The prayers on which we have not specially commented are all decided by the views which we have expressed on the construction of the 5th section of the 23d article of the Code. We deem it unnecessary to set them out in detail, but all the prayers will be published in full by the reporter.

The instruction given by the court is in these words: "The jury are instructed that under the pleadings and evidence in this cause the plaintiff is not entitled to recover, and their verdict must be for the defendant." It has been held a great many times that an instruction in this form was erroneous, because it was too general. It presents no specific point or question. But, nevertheless, it would have been useless to reverse the judgment for this reason, if we had come to the conclusion that there was no ground on which the petitioner could obtain a judg will attend at the company's office on the following morning to inspect the books referred to, and is refused permission to inspect them on his so attending, the refusal to allow the solicitor to inspect is a refusal to allow the shareholder to inspect within the meaning of the statute. Re Credit Co. L. R. 11 Ch. Div. 256, 48 L. J. Ch N. S. 221, 27 Week. Rep. 380.

So, the complaint in an action by a stock holder against an officer of a corporation having the custody of its books for the recovery of the penalty for refusing to permit their inspection under Vt. Gen. Stat. chap. 86, §§ 7, 8, 13, is fatally defective where it does not allege a request to exhibit the books and records of the corporation at its office. Lewis v. Brainerd, 53

Vt. 510.

And a complaint in an action by a stockholder against a corporation for the penalty imposed upon a company failing to keep the books and make the entries required, and to exhibit the same for the inspection of stockholders. creditors, etc., is defective where it does not aver that the officer of whom the demand for inspection was made had notice that the person demanding it was a stockholder. Williams v. College Corner & R. G. R. Co. 45 Ind. 170.

But that a relator in a petition for mandamus to enforce the right of a stockholder to inspect the books of a corporation had fruitlessly applied at the office of the company in the state to see its books, and met with reply that an inspection would be permitted at an office in another state, and an allegation that large sums of money had been lost by mismanagement of the corporation affairs, is a sufficient showing by the relator of personal injury to himself, resulting from the keeping of the books in another state, to justify mandamus to compel the keep ing of the books in the principal office in the state under the Illinois statute. Crown Coal Tow Co. v. Thomas, 60 Ill. App. 234. And a complaint in an action by a stockholder to recover a penalty from the general manager of a domestic corporation for refusing an inspection of the company's books as required by N. Y. Laws 1890, chap. 564, § 29, alleging that the plaintiff, by his duly authorized representative, requested the defendant to exhibit to him the books of said company, which request was refused, is sufficiently broad to permit of proof that a demand was made to have the books exhibited to the plaintiff in person, although the same may have been made through his representative, and therefore the scope of the term "personal representative" as used in the

ment on a second trial. In Newbold v. J. M. Bradstreet & Son, 57 Md. 38, 40 Am. Rep. 426, the trial court had granted an instruction in terms identical with the one given in this case. The instruction is found in the opinion of this court on page 49. On page 55 the court speaks as follows: "The instruction given by the court at the instanceof the defendant was defective, inasmuch as it left the matter uncertain whether the defect or failure of the plaintiffs' case was to be found in the pleadings or in the evidence. There was no case, however, for the jury, and the instruction should have been that, upon the pleadings in the cause, there was no sufficient evidence of any special damage to entitle the plaintiffs to recover." The judgment was affirmed.

Reversed, and new trial.

statute need not be passed upon. Levy v. Cohen, 45 N. Y. S. R. 278.

In the above case People, McDonald, T. United States Report. Co. 20 Abb. N. C. 193, supra, was distinguished upon the ground that that case merely held that a demand made by the attorney of record in an action by a stockholder for an inspection by him (the attorney), in the absence of any specific authorization to make the demand, was insufficient, as a basis for an application for a mandamus.

To incur the penalty provided for by Vt. Gen. Stat. chap. 86, § 8, for the refusal of the custodian of corporate books to permit their inspection by a stockholder, there must have been a wilful neglect or refusal to exhibit and show the records or by-laws of the corporation. Lewis v. Brainerd, 53 Vt. 510.

