edy for this in the ordinary course of the law, he has no right to use the name of the state in his behalf to redress his

injury.

That an action for damages will lie for refusing such transfer, is settled by all the authorities, if the ownership is not in dispute.

It is said, however, that this stock has no market value; that the corporation is doing a growing and profitable business; that its good-will enhances the value of the stock, and that by reason of these things, damages will not be an adequate remedy.

These facts do not change the rule. They are elements in assessing damages, which may be fully ascertained in an action at law.

In actions for conversion of personal property, such as these shares are, the damages are not limited to the market value of the stock. Its actual value to be determined under all the circumstances, such as the dividend-making capacity, the good-will, etc., etc., is the measure of damages.

In this connection we adopt the language of the court, in Murray v. Stevens, 110 Mass. 95: "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. Where recovering the value of the stock would indemnify the party, the writ ought not to be granted."

In the case at bar, there has been no actual breach of duty in respect to these incidental rights; such as the right to vote and to be voted for, to draw dividends, etc. We are not now called upon to determine, whether a case might not be

made for relief by mandamus, where special injury would result from a refusal to admit a member. The opinion in Shipley v. Merchants Bank, 10 Johnson 484, very aptly expresses the rule: "The applicants have an adequate remedy by a special action on the case, to recover the value of the stock, if the bank have unduly refused to transfer it. There is no need of the extrordinary remedy by mandamus, in so ordinary a case. It might as well be required in every case where trover would lie. It is not a matter of public concern, as in the case of public records and documents; and there cannot be any necessity, or even a desire of possesing the indentical shares in question. By recovering the market value of them, at the time of the demand, they can be replaced. This is not the case of a specific and favorite chattel, to which there might exist the pretium affectionis."

Our attention has been called to the fact that there is some conflict in the text books, and cases upon this point. The result of a very careful examination of these, lead us to the conclusion, that upon authority as well as upon principle, the writ should not issue in the case at the bar; that the writ should issue to compel the admission of a member into an incorporated society, where the advantages are personal rather than pecuniary is clear, for in such a case the loss is incapable of a money compensation.

Marowits on Corps § 337; High on Extr. Rem. § 313, and Wood on Mandamus 23, concur in saying that the weight of authority is against allowing the writ to compel the transfer of shares in a purely private moneyed corporation, while Field on Corp. § 139, is to the contrary, evidently on the authority of Weston v. Bear River Minn. Co., 5 Cal. 186, and People v. Crockett, 9 Cal. 112, but these cases are in effect overruled in Kimball v. Union Water Co., 44 Cal. 173, where it is expressly held, that for a refusal to transfer shares in a private corporation, a party has an action in damages, and therefore mandamus will not lie.

In Norris Adm'r v. The Irish Land Co., 92 Eng. Com. Law Reps. 511 (8 Ell. & Black) it was held, that mandamus would lie, on the death of a shareholder, to compel a registration in the name of his representative, when the charter specifically required such registration. In that case it was conceded the

writ will not issue to compel the execution of a mere private contract, but it is said that under section sixty-eight of the common law procedure act of 1854 (17 and 18 Victoria C. 125), this remedy is not confined to cases where, before the passage of that act, it would have been granted. Inasmuch as in that case the duty of making the registry was specifically imposed by charter the writ was awarded, and this seems to be the true ground of the decisions. Under our statute now in force. there is no such specific duty imposed, as to transfers of shares in this corporation, but a general authority is given to manage the corporate business in the interest of all the stockholders. This power imposes a corresponding duty to make such by-laws and to keep such accounts and books as are necessary to the discharge of the duties imposed. If transfer books and registers of stock are necessary for this purpose, the law implies a duty to keep them, but we cannot say that it is a duty especially enjoined by law, but rather an implied duty growing out of the trust relation, which the officers bear to the stockholders.

We annex some of the many decisions in support of our conclusion. The King v. Bank of England, Doug. 524; Regina v. Mid. Co. & S. J. R. R. Co., 9 L. T. R. N. S. 151; Stackpole v. Seymour, 127 Mass. 104; Birmingham Fire Ins. Co. v. Com., 92 Penn. St. 72; The King v. London Ass. Co., 5 B. & Al. 899; The State v. People's Build. Ass., 43 N. J. L., 389. The State v. The Warren Foundry, 32 N. J. L. 439.

