the ground that he could have sold the property in such a manner as to ascertain its value, and that he would be answerable on his bond only for that real value.

But we are of opinion that the rule has been finally settled 71 in this commonwealth by the decision in Wright v. Quirk, 105 Mass. 44. It was held in that case that the sum named in a replevin bond as the value of the property is competent but not conclusive evidence of that value against the obligors in an action on the bond. Either party has a right to have the value determined by a jury, and the testimony of any witness of competent knowledge is admissible as evidence of such value; and because the judge at the trial had excluded such testimony and refused to leave the question of the value to the jury, but had ruled that the defendants, the obligors of the bond, were bound by the recital of value therein contained, a new trial was ordered. That case is decisive of this question. So it was said in Litchman v. Potter, 116 Mass. 371: "It is not necessary in a replevin writ to allege the value of the goods to be replevied : Pomeroy v. Trimper, 8 Allen, 398, 85 Am. Dec. 714; Blake v. Darling, 116 Mass. 300. If alleged, it may, under some circumstances, be admissible against the plaintiff as evidence of value (Clap v. Guild, 8 Mass. 153; Barnes v. Bartlett, 15 Pick. 71); but it is not conclusive evidence even on the question of jurisdiction."

We are of opinion that the judge erred in ruling that the plaintiff was entitled as matter of law against the defendants to have the property valued at $5,000, and that he should have ruled that the language of the bond afforded no more than prima facie evidence that the property was of that value.

We have been referred by the industry of counsel to a great many decisions upon this question in other states. As we find the rule to have been settled in this commonwealth, we do not deem it necessary to advert to those decisions, although we have examined them all. They are not in accord, and it would be difficult to say which of the two rules contended for before us is supported outside of this commonwealth by the greater weight of authority. But we are of the opinion that as a matter of sound reason the better doctrine is that to which we adhere. If a plaintiff in replevin chooses to make a statement of the value of the property in his writ or in his bond, undoubtedly it should be regarded as an admission by him, and should afford evidence of that value against him and those who, like his sureties, are in privity with him. But it is against all the analogies of the law to treat the mere admission of a party, not essential, as we have seen that this is not essential, to the institution or the prosecution of his proceedings, and not acted upon or intended to be in any

72

way acted upon by the opposite party, as an estoppel: Athol Savings Bank v. Bennett, 203 Mass. 480, 89 N. E. 632. The averment may have been made without seeing the property or knowing anything of the condition into which it has been put by the defendant in replevin. It is customary in our practice to prepare the bond in advance of the service of the writ and before an appraisal of the property has been made under Revised Laws, chapter 190, sections 3 and 9. If this is done, the plaintiff will naturally make the penalty of the bond large enough to cover whatever appraisal may in the future be made. Under such circumstances, the fact that the bond is required to be in double value of the property scarcely justifies the inference that the plaintiff and his sureties are estopped to deny that the value of the property is at least half of the penalty of the bond, especially since we have decided that no harm is done to any party by making that penalty needlessly large: Clap v. Guild, 8 Mass. 153. But in the case at bar the writ contained no allegation of the value of the property; the bond contains no such recital; the appraisal amounted only to $4,000; and the statement in the return of the officer that he took and returned a bond in double the value of the property replevied could not constitute a solemn averment such as to bind and estop the obligors of the bond, even under the most rigid of the decisions which have held those obligors bound by an averment of that value. Even if the plaintiff in replevin had made in his writ such an express averment, we think that, in the language of Smith, J., in Briggs v. Wiswell, 56 N. H. 319, "it would be unreasonable to hold that he should be precluded from laying any evidence before the jury upon the question of value, because he may have been led, for reasons that turn out not to be well grounded, to set the value in his writ higher than it actually is." A fortiori is this so, where, as here, no such express averment is made, but it is a matter of inference to be drawn by coupling the language of the bond with that of the officer in his return, although the obligors had absolutely no control over the language to be used by the officer.

Accordingly, the defendant's exceptions to this ruling must be sustained. It is not necessary to deal with their offers of proof 73 in detail. But it was their duty, upon the rendition of the judgment for a return, to see that the property was restored to the plaintiff in like good order and condition as when taken: Citizens' Nat. Bank v. Oldham, 136 Mass. 515. The plaintiff is entitled to the fair market value of the property in that order and condition as of the time when it should have been delivered to him-that is, on the date of the final judgment in the replevin suit: Swift v. Barnes, 16 Pick. 194; Leighton v. Brown, 98 Mass. 515; Stevens v. Tuite,

104 Mass. 328. The damages should be assessed upon this basis.

4. The defendants have waived their exception to the refusal of the judge to rule that the plaintiff could not maintain this action, or could at any rate recover no more than nominal damages, by reason of the removal of the attachment suit to the United States court. We do not see how that exception could have been sustained: Barney v. Globe Bank, 5 Blatchf. 107, Fed. Cas. No. 1031; Dennistoun v. Draper, 5 Blatchf. 336, Fed. Cas. No. 3804; Schott v. Youree, 41 Ill. App. 476, 142 Ill. 233, 31 N. E. 591; Petrie v. Fisher, 43 Ill. 442; Tedrick v. Wells, 59 Ill. App. 657.

The plaintiff's exceptions must be overruled, and the defendants' exceptions must be sustained; and it is so ordered.

The Proper Measure of Damages in a Suit on a Replevy Bond is the value of the property with interest thereon: Ward v. Hood, 124 Ala. 570, 82 Am. St. Rep. 205, and see cases cited in the cross-reference note thereto.

Replevin Against Public Officers is the subject of a note to Carpenter v. Innes, 25 Am. St. Rep. 256.

As to When Replevin can be Maintained, see the note to Sinnott v. Feiock, 80 Am. St. Rep. 741.