And a corporation and the officer in charge of its office is not subject to the penalty prescribed by the New York statute for failure to keep a stock-book for the inspection of stockholders at its office or principal place of business, where application for inspection was made by a stockholder on Saturday and he was requested to wait until the morning of the next business day to see the bock, on the ground that the person who had them in charge and had the key and combination of the safe in which they were Pfaudler Process Fermentation Co. 41 Hun, 20. locked was temporarily absent. Kelsey V.

chap. 40, § 25, for violation of the provision. But the penalty imposed by N. Y. Laws 1848, thereof that certain books shall be kept at the office of the company during the usual business. hours of the day, on every day except Sunday and the Fourth of July, and shall be open to the inspection of the stockholders, is incurred where a stockholder went with his attorney to the office of the company on Saturday and demanded permission to examine the stock-book and record book, and was informed that the books were in the safe and that the secretary who had the combination was out of town and the books could not be shown until his return on the Monday following, where it appears that nearly two months before such person ceased to be secretary and another succeeded him in safe and charge of the books of the company, that position who had the combination of the and was then within reach and might have permitted the inspection demanded. Kelsey V. Praudler Process Fermentation Co. 20 N. Y. S. R. 533.

So, an officer of a corporation having charge of its stock-books, who refuses to permit a stockholder to take a copy or memorandum of the names of stockholders therefrom, subjects

2.

3.

(159 N. Y. 250.)

The right to a peremptory writ of mandamus depends upon the conceded facts, the same as if the relator had demurred to the allegations of the defendant, when he proceeds to argument upon his petition and the opposing affidavits without the issuance of any alternative writ.

A stockholder has the right at common law to inspect the books of his corporation at a proper time and place and for a proper purpose.

The writ of mandamus to enforce the right of a shareholder to inspect the books of his corporation may issue himself of the penalty imposed for refusal to permit inspection of stock-books by N. Y. Rev. Stat. pt. 1, title 4, chap, 18, though he submits the books to the inspection of the stockholder. Cotheal v. Brouwer, 5 N. Y. 562.

But a demand by a stockholder of a foreign corporation for the right to inspect the stockbook of the company, and not the transfer book, does not bring him within the provisions of N. Y. Laws 1842, chap. 165, making it the duty of a transfer agent in the state of any monied or other corporation existing beyond the jurisdiction to exhibit at all reasonable times during the usual business hours to any stockholder of such corporation, when required by him, the transfer book thereof and a list of the stockholders. Kennedy v. Chicago, R. I. & P. R. Co. 14 Abb. N. C. 326.

So, in King v. Trustees of Northleach & Witney Roads, 5 Barn. & Ad. 978, it was doubted, though not decided, whether it is sufficient to show that a party entitled to inspect corporate books demanded liberty to do so, and that his claim was disputed, but inspection offered him as a favor, and that he refused to accept it otherwise than as a right.

APPEAL by respondent from an order of the Appellate Division of the Supreme Court, First Department, reversing an order of a Special Term for New York County denying petitioner's motion for a writ of present or prospective, and is not sought from idle curiosity or for any improper or unlawful purpose. Foster v. White, 86 Ala. 467, dictum.

And a shareholder in a corporation with a laudable object to accomplish, or a real and actual interest upon which to predicate his request for information disclosed by the books of a bank, is entitled by the fundamental law of the state to the right to inspect them. State, Burke. v. Citizens' Bank, 51 La. Ann. 426.

At common law, however, the right of a stockholder to inspect the books of a corporation is not so absolute that mandamus will issue without regard to facts and circumstances. The reasonableness of the request should be considered. A refusal is justifiable where curiosity is the motive or where the object is manifestly in opposition to the interests of the company. Legendre v. New Orleans Brewing Asso. 45 La. Ann. 669; Stone v. Kellogg. 165 Ill. 192; People, Bishop, v. Walker, 9 Mich. 328.

