If the right to inspect is admitted and tendered by the defendants by pleading the plaintiff has the burden of showing that the right would be denied in the future.90 § 2847.Awarding relief. The issuance of the writ is not a matter of right but is discretionary,91 although some later decisions incline to the view that the writ will issue as a matter of course, and that very little, if anything, is left to the discretion of the court.92 In general courts have aimed at the exercise of the right under reasonable conditions, rather than its denial 93 and the tendency is to grant the writ where formerly it would have been refused.94 A clear legal right to the performance of the duty must be shown, murrer is the proper remedy. Merrill to enforce the stockholder's right by v. Suffa, 42 Colo. 195, 93 Pac. 1099. Where a secretary of eight distinct corporations commits a wrong upon the same person by refusing inspection, the same act constitutes eight separate and distinct torts. Merrill v. Suffa, 42 Colo. 195, 93 Pac. 1099. 90 He cannot rest his case upon mere suspicion or surmise. Boardman v. Marshalltown Grocery Co., 105 Iowa 445, 75 N. W. 343. 91 Connecticut. State v. Middlesex Banking Co., 87 Conn. 483, 88 Atl. 861. Delaware, State v. Jessup & Moore Paper Co., 24 Del. 379, 77 Atl. 16. Maryland. Wight v. Heublein, 111 Md. 649, 75 Atl. 507. Massachusetts. Butler v. Martin, 220 Mass. 224, 107 N. E. 999. Missouri. State v. Doe Run Lead Co. (Mo. App.), 178 S. W. 298; State v. Donnell Mfg. Co., 129 Mo. App. 206, 107 S. W. 1112. New York. Hitchcock V. Union Ferry Co. of New York & Brooklyn, 157 App. Div. 328, 142 N. Y. Supp. 247; People v. National Park Bank, 122 App. Div. 635, 107 N. Y. Supp. 369; People v. Giroux Consol. Mines Co., 122 App. Div. 617, 107 N. Y. Supp. 188; People v. New York Life Ins. Co., 111 App. Div. 183, 97 N. Y. Supp. 465; In re Coats, 75 App. Div. 567, 78 N. Y. Supp. 429. It is not compulsory upon the court 95 granting mandamus, since the statute, although conferring an unlimited right, does not abridge the power of the court in mandamus. Wight v. Heublein, 111 Md. 649, 75 Atl. 507. 92 To the extent that an absolute right is conferred by statute, nothing is left to the discretion of the court and the writ should issue as a matter of course, although even then, doubtless, cognizance may be taken of the time and place, so as to prevent interruption of business or any other serious inconvenience. In re Steinway, 159 N. Y. 250, 45 L. R. A. 461, 53 N. E. 1103. See also § 2815, supra. 93 Eldred v. Elliott, 161 Mich. 262, 126 N. W. 219. While mandamus is an extraordinary remedy, the awarding of which is within the discretion of the court, when the relator shows a clear legal right to the relief sought and there appears no other adequate remedy therefor, the court should exercise a sound discretion in accord with the rules of law and award the writ rather than arbitrarily withhold its issuance. State v. Donnell Mfg. Co., 129 Mo. App. 206, 107 S. W. 1112. 94 Com. v. Phoenix Iron Co., 105 Pa. St. 111, 51 Am. Rep. 184. 95 Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383. Thus where stockholder is refused and a peremptory writ will issue only when the facts are undis. puted.96 The right to relief may be presented on the pleadings alone, in which case only undisputed facts may be considered.97 If a statute gives a stockholder a particular remedy within the corporation, he must resort to that remedy before he can resort to mandamus.98 Mandamus may be refused if it is established that the relator is not entitled to the writ, as where a corporation is involved which is not required to allow inspection,99 or where another proceeding is pending in which the relief sought may be granted.1 information as to conduct of business of corporation, and is refused inspection of books, he is entitled to mandamus. Com. v. Phoenix Iron Co., 105 Pa. St. 111, 51 Am. Rep. 184. Likewise, where petition shows written application for inspection of membership list for political organization, and inspection is refused, mandamus will issue. McClintock v. Young Republicans of Philadelphia, 210 Pa. 115, 68 L. R. A. 459, 105 Am. St. Rep. 784, 59 Atl. 691. 96 Hitchcock v. Union Ferry Co. of New York & Brooklyn, 157 N. Y. App. Div. 328, 142 N. Y. Supp. 247. 97 And each statement of fact contained in the answering papers must be assumed to be true. In re Kennedy, 75 N. Y. App. Div. 188, 77 N. Y. Supp. 714. 98 People v. Nassau Ferry Co., 86 Hun (N. Y.) 128, 33 N. Y. Supp. 244. 99 On petition for mandamus where it is alleged that the plaintiff is not entitled to inspection of the books of benevolent or charitable corporations, the defendant so alleging must state facts bringing his case within exceptions to the general rule. Gavin v. Pacific Coast Marine Firemen's Union of San Francisco, 2 Cal. App. 638, 84 Pac. 270. Under California Const. art. 12, $ 14, benevolent corporations are excepted from the duty of keeping cer tain books and allowing their inspec tion by stockholders. Gavin v. Pacific Coast Marine Firemen's Union of San Francisco, 2 Cal. App. 638, 84 Pac. 270. 