it be as to the contention that the certificate of the notary public, being a judicial act, is conclusive of Fanny M. Smith's acknowledgment of the deed in this proceeding, in which the appellant is to be regarded as a bona fide purchaser, without notice of any fraud practiced upon the alleged grantor in the deed to the mortgagor. Mrs. Smith never appeared before the no ment of the verbal promise made by Skin- | nothing can be here profitably added, unless ner on the day he received the money. This would practically mean ratification after the act, and no principle of equity can be found which holds that one may by construction of law be held to have ratified an action of which he was in absolute ignorance. That it would operate as a ratification of a forged deed is still more offensive to all equitable principles. "As to the alleged acknowledgment which | tary public, and the case is not one of the was placed upon this forged deed, it is unnecessary to further discuss it other than to make reference to the case of Reineman v. Moon, 12 Pittsburg Legal Journal (N. S.) 167, which rules that: 'No man can be deprived of his property by a forged deed, and against such a defense the magistrate's certificate of acknowledgment is not conclusive, no matter what may be the bona fides of the holder.' "We entirely agree with the conclusion of the chancellor in this case that there never was a real delivery of the so-called deed. Mrs. Markland, the grantee named in the deed, never authorized Skinner to accept de livery for her, and, in point of fact, she did not even know that such a deed was in existence at the time of the acknowledgment and recording thereof, which are depended upon in this case to show delivery. The facts simply show a forged paper made up by a swindler, who, without authority from the grantor and without the knowledge of the person whose name is used as grantee, secured an illicit certificate of acknowledgment by deceit practiced on a notary and placed the paper on record. "After giving the contentions of the exceptants a most careful consideration, we are not convinced of any error in the adjudication of the chancellor." Argued before MITCHELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. conclusiveness of the truth of the certificate of a notary public of what had been acknowledged before him by a grantor in a deed, who had actually appeared before him for the purpose of acknowledging the execution of it. This deed was a forgery, and the certificate of acknowledgment, fraudulently procured by the forger's inducing some one to appear before the notary public to personate Mrs. Smith, is as false as the deed itself. The certificate, deceitfully procured from the notary, was but the culmination of Skinner's forgery, making it possible for him to have the forged deed recorded. No one of the cases cited by the counsel for appellant approaches the limit to which it was attempted to lead the court below. The distinction, apparently overlooked between those cases and this one, is that here there was no appearance by the alleged grantor before the notary public, and no acknowledgment at all by her. A decree of a court resulting from the fraud practiced upon Mrs. Smith would be a dead letter upon the exposure of it. "In the eye of the law, fraud spoils everything it touches. The broad seal of the commonwealth is crumbled into dust, as against the interest designed to be defrauded. Every transaction of life between individuals, in which it mingles, is corrupted by its contagion. Why, then, should it find shelter in the decrees of courts? There is the last place on earth where it ought to find refuge. But it is not protected by recWhenever and Lewis Lawrence Smith, for appellants. John Weaver and S. E. Megargee, for ap-ord, judgment, or decree. pellees. BROWN, J. The inevitable finding in this case was that the deed from Fanny M. Smith, executrix and widow, to Mary Markland, was a forgery. How it was perpetrated by Skinner, and how, in his ingeniously fraudulent scheme to deceive a number of persons, he succeeded in imposing upon the appellant the West End Trust Company the worthless mortgage of the grantee named in the forged deed, clearly appear in the finding of facts, each one of which was based upon competent evidence. As a result of these findings the court below correctly concluded that the appellees were entitled to the relief granted. The reasons for this conclusion are set out at length in an exhaustive and well-considered opinion by the learned wherever it is detected, its disguises fall from around it, and the lurking spirit of mischief, as if touched by the spear of Ithuriel, stands exposed to the rebuke and condemnation of the law." Mitchell v. Kintzer, 5 Pa. 216, 47 Am. Dec. 408. The certificate of the notary in this case, procured by fraud, is nothing but cumulative evidence of the attempt of Skinner to steal Mrs. Smith's property, and the doctrine of the rights of a bona fide purchaser has no place in the controversy. There are no such rights when the real owner of property stolen, or attempted to be stolen, from him, has done nothing to lead the purchaser of it to buy it under the belief that it was not stolen. Reliance on a forged deed, recorded on an absolutely false certificate of acknowledgment, may bring loss upon him who so relies; but pended to it can ever affect the owner of the