And a shareholder applying for a mandamus to enforce his right to inspect the books of a corporation should show that when he demanded the inspection he stated the object for which he wanted it. King v. Proprietors of Wilts & B. Canal Navigation, 3 Ad. & El. 477, L. T. N. S. 922.

While the books of a corporation are evidence of the acts and proceedings of the body, and with respect to the corporators are public, and each individual has the right to inspect them and use them as evidence of his rights, a mandamus will not be issued to compel the keeper of such books to allow an inspection or the taking of copies unless a clear right is shown and some just or useful purpose is to be effected. Hatch v. City Bank, 1 Rob. (La.) 470.

And even under the statutes it has been fre quently held that there can be no inspection from mere idle curiosity or for improper or unlawful purposes. See Foster v. White, 86 Ala. 467; Ellsworth v. Dorwart, 95 Iowa, 108; Stone v. Kellogg, 165 Ill. 192, supra, III. b; Com. v. Empire Pass. R. Co. 134 Pa. 237, supra, III. d; Phoenix Iron Co. v. Com., Sellers, 113 Pa. 563, and King v. Merchant Tailors' Co. 2 Barn. & Ad. 115,-supra, VII.

But a stockholder in a bank need not state

a. Generally.

Ordinarily a mandamus will be awarded whenever an inspection by a stockholder of the books of a corporation is necessary for any reason to protect the interests of the stockholders

Missouri statute to secure the right to examine the corporation books, the purposes for which he seeks to exercise the right of inspection. State. Doyle, v. Laughlin, 53 Mo. App. 542.

Under that statute (Rev. Stat. § 720), giving the relator a right to the inspection of books

mandamus to compel the officers of the defendant corporation to permit petitioner to inspect the books and records of the corporation. Affirmed.

The facts are stated in the opinion. Messrs. Edward C. James and George W. Cotterill, for appellant:

The allegations of the petition having been fully met and denied by the answering affidavits, and a peremptory writ having been insisted upon (which was denied by the special term, but granted by the appellate division, 31 App. Div. 70), the law of mandamus holds that the answering affidavits must be taken as true and conclusive, and they therefore constitute a bar to this proceeding. People, Lefever, v. Ulster County Supers. 34 N. Y. 268; People v. Rome, W. & O. R. Co. of a corporation of which he is a stockholder, the motive which may prompt him in demanding his right is not a proper subject for judicial investigation. State. Wilson, v. St. Louis & S. F. R. Co. 29 Mo. App. 301.

And under the Missouri statute concerning business corporations, § 932, providing that each stockholder may at all proper times have access to the books of the company to examine the same under such regulations as may be prescribed by the by-laws. it is not incumbent upon a relator to disclose the purpose for which he seeks to exercise the right to inspect, and the fact that the information sought might be used for improper purposes is immaterial. State, Spinney, v. Sportman's Park & Club Asso. 29 Mo. App. 326.

And the purpose for which a stockholder acquired stock in a corporation is immaterial in a proceeding brought by him for the inspection of the books of the company, where his legal ownership is admitted, and evidence to the effect that he was a mere accountant and not a bona fide transferee, is inadmissible. Ibid.

So, the Alabama statutes secure to the stockholder the general right to examine the books of a corporation at any and all reasonable times, and when his right is claimed and refused he is entitled to a mandamus on the averment that he is a stockholder of the corporation, that he has demanded the right of inspection, that the time was reasonable and proper, and that the right was denied him. Foster v. White, 86 Ala. 467, dictum.

And a shareholder in a corporation wishing to inspect its books is not required, under the Alabama statute, to show any reason or occasion rendering an examination opportune and proper, or a definite or legitimate purpose. custodian of the books and papers cannot question or inquire into his motives and purpose. Ibid.

The

And the right of a stockholder to examine the books of a corporation under the Illinois act providing that every stockholder in a corporation shall have the right at all reasonable times, by himself or by his attorney, to examine the records or books of account of the corporation, is absolute, and the motive for desiring such examination cannot be inquired into. Rodger Ballast Car Co. v. Perrin (Ill.) 17 Nat. Corp. Rep. 819.

