State ex rel. Bush v. Warren Foundry & Machine Co.

32 N.J.L. 439

Opinion

The opinion of the court was delivered by

Elmer, J.

If the sale of the stock, as made, can be held to be valid, which it is not necessary to decide, it must be on the ground that what was done amounted to a virtual assignment of choses in action to the relator, or creditor, authorized by the thirty-sixth section of the attachment act. (Nix. Dig. 41.)

* The seventh section of the act respecting executions, (Nix. Rig. 268,)† which authorizes the sale of stock by an officer, does not extend to sales by auditors in attachment, who, by the thirty-fifth section of the attachment act, are only empowered to sell goods, chattels, lands, and tenements.

The rule is well settled, and ought to be adhered to, that the court will not interfere, by way of mandamus, unless there is a clear legal obligation shown to perform the duty required. The State v. Jacobus, 2 Dutcher 135; The King v. Bank of England, Doug. 524. So far from this being shown in this case, it appears that the officers of the company had actually transferred this stock to a person presenting a prima facie title, several weeks before the writ of attachment issued. It would seem that twenty-nine of the shares were in fact transferred without requiring the surrender of the original certificates, and without adequate proof of their loss; but the missing certificates never came into the hands of the auditors or of the relator, and it appears, have been since delivered to the officers of the company. All the shares once owned by Miller, were by him assigned to Day, and the transfer actually made on the books of the company, and new certificates issued, before the stock was attached.

The argument mainly insisted on by the counsel for the relator was, that the evidence produced discloses a strong doubt, whether the transfer was not made to defraud the creditors of Miller, and that by awarding an alternative mandamus, a return will be required, upon which an issue may be taken, and that question determined by the verdict of a jury. But this would be to commence with a plain departure from the rule of not allowing this writ in any other than a clear ease; for the fact that the relator’s title to the stock he claims, supposing it to be otherwise good, depends upon his being able to set aside a prior title, on the ground that it was fraudulent and therefore void, shows that the case is necessarily doubtful. No authority for trying such a question, by means of proceedings on a mandamus, was produced. A suit at law, or a bill in equity, is the appropriate remedy.

The rule to show cause must be discharged, with costs.

Cited in Curtis v. Steever, 7 Vroom 307.

Rev., p. 51, § 52.

Rev., p. 389, § 4.