
    Mobile & Ohio Railroad Co. v. W. S. Wisdom.
    1. Mandamus. Proper remedy to enforce contract to take tax recipts in payment of freight or passenger charges on railroad. A holder of three tax receipts of tax collector of Madison comity, countersigned by County Court Clerk, not issued to holder nor endorsed to him, tendered these tax receipts to the Mobile & Ohio Railroad Company in payment of passenger ticket to Mobile from Jackson, Tennessee, and the Company refusing to receive them in payment of the ticket, the holder asked for mandamus to compel the Company to take the tax receipts and issue to him the ticket therefor. Held, the Railroad Company having made a contract to take such receipts for freight and passenger charges, by having received and expended the subscription of Madison county for §250,000, \vhich was made under the act of the Legislature, containing a provision requiring railroads taking subscriptions under it, to take the tax receipts from the tax payers in payment for freight and passenger charges, the writ of mandamus is a proper remedy to enforce a compliance upon the part of the railroad by taking such tax receipts, and issuing a passenger ticket therefor.
    2. Same. When and for what mandamus will issue. When the charter of a corporation or the general statute in force and applicable to the subject, imposes a specific duty either in terms or by fair and reasonable construction and implication, and there is no other specific or adequate remedy, the writ of mandamus will be awarded, and it will be used for the benefit as well of private persons as for the public.
    S. Same. Same. When damages not equivalent to specific performance, mandamus will lie. When a person desires to be placed in the possession of a right, illegally and unjustly withheld from him, and not damages for the injury done him, the writ of mandamus is a proper remedy to give the thing itself, the withholding of which constitutes the injury complained of.
    4. Rajxroad Tax Receipts. A local currency. The Legislature in saying that tax receipts or certificates issued to the tax payer under the act authorizing county subscriptions, “ may he traded, assigned or transferred, and shall be receivable in payment of either freight or passage on any road on which such subscription may have been expended,” intended to make these receipts a kind of local currency, and this object was accomplished by making them transferable or assignable, either by written endorsement or by mere delivery.
    
      5. Estoppel. Receiving and expending county subsetiptions estops railroad company from saying not authorized by their charter to take subscription. If a railroad company applied for county subscription in accordance with the statute allowing counties to subscribe, actually received and expended the money thus applied for and raised, the railroad company will be held to have agreed to the terms of the law under which the tax was collected and paid over,.and is estopped from denying the statutory obligations imposed upon it, and from asserting the original charter of the company contained no express provision authorizing the company to take county subscriptions of stock.
    6. Duty op Coubts. It is the duty of Courts to decide cases regularly before them, leaving the consequences of the decision on other cases to have their legitimate effect.
    7. Stale Demands. Riot Stale in this case. The receipts, though dated 1854, and not demanded to be received until 1869, not being by law demanda-ble until one year after completion of the railroad, and the date of the completion not appearing, the court can not assume that the petitioner has delayed unreasonably long the assertion of his rights.
    FROM MADISON.
    Appeal in error from Circuit Court at Jackson. W. P. Bond, J.
    Alexander W. Campbell for Railroad,
    insisted: Mandamus is the proper remedy to enforce legal rights only; and the party asking it must show a clear legal right. The title must be clearly and distinctly stated in the petition, together with all the facts necessary to establish the relief prayed for: Fleming ex parte, 2 Wallace, 759.
    The universal rule of pleading, both at law and in equity, is, that the plaintiff must aver in his declaration or. charge in his bill, every fact essential to his title, and no proofs can be heard of matters not charged, although they may be apparent from other parts of tbe pleading and evidence, for the Court pronounces its judgments and decrees secundum allegata et 'probata: Stephens on Pleading, 304; Note 12 to Second Appendix; Story Eq. Pleadings, ss. 257-8-9 and 260.
    .1. He must show a legal title and a legal liability : Nelson v. Justices of Carter County, 1 Col., 207; Gillespie v. Wood & Douglas, 4 Hum., 438; Lacy v. Anderson, 6 Hum., 495-6.
    The petitioner alleges that he is the “holder” of tax certificates amounting to $24.62, and exhibits them with his petition as exhibits A B and C. He is not. the person who paid either of them, nor is his name connected with the paper either as payer or endorser. He is the mere holder of the certificates, and if he has any title it is derivative. The certificates are not negotiable at common law, nor under the Code, and if negotiable at all, they must be under the provisions of the statute under which it is assumed they were executed, which declares only that they may be “traded, transferred or assigned.” . Now as the petitioner seeks his remedy under the statute, he must show that he has brought himself within the statute with reasonable certainty at least, and perhaps stricti juris. Pie shows no transfer or assignment. Not even a transfer by delivery. It is not shown when or how the petitioner became a holder, from whom he derived title, and upon what consideration, if any. No written contract of transfer or assignment is averred. The words “transfer and assign” in legal proceedings means a transfer in writing.
    If the petitioner has any title it must be derived from, the payers of the several certificates by some trade or contract. This must be stated in the petition, and it must be shown to have been founded upon a valid and sufficient consideration. And a sufficient consideration must not only exist in fact, and be averred in the pleadings, but must also be proved. Promissory notes and bills of exchange imply a consideration, and are ordinarily an exception. In general, whatever is alleged in pleading must be alleged with certainty: 1 Chitty PL, 321; Stephens on PL, 333; Com. Dig. Tit. PL, <■. 17, 22.
    The averment that the certificates are “negotiable by delivery or assignment” is in the teeth of the statute, as well as in contradiction of the face of the paper.
    If the declaration omits the averment of any fact which is the,, gist of the action, (as if no consideration be alleged in assumpsit, no conversion in trover,) the omission is fatal.
    The gist of the action is that without which there is no cause of action. It comprehends, therefore, whatever is indispensable in law to a right to recover. Hence, if anything of kind be omitted, no title can appear from the declaration, and the defect is of course incurable: 3 Black. Com., 395.
    So the time of a matter ■ charged in the declaration ought to be certainly alleged, and therefore, in as-sumpsit, if the plaintiff omits the day when the promise was made, it is bad: Com. Dig. Tit. Pl., c. 19; Stephens Pl., 290; State v. King, MSS., April Term, 1871.
    There is no allegation in the petition or the writ showing when, from whom, how, and upon what consideration the petitioner became a “holder” of the certificates.
    It is stated in general terms “that the county of Madison subscribed $250,000, that said amount of tax certificates were issued by the tax collector, and that the petitioner is the holder of - amount of said tp,x certificates, which he is advised and charges he is entitled to use at par in payment of freight or passage on said railroad at regular tariff rates, etc., and, being so entitled, is authorized by law to have any or all of them secured,” etc.
    The amount, number, dates, and all particulars are left blank. The substance of writings must be set out in the declaration or bill: 1 Chitty Pl., 261; Story Eq. Pl., s. 241.
    In a suit under a statute the pleader must state the case in such a manner that it may appear upon the face of the declaration to come exactly within the words and meaning of the statute: 2 Arch. Nisi Prius, 594.
    The Mobile & Ohio Railroad Company is a corporation, and it is not shown when, how, or where said Company became a party to said subscription, or became liable to pay said alleged certificates, or how said company became bound for the performance of said contract.
    The railroad company was incorporated on the 28th day of February, 1848; the general law in question was passed 22d of January, 1852, and contains this provision: “ That no company shall be required, under the provisions of this act, to do anything inconsistant with the provisions of its charter, or in violation of existing obligations.” The earliest date of either of the certificates exhibited with the petition is July 12, 1854, over six years after the date of the charter, and long after said company had organized, and the citizens of other States had stockholders, and acquired rights under their charter, and after the compány had incurred obligations.
    The writ of mandamus is not a writ of right, and is not granted as a matter of course. It only lies where the law has established no specific remedy, nor where satisfaction equivalent to a specific remedy can be had: 1 Chitty Pr., 789, 780, 781.
    So the Court will not enforce an ordinary matter of contract or right, upon which an action lies at common law, as to compel common carriers to perform their public duties or special contracts: Redfield on Railways, 256; s. 3, 461; s. 3, 46; Angel & Ames on Corp., ss. 709-10-11.
    The writ of mandamus is not the proper remedy to collect a debt. The writ is merely prospective.
    