property. This is the rule that the learned court below should have unhesitatingly announced. In Michener and Wife v. Cavender, 38 Pa. 334, 80 Am. Dec. 486, the action was a sci. fa. sur mortgage given by Eveline E. Michener and her husband on her separate estate to Cavender, the plaintiff below. The mortgage had appended to it the certificate of an alderman that Eveline E. Michener had appeared before him and acknowledged the execution of the mortgage, as required by Act Feb. 24, 1770 (1 Smith's Laws, P. 307). On the trial it was clearly established that she had not appeared at all before the alderman, but the court below held that the certificate of that officer was conclusive, in the absence of evidence that the mortgagee had knowledge that it was false. In reversing the judgment against the mortgagors, and in holding that there could be no recovery upon the mortgage, this court said: "To call the mortgagee a bona fide purchaser, and to put her to proof that he knew she had been cheated, would be like making her right to reclaim stolen goods dependent on the receiver's knowledge of the felony. Suppose the mortgage was a forgery out and out, and Cavender chose to invest his money in a purchase of it, must it be enforced because he did not know he was buying a forged instrument? An instrument known to be forged would not be purchased, and would therefore be worthless to the forger. Counterfeit notes would never be issued if a herald went before to proclaim their spuriousness; but, because they are taken with out notice, do they become genuine? Is every bank and individual to redeem whatever obligations bona fide holders may obtain against them, without regard to the question whether the obligation was ever issued or not? To carry the doctrine of notice to such extent would subvert all law and justice." In a later case (Reineman v. Moon, 12 Pitts. L. J. [N. S.] 167) the defense in a sci. fa. upon a mortgage was that it was a forgery. The court below refused plaintiff's point that: "Plaintiff appearing to be a bona fide holder for value, without notice of any fraud, the magistrate's certificate of acknowledgment is conclusive, and the verdict should be for the plaintiff." The refusal of the point was held to be correct, and we said: "No man can be deprived of his property by a forged deed or mortgage, no matter what may be the bona fides of the party who claims under it." In the very nature of things there can be no other rule. No one of the 24 assignments can be sustained as pointing out any error calling for reversal, and, on the opinion of the court below, as we have briefly supplemented it, the decree is affirmed, at appellant's cost. Decree affirmed. (223 Pa. 631) SCHWOERDFEGER v. KELLY et ux. (Supreme Court of Pennsylvania. March 8, 1909.) SPECIFIC PERFORMANCE (§ 21*)—SPECIFIC PERFORMANCE AGAINST WIFE. A married woman will not be compelled to specifically perform a contract of her husband for the sale of his real estate, which she did not sign, though she was present when a portion of the purchase money was paid to her husband with her apparent approval. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. § 49; Dec. Dig. § 21.*] Appeal from Court of Common Pleas, Philadelphia County. Bill by Charles Schwoerdfeger against John J. Kelly and Catherine Kelly. From a decree dismissing the bill, plaintiff appeals. Affirmed. Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. George W. Harkins, Jr., and George W. Harkins, for appellant. Allen M. Stearne, for appellees. PER CURIAM. The bill in this case was for the specific performance by a husband and wife of a contract for the sale of real estate of the former. It is averred in the bill that the husband agreed in writing to sell a house for $4,500, of which amount $10 was to be paid when the agreement was signed; that at his request the payment was deferred until he could inform his wife of his agreement; that 11 days later, after he had informed her of the agreement, $10 on account of the purchase money "was paid to and received by him at his residence in this city in the presence of his said wife and with her assent and approval"; that subsequently the purchaser gave the tenant in possession of the house a valuable consideration to remove therefrom, and went into possession thereof with the knowledge and assent of the husband. Separate demurrers filed were sustained, but that of the husband with leave to the plaintiff to amend by stating his willingness to accept a deed without joinder of the wife. It is unnecessary to consider the effect of recent legislation in enlarging the powers of a married woman in contracting for the sale of her real estate, or the decisions fixing her liability under such contracts. We do not find that the proof of the averments in the bill would establish any contract by the wife. She was not asked to join in the written agreement, and she made no agreement, written or verbal, to release her contingent right of dower. Even if an agreement could be inferred from her "assent and approval" when $10 was paid her husband, it was an agreement within the statute of frauds, and could not be enforced by a decree for specific performance. The decree of the court below is affirmed, at the cost of the appellant. (7 Pen. 397) STATE ex rel. LINDSAY v. JESSUP & MOORE PAPER CO. STATE ex rel. BRUMLEY v. SAME. (Supreme Court of Delaware. June 4, 1909.) 