84 that the writ may be directed to the corporation itself, being then in effect a command to the corporate officers.85 If such officers fail to comply with the writ, or if they prevent compliance, they, no less than the corporation itself, are guilty of disobedience and may be punished for contempt.86 A subpoena cannot be resisted on the ground that there is an unreasonable search and seizure,87 or because the witness is not informed of the witnesses who will appear before the grand jury.88 The removal of records knowing that they will be called for and required by the grand jury, and for the purpose of obstructing investigation by such jury, constitutes the offense of obstructing justice.89, Under a statute providing for the taking of depositions, a witness may be required to produce corporate books and records in his custody, or under his control.90 A corporation is not relieved from producing books when they contain matters material to an issue, merely because they are private.91 In one case, it was contended that the books contained "trade secrets" and consequently need not be produced. But the quoted term was held not to denote the mere privacy with which ordinary com todian and he has no privilege with respect to the corporation books it is his duty to obey the writ. Dreier v. United States, 221 U. S. 394, 55 L. Ed. 784. 84 Wilson v. United States, 221 U. S. 361, Ann. Cas. 1912 D 558, 55 L. Ed. 771. 85 Wilson v. United States, 221 U. S. 361, Ann. Cas. 1912 D. 558, 55 L. Ed. 771. 86 Wilson v. United States, 221 U. S. 361, Ann. Cas. 1912 D 558, 55 L. Ed. 771. 87 Under U. S. Rev. St. § 877 as to subpœnaing witnesses, where a subpœna to a corporation calls for the production of books, the process is not invalid under Constitution, Amend. IV, since there is no unreasonable search and seizure when a proper writ calls for the production of documents which the party procuring its issuance is entitled to have produced. Wilson v. United States, 221 U. S. 361, Ann. Cas. 1912 D 558, 55 L. Ed. 771. 88 Under U. S. Rev. St. § 877, as to subpœnaing witnesses, it cannot be contended that a defendant in the prosecution which follows an indictment by the grand jury would not be apprised of the name of the precise witness appearing against him, in violation of Rev. St. § 829, and Constitution, Amend. VI, since such contention ignores fact that writ calls for books and not for oral testimony, and since neither Constitution nor the statute accords the right to be apprised of names of witnesses who appear before the grand jury. Wilson v. United States, 221 U. S. 361, Ann. Cas. 1912 D 558, 55 L. Ed. 771. 89 Com. v. Southern Exp. Co., 160 Ky. 1, L. R. A. 1915 B 913, Ann. Cas. 1916 A 378, 169 S. W. 517. 90 Rem. & Bal. Code, §§ 1236, 1237. In re Bolster, 59 Wash. 655, 29 L. R. A. (N. S.) 716, 110 Pac. 547. 91 In re Bolster, 59 Wash. 655, 29 L. R. A. (N. S.) 716, 110 Pac. 547. mercial business is carried on, and consequently the books were required to be produced.92 § 2806. Delivery of books and records to receiver. When so ordered, it is the duty of an officer of an insolvent corporation to turn over to the receiver appointed the books, records and papers of the corporation. Any constitutional privilege against self-incrimination which might be accorded a witness who has been called upon to produce in court, to be used in evidence, the books of a corporation of which he is an officer 93 cannot be invoked by an officer of an insolvent corporation as ground for refusal to comply with an order of court requiring him to turn over the books and records to a receiver appointed by the court. "If an officer of a corporation could by claiming that the books, etc., of the corporation in his possession contained evidence of his criminal misconduct in the management of the affairs of the corporation, prevent the receiver of the corporation from obtaining the possession of the books, etc., of the corporation which were necessary for him to have in order to properly administer the affairs of the corporation and close up its business under the direction of the court, such officer would have the power, in effect, to deprive a court of equity of jurisdiction to close up the affairs of an insolvent corporation by declining to deliver possession of the books, etc., of the corporation to the receiver appointed by the court." 94 Even though it should be conceded that an officer of an insolvent corporation who has been ordered to turn over the corporation's books and records to a receiver can claim the privilege of a witness, the bare statement of the officer in answer to such an order by a state court that the matters in such books and records are a part of the matters charged in an indictment found against him in a United States court and would tend to incriminate him in the prosecution is not sufficient to excuse him from obeying the order to turn over the books, but the answer "should place the matter in such shape that the court can intelligently determine the question from an examination of the averments of the answer, or, if necessary, from an inspection of the books." And it was further held that the answer should have pointed out which of the books and records contained incriminating matter and should have offered to turn over those of them which did not contain such matter.95 92 In re Bolster, 59 Wash. 655, 29 L. R. A. (N. S.) 716, 110 Pac. 547. 