57 Cal. 520; 40 Am. Rep. 120; Fuller and Johnson Mfg. Co. v. Bartlett, 68 Wis. 73; 60 Am. Rep. 838; Stephens v. Cady, 14 How. 531; Ager v. Murray, 105 U. S. 126. And to accomplish this object, the court may require the debtor to execute a conveyance of the patent to a receiver: Pacific Bank v. Robinson, 57 Cal. 520; 40 Am. Rep. 120; Barton v. White, 144 Mass. 281; 59 Am. Rep. 84; Keach's Petition, 14 R. I. 571; Ager v. Murray, 105 U. S. 126; Satterthwait v. Marshall, 4 Del. Ch. 337; Searle v. Hill, 73 Iowa, 367; 5 Am. St. Rep. 688; 3 Robinson on Patents, 660; and may also require the conveyance of a patent issued by another government: Adams v. Messinger, 147 Mass. 185; 9 Am. St. Rep. 679. It is conceded by the defendant that the court might compel such a conveyance in a case of insolvency. But the power of the court is no greater to compel the conveyance of a patent for the benefit of creditors generally, than it is to compel one for the benefit of a single creditor. Besides, if by possibility there was any defect or want of power in the court to make such an order, it would in this case be more than supplied by the agreement of the defendant to do this very thing. The order of the court in this respect would be in the nature of a specific performance of that agreement: Binney v. Annan, 107 Mass. 94; 9 Am. Rep. 10; Somerby v. Buntin, 118 Mass. 279; 19 Am. Rep 459; Nesmith v. Calvert, 1 Wood. & M. 34; Hartell v. Tilghman, 99 U. S. 547.

It is stated in the finding that after the decision of the issues in the case in favor of the plaintiff, but before the judgment file had been signed or filed, the defendant requested the court to decree, and provide in the judgment file, that in case Hammond should, within a reasonable time after such conveyance to the receiver as might be ordered by the court, pay or cause to be paid to the receiver the sums found to be due to the plaintiff, and all outstanding bills, costs, and expenses of the receivership, then the receiver should not sell the patents and property, but should convey one half thereof to the plaintiff and the other half to the defendant. The court declined so to do. The defendant assigned this as one ground of error. We cannot regard the refusal as an error in law. Having found the facts set out in the complaint to be proved and true, it was the duty of the court to so frame its decree as to secure to the plaintiff the relief to which those facts entitled him. And while this ought to be done in a way to be the least burdensome to the defendant, he cannot re

quire that the rights of the plaintiff be sacrificed to his convenience. If there is more than one method that may be adopted, it is for the court, in the exercise of its discretion, to select that one which on the whole is the best. And such exercise of discretion is not ground for error.

As to the nipper patent, the objection seems to have been obviated by the form of the decree.

There is no error in the judgment appealed from.

CREDITOR'S BILL-EQUITY ANCILLARY TO LAW.-Equity is ancillary to the law in aiding creditors by judgment and execution, where it is necessary for their satisfaction: McLure v. Benceni, 2 Ired. Eq. 513; 40 Am. Dec. 437; but a creditor is not entitled to aid in law and equity at the same time: McGough v. Ins. Bank, 2 Ga. 151; 46 Am. Dec. 382, and note; see extended note to Massey v. Gorton, 90 Am. Dec. 288, where the creditors' bills and proceedings in equity in aid of execution are discussed.

CHANCERY COURTS-POWER TO CHARGE INTEREST OF ONE OF SEVERAL CO-DISTRIBUTEES. -The interest of one of several co-distributees may be charged by chancery with the payment of a judgment, but it should first be set apart by the court: Lang v. Brown, 21 Ala. 179; 56 Am. Dec. 244; and

note.

CREDITOR'S BILL-WHAT PROPERTY SUBJECT TO. Every species of prop. erty of a debtor, including debts, choses in action, and equitable rights, may be reached by creditor's suit: Edmeston v. Lyde, 1 Paige, 637; 19 Am. Dec. 454.

AMERICAN CASUALTY INSURANCE AND SECURITY COMPANY V. FYLER.

[60 CONNECTICUT, 418.]

PRACTICE - MANDAMUS. — AN ALTERNATIVE WRIT OF MANDAMUS MUST SHOW UPON ITS FACE a clear right to the relief demanded, and the material facts upon which the applicant relies must be distinctly set forth, so that they can be admitted or denied; otherwise the writ may be quashed.

PRACTICE- Mandamus.

OBJECTIONS TO A WRIT OF MANDAMUS, whether of form or of substance, may be taken by a motion to quash. MANDAMUS WILL NOT ISSUE TO A PUBLIC OFFICER, UNLESS the duty to be enforced by it is the performance of some precise, definite act, or is one of a class of acts purely ministerial and in respect to which the officer has no discretion whatever, and the right of the party applying for it is clear, and he is without other adequate remedy.

MANDAMUS WILL NOT ISSUE TO CONTROL AN EXECUTIVE OFFICER in discharging an executive duty involving the exercise of discretion or judgment.

DEFINITION. A MINISTERIAL ACT is one which a person performs in given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to the exercise of his own judg. ment upon the propriety of the act being done.

AM. ST. REP., VOL. XXV.-22

MANDAMUS WILL NOT ISSUE TO COMPEL AN EXECUTIVE OFFICER to perform
an act, when the duty of performing it depends on the construction
of a statute, and the officer has construed it as not requiring him to
perform the act, though the court may be of the opinion that his con-
struction of the statute is incorrect.
MANDAMUS WILL NOT ISSUE TO AN INSURANCE COMMISSIONER to compel him
to admit a foreign insurance company to do business in the state, if he
is vested by the statute with a discretion respecting the admission, and
has construed the statute as not requiring him to admit such company,
though the court may not agree with him in his construction of the
statute.