1. CORPORATIONS (8 181*) INSPECTION OF CORPORATE BOOKS-PRODUCTION FROM ANOTHER STATE. Ispondent to the alternative writ of mandamus in each case, upon the ground that the return is uncertain, argumentative, ambiguous, evasive, inconsistent, immaterial, and insufficient. The court has heretofore passed upon the sufficiency of the case of each relator, upon the facts of the petition, to adequate relief, and has awarded in each case an alternative writ of mandamus. The return of the respondent to each writ was filed January 16, 1909. The question for us to decide in each case is whether, upon the face of the return, the condition of the relator and the respondBY-ent is so changed as to prevent or delay the issue of the peremptory writ. The fact that corporate books are in another state is no defense to an alternative writ of mandamus to produce such books for inspection by a stockholder. [Ed. Note. For other cases, see Corporations, Cent. Dig. 679; Dec. Dig. § 181.*] 2. CORPORATIONS (§ 181*)-VALIDITY OF LAWS-INSPECTION OF BOOKS. A corporate by-law, vesting in the directors the discretion of denying a stockholder the right to examine the corporate books and making their decision final, is unreasonable and unlawful. [Ed. Note.-For other cases, see Corporations, Dec. Dig. § 181.*] 3. MANDAMUS (§ 154*)-ACCESS TO CORPORATE BOOKS-SUFFICIENCY OF COMPLAINT. In proceedings by a corporate stockholder for leave to examine the corporate books, an allegation that there was an issue of preferred stock in excess of the amount stated on the face of complainant's certificate, and that he had no knowledge of such excess issue when he took the stock, is immaterial, without showing that his action with respect to the stock would have been different if he had possessed such knowledge. [Ed. Note. For other cases, see Mandamus, Dec. Dig. § 154.*] 4. MANDAMUS (§ 164*)-MOTION TO QUASH— EFFECT OF RETURN. On a motion to quash the return to an alternative writ of mandamus, the return must be accepted as true. INSPECTION OF [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 355; Dec. Dig. § 164.*] 5. CORPORATIONS (§ 181*) CORPORATE BOOKS. Corporate books and papers should not be subject to unnecessary, unreasonable, or untimely inspection, and when a stockholder demands the right to inspect the same the directors are entitled to have the assurance that the information sought is not for the purpose of injuring the corporate business, or building up a rival or competitive concern, or any other improper purpose. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 674-685; Dec. Dig. § 181.*] The motion to quash is founded upon the proposition that, conceding the truth of every material allegation properly pleaded in the return of the respondent, as a matter of law no sufficient defense has been shown. The relator, David Lindsay, in the first case, claims that he is the owner of 1,300 shares of the common stock of the respondent company, of the par value of $130,000; that he has received for several years no dividends thereon. He states that certain of those shares have been pledged to the National Bank of Delaware as collateral security for certain promissory notes for which he is liable; that the bank demands from him assurance of the sufficiency of the collateral security so held by it, or that he pay the note. He further states that he wishes to dispose of a part of his said stock, and cannot give satisfactory knowledge to the probable purchasers thereof, as he has no knowledge of the value of the shares; that the respondent has refused to permit him to inspect the books, or to give him the needed information, although he has frequently requested it so to do. He also further avers that certain shares of preferred stock have been issued for less than par, to the detriment of the common stockholders. He claims that his purpose is to ascertain the actual value of the stock that he holds. For that purpose he asks to be permitted to inspect and copy (1) the minutes of the stockholders and directors of the said company from August 1, 1906, to this time; (2) the ledger and trial balances of the said company covering the period aforesaid; (3) the preferred stock books of the said company, showing the dates, Separate actions for mandamus by David Lindsay and Horace T. Brumley against the Jessup & Moore Paper Company. The two actions were heard together on motions to quash the return of defendant to the alter-number of shares, and the persons owning native writs. Motions denied. Argued before LORE, C. J., and BOYCE, J. William S. Hilles, for relator Lindsay. Robert H. Richards, for relator Brumley. Willard Saulsbury and Charles M. Curtis, for respondent. LORE, C. J. These two cases were argued together, as they embrace many questions in common, while the points of difference are few and easily distinguished. At this stage we are asked to quash the return of the re the preferred stock of the said company; (4) also the statements rendered to the directors covering the business of the said company for the period aforesaid. The return of the respondent avers that Lindsay was the secretary and superintendent of the respondent company until December 5, 1906, and a director of the company until July 26, 1907; that as such he knew and participated in the issue of the preferred stock, was familar with the amount and holders of both common and preferred