    If the tax certificates are, as contended by petitioner, “receivable in payment of freight and passage” on said railroad, and he is entitled to use them at par at the regular tariff rates; and if he presented them to the agent of the company, and offered to pay for a passage on said railroad, and the agent refused them, the petitioner has his remedy, clear and unembarrassed, at law, by an action for damages against them as common carriers. Suppose he had offered gold or silver coin, or other currency, and the agent refused to receive it, and cany him to the point upon the road he desired to reach, would his remedy not be the same? are these tax certificates of any higher dignity than lawful money? and if the statute in this respect makes it equal to lawful money, does that fact alter or change the liability of the company as common carriers? If, then, a court of law can furnish a complete and adequate remedy, this is not a proper case for mandamus. Even if it were admitted that the refusal to receive the tax certificates in payment of a ticket from Jackson to Mobile was a deprivation of a right which belonged to petitioner; it is a thing that has passed, and it is not alleged that it is still his wish and desire to go to Mobile. To be transported over the company’s road upon the payment of the fair price of the passage in tax certificates, is the relief prayed for. But the language of the petition is, that the company’s agent “refused to sell said ticket, and take said tax certificates in payment for a passage to Mobile on said road.”
    3. A writ of mandamus is a proceeding of a summary character — is not granted, of course, but only at the discretion of the Court, and that discretion will not be excercised unless some just or useful purpose may be answered thereby: 2 Redford, R. W., 258; Angel & Ames Cor., 3d Ed., 631, 632, 633; Van Ransellear v. Sheriff of A., 1 Cowen, 501.
    In the latter case the Court say that “this Court may exercise a discretionary power as well in granting as refusing a mandamus, as where the end of it is merely a private right, and where the granting of it would be attended with manifest hardships ■ and difficulties.” It will be seen by the petition there are many thousands of these certificates in existence; and, from the necessity of the case, they are of different denominations, each one charged with the cost of collection, the amount of which is unascertained. In relation to some of them, the obligations of the company, if any existed, may have been discharged. Some of them may be unauthorized and some spurious; and if the prayer of petitioner be granted, the agent must stop the trains upon this great public highway, decide upon the liability of the company in each case, ascertain the amount it cost to collect it, which must necessarily be uncertain and difficult to ascertain, and, by this delay, work great inconvenience to the public and hardship upon the company.
    The right to interfere 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: 2 Kedfield, R. W., 292, 293; 1 Chitty Prac., 791.
    Another rule is that the Court will not interfere by 'mandamus after considerable delay, and when the party applying for it has • slept on his rights, and allowed, perhaps, other rights to grow up, or a disposal of the fund out of which the claim ought to have originally been perfected: 1 Chitiy Prac., 791.
    The application for the writ will be declined when it is not made bona fide, but, merely to obtain the opinion of the Court, or when made indirectly: Angel & Ames Corp.; 2 Pedfiehl li. W., 293; .IS., 289.
    The certificates in this case bear date in the year 1854 — fourteen years before the writ was applied for. None of tbe payers complain. Issued more than six years before the war; then came four years of war; then more than three years of quasi peace; the petitioner asks the summary remedy of mandamus without disclosing his title, claiming merely to be “holder.” He leaves the amount he holds blank, and says he has the right to enforce any or all of the certificates. He makes his experiment with the sum of $24.62. He does not disclose when, where, how, or upon what consideration he became possessed of the claims. His petition is general, indefinite, and evasive. He takes advantage of the change of times and of the casualties and disasters of war. Slavery has been abolished since the certificates were issued; great events have transpired; difficulties have multiplied; other rights have grown up; debts and liabilities have necessarily been incurred; there has been an entire revolution in affairs. The railroads of the South have been, during this period, greatly damaged, and in many instances destroyed, so that the cost of repair and reconstruction have been almost equal to the original cost of building them.
    Railroad stocks, State stocks, and other securities, have necessarily greatly and most ruinously depreciated.
    These are matters of public history; and, under these circumstances, the petitioner seeks to take advantage of the times, speculates upon the chances, makes an experiment with a few certificates, in order to extract an opinion from the Court.
    The Mobile and Ohio Railroad Company was chartered by the States of Alabama, Mississippi, Tennessee and Kentucky, and passes through each of them. The Tennessee charter bears date 28th February, 1848. It refers to the Alabama charter dated, 3rd February, 1848, and endorses it. The Tennessee charter states that the “main object of the charter is declared to be the construction, use and maintenance of a railroad from Mobile in the State of Alabama, to some point on the Mississippi or Ohio Fiver, near the mouth of the Ohio, passing through Tennessee. Sec. 1, act 1848,
    The preamble states that certain named persons had been organized as a company, under the above corporate name, at Mobile, in the State of Alabama, and that the board of president and directors had applied to the General Assembly of the State of Tennessee for the passage of such a law.
    The Mississippi Charter was passed 17th February, 1848, reciting the Alabama charter in full.
    The Kentucky charter was passed the same year.
    The company was one in purpose. It was a united company, and entire continuous road. There was but one president and one board of directors. The principal place oí business was Mobile, in the State of Alabama.
    It will be observed that the first section of the Tennessee charter, page 177, Pamphlet Acts of 1848, declares that the company had been already organized, and that they applied to Tennessee, through a president and directors, for a charter. So the stockholders had acquired rights more than four years before the passage of the act of 1852, and six years before the Madison county subscriptiqns. The question then arises, whether the president and directors had tbe power to make any contracts that would give the Madison county stockholders rights and privileges that did not belong to the other stockholders of the company.
    A charter is a contract, within the meaning of the Constitution of the United States, between the State granting the charter and the corporation itself, the obligation of which is not within the power of the Legislature to impair. And the contract between the members of the corporate body and the corporation is equally within the protection of the Constitution.
