3

4. By the English statute the company are not allowed to forfeit a larger number of shares than will produce the deficiency required. And upon payment to the company of the amount of arrears of calls, interest,' and expenses, before such forfeited shares are sold by them, the shares revert to the former owner. 3

*

5. The evidence of the company having pursued the requirements of their act, in declaring the forfeiture, must be express and not conjectural.4

SECTION XV.

Right of Corporators and Others to inspect Books of Company.

1. May inspect and take minutes from 4. This will not embrace the books of probooks. ceedings of directors. 2. Discussion of the extent to which such 5. Party claiming to be shareholder may inbooks are evidence. spect register. 3. For what purposes such books are impor- 6. Allowed when suit or proceedings pending. tant as evidence. 7. Party may have aid in the inspection.

§ 60 a. 1. It seems to be conceded as a well-settled rule of law, that the shareholders or corporators in a joint-stock corporation are entitled, as matter of right, to inspect and take minutes from the books of the company, at all reasonable times,1 as they are the best evidence of the facts there registered, and equally the property of all the proprietors.2 And the board of directors of the company have no power to exclude any member from the exercise of this right, even upon the ground that he is unfriendly to the interests of the company.3

2. But it seems to be now settled that strangers cannot obtain the inspection of such books, even by application to the court, their contents being regarded as private memoranda, in no sense possessing any public character, notwithstanding a

3 8 & 9 Vict. ch. 16, §§ 34, 35.

* Cockerell v. Van Dieman's Land Co., 36 Eng. L. & Eq. 405.

1 Angell & Ames on Corp., § 681.

2 Owings v. Speed, 5 Wheaton, 420, 424.

3

3 People v. Throop, 12 Wend. 183; Cotheal v. Brouer, 1 Seld. 562.

4 Mayor of Southampton v. Graves, 8 T. R. 590.

i

contrary practice obtained 5 for a time. It may sometimes have been assumed, that the books of private corporations possessed a higher quality of evidence than is the fact. We do not appre-. hend that they are in any sense indispensable primary evidence of the facts there recorded; as a general thing, as to the organization of the company and the choice of officers, all that is requisite will be to prove, de facto, the organization of the company and the exercise of such offices by the persons named. Where it is requisite that an authority be given by the majority vote of the company, it may most conveniently be shown by the record, and perhaps in such a case the records of the corporation may fairly be considered the best proof of the facts, if in the power of the party, as if the corporation itself were called to prove such vote. But any party not entitled to the custody of the papers can only prove their contents, unless the corporation is the opposing party, in which case he may give notice to produce the books, and, in default, may prove the contents by secondary evidence. It has been decided that the clerk of the company cannot be compelled to produce the books on a subpæna duces tecum.6

3. It has been held that a bank depositor has the right, under proper circumstances and in a reasonable manner, to inspect the books of the bank. In practice it is not one time in ten where the record books of a corporation are ever referred to in court, unless to fix a date or the precise form of a vote upon which a power is made to depend. But the registry of shareholders may be properly regarded as the primary evidence of membership, but by no means indispensable or conclusive.8

4. Where the deed of settlement under which a corporation is registered contained a provision "that the books wherein the proceedings of the company are recorded shall be kept at the principal office of the company, and shall be open to the inspection of the shareholders," it was held that the clause gave share

5 Mayor of Lynn v. Denton, 1 T. R. 689, and cases cited.

• Utica Bank v. Hillard, 5 Cow. 419; Narragansett Bank v. Atlantic Silk Co., 3 Met. 282.

7 Union Bank v. Knapp, 3 Pick. 96.

› We refer to what we have before said upon the subject. Ante, § 18, pl. 10– 13; § 23, n. 7.

holders power only to inspect the books of minutes of proceedings of the general meetings, and not of the minutes of the proceedings of the directors.9

5. In a somewhat recent English case 10 it was held, that a party whose claim to be a shareholder is disputed by the company may, in an action brought against the company, inspect any entries in the register which relate to the matter in dispute.

6. And in a still more recent case, where one of the members of the corporation was in controversy with the company in regard to his right to act as one of the governing body, which right depended upon an inspection of the records of the company in order to determine its usages, the court granted permission to inspect the books.11 But it is here said this will not be done unless there is a suit or some proceedings pending.