1 Thus when a proceeding in equity is pending between the same parties at the time of the application for mandamus, in which suit the relief sought by mandamus could be fully administered, it is entirely proper for the court to decline to issue the writ. In such cases the familiar principle obtains that as between courts of coordinate powers, the one first acquiring jurisdiction of the cause, being fully empowered to afford complete relief, will not be disturbed nor interfered with, but will be allowed to retain jurisdiction and determine the controversy. State v. Donnell Mfg. Co., 129 Mo. App. 206, 107 S. W. 1112. In these circumstances, however, it is essential, in order to defeat the right of mandamus, that the court possessed of the prior equitable suit between the parties shall be empowered to grant the full measure of relief to which the party is entitled. In other words, the court must be possessed of the power to grant the identical relief and all of the relief,. to which the relator has a clear legal right, and if full and adequate relief may not be granted in the prior pro The fact that a suit in the state courts is discontinued and is recommenced in the federal courts does not affect a stockholder's right to the writ, since the reason for it still remains. § 2848.Writ; costs. Writ; costs. In awarding mandamus, suitable safeguards to protect the interests of all concerned will be considered, and the rights of the corporation, especially as to trade secrets, will be protected.* 6 The relief awarded will not usually be so broad as to warrant the inspection of all books, or an audit of such books. Ordinarily the writ is directed to certain officers commanding the ceeding, then its pendency in no manner precludes the right of mandamus. State v. Donnell Mfg. Co., 129 Mo. App. 206, 107 S. W. 1112. 2 Woodworth v. Old Second Nat. Bank, 154 Mich. 459, 118 N. W. 581, 117 N. W. 893, 15 Det. L. N. 773. 3 State v. Monida & Y. Stage Co., 110 Minn. 193, 125 N. W. 676, 124 N. W. 971. 4 Klotz v. Pan-American Match Co., 221 Mass. 38, 108 N. E. 764; State v. Lazarus, 127 Mo. App. 401, 105 S. W. 780. 5 Where stockholder sues to set aside transfer of valuable patents and asks for discovery and inspection of books, he is entitled to an inspection of the contracts or transfers and the resolutions as to the transfer of the patents, but not of all the books. Snyder v. De Forest Wireless Tel. Co., 113 N. Y. App. Div. 840, 99 N. Y. Supp. 644. The stockholder must show what specific books are to be inspected, and the corporation cannot be required, on his unsupported allegation, to open all of its books to general inspection. Snyder v. De Forest Wireless Tel. Co., 113 N. Y. App. Div. 840, 99 N. Y. Supp. 644. An order allowing inspection to ascertain if there was an agreement between plaintiff's intestate and other defendants as to the equal control of the corporation, and as to whether an issue of stock putting the control of the corporation in defendants was authorized, should not be granted. Brewster v. F. G. Brewster Co., 127 N. Y. App. Div. 729, 111 N. Y. Supp. 1026, in which case it was stated that the better practice would seem to be to examine the officers and ascertain what books contain information as to the agreement and the issue of stock, and then obtain an order for their inspection. 6 An alternative writ requiring the corporation to permit an audit was held erroneous especially when the court was not in a position, on the showing of the relators, to determine that such audit was necessary. Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383. Florida Gen. St.. § 2672, does not confer on court authority to require corporation to permit committee of one appointed by stockholders representing one-tenth of stock, to make audit of books and records of corporation. Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383. 7 Mandamus to compel inspection of books does not run against the corporation as such, but against the of ficers of the corporation having custody and control of its books. Home Guano Co. v. State (Ala.), 69 So. 419. However, it is too late to urge on review for the first time that a writ of mandamus requiring an inspection performance of the duty, and stating the right to the relief." The defendant should then show performance of the duty or deny the right to the remedy 10 within a certain time.11 On exceptions to a writ, its form cannot be modified,12 and a decree which is otherwise proper and which follows the language of the statute cannot be held erroneous for the failure to define a statutory word or term susceptible of more than one meaning.1 of corporate records to be accorded to a stockholder runs only against the corporation. Pease v. Chicago Crayon Co., 167 Ill. App. 31. 8 Where the court, in making the order, erroneously used the word "issued'' instead of "awarded,'' and the prothonotary, instead of issuing the writ, prepared a certified copy of the petition and order of court, which was served upon the president, the procedure was irregular, since the prothonotary should have issued a writ commanding respondents to do the things ordered by court. Kuhbach v. Irving Cut Glass Co., 220 Pa. 427, 28 L. R. A. (N. S.) 185, 69 Atl. 981. 9 The writ should allege all essential facts showing the duty and imposing the legal obligation to perform acts demanded as well as the facts entitling the relator to invoke the aid of the court. Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383. An alternative writ of mandamus is not vitiated by a recital of relator's dual status as stockholder and director, he being entitled to clear right of inspection in one of two capacities shown by recitals. State v. Ice, 75 W. Va. 476, 84 S. E. 181. 10 When an alternative writ issues, defendant by its return must either show that it has obeyed the command of the writ, or, in the alternative, deny the averments of the petition upon which the writ was awarded, and show the relator to be without right to the remedy. State v. Jessup & Moore Paper Co., 27 Del. 248, 88 Atl. 449. 13 The opening of a ledger to stockholders assembled at a general meeting is not part compliance by a corporation with the mandate of an alternative writ commanding inspection. State v. Jessup & Moore Paper Co., 27 Del. 248, 88 Atl. 449, in which it was further held that an offer to exhibit for inspection only a part of the books and documents named in the writ and to permit only a limited and conditional inspection was not a sufficient compliance with the mandate. 11 The fixing of a return day of a rule nisi rests in the discretion of the judge, unless otherwise provided by statute. Home Guano Co. v. State (Ala.), 69 So. 419. The allowance of ten days to prepare for hearing on a rule nisi is not unreasonable. Home Guano Co. v. State (Ala.), 69 So. 419. When an application is made in vacation, the rule must be made returnable to the next term of court. Home Guano Co. v. State (Ala.), 69 So. 419. Where there is no statutory provision otherwise, a rule nisi is returnable before the court, not the judge, and the case must be heard and determined by the court according to the course of the common law. Home Guano Co. v. State (Ala.), 69 So. 419. 12 On such a proceeding the court can only sustain or overrule the exceptions. White v. Manter, 109 Me. 408, 42 L. R. A. (N. S.) 332, 84 Atl. 890. 13 White v. Manter, 109 Me. 408, 42 L. R. A. (N. S.) 332, 84 Atl. 890. The costs of an expert to assist in examination should be borne by the plaintiff,14 and if inspection is tendered, subsequent costs will be taxed to the plaintiff.15 § 2849. Remedies in equity. There is no similarity between the remedy of mandamus and that of injunction, and they are not interchangeable,16 and usually the remedy of injunction is held inadequate to compel inspection,17 mandamus being a more direct remedy.18 Under the statutory provisions in some jurisdictions, it has been held that a suit for an injunction will lie.19 14 Where a court grants a prayer for an expert to assist in the examination of books which the plaintiff has the right to inspect, the cost of such expense cannot be reckoned as part of the costs of litigation, and being for the benefit of the plaintiff, should be borne by the plaintiff. State v. Citizens' Bank of Jennings, 51 La. Ann. 426, 25 So. 318. 15 Where defendants tendered inspection of books with an offer to pay costs up to that time, after commencement of suit, the trial court was right in taxing subsequent costs to plaintiff, unless it was shown that he was entitled to damages for denial of right prior to tender. Boardman v. Marshalltown Grocery Co., 105 Iowa 445, 75 N. W. 343. 16 Brown v. Crystal Ice Co., 122 Tenn. 239, 19 Ann. Cas. 308, 122 S. W. 84. 17 Wyoming Coal Min. Co. v. State, 15 Wyo. 97, 123 Am. St. Rep. 1014, 87 Pac. 337, 984. On petition for inspection of books and posting of information as required by statute, it may well be doubted whether a court can grant such relief by process of injunction. Boardman v. Marshalltown Grocery Co., 105 Iowa 445, 75 N. W. 343. 18"It is true that the mandatory injunction might be made effectual in securing for a stockholder an ex amination of the books by forbidding the officers and agents of the cor poration from interfering with him in such examination; but the mandamus is a much more direct remedy, and can be conditioned by such restrictions as the court may deem necessary or proper to prevent injury to the books or undue inconvenience to the officers and agents of the corporation in the discharge of their duties." Brown v. Crystal Ice Co., 122 Tenn. 239, 19 Ann. Cas. 308, 122 S. W. 84, distinguishing Hawkins v. Kercheval, 78 Tenn. 535, on the ground that relief was granted under an amended bill construed as an application for mandamus after it had been denied under the bill asking an injunction. 19 The Ohio statute (Rev. St. § 6741) defines mandamus as a writ issued to "a corporation, board, or person, commanding the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station."' It further provides (Rev. St. § 6744) that the writ must not be issued in a case where there is a plain and adequate remedy for the wrong." In view of these provisions it is held that mandamus is not the proper remedy of a stockholder seeking an inspection of the corporate books, as the granting of the right of inspection is not the performance of an act which the law specifically enjoins and furthermore as the granting of the inspection is an act which may be compelled by injunction in the common and ordinary |