    Under the charter the railroad company had no authority, and its officers and agents had none, to accept subscriptions upon unequal terms: Angel & Ames Corp.; 2 Cranch, 167; 9 lb., 42; 3 "Wallace, 107.
    Every owner of shares expects and stipulates with the other owners, as a corporate body, to pay them his proportion of the' expenses which a majority may please to incur in the prosecution of the particular objects of the incorporation. To make a valid change in this special contract, the consent of both parties is indispensable: Bedfield on N. W.
    It is well settled that a railway or other joint stock company can not receive subscriptions to their stock in less sums, or in other commodities, than that which is demanded of other subscribers. Hence, subscriptions payable in store pay, or otherwise than in money, will be held a fraud upon other subscribers: Iledfield on R. W.
    And so, too, in case where subscriptions to stock of such a company are by the agents of the company agreed to be received at a discount below tbe par value of tbe shares, it will be regarded as a fraud upon the other stockholders, and not binding upon the company: Redfield, K>. "W.
    But in this case the act of 1852 prudently and cautiously provides in express terms, “That no company shall be required, under the provisions of this act, to do any act inconsistent with the provisions of its charter, or in violation of existing obligations: Sec. 4, act 1852.
    The obligations to the other stockholders were then existing, and if it should be insisted that the company is bound by the acceptance of the Madison county subscriptions to the capital stock of the company, then it must be upon terms that make no discriminations between this class of stockholders and the other stockholders to whom the corporation .was under existing obligations. The act of 1852 was a public act, and both parties are presumed to have knowledge of the terms, conditions, and the limitations imposed and reserved by the act, and are presumed to have contracted in reference to them. The Madison county subscribers are also presumed to have known that the president and directors of the company were the mere creatures of the statute,-and had no power or authority not expressly conferred by it, and among the limitations imposed by law upon their authority was that they could make no contract with one set of subscribers that gave them rights and privileges in this great partnership not posessed by all the others, especially when the very act under which the contract was made contained a reservation in favor of those roads that could not accept subscriptions under the statute without this exception.
    The shares in the Mobile & Ohio Railroad Company are $100 each. To entitle a person to a share in the company, he must pay $100 in money. This is a fundamental law of the organization. If the' president and directors were to enter into a contract with a set of individuals to let them into- the company by paying $75, and another set by paying $50, and still another set by paying $100 per share, but who are to have privileges and rights not possessed by the others, will any one doubt but that the contract was a fraud upon those who had paid full price in money, and beyond the power and authority of those officers and agents. In short, that the contract was ultra vires and void.
    The 8th section of the act of 1852 provides that, “as the said railroad collector shall receive the tax, he shall give the person paying a certificate, showing the amount, which certificate may be traded, assigned, or transferred, and shall be receivable in payment of either freight or passage on any road upon which such subscription shall have been expended: Provided, said certificate shall' be first countersigned by the clerk of the county subscribing such stock, whose duty it shall be to countersign such certificates upon their presentation to him for that purpose; and so soon as any person or corporation shall hold and present such certificates amounting to one share or more in said railroad company, then the president arid directors of said railroad shall issue to such person or corporation a certificate of stock, and such certificate of stock shall entitle the holder thereof to the like rights and privileges as other stockholders in said . company. ”
    If, in construing this section of the act, it is held that the words “ and shall be receivable in payment of either freight or passage,” is peremptory and obligatory upon the company, and they are bound to receive it in any and all events in payment of freight or pasaage, then the body of the section is repugnant to the proviso.
    Strike out that portion of the proviso in relation to the duties of the Clerk of the County Court, which has nothing to do with the question under consideration, it will read as follows: “Provided, so soon as any person or corporation shall hold and present such cei’tificates amounting to one share or more in said railroad company, then the president and directors shall issue to such person or corporation a certificate of stock,” etc.
    Now, upon the construction contended for, the body of the section compels the company to receive the certificates in payment of freight or passage in any and every amount, and the proviso says that when a person shall hold and present said certificates amounting to one share, he shall receive a certificate of stock, etc.
    But if the word receivable be construed to give a quality to the certificates, and not to create an obligation upon the company, then the repugnancy is obviated.
    On the other hand, under the proviso, whenever the amount of one share is held and presented, then the company shall — do what? not receive it in payment of freight or passage, but issue a certificate of stock.
    The rule is, when a proviso is repugnant to the body or purview of an act, the proviso shall stand and be held to be a repeal of the purview; because it is said it speaks the last intention of the lawgiver. It has been compared to a will, in which the latter part, if inconsistent with the former part, supercedes and revokes it: Dwarris on Statutes, 660.
    May not the word receivable be construed as permissive only, or as an authority to the company to take the certificates in payment of freight or passage instead of compelling the payer to invest them in stock.
    This would be an equitable construction, sustain the. statute, remove the absurdity, and do justice to both parties.
    But the clause, though inartificially drawn, evidently intended that whenever any person owned as much as one hundred dollars of tax certificates in amount, that stock should be issued for the same. It was never' designed that amounts over one hundred dollars should be bought on speculation, and used in payment for freight or passage. In the present case the petitioner is not a taxpayer, but a purchaser on speculation. He conceals from the Court the amount of his investment, leaves it-in his petition, purchases up old and stale claims, declines to apply for stock according to the charter, and certainly appeals with a bad grace to the Court for its action, aid, and summary assistance.
    