7. And in the inspection of all documents, by order of the Court of Chancery, the party in whose favor the order is made has the right to have such aid in the inspection, either by counsel, interpreters, or experts, as will make the inspection available to him.12

9 Reg. v. Mariquita Mining Co., 1 El. & El. 289.

10 Foster v. The Bank of England, 8 Q. B. 689.

11 Reg. v. Saddlers' Co., 10 W. R. 87. At Chambers Crompton, J.

12 Swansea Vale Railw. Co. v. Budd, 12 Jur. N. S. 561. As to the effect of the certificate of the clerk of a corporation under its seal, see New Orleans & O. R. Co. v. Lea, 12 Louis. Ann. 388.

3. n. 2. Money to take the place of the land. 12. But this does not apply to accidental in

§ 61. 1. The English statute1 enables railway companies to purchase, by contract with the owners, "all estates or interests (in any lands) of what kind soever," if the same, or the right of way over them, be requisite for their purposes.

2. And by another section of the same statute such companies are empowered to purchase such lands of persons legally incapacitated to convey the title, under other circumstances, as guardians of infants, committees of lunatics, trustees of charitable or other uses, tenants in tail, or for life, married women, seized in their own right, or entitled to dower, executors or administrators, and all parties, entitled, for the time being, to the receipt of the rents and profits.2

1 8 & 9 Vict. ch. 18, § 6.

2 Hutton v. The London & South W. Railw., 7 Hare, 264. Some suggestions are here made by Vice-Chancellor Wigram in regard to the time within which it is requisite to make compensation in the several modes of taking lands. The principal question decided is, that in regard to lands, injuriously affected by railway works upon other lands, it is not requisite to make compensation in adBut where lands are purchased from persons under disability, the course of devolution of the property is not thereby changed, but the money paid in

vance.

* 3. The valuation in this latter class of cases is to be made by disinterested persons, and the price paid into the bank for the benefit of the parties interested.

4. And where a railway act provided, in terms, that nothing therein should authorize the company to do any damage or prejudice to the lands, estate, or property of any corporation or person whatsoever, without the consent in writing of the owner and occupier, it was held they could not pass the line of another railway without their consent, although the withholding of such consent should frustrate the purpose of the grant.3

5. In this country most of the railway charters contain a power to the company to acquire lands, by agreement with the owner. In such case it has been held the rights of the company are the same as where they take their land under their compulsory powers. And they are bound to the same care in constructing their road.4

6. And where the railway have the power to take five rods, through the whole course of their line, and a land-owner deeds them the full right to locate, construct, and repair, and forever maintain and use their road over his land, if, in laying the drains or ditches through the land, it becomes necessary to go beyond the limits of the five rods, in order to guard against the effect of a stream to be passed, the company may lawfully do so under the grant.5

compensation is to take the place of the land and to be treated as real estate. Midland Counties Railw.. v. Oswin, 3 Railw. C. 497; Ex parte Flamank, 1 Simons (N. s.) 260; In re Horner's Estate, 13 Eng. L. & Eq. 531; In re Stewart's Estate, 13 Eng. L. & Eq. 533.

3 Clarence Railw. v. Great North of England Railw., 4 Queen's Bench, 45; Gray v. The Liverpool & Bury Railw., 4 Railw. C. 235.

4 Whitcomb v. Vermont Central Railw., 25 Vt. R. 49, 69. This right to acquire lands, by contract with the owners, is, by implication, if not expressly, limited to the necessities of the company, we presume, the same as taking lands But if the owner of the in invitum, and cannot be extended to any private use.

land consent to the use, the constitutional objection is removed, and the right to hold the land is a question between the company and the public, probably. Dunn v. City of Charleston, Harper, 189; Harding v. Goodlet, 3 Yerg. 41; 11 Wend. 149; Embury v. Conner, 3 Comstock, 516.

* Babcock v. The Western Railw., 9 Met. 553. But a contract with the owner of land, for leave to build the road through his land, and staking out the track through the land, is no such occupation as will be notice of the right of