stock, •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes and also with the entire business of the company; that he has all the knowledge needed to ascertain the actual value of his stock; that from such familiarity with the business as aforesaid, and from other information furnished him by the respondent, he is fully informed as to the data necessary to ascertain said value; that, before Lindsay had severed his official connection with the respondent company, he, with his two sons, who had theretofore been employés of the respondent, had organized a rival competitive company in the same business, which company is now one of the most important competitors of the Jessup & Moore Paper Company. ascertain the actual value of his stock, which he wishes to sell, and that the knowledge so sought may be communicated to probable purchasers. The return of the respondent positively denies the charge of any illegal proceedings or combinations in restraint of trade. The return also shows that the 100 shares of preferred stock were issued at par, and that the proceeds thereof were duly and properly applied to the business of the corporation. The return admits the discrepancy in the amount of the preferred stock, but claims that the statement on the face of the stock was an inadvertence, which caused no injury. The return avers that the petitioner has been offer of this stock, of which offer he has failed to avail himself. The return also charges that the petitioner is engaged in actual competition with the business of the respondent. The return of the respondent in this case, which for the purposes of this motion must be accepted as true, throws new light upon the attitude of the petitioner and raises grave doubt as to his right to the mandatory writ. The return in this case is open to the same objection as to the unreasonableness of the by-law, the absence of the books asked for, and the evasive and argumentative character of some of its statements. The averment of the respondent that cer-ed the data necessary to ascertain the value tain books and papers, the inspection of which is asked for, are now in Philadelphia, would not avail. If their inspection was necessary, the court would order their production. The by-law set up as a defense, which absolutely vests in the discretion of the directors the right of a stockholder to inspect or examine the books of the company, and which makes the decision of the directors final, is both unreasonable and unlawful and would be so regarded by this court. The return is in some respects evasive and argumentative, yet it contains denials of such material facts and conditions set forth in the petition of the relator as to make the court hesitate in granting a peremptory writ. In the light of the return, some of the averments of the petition are too vague and general to be decisive. The petition of Horace T. Brumley, the relator in the second case, sets forth that he is the owner of 680 shares of the common stock of the respondent company, of the par value of $68,000; that he acquired title thereto in a transaction in which he was an accommodation indorser upon promissory notes for the payment of which said shares had been pledged, and which note he had to pay. We will note the features that particularly distinguish his case from that of Lindsay. He avers that his certificates of stock stated on their faces that the amount of the preferred stock of the respondent company was $250,000, when in fact it was $350,000. This excess he claims was irregularly issued and delivered at less than par; that at the time he took the stock he had no knowledge of this discrepancy, but believed the statement on the certificate to be true. There is no averment, however, that his action with respect to the stock would have been different if he had possessed such knowledge. He further avers that the defendant company are engaged in unlawful proceedings and combinations in restraint of trade. He states that his purpose in these proceedings is to As the cases stand upon this motion, the question is simply whether the petitioners, upon the face of the petition and return at this stage of the case, are entitled to the peremptory writ for the purpose of ascertaining the actual value of their stock. The interests involved and the questions raised are grave. While, on the one hand, it is the duty of the directors of corporations to afford to their stockholders every reasonable opportunity to get accurate information as to the conduct and management of the business of which they merely act as trustees, yet, on the other hand, it is their duty to protect the interests of the stockholders. The books and papers in their charge should not be subject to unnecessary, unreasonable, or untimely Inspection. The directors are clearly entitled to have the assurance that the information sought is not for the purpose of injuring their business, or of building up a rival or competitive concern, or any other improper purpose. Upon careful consideration, we are clearly of the opinion that the court did not err in granting the alternative writ upon the face of the petition in each case; but, in view of the return made by the respondent in each case, we think the motion to quash should not be granted. We therefore refuse to quash the return, in either case. (6 Pen. 476) WHITE et ux. v. PEOPLE'S RY. CO. (Superior Court of Delaware. New