      The alleged contract of subscription to the stock by the County of Madison, in the Mobile & Ohio Railroad Company, is the gist of the whole matter. The affirmative is upon the petitioner. He is bound to show by proper averments that there was a contract entered into by . parties capable of contracting, who the parties were, that the parties actually .did contract, the time and place, and the nature, character, and precise terms of the contract. This is absolutely necessary in every case founded on a contract.
    The Mobile and Ohio Railroad Company is a corporation. It can only act in the manner prescribed by the act creating it. It derives all its powers from the act, and is capable of exerting its faculties only 'in the manner that the act authorizes.
    It needs no authority to establish the proposition, that if a general statute prescribe the mode or modes in which a corporation must contract, a contract made in any other mode will not be binding upon the corporation, or the party contracting with it, unless, the statute, as it sometimes does, provides to the contrary.
    It is upon a principle somewhat analagous, that the doctrine obtained that a mere naked statutory power must in all cases be strictly pursued.
    The act of 1852, preseibes that County Courts may subscribe for stock “through their chairman:” Act 1852, p. 161, s. 1. As in said act thereinafter provided for, lb. 161; Subscriptions to be voted for, etc., lb. 161.
    It is further provided, s. 9, p. 163, that whenever “the chairman” of any County Court in this State shall, upon popular vote, subscribe stock in any railroad company, the County Court may appoint a proxy from time to time, who shall represent the county and stock so subscribed in all elections, and general or called “meetings of the stockholders, to the extent of the stock so subscribed.”
    And the railroad collector was to collect the railroad taxes, and give the tax payer the certificate therefore,' said certificate to be first countersigned by the clerk of the County Court.
    No such subscription has ever been set out in this case, nor has any certificate so executed been averred.
    And as for the other contracting party, no agreement or undertaking is shown at all, nor any contract entered into, nor when, nor by what agents or officers, or at any' meeting or by any vote. No authority to make such a contract is averred or shown. The petitioner comes into the Court complaining, and must make out his case. The alleged fact that the Mobile and Ohio Railroad Company were paid by the county of Madison $250,000 for stock, proves nothing. In the absence of any specific contract the presumption is, that- the company and its officers were not guilty of a fraud upon their charter, and upon the other stockholders. The legal presumption is, that they did not undertake to contract in any way “inconsistent with the provisions of their charter, or in violation of existing obligations:” Act 1852, p. 162, s. 4.
    The company had no power or authority to contract in such manner and form, much less had any of the officers or agents of the corporation. Nor has any acceptance been shown by the company, or by any one on their behalf.
    MiltoN BeowN for Wisdom,
    said: This is a petition praying a mandamus to compel the Mobile & Ohio Railroad Company to receive in payment of freight and passage on the road certain tax certificates issued at the request and in aid of said company, under the provisions of the internal improvement laws of Tennessee.
    The writ of mandamus in this State is regulated by statute — -Code, c. 12, s. 3567, and following — “where officers, corporations, courts, or persons, refuse to do what they are legally bound to do, and the person aggrieved has no other adequate, specific remedy, he may obtain a writ of mandamus from the Circuit 'Court to compel them to do it.” History of a lawsuit, s. 586. In former times this writ was not deemed “a writ of right,” but only used at the discretion of the Court. But no such doctrine now prevails. Angel & Ames, p. 633, commenting on the present application of the writ, say: “It was introduced to prevent disorder from a failure of justice and a defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. "The value of the matter, or the degree of its importance to the public police, is not scrupulously weighed. If there be a right and no other specific remedy, this 
      should not be denied.” See 6 Bacon Ab., 418. Again they say, at pp. 640, 641: “The ancient writ appears to have been confined exclusively to officers of a public nature; but in modern times the writ of mandamus, as we have remarked, lies wherever there is a right, and no other specific remedy to enforce it.” Again, at p. 644, they say: “The modern decisions upon this subject seem indeed to be made in the spirit of Lord Mansfield’s rule, that wherever there is a right, and no other specific remedy, this will not be refused.”
    