Norris v. The Irish Land Co., supra, rests upon the ground that the charter specifically enjoined upon the officer the duty of making such transfer. Whether, under section 6741, it would issue in this state for the refusal to perform a specific duty enjoined by statute, we need not now determine, as the duty of making such transfers is not specifically enjoined.

That equity will often furnish relief, in case of a refusal to transfer stock or (like cases of the breach of trust), the relation the directors bear to the shareholders is clear. Marowitiz on Corp. 405; Cushman v. Thayer M. Co., 76 N. Y. 365; Railway Co. v. Robbins, 35 N. Y. 500; Ham. v. Toledo, W. & W. R. R. Co., 29 Ohio St. 174; 3 Pomeroy on Equity.

We conclude therefore that, upon the facts stated, the plaintiff's application must be refused. [To appear in 39 Ohio St.]

Judgment accordingly.

ADVERSE POSSESSION OF REAL PROPERTY-AGREEMENT NOT TO BEGIN SUIT.

(Ohio Supreme Court. February 26, 1884.)

DIETRICK V. NOEL.

Adverse possession of real estate loses its adverse character when the holder thereof, for a sufficient consideration, agrees with the true owner that suit to recover such possession shall not be brought dur ing the life-time of each of them.

ERROR to the District Court of Pike County.

Dietrick brought suit against Noel to recover possession of real estate. This involved a question of boundary between their adjacent farms. Plaintiff claimed to the true division line, and defendant sought to defeat recovery by showing adverse possession by himself and those under whom he held, for twenty-one years. There is no question here as to the location of the true line, but only as to the character of the possession of Noel and those under whom he held. On this question the bill of exceptions taken on the trial in the court of common pleas, shows that "evidence having been offered by the defendant tending to prove that the defendant, and those under whom he claims, had been in open, notorious, exclusive and adverse possession of the land in dispute for more than twenty-one years prior to the commencement of this suit, claiming title thereto; and on the part of the plaintiff, evidence having been offered tending to prove that such possession had not been adverse to the plaintiff and those under whom he claims, for the full period of twenty-one years prior to the commencement of this suit, but that such possession had been held under an acknowledgment of title in one John Merritt, under whom the plaintiff claims; and evidence having been offered tending to prove that a difficulty arose between one James Wallace, under whom the defendant claims, and John Merritt, under whom the plaintiff claims, Wallace threatening to close up an outlet that Merritt claimed the right to use over the land of Wallace; and Merritt threatening to sue Wallace to ascertain the title to the land, or where the true boundary line was between them, and evidence having been offered tending to show that sometime between the

years 1849 and 1853, and while said controversy was going on between them, that said Wallace and Merritt agreed, in writing, that the outlet should not be closed by Wallace, and that his possession of the land in dispute should not be interfered with by any suit by Merritt, and that such arrangement should last as long as either, or both the parties thereto should live; and it appearing from the evidence that said Wallace died in the year 1853, and said Merritt in the year 1870, thereupon, after the submission of the cause to the jury, and the arguments, the defendant, among other things, asked the court to charge the jury as follows, to wit:

"If, within-twenty-one years before the beginning of this suit, it appears that Wallace (under whom the defendant claims), was in adverse possession of the land in dispute, and a difficulty arose between him and Merritt (under whom the plaintiff claims), Wallace threatening to close up an outlet that Merritt claimed a right to use over the land of Wallace, and Merritt threatening to sue Wallace to ascertain the titie to the land, or where the true boundary line was between them, and thereupon the parties agreed, in writing, that the outlet should not be closed by Wallace, and that his possession of the land should not be interfered with by any suit by Merritt, and that the arrangement should last as long as either, or both of the parties should live, such agreement would in no way prevent the running of the statute of limitations in favor of Wallace, just as though no such agreement had been made."

Which charge the court refused to give to the jury; to which refusal of the court to charge the jury as requested, the defendant, by his counsel, at the time excepted.

The jury rendered a verdict in favor of the plaintiff, Dietrick; Noel filed a motion to set aside the verdict, and for a new trial, which was overruled, and judgment was entered, and a bill of exceptions was taken. On error, the district court reversed the judgmont of the court of common pleas; and a petition in error was filed in this court, asking for a reversal of the judgment of the district court.

O. F. Moore, J. W. Washburn and J. T. Moore, for plaintiff in

error.

W. A. Hutchin and Geo. D. Cole, for defendant in error.