So, in New York the method prompting the request for an inspection of the stock-book of a corporation is immaterial in a proceeding by mandamus to compel the secretary of the corporation to produce the stock-book for inspection. People, Gunst, v. Goldstein, 37 App. Div. 550.

And under N. Y. Laws 1848, chap. 40, § 45,

103 N. Y. 95; Commercial Bank v. New York Canal Comrs. 10 Wend. 25; People, Mott, v.. Greene County Supers. 64 N. Y. 600; 14 Am. & Eng. Enc. Law, pp. 213, 214; People, Mygatt, v. Chenango County Supers. 11 N. Y. 563; People, Lynch, v. New York, 25 Wend. 680; People, Yates, v. New York Canal Board, 13 Barb. 432; People, Perry, v. Thompson, 25 Barb. 73; Haebler v. New York Produce Exchange, 149 N. Y. 418.

A peremptory writ of mandamus is only authorized in the first instance, where the applicant's right to a mandamus depends only upon questions of law.

People v. Rome, W. & O. R. Co. 103 N. Y. 95; People, Kelsey, v. New York Post-Graduate Medical School & Hospital, 29 App. Div. 249; People, Peck, v. Salina Town Board, 27 providing that the transfer books of a corporation shall during the usual business hours of a day, on every day except Sunday and the Fourth of July, be open for the inspection of stockholders and creditors and their personal representative at the office or principal place of business of such company in the county where its business operations shall be located, stockholders, creditors, and their personal representative have an absolute right during the usual business hours of every day except Sunday and the Fourth of July, to inspect the stock-books, and where a stockholder applies in person to inspect the stock-book, and such application is refused, the court has no discretion in the matter, and upon proper papers a writ of mandamus requiring the officers to allow him to inspect the books will be granted as a matter of absolute right. People, McDonald, v. United States Mercantile Reporting Co. 20 Abb. N. C. 192.

And under N. Y. Laws 1842, chap. 165, providing that the transfer agent in this state of any monied or other corporation existing beyond the jurisdiction shall at all reasonable times during the usual hours of transacting business exhibit to any stockholder of such foreign corporation when required by him the transfer books thereof and also a list of the stockholders, the duty is absolute, and the transfer agent has no right to inquire into the motives and purposes of a stockholder in requiring it. People, Harriman, v. Paton, 20 Abb. N. C. 195.

It would seem, however, even under such statutes, at least in Alabama and Illinois, that the purpose must be a lawful one. See holding in Foster v. White, 86 Ala. 467, and Stone v. Kellogg, 165 Ill. 192, supra, II. b.

And in New York the former rule, that the statutory right of inspection is absolute, and that the motive with which it is sought is immaterial, seems to have been somewhat modifled.

Thus, in Re Crosby, 28 Misc. 300, it was held that the purpose with which a mandamus to enforce the right of a stockholder to inspect the books of his corporation is sought, will not be closely scrutinized by the court unless it is very reprehensible.

And in Re Pierson, 28 Misc. 726, it was held that a writ of mandamus is an extraordinary remedy to be invoked only upon special occasions, and the courts will not grant it in a proceeding to enforce the right of a stockholder to inspect the books of a corporation until they have taken into careful consideration all the facts and circumstances of the case, and condition and character of the books, the reasons for refusal by the corporation, the specific purpose of the stockholder in demanding inspection, and

And that stockholders had been misled by designing persons into making an application for an inspection of the books of the corporation, is no answer or defense to such application. Re Birmingham Bkg. Co. 36 L. J. Ch. N. S. 150, 15 L. T. N. S. 203.

Under statutes conferring the right upon the stockholder without qualification, however, the rule is different. In such case the doctrine of the principal case applies.

Thus, it is not a sufficient answer to a petition for a mandamus to enforce the right of a stockholder to inspect the books of a corporation to impugn the motives of the petitioner, and state that the object and purpose were to injure the corporation, where allegations in the petition that the purpose of the petitioner was to seek such relief as the law might afford to protect his Interests in the company were admitted by demurrer. Stone v. Kellogg, 165 Ill. 192.