    Redfield on Railways (vol. 2, p. . 279) says: “No better rule can be laid down upon this subject than that where the charter of a corporation, or the general statute in force, and applicable to the subject, imposes a specific duty, either in terms or by fair and reasonable construction and implication, and there is no other specific or adequate remedy, the writ of mandamus will be awarded.” It can not be pretended that in this case there is any other specific or adequate remedy. Here a general statute, in force and applicable to the subject, imposes a specific duty — that is, to take the scrip for freight and passage on the road. A more distinct and clear case falling within this rule could not be stated than the one before the Court. The holders of this scrip have a clear, complete, and perfect legal right to use it in payment of freight and passage on the road.
    The internal improvement laws are to be looked upon “in the light of contracts made by the Legislature on behalf of every person interested in anything to be done under them.” When the corporation accepted the tax imposed on the county, the contract was closed and final. (See the remarks of Lord Eldon quoted in 2 Redfield, 268-9 in note). Duties and obligations imposed by statute are always enforced by mandamus, unless some other mode is prescribed by the statute: 2 Redfield, 276, 277. Hence they are constantly compelled to repair banks of rivers, to make alterations in sewers of a city, to restore highways, to build bridges, to assess and pay damages, etc., in a word, to do whatever is required by law: Redfield, 2 voh, 278-9; 6 Bacon Ab., 428. And it is the practice- “to enforce the payment of money awarded against a corporation in pursuance of a statute duty, by mandamus, when no other specific remedy is provided.” Redfield, 2 vol. 285. “And where a new right has been created by act of Parliament, the proper mode of enforcing it is’by mandamus at common law.” See cases cited in 2 Redfield, 258, in a note. The party injured having a remedy in equity or by indictment does not change this rule (same authorities,) also Bacon’s Ab., title mandamus. By adequate specific remedy is meant legal remedy. These authorities are deemed conclusive on the points involved in this case.
    In this State the practice under the writ of mandamus is regulated and controlled by statute: Code, p.° 651, c. 12, s. 3567, and sections that follow. These provisions simplify the practice and bring the pleadings within the ordinary rules applicable in other cases. ,
    These principles have been fully recognized and sustained by our Supreme Court, in the case of the 
      Louisville & Nashville Railroad Company v. The County Court of Davidson, 1 Sneed, 637. In tbat ease tbe subscription was of county bonds. Tbe County Court refused to issue the bonds and refused to lay a tax to pay tbe interest on these bonds. A mandamus was issued to compel tbe County Court to carry out tbe subscription, and the Supreme Court sustained the mandamus. It was argued tbat tbe contract was not mutual, and the railroad would not be bound to carry out its part of tbe obligation. To this the Court replied: “The stockholders were represented by the directors who accepted the terms upon a full knowledge of the facts, and the party who proposed the terms can not be heard to object to them.'’'’ Again, the Court say, in answer to an argument that the act was not strictly pursued: “It would not lie in the mouth of the party benefited by it to complain,” etc.
    These obvious and well-established principles fully sustain the plaintiff’s case, and fix on the Mobile & Ohio Railroad Company its statutory obligation to receive the scrip for freight and passage on the road. Can it be possible that our Courts, after having compelled the County Courts to lay the taxes, and compelled the people to pay the taxes into the railroad treasuries, then hesitate in compelling the railroad companies to carry out, in obedience to the law, their part of the statutory obligation?
    The Supreme Court of the United States, in the case of Walldey v. City of Muscatine, 6 Wallace, 481, decides that mandamus is the proper remedy to enforce the performance of a duty imposed by law on a corporation, and that a bill in equity will not be sustained.
    In the case of Von Hoffman v. (My of Quiney, 4 Wallace, 535, the same Court decides that the acceptance of a duty to be performed under the provisions of public law is a contract, from the performance of which no subsequent legislation can relieve the corporation.
    In the case of the Board of Commissioners of Knox County v. Aspinwall and others, 24 Howard, 376, in the Supreme Court of the United States, the subject of mandamus to compel corporations to perform their statutory obligations is fully considered. The counsel for the corporation did not deny the application of this writ to compel obedience to statutory provisions. On the contrary, the coixnsel for the corporation says, “The writ of mandamus is the appropriate remedy to enforce the performance of some duty enjoined by law, where there is no other adequate remedy.” Again, the counsel says, “The holders of these coupons had a right to go into the State Courts and enforce the levying of the tax for their payment by mandamus; but they ■elected a different remedy. They chose to sue in the ■■ordinary form in the Circuit Court, merged their coupons in a judgment at law, and must rely for collection of that judgment on the ordinary and usual writs in use for that purpose.”
    The case was rested on two grounds: first, that the United States Court had no jurisdiction; second, that having taken judgment on which an execution could -run, the right to enforce by mandamus was lost.
    