Castle. Nov. 20, 1907.) POSITS. street, in Wilmington; that when the said wife, who was lawfully crossing said Shallcross avenue, was in the act of stepping over one of the rails lying upon the said crossing, fendant's servants, without warning, so that the said rail was suddenly moved by the de 1. STREET RAILROADS (§ 47*)—MILEAGE-DEA street railway company, straightening ait fell upon her left foot, which was thereby loop and thereby diminishing the mileage cover- greatly mashed and bruised. Plaintiffs fured by a deposit with the State Treasurer, need ther alleged that the defendant placed said not make an additional deposit under the gen- rails at the place mentioned without authoreral corporation law (Laws 1901-1903, p. 758, c. 394), providing for an additional deposit ity of law, and that the same constituted where a railway company builds a branch of its an obstruction of the highway and a nuimain line. sance, rendering the defendant liable for any injury occasioned thereby. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 47.*] 2. MASTER AND Servant (§ 317*)-CONSTRUCTION OF TRACK-NEGLIGENCE OF INDEPENDENT CONTRACTOR. A street railway company, constructing an electric railway on a street by virtue of a franchise granted to it, is liable for injuries resulting from the negligence of an independent contractor doing the work, or of his servants, since in the work the contractor is the agent of the company. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 1254; Dec. Dig. § 317.*] 3. NEGLIGENCE (§ 121*)—Burden of PROOF. One suing for a personal injury alleged to have been negligently inflicted by another has the burden of proving the negligence of the lat ter. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 224; Dec. Dig. § 121.*] 4. MUNICIPAL CORPORATIONS (§ 805*)-USE OF STREETS-RIGHTS OF PEDESTRIANS. A pedestrian lawfully using a street is not bound to hunt for patent dangers, but he may presume that the street is in a reasonably safe condition, in the absence of any knowledge to the contrary; but where he knows of the existence of a danger, or ought to know it, and with such knowledge voluntarily runs into the danger, he is guilty of contributory negligence. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1677; Dec. Dig. 805.*] 5. DAMAGES (§ 95*)-PERSONAL INJURIES. The jury, in fixing the damages for personal injuries sustained by a wife, should award plaintiffs such sum as will compensate them for the pain and suffering of the wife in the past and as may come to her in the future by reason of the injuries complained of, and for such permanent disability as may result therefrom, and for money paid for medical attendance and in procuring labor to do the work she would otherwise have performed. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 222-226; Dec. Dig. § 95.*] Action by Thompson F. White and wife against the People's Railway Company. Verdict for defendant. Argued before LORE, C. J., and SPRU ANCE and BOYCE, JJ. When the plaintiffs rested, Mr. Richards, counsel for defendant, moved for a nonsuit, upon the ground that there was no sufficient evidence to sustain either of the above allegations contained in the narr., such as would justify the court in sending the case to the jury; stating that while Mrs. White, and also one of her witnesses, had stated that the People's Railway Company put the rails at said street crossing, and that the rail in question was being moved at the time of the accident by the People's Railway, yet upon cross-examination it was distinctly shown that they had no knowledge upon either point, except what they gathered from the fact that they subsequently observed that the People's Railway Company operated cars on the track subsequently built there and running over said crossing. LORE, C. J. We decline to grant the nonsuit. The defense set up was twofold: First, that whatever negligence there might have been, if any, was due and chargeable to a person who occupied the relation to the People's Railway Company of an independent contractor, for whose negligence the defendant company was not liable; second, that the defendant was guilty of contributory negligence in stepping over the rails at the time of the accident, inasmuch as she had ample opportunity to walk around them, as she had done when she first passed them on the morning of the accident, that the danger was open and apparent to her, and she was bound to act accordingly. During the progress of the testimony offered on behalf of the defendant, defendant's counsel proved by Richard W. Crook, general manager of the defendant company, that in pursuance of a resolution passed by the board of directors of the People's Railway Company on March 7, 1905, and appearing in the minutes of said corporation, he asked Armon D. Chaytor, Jr., for plaintiffs. Rob- for bids from certain contractors for straightert H. Richards, for defendant. ening the said company's track at the intersection of Shallcross avenue and Lincoln Plaintiffs alleged that on April 13, 1905, street, and received and accepted a bid for the defendant company, in the construction said work from one William H. Quigg, of of a section or branch of its electric railway, Philadelphia. Mr. Richards thereupon asked was moving certain heavy steel rails by horse the witness if said bid and acceptance were power at Shallcross avenue and Lincoln verbal or in writing. |