The allegations of a relator in a proceeding to obtain a mandamus setting forth just and prop er reasons for his desire as stockholder to examine the records and accounts of his company is not one upon which an issue of fact can be raised by answers imputing to him base and unworthy motives. Stone v. Kellogg, 62 Ill. App. 444, Affirmed in 165 Ill. 192.

In the above case Com., Sellers, v. Phoenix Iron Co. 105 l'a. 111, 51 Am. Rep. 184; and Com. v. Empire Pass. R. Co. 134 Pa. 237, infra, VI. c. were disapproved so far as they supported the doctrine that a suspicious stockholder is not entitled to mandamus to permit him to examine the books of the corporation.

So, a reason or purpose on the part of a stockholder for inspecting the records of the corporation need not be alleged or proved in an action for the recovery of the penalty imposed up. on the custodian of corporate records for refusal to permit an inspection by a stockholder, provided for by Vt. Gen. Stat. chap. 86. §§ 7, 8, 13, as a lawful reason or purpose for examining them will be presumed in the absence of proof to the contrary. Lewis v. Brainerd, 53 Vt. 510. And a corporation must look to the register of stockholders for the purpose of the liabilities imposed upon them, and the fact that a stockholder bought his stock nominally in his own interest, but has really taken it in the interest of some other person, presents no defense to a demand by him for the right to inspect the books of the company under the companies clauses act of 1863, § 28: Mutter v. Eastern & M. R. Co. L. R. 38 Ch. Div. 92, 36 Week. Rep. 401, 57 L. J. Ch. N. S. 615, 59 L. T. N. S. 117.

And that a stockholder in a stock company 45 L. R. A.

pany and for the purpose of serving the interests of the rival company does not, under the companies clauses act of 1863, § 28, deprive him of the right to inspect the books of the company. Ibid.

So, under companies clauses act 1845, §§ 45, 63, and the companies clauses act of 1863, § 28. providing that the books of a stock company shall be accessible to him without any other qualification than at all reasonable times, the right of inspection may be exercised without assigning any reason for requiring or desiring in. spection. Holland v. Dickson, L. R. 37 Ch. Div. 669, 57 L. J. Ch. N. S. 502, 58 L. T. N. S. 845, 36 Week. Rep. 320.

In the above case King v. Proprietors of Wilts & B. Canal Navigation, 29 L. T. N. S. 922, 3 Ad. & El. 477, infra, was distinguished upon the ground that there the question was one of fact whether or not there had been a refusal, and it was decided that there had been none.

So, the board of directors of a bank has no right to pass a resolution excluding one who was a member of the board and a stockholder of the bank from an inspection of its books, al though the members believed him to be hostile to the interests of the institution. People, Muir, v. Throop, 12 Wend. 183.

And that a director of a corporation is suspicious that its affairs are not properly or judiciously managed furnishes no ground for the denial of his right to examine its records and books of account. Stone v. Kellogg, 62 Ill. App. 444, Affirmed in 165 Ill. 192.

And that the object of a demand by a stockholder for inspection of the books of the corporation is to obtain material to be used in convincing other stockholders that a proposed plan of reorganization which meets the approval of a majority of the stockholders is one that should not be carried out. is not a sufficient answer to an application for an order directing such inspection. Chable v. Nicaragua Canal Constr. Co. 59 Fed. Rep. 846.

So, the fact that a stockholder in a corporation did not feel kindly toward the president, and had commenced suits against him, does not warrant a denial of his right to inspect the books of the company. Ellsworth v. Dorwart, 95 Iowa, 108.

And that the secretary of a corporation permitted an inspection of books of the corporation other than the stock-book, and that he furnished the relator with an accurate statement of the condition of the company, and that the relator stopped the proper delivery of the company's mail, and collected the company's money without turning it over, are no defense to a proceeding by mandamus to compel the secre