      The Court overruled these objections and made the mandamus peremptory. The Court, in speaking of the writ of mandamus, say: “Now, it is not alleged nor pretended but that if this judgment had been obtained against the corporation in a State Court, the remedy now sought could have been obtained; for it must be admitted that, according to the well-established principles and usages of the common law, the writ of mandamus is a remedy to compel any person, corporation, public functionary, or tribunal to perform some duty required by law, where the party seeking relief has no other legal remedy, and the duty sought to be enforced is clear and indisputable.”
    The leading point made in defendant’s brief is based on a clear mistake as to the meaning and proper construction of the act of 1852. The argument assumes that the county scrip or tax certificates can only pass from one to another by written contract, the consideration of which must be averred and proved, etc.
    The act of 1852 made the scrip negotiable by delivery. This -is the intent and meaning of that act, as recognized by the Courts and Bar of the State without any division of opinion. That act declares that the scrip, called in the act tax certificates, “may be traded, assigned, or transferred.” The intention of the act was to give the greatest possible facility in passing it from hand to hand — in fact to make it a species of currency. The design was to make it popular by impressing on it two important qualities to enhance its value: first, to make it pass by delivery; and, second, to require the railroad company to receive it for freight or passage on tbe road. It was on these points that the taxpayers were appealed to, and the votes to levy the tax were obtained.
    The Code, which is not an enactment of any new or different law, but a statement in an abbreviated form what the law is, states the substance and meaning of the act of 1852 as follows: “Such certificate is negotiable by delivery or assignment.”
    It will be observed that the Code is not in the language of enactment of a law, but simply recites and states what the law is; hence it says that each tax certificate “is” negotiable by delivery or assignment— that is, it is so under the act of 1852.
    This construction is fully' and clearly sustained by the words as 'well as the spirit and intention of the act of 1852. That act says these certificates (commonly termed scrip) may be “traded,” “assigned,” or “transferred.” This is broad and comprehensive language, intended to embrace every possible mode of transfer from hand to hand. Webster, in his large dictionary, gives the primary meaning of the verb “to trade” to be — “to barter or to buy and sell; to deal in the exchange, purchase or sale of goods, wares and merchandise, or anything else.” The noun he gives the primary meaning to be — “the act of exchanging commodities by barter.” He adds that it is “ chiefly used to denote the barter or purchase and sale of goods, wares and merchandise, either by wholesale or retail.” Walker says it is “ the exchange of goods for other goods or for money.”
    Again, these certificates may be “assigned” or “transferred.” Webster says “transferred” means “conveyed from one to another.” The noun “transfer” means, he says, “the removal or conveyance of a thing from one place or person to another.” The verb, he says, means “to convey from one place or person to another.” Again, it means to “make over,” to “pass,” to “sell,” to “give.” Walker says “transfer” means “a change of property, a delivery of property to another.”
    These comprehensive terms of the law make these tax “certificates” or scrip negotiable by delivery, and they pass from hand to hand with as little form or ceremony as bank notes pass, and the possession of them is prima facie evidence of ownership. Story on Bills, s. 415. See the form of Declaration — History of a Lawsuit, 73.
    The brief of defendant at pages 9, 10 and 11, takes the ground that the charter of the company did not authorize such a contract, and that it is void. That the charter was older than the statute extending this aid, and the company is not bound.
    The company received aid from the State, interest and principle now amounting to about $1,600,000, and from counties (Madison and Gibson,) $400,000. Both the statutes under which these advancements were made, were after the charter, and if this position could be maintained, it would let the railroad out of both liabilities. In both cases the object was to borrow money — in one case by the issue and loan of State Bonds, in the other to get it by the vote of counties, to be paid back in freight and passage on the road.
    The subscription is pronounced “absurd,” and it is intimated that Madison and Gibson counties got an undue advantage. (Madison and Gibson had done more than any other counties, aside from this, and would have been greatly rejoiced to be relieved from it.)
    At page 8 it is said mandamus will not be granted to a party who has slept on his right. (There is no bar or delay in the case — no right attached until one year after the completion of the road. The road was completed 21st April, 1861, no right attached until 21st April, 1862. At that time all limitations were suspended, and did not go into to effect again until 1867. Besides, this delay was for the benefit of the company.)
    Page 9. The Court will decline the writ when it is not bona fide, and merely to obtain the opinion of the Court. (How does he assume this is" not bona fide?) He says it is a “fishing petition.” By agreement other cases stand to abide the result of this.
    Says petitioner purchased up “stale claims;” where does he get this?
    Says “no acceptance by the company has been shown.” On a motion to quash, the petition is taken as true, and the application for and the acceptance of this subscription is expressly averred.
    What does the word “receivable” mean? It means what the act of 1852 says, that it shall be received.
    At page 6' puts the question, would mandamus lie to compel the taking of legal tender notes? The answer, if a railroad company was to accept a public benefit, under a public law, on the condition they should be received for freight and passage, mandamus would compel specific execution. It is said it is at tbe discretion of the Court (not so in a case of public statute enforcing a duty): 6 Bacon Ab., 418.
    