93 See § 2805, supra. 94 Manning v. Mercantile Securities Co., 242 Ill. 584, 30 L. R. A. (N. S.) 725, 90 N. E. 238, aff'd 217 U. S. 597, 54 L. Ed. 896 (mem. dec.). 95 Manning v. Mercantile Securities § 2807. Proceedings to compel delivery of books and records by officer. When a retiring officer refuses to deliver books and papers belonging to the corporation, the proper remedy to compel such delivery is by mandamus.96 The remedy by replevin is inadequate.97 In a suit to compel the production of the books, it has been held no defense that the books are not in the officer's possession or that they have been turned over to a stranger.98 Where books are necessary for an accounting, there being other litigation between the parties, it has been held proper to order delivery to a county clerk who can arrange for inspection and access by the relator and other parties.99 § 2808. False entries in books. A statute prohibiting the making of false entries in books of account or other records or documents, applies to minute books and covers any record or document required to be kept by a corporation.1 Under a statute as to forgery it has been held that a book or record is falsified only when by some alteration therein it is made to speak differently from what it did previously, or given a different aspect in some material aspect with a fraudulent and corrupt intent. Every change made, although in a sense a falsification, is not necessarily a forgery.2 Co., 242 Ill. 584, 30 L. R. A. (N. S.) 725, 90 N. E. 238, aff'd 217 U. S. 597, 54 L. Ed. 896 (mem. dec.). 96 People v. Powers, 145 N. Y. App. Div. 693, 130 N. Y. Supp. 529; Beard v. Beard, 66 Ore. 512, 134 Pac. 1196, 133 Pac. 797. 97 Beard v. Beard, 66 Ore. 512, 134 Pac. 1196, 133 Pac. 797. 98 People v. Powers, 145 N. Y. App. Div. 693, 130 N. Y. Supp. 529. 99 People v. Powers, 145 N. Y. App. Div. 693, 130 N. Y. Supp. 529. 1 Ex parte McKenney, 10 Cal. App. 357, 101 Pac. 927. 2 Spilker v. Abrahams, 133 N. Y. App. Div. 226, 117 N. Y. Supp. 376. Where the treasurer of a corporation agreed to an increase of capital stock and accepted a certificate, but later, being advised that the increase was illegal, returned the new certificate and took the old certificate from the tock book although the old certificate had been marked "canceled," which acts resulted in his being prosecuted for forgery, it was held in a suit for malicious prosecution that the question whether defendant had probable cause for prosecuting him was for the jury. Spilker v. Abrahams, 133 N. Y. App. Div. 226, 117 N. Y. Supp. 376. CHAPTER 45 INSPECTION OF CORPORATE BOOKS AND RECORDS § 2809. In general. I. SOURCES OF RIGHT OF INSPECTION § 2810. Right at common law. § 2811. Constitutional and statutory provisions-In general. § 2812. - Extent of stockholder's interest. § 2813. By-laws providing for inspection. II. PURPOSES FOR WHICH ALLOWED § 2814. In general. § 2815. Effect of statutes as to inspection. § 2816. Effect of by-law provisions. § 2817. Relation between inspection and interest of stockholder. § 2818. Investigation of corporate affairs-In general. § 2819. - For purpose of suit by stockholder. § 2820. Ascertainment of value of stock. § 2823. Statement of purpose. I. SOURCES OF RIGHT OF INSPECTION § 2809. In general. While, as has been seen heretofore, the corporation and the stockholders are separate and distinct legal entities and the title to the corporate property is vested in the corporation and not in the stockholder,1 nevertheless, the right of inspection of the corporation's books and records rests upon the ownership by stockholders of the corporation's assets and property, whether this interest be termed an equitable ownership,3 a beneficial interest or a quasi ownership, as the records of a corporation are not public records, and 1 See § 25, supra, and see generally §§ 22-52, and State v. Whited & Wheless, 104 La. 125, 28 So. 922. 2 Klotz v. Pan-American Match Co., 221 Mass. 38, 108 N. E. 764; Kuhbach v. Irving Cut Glass Co., 220 Pa. 427, 28 L. R. A. (N. S.) 185, 69 Atl. 981. The property of a corporation, although subject in some conditions to rights of creditors is in the last analysis that of the stockholders, and when one seeks inspection of books, records or property, he is in reality but seeking an inspection of his own. Cincinnati Volksblatt Co. V. Hoff 4 6 meister, 62 Ohio St. 189, 48 L. R. A. 732, 78 Am. St. Rep. 707, 56 N. E. 1033. A stockholder in a mining company is entitled to inspect the property of the corporation. Hobbs v. Davis, 168 Cal. 556, 143 Pac. 733. 3 Varney v. Baker, 194 Mass. 239, 10 Ann. Cas. 989, 80 N. E. 524. 4 Clawson v. Clayton, 33 Utah 266, 93 Pac. 729. 5 State v. Whited & Wheless, 104 La. 125, 28 So. 922. 6 See 2782 ante, and Lipscomb's Adm'r v. Condon, 56 W. Va. 416, 67 |