
    Commonwealth ex relatione Duffy v. The President, Managers and Company of the Anderson’s Ferry, Waterford, and New Haven Turnpike Road.
    
      Friday, June 1.
    MANDAMUS;
    RULE to shew canse why a mandamus should not issue the defendants to grant to the relator, Duffy, a certificate issued by the president, attested by the treasurer, sealed with the seal of the said company, and transmit a duplicate of the same to the State Treasurer, for a iudsrment . . , ~ _ • i J . by the-said Duffy against the same company, m the Court of Common Pleas of Lancaster county, amounting to 1899 dollars and 20 cents, with interest from the 22d March, 1819 : also a certificate to the State Treasurer for 4989 dollars 20 cents, reported in favour of the said Duffy, on the 25th January, 1817, against the said company, from which the company had appealed and the appeal was depending in the (J0urt of Common Pleas of Lancaster county. '
    The defendants returned for cause, that the judgment for 1899 dollars 20 cents, was not obtained for work, labour or service performed by James Duffy and John Pedan, for the said company, within the trué intent and meaning of the Act of Assembly, passed the 26th day of March, 1821; nor was it obtained for work done on contract, on any part of the said turnpike road, and that the said judgment of 4989 dollars 20 cents, having been appealed from, remained undetermined in the Court of Common Pleas of Lancaster county; and they verily believe, that on the trial of the said suit, there will be found nothing due or owing to the said Duffy and Pedan by the said company.
    They further returned, that they have not drawn any warrant on the State Treasurer for the sum authorised to be subscribed by the Governor, on behalf of the Commonwealth, nor are they ready or willing at this time, to draw out of the State Treasury any part of the amount of the States subscription, because they say, they are desirous of making a final 
      
      settlement of the accounts of all persons, who may have performed work, or service, or to whom they are .indebted for work done on contract, on the said turnpike road, previous to drawing their warrant on the State Treasurer. And they humbly submit to the honourable Court, that under the Act of Assembly, they are vested with a discretion, as to the time, when, they shall, draw their warrant on the State Treasurer-; nor are they bound to give any certificate until they are ready, and desirous of drawing out of the State Treasury the amount of the State’s subscription, nor until the accounts have been settled by them'.
    
    
      Under the March 26, ConVuvill grant a mandamus to a turnpike Icmtififate'to a person judgment011 a iTtteVi!-™’ turn that such not1obtained33 for work, la-Dour or service performed within the Intent of the said Act.
    It is not however a sufficient return that a judgment obtained against them is appealed from : such case is provided for by the act, and a mandamus will lie to compel them to grant a certificate.
    
      
      Hopkins for the telator,
    contended, that for the payment of 1899 dollars 20 cents, he was entitled to a certificate on which immediate payment would be received from the State Treasury. For the 4989 dollars 20 cents, for which a suit was depending, the relator was entitled to a certificate, on which immediate payment should not be received from the treasury. The Act of Assembly provides for both cases.
    
      Rogers for the-defendant.
    The Act of Assembly was made for the benefit of the , J . . company. It gives.them a subscription or 10,000 dollars, £or which warrants are to be drawn on the State Treasurer, But the, company has a discretion as to the time of drawing r_ , ,. , . . , their order. Perhaps, they might not choose to accept the subscription on the terms prescribed, viz. that the State should be taken as a subscriber for 10,000 dollar*s. Before they draw their , ordef they will giye certificates. As to the judgment for 1899 dollars ,20 cents, the answer of the company is a complete bar to further proceeding in the mandamus.
    
      
       Act of March 26th, 1821, Sec. 45.—“ And be it further enacted that the Goveroor be, dhd he Is hereby authorised and required, to subscribe on behalf of this Commonwealth, for one hundred shares,’ at one hundred dollars per share, of the Anderson’s Ferry, Waterford, and Newhaven Turnpike Road Company, to be drawn by warrants in the usual hianner on the treasurer, and to be paid to the president and managers of the said company. _ .
      Sec. 77.—And be it further enacted, &c. That it shall be the duty of the president and managers of the several turnpike road and, bridge companies, to which roads or bridges, the Governor is, by this Act, authorised to subscribe for stock, before they or any of them shall draw out of the State Treasury any part of the amount of the State’s subscription,; in this Act authorised to be subscribed, to settle the accounts of all such persons who may have heretofore performed work, labour, or service, and to whom they are indebted for work done on contracts on any part of the said turnpike roads or bridges, and who hold the accounts in their own right, without having heretofore made a transfer thereof to any other person, and the amounts due and payable to them respectively, shall be certified .by the presidents and attested by the treasurers, respectively, under their corporate seal, a duplicate of each certificate shall be transmitted by the treasurer of each company to the State Treasurer, and the certificate given to each individual creditor for labour performed as aforesaid shall be received by the State Treasurer, and shall fie paid by him to the holder thereof or to his order, and the amount so paid shall be deducted, by the State Treasurer from the appropriations made to such turnpike road or bridge company: Provided, That if in the settlement of the accounts for work done, any misunderstanding should arise or shall have arisen to prevent a settlement of any account, the amount in dispute shall be certified to the State Treasurer, and shall be retained until.the dispute shall be settled, and when thus certified, shall be considered as if settled agreeably to this section, so far as to enable the company to draw the surplus r Provided also, That if the certificate in .possession of the creditors aforesaid of any company,* thus presented to the State Treasurer shall exceed the total amount to be drawn, the same shall be paid pro ratac And Provided further, That nothing herein contained shall extend to the section making an ap« propriation to the centre turpike road leading from Reading to Sunbury. •
    
   Per Curiam.

As to the judgment for 1899 dollars 20 cents, the return made by the- defendants shews sufficient cause against the mandamus. If that return is false, the injured party has his remedy by action. But as to the other sum of 4989 dollars 20 cents, the return is insufficient—It is the duty of the defendants to. give a certificate immediately; they have no discretion on that point., The certificate will be a security to the relator, and no injury to the defendants, because they return that claim, as being in dispute—-and it is a case expressly provided for by the Act of Assembly-—as to the certificate for that sum therefore, it. is the opinion of the Court that a peremptory mandamus be issued.

Peremptory mandamus awarded.  