ANDREWS v. MINES CORPORATION, LIMITED. [205 Mass. 121, 91 N. E. 122.]

CORPORATION-Examination of Books of Foreign Company. The right of a stockholder to examine the books of his company will be enforced against a foreign corporation, when its usual place of business, and its books and the officer having their custody, are in this state. (p. 430.)

CORPORATION — Examination of Books. Mandamus is a Proper Remedy to enforce the right of a stockholder to examine the books of his corporation. (p. 430.)

S. Lewenberg, for the petitioner.

J. S. Allen, Jr., and W. N. Buffum, for the respondents.

121 KNOWLTON, C. J. This is a petition for a writ of mandamus upon which a justice of this court, after a hearing, entered an order that the writ should issue, and then, at the request of the respondents, reported the case to this court. As the proceeding is at law, such a report brings before us only questions of law, and the decision of the single justice must be given effect unless some error of law appears.

The petitioner is a stockholder in the respondent corporation, and his petition is that the corporation and the other respondent, 122 who is a director and the treasurer of the corporation, having custody of its books and records, be directed to give him an opportunity to examine these books. The petitioner is a citizen of this commonwealth, and the respondent corporation, which is organized under the laws of the state of Delaware, has a usual place of business in Boston and holds its meetings there. Its books and records are there in the hands of Davison, the other respondent. The president of the corporation also resides in this commonwealth.

The right of a stockholder in a corporation to inspect its books and records for good reasons, and under proper conditions, was considered at length in Varney v. Baker, 194 Mass. 239, 80 N. E. 524, 10 Ann. Cas. 989. The principal question in the present case is whether this right will be enforced in this commonwealth against a foreign corporation and its officers, when its books and the officer having the custody of them are here, and when it has a usual place of business in Massachusetts. The circumstances of the present case call for the exercise of this jurisdiction, if it ever can properly be exercised.

It has often been decided that this court will not take jurisdiction, in ordinary cases, to regulate the internal affairs of a foreign corporation which ought to be managed under the laws and by the direction of the courts of the state or country where it is organized: Smith v. Mutual Life Ins. Co., 14 Allen, 336; Williston v. Michigan Southern & Northern Indiana R. R., 13 Allen, 400; Kansas & Eastern R. R. Construction Co. v. Topeka etc. R. R., 135 Mass. 34, 46 Am. Rep. 439; Kimball v. St. Louis etc. Ry., 157 Mass. 7, 34 Am. St. Rep. 250, 31 N. E. 697; Wason v. Buzzell, 181 Mass. 338, 63 N. E. 909; Electric Welding Co. v. Prince, 195 Mass. 242, 81 N. E. 306. But the right which is sought to be enforced here is one of general, if not universal, recognition from early times. It is referred to in different cases as a right existing at common law. In order to enforce it, the court is not called upon to investigate the internal affairs of the corporation, or to make any order that affects it in the management of its business, or in the relations of stockholders to one another. By virtue of the laws which permit the corporation to do business in this commonwealth and subject it to the jurisdiction of our courts, any proper jurisdiction may be exercised which concerns its dealings with third parties here whereby their rights are affected. 123 Rights of third parties, whether they happen to be stockholders or not, if the rights are such as are recognized by our laws, may be enforced by our courts, unless they relate to such internal affairs of the corporation as ought to be regulated only by the courts of the state or county to

which it owes its existence. Where all that is desired is an examination of books, and the corporation has a usual place of business in this commonwealth, and the books and their custodian are here, there is every reason of policy and convenience why our courts should enforce a stockholder's right to examine them. This conclusion has been reached in carefully considered opinions of courts in other states: Richardson v. Swift, 7 Houst. (Del.) 137, 30 Atl. 781; State v. North American Land & Timber Co., 106 La. Ann. 621, 87 Am. St. Rep. 309, 31 South. 172; State v. Lazarus, 127 Mo. App. 401, 105 S. W. 780. That there was jurisdiction in such a case was assumed, both by counsel and the court, in Schondelmeyer v. Columbia Fireproofing Co., 219 Pa. 610, 69 Atl. 49, although the writ of mandamus was refused on the ground that the facts did not show a need of relief. The only case to the contrary that has come to our attention is In re Rappleye, 43 App. Div. 84, 59 N. Y. Supp. 338. That was decided in New York, where there are statutory provisions for the keeping of certain books in that state by foreign corporations doing business there, to which stockholders shall have access. This case did not come within the statutes, and the existence of such statutes may have been a reason for the decision, although the judges did not say so. We see no good reason why this jurisdiction should not be exercised in this commonwealth in a proper case.

The findings of fact by the presiding justice bring the application within the principles stated in Varney v. Baker, 194 Mass. 239, 80 N. E. 524, 10 Ann. Cas. 989, and the findings seem to be well supported by the other facts and the evidence reported.

It cannot be said as a matter of law that the petitioner did not make a sufficient effort to obtain the books for examination before bringing the suit. He inquired of the president, and of Davison, the treasurer and custodian of the books, besides one or two other stockholders. The books and records were taken from his possession by force on one occasion, after he had begun to examine them. The decision in Dunphy v. Traveler Newspaper Assn., 146 Mass. 495, 16 N. E. 426, is not applicable.

124 There is no ground for a contention that the relief to the petitioner should be in equity. The case of Post v. Toledo etc. R. R., 144 Mass. 341, 59 Am. Rep. 86, 11 N. E. 540, shows the importance of sometimes taking jurisdiction in aid of or against a foreign corporation; but the remedy there given in equity was of a different kind from that sought in the present case, and could not have been obtained upon a writ of mandamus. On the other hand, a writ of mandamus is a proper remedy in a case like the present.

Peremptory writ of mandamus to issue.