writ showing a prima facie case is not demurrable. Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383. 89 Where several distinct causes of action are improperly commingled, the proper remedy is by a motion to compel a separate statement, but where the causes cannot be joined at all, de |