      Mandamus is the appropriate remedy to compel- a corporation to discharge its liabilities under a subscription to the stock of, or a loan of its credit to, a railroad company. 2 Redfield, 277, in note: “A declaration for a mandamus to levy a rate to pay a debt is good, though it does not state the amount of the debt.” Same, in note 7, when an order to pay costs is refused, then a mandamus will issue: 2 Redfield, 277.
    
      Mandamus will lie to compel a town committee to pay their damages to land owners for lands taken fora highway: 2 Redfield, 277, in note 7.
    The writ of mandamus may be amended as other writs: Angel & Ames, 665.
   NicholsoN, C. J.,

delivered the opinion of the Court..

This is a proceeding by mandamus to compel the Mobile & Ohio Railroad Company to receive, in payment for freight or passage on the road, certain tax receipts given by the tax collector of -Madison county, Tennessee, and countersigned by the County Court Clerk of said county.

The petition was filed on the 2nd of January, 1869, and exhibits three tax receipts, amounting in all to about $24, none of which were issued to petitioner, nor assigned to him by endorsement. He alleges that he is the holder of the receipts by delivery, and that he tendered the same in payment for a ticket from Jackson to Mobile, but that the agent of the railroad company refused to receive them in payment for said ticket.

An alternative mandamus issued, requiring the company to appear and show cause why the alternative mandamus should not be made absolute. The company appeared and moved to quash the writ, and assigned various reasons why the motion should be sustained. The Circuit Judge determined that the reasons were insufficient,, and overruled the motion; and thereupon gave judgment, making the mandamus absolute. From this judgment the company appealed in error to this Court.

"We deem it unnecessary to notice, in detail, the several objections taken to the petition, for want of sufficient certainty and definiteness in its several allegations, as these objections are merely technical, not reaching the merits of the case, and as the petition, if insufficient as to the matter of mere form, is amendable. But we are satisfied that there is no substantial defect in the averments of the petition, and will proceed to examine the objections which reach the merits of the case.

1. It is said that to entitle the petitioner to the benefit of the writ of mandamus, he must show that he has a clear legal and equitable right to something which is properly the subject of the writ; but that petitioner shows, by the exhibits to his petition, that the tax receipts have never been assigned to him in writing, and, therefore, that he has not the legal title. It is true that the tax receipts exhibited were not issued to the petitioner, nor do they appear to have been assigned to him by written endorsements from the original party to whom they were issued. Whether he has-the legal title, therefore, must depend upon the proper construction of the law which authorized their issuance.

The receipts were issued in pursuance of the 8th section of the act of 1852, p. 161, entitled “An act to authorize and regulate county subscriptions for railroad stock.” After providing the mode by which counties could subscribe for stock, and for the manner of holding elections by the people of the counties to determine whether the stock should be subscribed, and defining the mode of levying taxes to meet the subscription, and of collecting the same, the act in sec. 8 contains this provision: “ As the said railroad collector shall receive the tax, he shall give the person paying, a certificate showing the amount, which certificate may be traded, assigned or transferred, and shall be received in payment of either freight or passage on any road on which such subscription may have been expended.”

It is argued, that in providing that the certificates might be “traded, transferred or assigned,” the Legislature intended to make them negotiable by written endorsement only. We are aware of no rule of interpretation which requires such construction to be placed on the words; neither in their technical nor in their ordinary use do they necessarily imply that the act to be accomplished is to be evidenced by writing. Bur-rill on Assignments, p. 3 (note), says, “the term assignment is frequently used in the books to express the transfer of a promissory note by delivery.” He gives a number of cases to illustrate the remark. But if Are look to the object of the Legislature for making tbe receipts negotiable, we can not doubt that it was intended to make them easily transferable, by way of being used as a kind of local currency This object would be best accomplished by authorizing their transfer or assignment, either by mere delivery or by writing; and such, we think, is the proper import of the words in the connection in which they are used. This objection, therefore, is not well taken.

2. It is next said that the Mobile & Ohio Railroad Company was organized in 1848, that the act authorizing the county subscriptions was passed in 1852, and that the earliest date of the three certificates exhibited in the petition is 1854, and it is argued that it is not shown when, how, or where said company became a party to the Madison county subscription, or became liable to pay said tax certificates. And it is added that the general internal improvement law, passed January 22, 1852, contains this provision: “That no company shall be required, under the provisions of this act, to do anything inconsistent with the provisions of its charter, or in violation of existing laws.”

By reference to the petition we find this averment: “That said railroad tax was collected and paid over to said railroad company, and tax certificates given to the tax payers in due form of law for the amount of railroad tax paid by each tax payer; and he is' advised and charges, said Mobile & Ohio Railroad Company, having applied for and accepted said subscription, took upon itself the statutory obligations to receive said tax certificates in payment' for freight and passage.” The motion to quash admits the truth of these allegations. If the railroad company applied for the subscription of $250,000 in accordance with the statute, and actually received and appropriated the money so applied for and raised, they consented thereby to the terms on which the tax was collected and paid over, and the company is now es-topped from denying the statutory obligations imposed upon them. This would be so even if the original charter of the company contained no provision authorizing them to receive county subscriptions of stock. The subsequent act of the Legislature in 1852, authorizing the subscriptions by counties, passed on the 22d of January, 1852, having been accepted by the company to the extent of receiving subscriptions for stock by Madison county, they thereby, to that extent, adopted that act as part of their charter, and, of consequence, were guilty of no violation of their charter in accepting said subscription, and are effectually es-topped from now repudiating their obligations so assumed. This objection, therefore, is not well taken.

