Murray v. Stevens

Ames, J. The writ of mandamus is not a writ of right, and is only to be granted at the discretion of the court. The question must always be, not merely whether it is within the power [96] of the court to grant it, but whether, as a matter of sc and judicial discretion, upon the special circumstances of the case under consideration, it ought to be granted. Without undertaking tc lay down an invariable rule on the subject, we think it must be said that this process was not intended, and is not well adapted, for the trial of mere questions of property. Where the relator merely seeks to be put in possession of corporate shares which have an ascertainable market value, or which can be bought in the market; and where the incidental rights of ownership (such as eligibility to corporate offices, or the right to vote at corporation meetings) do not depend upon the ownership of the specific shares which are the subject of dispute, but could be as well and fully enjoyed by virtue of the ownership of an equal number of other shares, there would seem to be no occasion to resort to the extraordinary remedy of mandamus. The damages which the relator might recover in an action at common law for the violation of his right would be exactly measured by the sum of money which it had cost him, or would have cost him, to obtain the same right in another way, namely, by purchase. That is to say, with the amount in money of the market value of the shares in dispute they could be replaced. The King v. Bank of England, 2 Doug. 524. Where recovering the value of the stock would indemnify the party, the writ ought not to be granted. Shipley v. Mechanics’ Bank, 10 Johns. 484. Ex parte Fireman’s Insurance Co. 6 Hill, 243. As this case is presented, we must infer that it would not be a difficult matter for the petitioner to obtain a title, by purchase, to fifty other shares in the corporation, and thereby to acquire rights of membership equivalent to those which he seeks to vindicate by this process ; and that this is not a case in which the possession of the identical fifty shares referred to in the petition is necessary or important. The case therefore falls within the rule laid down in the decisions above cited. The petitioner would be fully indemnified in an action for damages, and has no occasior to resort to the remedy by mandamus. Petition dismissed.