W. F. Henney and A. L. Shipman, for the appellants.
E. D. Robbins, for the appellee.

ANDREWS, C. J. The plaintiff, a corporation organized under the laws of the state of Maryland, applied to the defendant, who is the insurance commissioner of this state, for permission to transact in this state insurance business against loss and damage caused by accident to any person or property arising from explosions of steam-boilers or other causes, employers' liability insurance, and the insurance of the fidelity of persons employed in positions of trust." The defendant heard the application, and at the request of the plaintiff gave a second hearing. Then, after consideration, he declined to grant to the plaintiff the permission it had asked for. The plaintiff thereupon made application to the superior court for a writ of peremptory mandamus, commanding the defendant to admit the plaintiff to do in this state the kinds of business above mentioned. The defendant accepted service of the application so made to the superior court, and that application, by consent of all the parties, has been treated as the alternative writ.

On the return day, the defendant came into court and moved that the alternative writ be quashed. The court heard argument, and indicated that the motion ought to be granted, unless the writ should be amended, and gave the plaintiff time in which to amend. The plaintiff neglected to make any amendment, and the motion was granted. The plaintiff now appeals to this court.

In any case of mandamus, as the alternative writ is the foundation of all the subsequent proceedings, it must show upon its face a clear right to the extraordinary relief demanded, and the material facts on which the plaintiff relies must be distinctly set forth, so that they can be admitted or denied. If it does not do this, it will be abated or held in

sufficient on a motion to quash. All formal objection to the writ must be taken by a motion to quash: Fuller v. Plainfield Academic School, 6 Conn. 532. And objections to the substance may be so taken: Moses on Mandamus, 202–206; Shortt on Mandamus, 397; High on Extraordinary Legal Remedies, sec. 522; Commercial Bank of Albany v. Canal Comm'rs, 10 Wend. 26; State v. Lean, 9 Wis. 279.

The principle upon which persons holding public office may be compelled by a writ of mandamus to perform duties imposed upon them by law has been pretty clearly defined and strictly adhered to in numerous cases in this court and in courts of other states: Freeman v. Selectmen of New Haven, 34 Conn. 406; Seymour v. Ely, 37 Conn. 103; Batters v. Dunning, 49 Conn. 479; Atwood v. Partree, 56 Conn. 80; United States v. Black, 128 U. S. 40; United States v. Windom, 137 U. S. 636; Kendall v. United States, 12 Pet. 524; Decatur v. Paulding, 14 Pet. 497; United States v. Guthrie, 17 How. 304; Howland v. Eldredge, 43 N. Y. 457; People v. Brennan, 39 Barb. 651; Smith v. Mayor etc. of Boston, 1 Gray, 72.

The principle set forth in thesc authorities is, that a writ of mandamus may issue where the duty which the court is asked to enforce is the performance of some precise, definite act, or is one of a class of acts purely ministerial and in respect to which the officer has no discretion whatever, and the right of the party applying for it is clear and he is without other adequate remedy; and that the writ will not issue in a case where the effect of it is to direct or control an executive officer in the discharge of an executive duty involving the exercise of discretion or judgment. The rule is stated very clearly by Mr. Justice Bradley in United States v. Black, 128 U. S. 40. He says: "The court will not interfere by mandamus with the executive officers of the government in the exercise of their ordinary official duties, even where those duties require the interpretation of the law, the court having no appellate power for that purpose; but where they refuse to act in a case at all, or where, by a special statute or otherwise, a mere ministerial duty is imposed upon them, - that is, a service which they are bound to perform without further question, then, if they refuse, a mandamus may be issued to compel them." The same rule is given in High on Extraordinary Legal Remedies, sec. 42, where that author adds: "Indeed, so jealous are the courts of encroaching in any manner upon the discretionary powers of public officers, that, if any reasonable

doubts exist as to the question of discretion or want of discretion, they will hesitate to interfere, preferring rather to extend the benefit of the doubt in favor of the officer." "A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done": Flournoy v. City of Jefersonville, 17 Ind. 169; 79 Am. Dec. 468.

The subject of insurance engages nearly one hundred and forty sections of the General Statutes, and covers more than thirty pages of the statute-book. All these sections, taken together, form a complete and symmetrical branch of the executive government of the state, which in common speech is called the insurance department. The defendant is at the head of that department. His duties are, generally, that he 'shall see that all the laws relating to insurance companies are faithfully executed." This alone vests him with a wide range of discretion and judgment.

But, in addition to this general description of his duties, there are repeated sections which impose upon him in terms. the exercise of discretion. Section 2822 vests him with authority at any time to "examine into the methods of business of any company, corporation, association, partnership, or combination of persons doing any kind or form of insurance business in this state." He may make orders binding upon such companies, and may apply for an injunction to control their business, or for the appointment of a receiver to wind it up. Sections 2829 to 2836 vest him with discretionary powers concerning fire and marine insurance companies. Sections 2857 and 2858 give him like powers concerning life insurance companies. By section 2869 he may apply for a receiver for any life insurance company and for the annulment of its charter. By section 2906 he may revoke the certificate he has issued to any insurance company incorporated by any other state, upon proof of its unsoundness. Section 2834 gives him discretion respecting the admission of fire and marine insurance companies into this state to do business. Section 2846 relates to foreign fire insurance companies, section 2867 to life insurance companies, and section 2893 to assessment insurance companies. Throughout all these sections the authority given to the defendant is administrative, or quasi judicial, rather than ministerial: Perry v. Reynolds, 53 Conn. 527.