3. It is next said that the writ of mandamus is not a writ of right, and is not granted as a matter of course — that it only lies where the law has established no specific remedy, nor where satisfaction equivalent to a specific remedy can be had. Hence it is inferred that, as the petitioner might have had his action on the case for damages, therefore he can not have the writ of mandamus. This argument assumes that the action on the case furnishes an equivalent satisfaction to a specific execution of the obligation — that is, assuming tbe very question at issue. Tbe petitioner has a right, as he alleges, to buy a railroad ticket to Mobile, and to pay for it with his tax receipt. The company say, true, we are bound to receive your tax receipt for a ticket, but we chose to require you to pay the money, and you can sue us for damages for violating our contract; when you get your money, that will be equivalent to your tax receipt, and you can then buy a ticket to Mobile. It is far from being clear that the remedy by action for damages would be equivalent to a specific execution of the obligation. It might be that a judgment against the company would not be readily convertible into money.

It is a general rule that whenever a statute gives power to, or imposes an obligation on, a particular person to do some act or duty, and provides no specific remedy on non-performance, a mandamus will be granted: Tapping on Manda., 80; Winters v. Burford, 6 Cold., 330.

Moses on Mandamus, p. 14, lays down this as the rule: “It will, therefore, be observed that it is one of the remedies resorted to when a person desires to be placed in possession of a right illegally- and unjustly withheld from him. It does not award damages as a compensation for an injury, but it seeks to give the thing itself — the withholding of which constitutes the injury complained of.” And he adds: “The office of the writ of mandamus is very extensive. It has been said that it is the supplementary remedy when all others fail.”

Again, at page 18, he says: “That although the power to issue the writ in America is not regarded as a prerogative power, yet it so far partakes of the nature of a prerogative writ, that the Court has the power to issue or withhold it, according to its discretion. But this discretion is not an arbitrary one; it is a judicial discretion, and when there is a right, and the law has established no specific remedy, this writ should not be denied:” 7 Cush. Rep., 226; Angel & Ames Corp., ss. 699-710. Redfield on R. "W., 2 vol., p. 279, says: "No better rule can he laid down, than that where the charter of a corporation, or the general statute in force, and applicable to the subject, imposes a specific duty, either in terms, or by fair and reasonable construction, and implication, and there is no other specific or adequate remedy, the writ of mandamus will be awarded.”

We deem it useless to cite other. authorities to the effect, that whenever there is a right which has been illegally and unjustly withheld, and there is no other specific adequate remedy, the writ will be issued, and private persons as well' as the public, are entitled to its benefits: Winters v. Burford, 6 Col., 328; Angel & Ames Corp., ss. 704-707.

In the case before us, the legal right is clear, the obligation created by the general statute, and the acceptance of its provisions and benefits by the company, is obvious, and the withholding of the right is illegal and unjust. It is equally obvious that there is no specific adequate remedy provided by the law which created the right and the obligation.

It appears by reference to tbe act of 1852, that its leading object was to give assistance to the railroads then straggling -into exisenee, by authorizing the people of counties to subscribe for stock, and to pay the same by imposing taxes on themselves. This assistance was sought for and accepted by the companies, not so much to swell the number of their subscribers for stock, as to procure the material aid to be furnished by taxation. To secure this object, the Mobile and Ohio Kailroad Company not only agreed that the counties so furnishing aid should be represented in the company, but that every individual who should buy up $100 of the tax receipts should become a stockholder, and in addition to this, that every holder of the tax receipts, who preferred to invest his tax receipts in freight or passage on the road, should have the right to do so. The acceptance of the assistance from the county of Madison imposed all of these obligations on the united corporation represented by its officers. Each of these obligations is equally binding on the corporation, and after having accepted the taxes, and used them for the common benefit in building the road, they can not now repudiate any one of the obligations thus assumed.

4. It is next objected, that the writ in this case is sued out, not so much to have the right of petitioner enforced, as to the three tax receipts exhibited in his petition, as to test the question, with the view of '"’having a decision that will be applicable to many other like receipts. We are unable to appreciate the force of this objection. As far as we are able to see, the petitioner has sued out the writ in good faith to have his rights determined in the specific case presented. It can surely be no reason for our withholding from him his rights, that he or others may have other similar rights that may be settled by this adjudication. It is our duty to determine causes brought regularly before us, according to law, and to leave the consequences of our decision on other cases to have their legitimate weight.

5. It is next objected, that the right now sought to be enforced has been so long deferred that it has become stale, and, therefore, that it is entitled to no favor. It does appear that all of the receipts exhibited were dated in 1854, and that the petition was not filed until January, 1869, a period of fourteen years. It further appears, that the holders of the receipts were not authorized to use them in payment of freight or passage, until one year after the road was completed.. But it does not appear at what time the road was completed. The facts, therefore, do not authorize us to assume, that the assertion of his right by petitioner has been unreasonably delayed, nor do we well see how the railroad company can complain of the delay. The petitioner has held a' bona fide debt against the company for fourteen years, bearing no interest, and .now, after having waited that length of time, and lost his interest all the time, and although the company has had the use of his money without interest, he is sought to be repelled upon the ground, that he has been so indulgent to his debtor, that his elaim has become stale. We are unable to appreciate the force of this objection.

It results that we find no error in the action of the Circuit Judge in refusing to quash the writ and petition, and we affirm his judgment for a peremptory mandamus.  