I concur entirely with the Presiding Judge. The affidavits clearly show a refusal of the Bank to redeem its notes. In this the Court is unanimous. There was evasion by the Bank, which is equivalent to refusal. Now, if it was clear and obvious on the face of the affidavits that there was a refusal, the Treasurer could as readily perceive it as any one else. It was the purpose of the law that there should be a speedy relief — a prompt remedy — and this without litigation. This litigation to enforce bank redemption, was an evil we had all felt. I think the form of the affidavit proper. It should present the facts, and not merely a conclusion. It was the duty of the Treasurer to act at once. I think twenty-four hours would have been a reasonable time for the examination, of the affidavits. If there was a refusal by the Bank to redeem clearly shown, the Treasurer should have said so; if this was not shown, he should have said so. His proposition to delay and receive counter affidavits, was tantamount to a refusal to act.
Douglass, J.I can see nothing in the objection, that the affidavits filed, with the State Treasurer do not state in express terms, that *33the Bank had refused to redeem its bills. The main question is, whether the facts therein stated amount to such refusal ? If they do, I think the affidavits are sufficient.
Now, it was clearly the duty of the'Bank to redeem its notes .on presentment, with ordinary and reasonable expedition. This, the affidavits show, the Bank refused to do. ■ But its officers, while expressing a willingness to redeem as fast as they could, persisted in redeeming- only in a particular manner, which was extremely and unnecessarily dilatory, and was so unusual and inconvenient that it was manifestly resorted to for the sole purpose of delay. I fully concur in the opinion of the other members of the Court, that the course pursued by the Bank amounted, within the true extent of the statute, to a refusal to redeem.
If so, it were clearly the duty of the State Treasurer promptly to give notice that the notes of the Bank would be redeemed at his office. It is claimed that he had not refused to perform this duty when the present application for a mandamus was made. I cannot see any good reason why this objection should be very strenuously insisted upon on behalf of the State Treasurer ; nor do I think we are called upon to decide it upon any very nice or technical grounds. After the affidavits had been before him, for what would seem to have been ample time to enable him to decide as to what action he would take upon them, he postponed the decision a week longer, to give the counsel for the Bank an opportunity to produce counter affidavits. Such counter affidavits were clearly inadmissible; .and I think such a postponement, after the delay which had already occurred, and for such a ptirpose as was assigned for it, ought to be deemed a refusal to perform the duty which the law enjoined upon him.
Whipple, J:I have not come to the same conclusion with the Presiding Judge. We differ only on one point: and that is, whether *34the delay of the State Treasurer amounted to a refusal. I think it did not. I think, under the circumstances, he had a right to take time for further consideration, as he proposed to do. On the other point I have no doubt. The affidavits show unequivocally that the Bank had refused to redeem its bills. But as I aim of opinion that the Treasurer has not unreasonably delayed action, I think the application should not be granted.
Martin, J.I agree with Judge Whipple. I have also one other view in which I differ from my associates. I think the affidavit should in form be absolute — that is, directly and affirmatively aver a refusal of the Bank to redeem. It is not sufficient to set forth facts which amount to a refusal, or from which a refusal arises by construction. This I think to be the rule in all cases of special proceedings. There should be a direct and positive affirmation of a refusal. If facts are presented, the Treasurer must consider and decide whether such facts amount to a refusal, and this converts his functions from ministerial into judicial. I do not, however, doubt but the facts stated in the affidavits amount to a refusal of tfye Bank to redeem.
Frazer then insisted that the mandamus should be alternative in the first instance, and cited R. S., 593 ; 3 Burr, 96; 20 Pick., 484; 2 Metc., 579.
Lothrop cited 14 J. R., 324; 7 Cow., 526; 2 Burrill Prac., 178.
But the Court held that it appeared that all the material facts which could come before the Court on an answer from the State Treasurer, had been substantially conceded in the case: that the Bank could not become a party to these proceedings ; and that the truth of the facts set forth in the affidavits filed with the Treasurer could not be put in issue *35by any return to tbe State Treasurer. Tbe Court was, therefore, of opinion that the relators were entitled to writs of peremptory mandamus. Granted accordingly.
Judges Whipple and Martin gave no opinion on this last point. Judges Green and Copeland were not present.